Class "B" Intervenors
GERALD A. SILVER, Class Representative
HOMEOWNERS OF ENCINO
(dba Stop the Noise!)
P. O. BOX 260205
ENCINO, CA 91426-0205
In Pro Per for Intervenors
BEFORE THE DEPARTMENT OF TRANSPORTATION STATE OF CALIFORNIA
In the Matter of the Case No. OAH No. L-1998040119
Application of: CITY OF LOS ANGELES, DEPARTMENT OF AIRPORTS (VAN NUYS) Respondent.
CLASS "B" INTERVENOR'S RESPONSE TO CLASS "C" INTERVENORS MOTIONS IN LIMINE
Pre-Hearing Conference
Date: June 18, 1999
Time: 10:00 a.m.
Location:
Airtel Plaza Hotel
COMES NOW, Class "B" Intervenor, who hereby submits their response to Class "C" Intervenor's Motions in Limine. To minimize court time and consumption of judicial resources, Class "B" Intervenor wishes to respond to all six of Class "C"' Intervenor's Motions in Limine with this single opposition. This serves the interests of judicial economy and the parties' interests in efficient use of limited resources.
Introduction
In their Motions in Limine, Class "C" Intervenor seeks to use the irrelevant technical provisions of the Evidence Code, which expressly do not govern here, to prevent Intervenor "B" from bringing before the court significant and highly probative facts that directly address all of the specific factors that must be adjudicated before granting a variance.
It is long settled that strict adherence to the evidence code and civil court rules and procedures should not be mandated in an administrative hearing. Contrary to Class "C" Intervenor's position, the parties are not required to follow the technical rules of evidence (Govt. Code Sec. 11513(c).
If the California legislature had intended administrative hearings to be governed by the evidence and civil codes, it would have declared so. The legislature would not have established an elaborate system to administer administrative matters and set out mechanisms and procedures in the Government Code. In fact this very hearing would be conducted in a Superior Court, not by an Administrative Law Judge, operating under the explicit guidelines of the Administrative Procedures Act.
The Administrative Procedures Act states that an administrative hearing "need not be conducted according to technical rules relating to evidence and witnesses" Gov. Code Sec.11513(c). It was precisely the intent of the legislature to provide an alternative, more expeditious and less costly process to resolve regulatory and administrative matters.
Nevertheless, even if the technical rules of evidence were examined, Class "C" Intervenor's motions should still be denied, as all of our proposed documents are relevant and admissible. The test of admissibility of evidence is whether the presiding officer determines that the evidence of witnesses have substantial probative value or would necessitate undue consumption of time.
Therefore relevant evidence and hearsay is admissible if it does not consume an undue consumption of court time. The issues here include (California Code of Regulations, Title 21, Section 25053:
(1) economic/technological feasibility
(2) noise impact should the variance be granted
(3) value to the public of service for which the variance is sought.
(4) whether the airport proprietor is taking good faith measures to achieve noise standards.
As we show below, each item listed in Intervenor "B"'s Pre-hearing Conference Statement is clearly relevant, responsive to one of the four categories and not excludable as hearsay. It appears that Class "C" Intervenor seeks to preclude this probative evidence from being introduced as a self-serving method of excluding significant evidence that Class "C" Intervenor wishes to keep from the trier of fact. This evidence clearly leads to the imposition of variance conditions that are in the public interest.
Finally, Intervenor "C" includes in the guise of its Motion in Limine a pretrial memorandum concerning the legal issue of federal preemption. Class "C" Intervenor's premature memorandum should be stricken. Most importantly, this legal memorandum does not concern evidentiary matters or Motion in Limine issues whatsoever.
Moreover, the court has not yet requested legal pre-trial memoranda, and permitting Class "C" Intervenor to unilaterally brief this critical issue in this abbreviated forum is severely and unduly prejudicial to Intervenor "B."
Without warning of any kind, we were served with both Respondents [9:45 AM] and Class "C" Intervenor's [4:13 PM] Motions in Limine and premature legal pre-trial memoranda on Friday, May 28, 1999, on the eve of the three day Memorial Day holiday weekend. Our response to these motions is due on Friday, June 4, 1999. We have been required to devote the majority of the four business days allotted to us between June 1-4, 1999, to preparing our response to both Respondent's and Class "C" Intervenor's Motions in Limine.
It is unreasonable to require us in this limited time frame to additionally submit a response to Class "C" Intervenor's surprise, premature legal memorandum on the lengthy, technical, and critical legal issue of federal preemption. Moreover, the issue of federal preemption is the proper subject of oral argument before the Court during the administrative hearing.
Consequently, while we include a brief outline showing that Class "C" Intervenor's surprise, premature memorandum is not well taken, we intend to fully brief this issue when the Court asks for pre-trial memoranda, and we ask that the Court reserve time during the administrative hearing for oral argument on this Response to Motion in Limine to Exclude All Evidence Supporting the Imposition on the Airport of Any Phase-Out of Stage II Aircraft; Any Restrictions on Helicopter Operations; or Any Requirement of Hush-Kitting of Stage II Aircraft as a Condition of Any Variance.
Class "C" Intervenor seeks to exclude Class "B" Intervenor's introduction of evidence relating to the imposition on the airport of any phase-out of Stage II aircraft; any restrictions on helicopter operations; or any requirement of hush-kitting of Stage II aircraft on the grounds that "federal law bars the imposition of any of these operational constraints on the airport as a condition of a variance." They then cite case law and Evidence Code Section 350 purporting that the evidence offered is not admissible.
Aside from the obvious, that Class "C" Intervenor's claim is not well taken because it rests solely upon the technical rules of evidence that do not govern here, the information we intend to introduce is clearly relevant and admissible.
Hush-kitting Stage II aircraft will minimize the 65 CNEL noise contour, as will the phasing out of Stage II aircraft at Van Nuys Airport. In a similar manner, operational restrictions on helicopters will also minimize the size of the 65 CNEL contour.
Therefore, many of the items that Class "B" Intervenor seek to introduce into evidence go directly to the economic and technological feasibility of hush-kitting aircraft and phasing out of Stage II aircraft.
Moreover, as we noted, Class "C" Intervenor's legal argument regarding its assertion that because of federal preemption, the airport proprietor has virtually no control over the noise emanating from the airport is premature. This issue is properly addressed in timely pretrial briefs and oral argument at the administrative hearing. As we noted, previously, however, we will address this issue briefly now for the benefit of the Court.
Class "C" Intervenor relies upon cases that are good law, but conveniently overlook those portions of the decisions that do not support their position. Congress has clearly defined the proprietor rights of airport operators. All of the cases cited by Class "C" Intervenor do not negate the fact that a proprietor has rights that go beyond mere land use matters.
The Code of Regulations, Title 21, Section 5037 outlines numerous methods for controlling noise including encouraging use of the airport by classes of aircraft with lower noise levels, discouraging those with higher levels, encouraging approach and departure paths that minimize noise, etc. Most importantly, Section 5057 states that airports are "not limited to" these methods.
The Class "C" Intervenor seeks to avoid the imposition of variance conditions that would minimize the noise impact in the 65 CNEL contour by claiming the airport proprietor does not have the legal authority to do so under federal law. This is simply not the case.
An important fact that must not be overlooked is that the airport proprietor has grandfather rights regarding the phase out of Stage II aircraft and the imposition of curfews on Stage II aircraft. Much of the evidence that Class "B" Intervenor seeks to introduce goes to proof of the airport's grandfathered rights regarding Stage II aircraft phase out and regulation.
The airport proprietor proposed various noise reduction measures that apply to Stage II aircraft, prior to Oct. 1, 1990, the date Airport Noise and Capacity Act (ANCA) came into effect. Thus the variance process can include Stage II noise control measures that might not otherwise apply.
CalTrans may place a variety of controls on the airport through the variance process. The Class "C" Intervenor ignores this and instead dwells on the preemptive effect of federal aviation laws but does not discuss what is permitted under those laws. The Class "C" Intervenor hopes to create the impression that noise control is an entirely federal concern and that there is effectively nothing that CalTrans or the Class "C" Intervenor can do to control noise at the Airport.
Although the FAA exercises considerable control over many aspects of aviation, regulation of airport noise is an area of shared responsibility between the FAA, airport proprietors and state and local governments.
This shared responsibility and authority is reflected in the FAA's regulations under Part 150 and Part 161. Given that reservation of local authority, it is not surprising that the Class "C" Intervenor, while making sure to expound on the preemptive effects of older case law, makes no effort to explain the scope and limits of those regulations.
Aircraft noise is a multidimensional problem involving shared responsibilities. The FAA has the authority to abate aircraft noise through various means such as revising flight operational procedures and managing the air traffic control system and areas, consistent with the highest standards of safety. State and local governments ultimately determine at what level various noise exposure levels are compatible with residential land uses.
Careful analysis of these regulations demonstrates that (1)federal law does not prevent the Class "C" Intervenor from adopting noise abatement measures, some without FAA approval, and (2) that completion of a Part 150 study does not preempt the requirement of the California Airport Noise Regulations that the airport proprietor implement a plan to reduce the noise impact area.
With the passage of the Airport Noise and Capacity Act of 1990, 49 U;S.C. Sec. 47521 - 47533 (1997) ("ANCA") and its implementing regulations, 14 C.F.R. Sec. 161.1 - .505 (1996) ("Part161"), Congress limited (but did not eliminate) the scope of an airport proprietor's power to adopt certain noise rules. Under ANCA, FAA approval is required only for "noise and access restrictions" that affect Stage III aircraft." 49 U.S.C. Sec.47524(c)(2); 14 C.F.R. Sec. 161.301 -.305. Although the requirement of FAA approval limits a proprietor's power to impose such restrictions, the FAA could, of course, approve restrictions on Stage III aircraft at the request of the airport proprietor.
But that is the only situation in which the FAA must approve a noise or access restriction. An airport proprietor may approve noise and access restrictions on Stage II aircraft, after following certain notice and comment procedures, without obtaining FAA approval. 49 U.S.C.g 47524(b); 14 C.F.R. Sec. 161.201-.213.
ANCA leaves the imposition of Stage II restrictions in the sole discretion of the airport proprietor. Similarly, ANCA expressly permits an airport proprietor and airlines to agree to adopt Stage III or Stage II restriction without FAA approval. 14 C.F.R. Sec. 161.107.
(The phrase "noise or access restriction" is defined broadly to include almost any noise restriction that directly or indirectly affects Stage II or Stage III aircraft. 14 C.F.R. Sec. 161.5 (1996).
ANCA does not regulate all operational procedures that might be employed to control noise, however. Operational procedures that do not limit the number of operations, such as night tracks, noise abatement approach and departure procedures and profiles and taxiing and engine run-up procedures, are expressly excluded from ANCA's review and approval procedures. Id. at Sec. 161.7(a).
Under examination, ANCA does not possess the preemptive force the Class "C" Intervenor implies. Indeed, aside from imposing new procedural requirements, the only noise and access restrictions that now require FAA approval are noise and access restrictions affecting Stage III aircraft. FAA approval is not required for the following noise control mechanisms that affect the flight of aircraft:
- Noise or access restrictions on Stage II aircraft.
- Consensual noise or access restrictions on Stage III aircraft.
- Noise Abatement Departure Procedures.
Accordingly evidence relating to federal preemption should not be excluded from an administrative hearing. Moreover, Intervenor "C" will not suffer prejudice if its Motion in Limine is denied. Rather than seeking to prematurely exclude relevant and admissible documents, Intervenor "C"'s proper recourse is to present contradictory evidence to the Court during the hearing. Then, after the Court has had the opportunity to evaluate our evidence in light of our entire case and any contradictory showing by Respondent or Intervenor "C", if the Court deems the exhibits irrelevant or lacking foundation or probative value, they can be excluded at that time.
Response to Motion in Limine to Exclude Any and All Evidence Supporting the Imposition on Airport of a Stage II Non-Addition Rule as a Condition of Any Variance.
Class "C" Intervenor seeks to exclude Class "B" Intervenor's introduction of evidence relating to the imposition on the airport of any non-addition rule on Stage II aircraft as a condition of any variance.
Class "C" Intervenor base their objection on the claims that "federal law bars the imposition of any of these operational constraints on the Airport as a condition of a variance."
Class "C" Intervenor also assert that the imposition of a non-addition rule would violate the 1949 grant deed for Van Nuys Airport.
Class "C" Intervenor's motion is initially faulty as it is a premature legal memoranda of law on a critical issue. Moreover, it is not well taken as the information concerning the imposition on the airport of a non-addition rule on Stage II aircraft is relevant as a non-addition rule on Stage II aircraft will minimize the 65 CNEL noise contour.
Class "C" Intervenor also make faulty assumptions on both the federal preemption issue and the grant deed issue. The Class "C" Intervenor assert that the airport proprietor has virtually no control over the noise emanating from the airport. They rely upon cases that are good law, but conveniently overlook those portions of the decisions that do not support their position.
Congress has clearly defined the proprietor rights of airport proprietors. All of the cases cited by Class "C" Intervenor does not negate the fact that a proprietor has rights that go beyond mere land use matters.
The Code of Regulations, Title 21, Section 5037 outlines numerous methods for controlling noise including encouraging use of the airport by classes of aircraft with lower noise levels, discouraging those with higher levels, encouraging approach and departure paths that minimize noise, etc. Most importantly Section 5057 states that airports are "not limited to" to these methods.
The Class "C" Intervenor seeks to avoid the imposition of variance conditions that would minimize the noise impact in the 65 CNEL contour by claiming the 1946 grant deed of the airport from federal government precludes such conditions. This is simply not the case.
As in the interpretation of all contracts, deeds, and the like, they must be viewed in the context of the transaction. When the federal government deeded the airport to the City of Los Angeles in 1946, they had no way of anticipating the vast increase in noise, jet traffic or impacts on the surrounding community. It is only fair to assume that the grant deed allows for a reasonable interpretation on its implementation.
The imposition of a non-addition rule that precludes adding more Stage II jets to the Van Nuys fleet is certainly a reasonable interpretation, given the changed residential character of the surrounding community.
If the grant deed terms were as "iron clad" as Intervenor "C" would like to believe, then by that reasoning the airport should not have been permitted to change its night curfew hour from 11 PM to 10 PM. Nor should they have been allowed to establish a night curfew limiting the departures of aircraft over 74 dBA at all.
These rules were implemented without protest from the FAA, and no challenges to the grant deed were ever raised by the federal government to prevent changing the curfew hour, or even placing a night curfew in effect from 11 PM to 7 AM. A non-addition rule should be treated in the same manner, since it is reasonable, and if applied in a non-discriminatory manner.
Another fact that must not be overlooked is that the airport proprietor has grandfather rights regarding the non-addition rule of Stage II aircraft. Much of the evidence that Class "B" Intervenor seeks to introduce goes to proof of the airport's grandfathered rights regarding the non-addition rule applies to Stage II aircraft.
The airport proprietor proposed a non-addition rule as a noise reduction measure that applied to Stage II aircraft, prior to Oct. 1, 1990, the date Airport Noise and Capacity Act (ANCA )came into effect. Thus the variance process can include a Stage II non-addition rule as a noise control measure that might not otherwise apply.
The Class "C" Intervenor seeks to address matters of law in an inappropriate forum. Issues such as federal preemption should be placed before the trier of fact in a timely manner, with all parties given a fair opportunity to brief the issues, and present evidence and oral argument at the trial. Intervenor "C" should not be permitted to use a Motion in Limine to address the matter of federal preemption.
The arguments made in the preceding section apply here as well, and are incorporated by reference.
Accordingly, evidence relating to federal preemption should not be excluded from an administrative hearing. Moreover, Intervenor "C" will not suffer prejudice if its Motion in Limine is denied. Rather than seeking to prematurely exclude relevant and admissible documents, Intervenor "C"'s proper recourse is to present contradictory evidence to the Court during the hearing. Then, after the Court has had the opportunity to evaluate our evidence in light of our entire case and any contradictory showing by Respondent or Intervenor "C", if the Court deems the exhibits irrelevant or lacking foundation or probative value, they can be excluded at that time.
Response to Motion in Limine to Exclude Any and All Evidence Offered by the Homeowners to Support the Claim that Noise from the Van Nuys Airport Has Harmed the Health of its Neighbors"
Class "C" Intervenor seeks to exclude Class "B" Intervenor' introduction of evidence relating to the claim that noise from the Van Nuys Airport has harmed the health of its neighbors, on the grounds of relevance, that we supposedly did not respond to discovery, and hearsay. The items sought to be excluded by Class "C" Intervenor are statements of noted medical and health authorities.
Intervenor "C"'s objections must fail as this information directly bears on the key determination that must be made by the trier of fact of the "noise impact should the variance be granted, " Code of Regulations, Title 21, Section 5053(b). The items describe the impact of noise on the health of individuals. They bear relevance because there are residents living within the 65 CNEL contour.
Secondly, Class "B" Intervenor did not improperly refuse to provide discovery responses pertaining to this issue as it relates to residents living within the 65 CNEL contour. Class "B" Intervenor did in fact refuse to respond to irrelevant discovery pertaining to the health of residents living outside of the 65 CNEL contour, but within three miles of the contour. In an earlier Pre-Conference Hearing, Class "B" Intervenor agreed to limit its discovery and legal arguments exclusively to matters within the 65 CNEL contour. This is consistent with the State noise law that addresses the airport noise impacts only within the 65 CNEL.
Finally, our documents are not hearsay as the incontrovertible exhibits contain widely accepted facts on the impacts of noise on people, are publicly available, considered authoritative, relied upon as accurate in the course of business and/or publications concerning facts of general notoriety and interest.
Evidence code sections 1271 and 1341.
The documents we intend to introduce, therefore, contain information concerning the health impacts of noise within the 65 CNEL, the essence of the state noise law, which is highly relevant, not hearsay, and are admissible. The only discovery we did not respond to sought irrelevant information which was not the proper subject of discovery. Our documents accordingly should not be excluded at this time.
Response to Motion in Limine to Exclude Any and All Evidence Offered by the Homeowners to Support the Claim that Noise from the Van Nuys Airport Has Negatively Impacted Housing Prices"
Class "C" Intervenor seeks to exclude Class "B" Intervenor's introduction of evidence relating to the claim that noise from the Van Nuys Airport has negatively impacted housing prices on the grounds of relevance and that we supposedly did not respond to discover.
Intervenor "C"'s claims are unmeritorious. The documents are relevant as they affect the key issue of "value to the public of services for which the variance is sought" Code of Regulations, Title 21, Section 5053(c).
Specifically, the items sought to be excluded by Class "C" Intervenor are statements and studies commissioned by the FAA that specifically address the value of housing prices of properties located near airport. See: Intervenor Class "B"'s exhibit #97 "The Effect of Airport Noise on Housing Values: A Summary Report, Booz-Allen & Hamilton Inc., Sept. 15, 1994. The evidence offered in this exhibit goes directly to the issue of value to the public of services.
It would be irrational and illogical to only assess benefits of an airport without considering the negative economic consequences. The value of any good or service can only be assessed by a careful weighing of costs and benefits. It is incumbent upon the trier of fact to weight both the economic benefits from the presence of an airport in a community as well as the reduced value to properties located within the 65 CNEL. To do otherwise would be to make meaningless the State noise law.
In addition, contrary to Class "C" Intervenor's statements, Class "B" Intervenor did not refuse to provide discovery responses pertaining to this issue as it relates to housing prices within the 65 CNEL contour. Class "B" Intervenor did in fact refuse to provide discovery responses pertaining to the residential housing prices outside of the 65 CNEL contour, but within three miles of the contour.
In an earlier Pre-Conference Hearing, Class "B" Intervenor agreed to limit its discovery and legal arguments exclusively to matter within the 65 CNEL contour. This is consistent with the State noise law that addresses the airport noise impacts only within the 65 CNEL.
The Court should not exclude our documents which contain information relevant to the issue of housing prices into evidence. If during the trial process the Court deems the exhibits irrelevant or lacking in probative value, they can be excluded.
Response to Motion in Limine to Exclude Any and All Evidence Offered by the Homeowners to Support the Claim that Noise from the Van Nuys Airport Damaged the Homeowners Businesses
In light of the fact that Intervenor "B" agreed not to assert claims arising from any alleged damage to homeowner businesses, and no such claims have been the subject of this variance, Class "C" Intervenor's motion on this issue is unnecessary.
Response to Motion in Limine to Exclude Hearsay Evidence in the Form of Newspaper Articles, Magazine Articles, Journals or Other Periodicals.
Class "C" Intervenor seeks to exclude Class "B" Intervenor' introduction of evidence presented in the form of newspaper articles, magazine articles, journals or other periodicals, asserting they are inadmissible hearsay.
In addition to the obvious that these documents should not be excluded because the technical rules of evidence do not apply here, these documents are not hearsay as they are incontrovertible, widely accepted statements by noted medical and health authorities. They are publicly available, considered authoritative, relied upon as accurate in the course of business and/or publications concerning facts of general notoriety and interest. Evidence code sections 1271 and 1341.
They are also inherently trustworthy and accordingly such evidence should not be excluded from an administrative hearing where it would unfairly prejudice Intervenor "B"'s case. Moreover, Class "C" Intervenor will not suffer prejudice if its Motion in Limine is denied. Rather than seeking to prematurely exclude relevant and admissible documents, Class "C" Intervenor's proper recourse is to present contradictory evidence to the court during the hearing. Then, after the court has had the opportunity to evaluate our evidence in light of our entire case and any contradictory showing by respondent, if the court deems the exhibits irrelevant or lacking foundation or probative value, they can be excluded.
Conclusion
For the foregoing reasons, each and every one of Intervenor "C"'s motions should be denied in their entirety.
Dated: June 4, 1999 Intervenor Group "B"
Gerald A. Silver, President Homeowners of Encino, Inc.