HOMEOWNERS OF ENCINO
(dba Stop the Noise!)
GERALD A. SILVER, PRESIDENT
P. O. BOX 260205
ENCINO, CA 91426-0205
In Pro Per for Petitioners
:SENATOR TOM HAYDEN
ENCINO PROPERTY OWNER ASSN.
HOMEOWNERS OF ENCINO
SHERMAN OAKS HOMEOWNERS ASSN.
SIERRA CLUB ANGELES CHAPTER
BEFORE THE DEPARTMENT OF TRANSPORTATION STATE OF CALIFORNIA
Regarding the Noise Variance ) Case No. OAH
No. L-1998040119
Application of: CITY OF LOS ANGELES,
DEPARTMENT OF AIRPORTS (VAN NUYS) Respondent.
MOTION FOR JOINT INTERVENOR STATUS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
THEREOF
Pre-Hearing 8-31-98 Time: 10:00 a.m. ) Place: Airtel Plaza Hotel Mullholland Room
Before Janis S. Rovner
Administrative Law Judge
COMES NOW Petitioners, SENATOR TOM HAYDEN, HOMEOWNERS OF ENCINO, dba Stop the Noise!, ENCINO PROPERTY OWNERS ASSN., SHERMAN OAKS HOMEOWNERS ASSN., and SIERRA CLUB ANGELES CHAPTER.>hereinafter referred to as Joint Petitioners, to request Joint Intervenor status in the above referenced Variance Hearing.
This request is based upon several grounds:
(1) there is no statutory, nor case law guidance on who is an eligible intervenor;
(2) at the 1987-89 variance hearing the Administrative Law Judge approved Homeowners of Encino's similar request, and
(3) the discretion to afford joint intervenor status lies with their Judge hearing this matter.
It is respectfully submitted that upon review of the above arguments, and having heard oral argument on the issue (if permitted), Joint Petitioners will be afforded joint intervenor status.
THERE IS NO ARGUMENT THAT ONLY AFFECTED PARTIES WITHIN THE 65 CNEL MAY TRIGGER THE VARIANCE PROCEEDING, BUT THERE IS NO CLEAR LANGUAGE AS TO WHO HAS INTERVENOR STATUS.
Title 21, California Code of Regulations, section 5055 states in part:
"On its own motion, or upon the request of any person or governmental agency residing, owning property within, or having jurisdiction over the noise impact area, the department shall hold a public hearing...on [an] application for variance."
Numerous individuals/organizations have filed requests for intervenor status. The following represents potential intervenors that should be included:
Encino Property Owners Assn.
Senator Tom Hayden
Homeowners of Encino
Sherman Oaks Homeowners Assn.
Sierra Club Angeles Chapter
Section 5010 of the regulation states:
"The purpose of the regulation is to provide a positive basis to accomplish resolution of existing noise problems in communities surrounding airports and to prevent the development of new noise problems. To accomplish this purpose, these regulations establish a quantitative framework within which the various interest parties (i.e. airport proprietors, aircraft operators, local communities, counties and the state) can work together cooperatively to reduce and prevent airport noise problems."
Clearly the overriding goal is to involve a broad segment of the community in the process, rather than a narrowly defined section of the community.
Petitioners believe that the Department of Transportation (DOT) has latitude in interpreting its regulations in its broadest context in order to achieve the purposes of the regulations. The DOT may include intervenors that reside outside of the 65 CNEL contour, as long as the purpose is to achieve a reduction in the size of the 65 CNEL contour.
THERE IS NO STATUTORY NOR CASE LAW GUIDANCE TO RESOLVE THE QUESTION OF JOINT INTERVENOR STATUS.
There is no statutory guidance for defining who may or may not intervene in a variance hearing, only that DOT policy supports intervention. To demonstrate this point, DOT notices of pending variance hearings specifically invite individuals or groups to apply for intervention status.
Notices mailed to residents describing participation sometimes include language that addresses the issue of participation. In the case at hand, the paragraph below was included in the communication sent to the Van Nuys community and others. The paragraph demonstrates the latitude DOT has in defining the intervenor class:
"PARTICIPATION. Any person or association believing itself to be affected or aggrieved because they are located within the state-defined airport noise impact area (the area exposed to 65 decibels or more as measured on the community noise equivalent level scale) by the proposed variance is hereby afforded the opportunity to intervene in this matter."
This notice goes on to state the "request will permit the Administrative Law Judge to determine the eligibility of the requester to become a party-intervenor to the hearing." This language together with the stated purpose of the regulation indicates that the DOT consider a broad group of residents, as well as the aviation interests in the process.
Case law only magnifies the lack of guidance. In Galster v. Woods, 173 Cal.App.3d 796 (1985) and Neeley v. Board of Retirement, 36 Cal.App.3d 815 (1974) the courts acknowledged that absent statutory/regulatory authority on the subject, the department has great latitude in granting intervenor status.
Petitioners believe that the intent and purpose of the state regulations require a broad reading of Title 21. DOT can, and should include as Joint Intervenors in this action, the parties listed on page 2.
PRECEDENT EXISTS FOR INCLUSION OF PARTIES OUTSIDE THE 65 CNEL GRANTING JOINT INTERVENOR STATUS
In the 1987-89 variance hearing conducted at Van Nuys Airport by the DOT, Homeowners of Encino was permitted to participate as a joint intervenor together with other groups and individuals. In the previous variance hearing two intervenors were certified by the Court.
Intervenor I:
BAN Airport Noise
Homeowners of Encino
Reseda Community Association
Donald H. Schultz
Van Nuys Homeowners Assn.
Intervenor II:
Steven Buscaino
Joint Petitioners assert that no harm or prejudice was caused by the inclusion of the above intervenors, and that no harm or prejudice will be caused by allowing Joint Petitioners to participate in the instant hearing. In fact, Joint Petitioners work closely with residents/organizations within the 65 CNEL contour, and seek to continue working in concert with those affected until this matter is resolved.
By consolidating the number of individuals and organizations acting as intervenors, the variance hearing process is facilitated and certain economies realized by the DOT and the Respondent.
The impact of the Van Nuys Airport on residents in sections of the San Fernando Valley has resulted in organizations working together with one another towards the goal or forcing the airport to minimize noise, including that within the 65 CNEL.
Many members of one organization are members in good standing of other organizations. Residents share common aircraft noise problems, regardless of whether they "reside, own, or have jurisdiction" in the 65 CNEL contour.
Collectively elected officials, individuals and organizations have developed a certain level of expertise in noise matters, including strategies for reducing noise in the 65 CNEL contour. While not attorneys, they maintain useful records, and have extensive experience in addressing community noise problems.
It is fundamentally unfair to summarily exclude certain organizations and elected officials from the process. They play a key problem solving role for constituents. If the purpose of a variance is to permit an airport to continue to operate while working to eliminate its noise impact area, then the assistance of these organizations and individuals is necessary in the process and should be afforded intervenor status.
Another reality, not to be ignored, is that residents living within the 65 CNEL contour may not have the financial resources or expertise to serve as intervenors and to address the well funded and experienced legal capability of Respondent, City of Los Angeles. Justice is better served if non professional, nonprofit community groups, and elected officials can assist local residents in the process and in the ultimate goal of reducing the 65 CNEL noise impact area.
THE COURT HAS DISCRETION IN DETERMINING THE INTERVENOR STATUS OF REQUESTING PETITIONERS
There is no statutory/regulatory authority, and there is no case law clearly defining who may intervene in a variance hearing. In the 1987-89 variance hearing Petitioners representing individuals outside the 65 CNEL were allowed to participate as Joint Intervenors. It is respectfully requested that the Administrative Law Judge rely on the intent of Section 5010, which articulates a goal of including a broad segment of the community in the variance process, not a narrowly carved out section of those affected by the noise impact area.
The interests of the DOT and Respondent are similar, and to some extent antithetical to those of residents living within the 65 CNEL. Significant noise reduction in the 65 CNEL contour can result by including the Joint Petitioners in the process.
REQUEST FOR JOINT INTERVENOR STATUS is hereby requested on behalf of the groups and individuals listed below.
Date__________________________________________
HOMEOWNERS OF ENCINO GERALD A. SILVER, PRESIDENT
SENATOR TOM HAYDEN
ENCINO PROPERTY OWNER ASSN WILLIAM JASPER, PRESIDENT
SHERMAN OAKS HOMEOWNERS ASSN. ANNE CARVER, COMMITTEE CHAIRWOMAN
SIERRA CLUB ANGELES CHAPTER
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