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10/10/1985 - Airport Relations Commission CITY OF EAGAN AIRPORT NOISE COMMITTEE AGENDA THURSDAY OCTOBER 10, 1985 I. ROLL CALL & APPROVAL OF MINUTES - Member Appointment II. COMMITTEE UPDATE - MAC Part 150 Study - Airport Traffic Issues - Metropolitan Tax for Stage III Incentives - North Eagan Subdivisions - MAC Initiatives to Reduce Operations - 180 Degree Heading Status - Run -Up Suppressor III. NEW BUSINESS - Noise Monitoring Equipment IV. DISTRIBUTION - Liability for Aviation Noise Reprint - Minnesota Journal Article - Citizen Flyer V. OTHER BUSINESS VI. ADJOURNMENT MEMO TO: CHAIRMAN BAKER & ALL MEMBERS OF THE AIRPORT NOISE COMMITTEE FROM: ADMINISTRATIVE ASSISTANT HOHENSTIEN DATE: OCTOBER 4, 1985 SUBJECT: AIRPORT NOISE COMMITTEE MEETING FOR OCTOBER 10, 1985 A meeting of the Airport Noise Committee is scheduled for Thursday, October 10, 1985, at 4:30 p.m. The meeting will be held in Conference Rooms A and B of the Municipal Center Building. The following discussion is intended to provide background on those items to be reviewed at the meeting on Thursday. MINUTES A copy of the regular minutes of the Eagan Airport Noise Committee meeting for September 19, 1985, is enclosed for your review. These minutes, subject to any change, require adoption by the Committee. Member Appointment In order that it might formalize the appointment of Carolyn Braun as a member of the Eagan Airport Noise Committee, the Eagan City Council, in action taken at a regular City Council meeting on October 1, 1985, appointed Carolyn Braun to the Committee for the remainder of 1985. Ms. Braun has been an active member of the Committee over the past several months and will be eligible for reappointment with other Committee members in January. Staff is happy to see interested citizens becoming involved in City committees and we look forward to Carolyn's continued participation. COMMITTEE UPDATE Metropolitan Airports Commission Part 150 Study Committee members will find attached in their packets a copy of the letter forwarded to the Metropolitan Aircraft Sound Abatement Council with the Noise Committee's recommendations for the Part 150 Study. Referenced in that document is the Richard Taylor article entitled Liability for Aviation Noise. That document in its entirety is included in your packet and discussed below under Distribution. AIRPORT NOISE COMMITTEE OCTAOBER 4, 1985 PAGE 2 Airport Traffic Issues Metropolitan Tax for Stage 3 Incentives At the August 27, 1985, MASAC meeting, Jan DelCalzo discussed her proposal for a metropolitan tax to provide air carriers with incentives to purchase stage 3 aircraft. Her premises for putting forward this suggestion were that the resources be generated where the greatest benefit would occur and that the solution be at the source of the problem, namely noisy stage 2 aircraft. She pointed out that the third of a mill additional tax would amount to $5 per year on a $80,000 home. There was substantial opposition from the audience to this proposal and Commissioner DelCalzo admitted that she did not expect the proposal to be implemented, but appreciated the debate it generated for the fact that alternatives to her proposal had been suggested. She also argued that source alternatives are the best near term solution to sound problems because both the construction of a new airport and the private acquisition of stage 3 aircraft will occur over a 15 -year time period. While no action is necessary on this particular item, the Committee may wish to discuss the concepts which it raises. North Eagan Subdivisions At the June 27, 1985, Airport Noise Committee meeting, the concept of providing targeted relief to the residential subdivisions of northern Eagan was proposed. In particular, the McKee Addition is a traditional recipient of a substantial amount of the airport noise. It has received an even greater volume of air traffic noise during the recent summer months due to the increased volume of airport traffic. An additional burden to this area lies in the fact that it is not spared significant noise impacts, even when the departure corridor is well observed. Therefore, a local resident has proposed that alternatives be investigated which would encourage the conversion of certain traditional residential properties to their industrial designation as is indicated on the City's comprehensive land use guide plan. One of the alternatives in this area is to provide tax increment financing to purchase affected homes or to encourage a private developer to purchase, raze, and redevelop such an area. Because of the sensitive nature of proposing public financing to relieve specific residential neighborhoods, it is important that the committee seriously consider and investigate such a suggestion before recommending its implementation. AIRPORT NOISE COMMITTEE OCTOBER 4, 1985 PAGE 3 The committee should be aware that the City Council agreed to tax increment financing at the time of the race track competition. The Council has indicated that that may have been a one -time decision. It may not be approved in the future. ACTION TO BE CONSIDERED ON THIS MATTER: To approve or deny a recommendation to pursue an investigation of the City financing alternatives for northern Eagan subdivisions affected by airport noise. MAC Initiatives to Reduce Operations Mr. Jeff Hamiel of the airport staff indicated at the September 17, 1985, Operations Committee meeting that the Metropolitan Airports Commission intends to pursue avenues to reduce aircraft operations from the current level of 1,100 to a range of 600 -700. The Commission went on record at its September meeting supporting the introduction of regulatory curbs on operations. Mr. Hamiel gave no indication as to how this regulation was to be accomplished under the current federal law. Staff will monitor the Commission's efforts in this regard. No action is necessary on the part of the Committee at this time. 180 Degree Heading Status The Metropolitan Airports Commission receommendation that the 180 degree heading procedure be implemented has not yet been forwarded to Mr. Les Case of the Federal Aviation Administration. As you will recall, the recommendation approved by the Airports Commission included the elimination of the 200 degree heading and its replacement with the 180 degree heading. It further included recommendation that a full environmental impact statement be completed before the procedure would be adopted. These two conditions have caused Mr. Case to be less enthusiastic about the implementation of the procedure. Staff concludes that Mr. Case is reluctant to accept the recommendation because it gives his controllers no more departure corridors than they currently have and it requires the time and expense of the environmental impact study. He is free to implement the procedure without reference to either condition, but this is likely to be an area in which we could exert influence through our representative, Mr. Frenzel. The 180 degree heading controversy has softened significantly since the increase in air traffic volume has resulted in the almost exclusive use of the parallel runways. The preferential runway system which includes the runway 22 departures is used less than a few hours per day, according to Mr. Case. AIRPORT NOISE COMMITTEE OCTOBER 4, 1985 PAGE 4 In related action, the Operations Committee of MASAC has considered the Standard Instrument Departure (SID) proposed by Mayor Morrison of Burnsville. This procedure would divert aircraft which may use the 180 degree heading to a departure path over the Minnesota River. This procedure is intended to derive the benefits of the 180 degree heading procedure without resulting in direct overflights of east Burnsville and west Eagan. FAA personnel have indicated that the procedure is technically feasible but interfers with other departure corridores down range. A copy of the documents from the September 17 Operations Committee on this item are attached for your consideration. Staff will continue to monitor the developments in the heading procedure consideration. No action by the Committee is required on this item at this time. Run -up Suppressor At the July 23, 1985, meeting of the Metropolitan Airports Commission, a proposal to prepare a response to the Minnesota Pollution Control Agency concerning the run -up noise suppressor was discussed. The feeling of the commission seemed to be that the cost of the suppressor was not justified by the number of complaints received on run -ups. MAC staff was therefore directed to develop a response which would address the costs and benefits of the suppressor and the alternatives to its construction. Staff is unaware of any further action on this particular item. It should be noted, however, that the presence of this issue on the MAC agenda was brought about by the actions of this committee to bring the state attorney general and the Minnesota Pollution Control Agency to bear on the airports commission. Staff will continue to monitor developments in this area. While no action is necessary on this item, the committee may wish to discuss a potential response to the airport commission's position on this matter. NEW BUSINESS Noise Monitoring Equipment The Committee requested at its last meeting that staff pursue the matter of purchasing noise monitoring equipment with City funds. Staff has been unable to investigate this item to date and the Committee may wish to define its interests in this regard. ACTION TO BE CONSIDERED ON THIS ITEM: To define staff direction of research on noise monitoring equipment purchase. AIRPORT NOISE COMMITTEE OCTOBER 4, 1985 PAGE 5 DISTRIBUTION Liability For Aviation Noise Attached to your packets you will find a reprint of the reprint received from the National Organization to Insure a Sound - Controlled Environment. The reprint includes an article by Mr. Richard Taylor concerning case precedent on aircraft noise liability, an article from The Urban Lawyer reiterating some of the same points, and an article from the Los Angeles Lawyer on airport proprietor liability. All these articles tend to indicate that the airport's commission, as operator, is liable for any damages resulting from airport use. City Attorney Hauge touched briefly on his research into legal avenues and can be available for questions following your review of this document. Minnesota Journal Article Also attached you will find an article from the Minnesota Journal by Mr. Ted Kolderie concerning airport noise problems in the metropolitan area. This article summarizes some of the alternative proposals for coping with the current situation. It also recognizes Eagan's northern industrial corridor as a means to absorb some of the sound. The Committee may wish to discuss the issues raised by this article, but no action is necessary on the part of the committee at this time. Citizen Flyer Mr. Otto Leitner of 2970 Burnside Avenue has distributed a flyer, a copy of which you will find attached. While the flyer was not a product of the City or the Airport Noise Committee, Mr. Leitner has helped to publicize the appropriate phone numbers for citizen's complaints. Ad nist tive ssistant JH/jj cc: Thomas L. Hedges, City Administrator Dale C. Runkle, City Planner Paul Hauge, City Attorney MINUTES OF THE EAGAN AIRPORT NOISE COMMITTEE EAGAN, MINNESOTA SEPTEMBER 19, 1985 A regular meeting of the Eagan Noise Committee was held at the Eagan Municipal Center at 4:30 p.m. at which the following'were present: Joe Harrison, Mayor Bea Blomquist, City Councilman Tom Egan, and Members Carol DeZois, John Gustin, and Carolyn Braun; Guest — Otto Leightner; City Planner Dale Runkle, City Administrative Intern John Hohenstein, City Administrator Tom Hedges and City Attorney Paul Hauge. John Hohenstein convened the meeting in the absence of the Chairman, Tom Baker. NOISE SYMPOSIUM REPORT Mayor Bea Blomquist and Councilman Tom Egan reported on the Noise Symposium that they attended in Reno, Nevada during the past Summer. They reviewed the subjects that were covered and indicated that decibel readings and phasing of aircraft, including revisions to aircraft engines, are some of the important issues relating to reduction in air noise at the present time. Tom Egan also gave a report, including the legal issues, regarding exemptions which were effective December 1, 1984. He stated that the exemptions were allowed only for small airlines, 9 or less planes, and those which had valuable service to the areas they served. On September 30, those exempted airlines are required to apply certified hush kits. About 114 planes were exempted and many now have certified hush kits. In addition, the Mayor discussed the house doctor kits available in some cities for insulation purposes. Suggestions as to reducing noise including setting noise threshold rationing for airlines with maximum decibels allowed and also proposing noise curfew hours were discussed. Tom Egan also noted that even though there may be loss of tax base, this did not create a basis for civil lawsuits by a City for reduction in value, and that such action must be brought by individually damaged property owners. In addition, the Courts in Minnesota now have disallowed class actions for devaluation of property due to air noise. 180 DEGREE TURN Mayor Blomquist discussed the Environmental Impact Statement that was requested for the 180 degree turn and noted that Jan Haugen of Senator Boschwitz office, who is also a Shorewood City Councilmember, has suggested a joint community effort regarding noise abatement procedures. John Gustin, the vice —chair then took over the meeting in order to receive motions. Noise Committee Minutes September 19, 1985 • JOINT NOISE COMMITTEE PROPOSAL Harrison moved, Carolyn Braun seconded the motion to recommend to the City Council that it proceed with the concept of a joint Air Noise Committee with Committees in other communities. Carolyn Braun was appointed to serve on the proposed Committee. All members voted yes. MINUTES & AGENDA Harrison moved, DeZois seconded the motion to approve the minutes of the April 18, 1985 Noise Committee meeting and also to adopt the agenda for the present meeting. All voted in favor. MAC COMMITTEE - MAC PART 150 STUDY It was noted under the Part 150 Land Use Compatibility Study that community involvement is requested on behalf of MASAC, including the definition of the environmental capacity and alternatives for procedures to abate noise. Harrison moved, DeZois seconded the motion to recommend that the rationing of sound as one alternate be submitted as a proposed sound abatement technique, and further that the MASAC and MAC continue to work toward requiring quieter aircraft to be utilized at Wold Chamberlain Airport. All voted in favor. Harrison then moved, DeZois seconded the motion to request that the MAC and MASAC continue to implement controlled flight patterns, including the current agreement regarding controlled flights over the City of Eagan; further, that the MAC and FAA prohibit turns within five miles of each airport runway for take -off purposes. All members voted yes. RUN -UP STATUS It was noted that no efforts have been made to install a run -up suppressor primarily due to cost factors. NEXT REGULAR MEETING It was determined that the Committee would defer consideration of the balance of the Agenda items until the next regular meeting scheduled for October 10, 1985 at 4:30 p.m. at the Eagan Municipal Center. ADJOURNMENT Upon motion duly made and seconded, the motion was adjourned at 6:00 p.m. All voted in favor. PHH �• Secretary 2 6( city of cagan 3830 PILOT KNOB ROAD, P.0. BOX 21199 BEA BLOMQUIST EAGAN, MINNESOTA 55121 Mayor PHONE: (612) 454 -8100 THOMAS EGAN JAMES A SMITH September 20, 1985 JERRY THOMAS THEODORE WACHTER Council Members THOMAS HEDGES City Administrator Mr. Walter Rockenstein EUGENE VAN OVERBEKE Chairman, Metropolitan Area Sound Abatement Council City Clerk 6040 28th Avenue South Minneapolis, MN 55450 RE: EAGAN AIRPORT NOISE COMMITTEE RECOMMENDATION FOR PART 150 STUDY Dear Mr. Rockenstein: In response to your request for community input to the Part 150 Land Use Compatibility Study process, the Eagan Airport Noise Committee has prepared three recommendations pertinent to the study. The first recommendation concerns the definition of environmental capacity. The Committee requests that the Metropolitan Airports Commission direct its noise consultant to investigate and consider the noise rationing plan under joint development by the Town of Islip and the Federal Aviation Administration. The Committee believes that a concept which allocates noise values to the airlines will tend to encourage the use of quieter aircraft to allow high volume within a noise standard. The attached reprint includes a brief description of the concept of pages 6 -7. The second recmmendation pertains to the operations which will tend to abate noise impacts. The Committee strongly recommends the reestablishment of controlled flight within the north Eagan departure corridor. The Federal Aviation Administration has agreed to direct departing aircraft on Runways 11L and 11R to assume and maintain a 105 degree departure heading for a distance of three miles from the end of the runway to avoid overflights of Eagan and Mendota Heights residential subdivisions. Citizen observations have indicated that this departure procedure is not being well observed and that aircraft stray far south of the corridor during the initial, full- thrust stage of take -off. Therefore, the Committee formally requests that the Airports Commission consultant investigate and consider the sound abatement impacts of strict adherence to the 105 degree departure corridor, the three mile climb before turn, and the two -stage take -off procedure, similar to that practiced by Northwest Orient Airlines. This recommendation is couched in the Committee's THE LONE OAK TREE...THE SYMBOL OF STRENGTH AND GROWTH IN OUR COMMUNITY MR. ROCKENSTEIN PAGE 2 belief that certain current procedures will prove effective if responsibly and properly followed. In addition, it is not necessary for the study to be complete for this procedure to be reestablished. The third recommendation is that the 105 degree departure heading be maintained for a distance of five miles from the end of Runways 11L and 11R. The additional altitude allowed by an extra two miles over the largely industrial portions of Eagan and Mendota Heights will reduce the noise impact on many residential neighborhoods east and south of the airport. Thank you for your kind receipt of these recommendations. The City of Eagan looks forward to the results of the Part 150 Study. Sincerely, C -. C `k}( -- Thomas L. Hedges City Administration Enc. TLH /db ((( ) ))) Metropolitan Aircraft Sound Abatement Council (MASAC) Chairman: Walter Rockenstein, II 6040 28th Avenue South Past Chairs: Jan Del Calzo, 1979 -1982 Minneapolis, Minnesota 55450 Stanley W. Olson, 1969 -1979 (612) 726-9411 Technical Advisor: Darrell Weslander MEMORANDUM TO: All Members of the Operations Committee FROM: Bob Cavil] and Charles Hanebuth, Co- Chairman DATE: September 10, 1985 SUBJECT: Review of the Standard Instrument Departure (SID) There will be a meeting of the Operations Committee at 4:00 p.m. on Tuesday, September 17, 1985 at the Metropolitan Airports Commission Executive Offices, 6040 28th Avenue South. The purpose of this meeting is to review the Standard Instrument Departure (SID) off Runway 22. If you are unable to attend, please contact Joan Vandersloot, 726 -9411. • /v OPERATIONS COMMITTEE MEETING July 11, 1985 The meeting was called to order at 4:00 p.m. by Co-Chairman, Chuck Hanebuth. The following individuals were in attendance: Tom Baker, Les Case, Bob Cavill, Ron Glaub, Jeff Hamiel, Darrell Weslander, Jon Hohenstein and Steve King. The purpose of the meeting was to discuss the Standard Instrument Departure (51D) as proposed by Mayor Connie Morrison, Burnsville. Darrell Weslander gave a brief description of the departure procedure which was followed by a variety of questions, answers and additional suggestions. Les Case, tower chief, commented that he was quite impressed with the proposal and said that it was one of the most positive contributions from a community he has received. Before a recommendation to MASAC can be made some aspects of the SID must be investigated further. Jeff Hamiel suggested that several commercial air- craft fly the SID as an experiment. Controllers, pilots and MAC staff would provide their analysis of the procedure. The Operations Committee will continue to study the SID suggestion and will reports its progress to MASAC. PROPOSED STANDARD INSTRUMENT DEPARTURE (SID) Runway 22 • Minneapolis /St. Paul International Airport After take-off, turn left heading 180 at 4 DME of MSP VORTAC (115.3), turn right heading 220 climb to 5000' expect radar vectors to assigned routing. /tl 4 L Agllg-* NORTHWEST ORIENT Minneapolis -St. Paul International Airport St. Paul, Minnesota 55111 August 15, 1985 Mr. Darrel Westlander Technical Adviser MASAC 6040 28th Avenue South Minneapolis, MN 55450 Dear Darrel: Attached are the comments I received from the flights that were involved in the Runway 22 SID tests. It's too bad that more flights weren't used but the closure of runway 22 eliminated most of the flights we had set up. Hope this information will be of some value. Regards, NORTHWEST AIRLINES, INC. / 244- Robert S. Cavill Director of Flying Operations attachments USA Coast - to-Coast • Alaska • Hawaii • Canada • Japan • Korea • Okinawa • Taiwan • Philippines • Hong Kong Cnnlanri • Cr- ntlanri • IrPlanri • rlonmark • (\fnnlJpv • cwPriPn • (PrrilPrlV • Holland g// ' �~ ^ `�� ' / ^ pi/d- �-//�m«^ '~ ~ Pilo: �.� mer!. .' -�.� Pun+ay 22 .� ' ~/ � - �~^-- ~�7' �� +� ��dp—' �^° � '- , x. 1. D:n «ou hpve an �rcbiem understanding or flying the ru'�v�� J\ ^�/' ` 2� S|C? / 1^ Dic'ti-c 22O - i-eading place the Nlinocsota Riv r cr north of the r|l,ar or .ouch o the riverY L ' . ^ ~ __� _ / ______-~__—_--___^ _--_- 3. Do vru :ae} the/ : Ys d , b*n fYt to r�s��pn�s of �ur.,s�i)}e .'`n 2!: c oci:tcn? ' ' ^ � _____-__-__' ~ ' 4. Approximsc�iv how many additional miles would you sav U is preceoure - Jdded to tkc deccrtura. C w* '0&o C-1 ' , ~-~ - ' . 5. At what KSP VSR DM[ distance did you rmzch 3 AGL and adc climb poor? ______ /l �'�\^on�� ~ __ �,'~� ^ ' y�'8�cn�� '� �/r ,��^~, ~�~^._Q_. ' - u �- =� 7 _) _ 6' :�a� was your ta:eoff weight? '�c / c_ , / `-^—' '} ' ' Please return to Bob Cavil] - Mail Stop - 700/FGB. ' ' ^ Pilot o cr te unway 22 Slf `(� �'� /VG� H/4 6C7 '27 i t ea ? 1. ,; c you have an': "ob ; R ur.ders tan i nc or f l v t rc cur' %n : ! L A 2. Did'th,e 220 heading place you over the Minnesota River or north o'. the river or s uth of the river? Z, tt. i'ty\l L.l>MV; QI_ l/'S /n1JJt 3 M / w L-D, .6 e ////&A/1 3. Dc you feel there is any noise reduction benefit to residents ol' Burnsville nd Elcrmington? • 4 . App _.'. i ate': y :'.C'.'{ many additional miles would you sa procedure adUad to G: MSP VOR 2 "E d;stance aid you reach 3,C00' AGL nd ad climb power? o. '..;:at ;,a your takeoff weight? /27, �iC Please return to Bob Cavifl - Mail Stop - 700 /FSB. (e04vf Ate-, - s1 L(F?v - V° clAJ /2?, -Temp r X47— / /; J W A/Mi) //A- i� , /ti 7 ?4 ()'P --A/ - 0 /& r,() sv *e7 7 7 �,�•�J A �1 CJvP� -E /-(a4/4 j) Fes /ulz) - ? ALL j\jr)? > OS ni e12 '� �r L i UM A - A ec7 P . F (?Dv �� 7 �� { AA I Le Fix F - FP Dc- i v f L 1, ( A- L_... y% tk19;e 4 /6 i • LIABILITY FOR AVIATION NOISE Richard P. Taylor Partner Steptoe & Johnson Washington, D.C. Introduction The courts have historically held the airport proprietor responsible for noise - related damages. Congress has been careful in various legislative actions to recognize local control over airport noise and various Administration actions have taken equal care to express this position and do everything possible to avoid federal liability in this area. With deregulation now in full force and the Federal Government faced with the very real and possibly ever - increasing problem of excessive airport use from a noise standpoint in many parts of the country, a further look at the issue is clearly necessary. Historic Position The Supreme Court in Griggs v. Allegheny County, 369 U.S. 84 (1962) established the basic standard that the local airport proprietor -- in this case the local county government which owned and operated the airport -- was liable in damages to the plaintiff landowner who had been - 2 - deprived of the use and enjoyment of his property by direct aircraft overflight without just compensation. The rationale was that the local government had the authority to acquire adequate land adjacent to the airport to avoid the problem and failed to do so. Mr. Justice Black dissented on the ground that Congress had initiated a comprehensive regulatory scheme dealing with use of air- space and had preempted the issue. Congress has been careful to endorse the majority opinion in Griggs, emphasizing a shared respon- sibility, i.e., that the federal government would deal with matters which required national uniformity of treat- ment (such as noise emission standards for aircraft) but • that the primary responsiblity for control of noise at a particular airport rested with the airport proprietor. See, e.g., the Noise Control Act of 1972, 42 U.S.C. § 4901(a)(3). Even the Airline Deregulation Act of 1978, which prohibits local governments from enacting laws or rules relating to rates, routes or services, nonetheless expressly provided that this preemption shall not limit the authority of local government "as the owner or operator of an airport -- to exercise its proprietary powers and rights." 49 U.S.C. § 1305(b)(1). t The courts have in recent years consistently recognized the power of the airport proprietor to restrict air carrier operations at an airport where necessary to mitigate noise. "Congress has reserved to proprietors - 3 - the authority to enact reasonable noise regulations as an exercise of ownership rights in the airport, because they are in a better position to assure the public need" pro- vided such regulations are reasonable, nonarbitrary and nondiscriminatory in impact. British Airways Board v. Port Authority of New York, 558 F.2d 75, 85 (2d Cir. 1977); British Airways Board v. Port Authority of New York, 564 F.2d 1002, 1013 (2d Cir. 1977). And such noise regulations can limit cumulative noise exposure as well as the decibel level of individual take offs and landings. Global Inter- national Airways v. Port Authority of New York, 727 F.2d 246, 250 -251 (2d Cir. 1984). The First Circuit in DiPerri v. Federal Aviation Administration, 671 F.2d 54, 57 -58 (1962), in holding that noise pollution complaints should be directed against the airport proprietor (here Massachusetts Port Authority), not 1/ the FAA, well - summarized the overall picture: Finally, if any coherent federal policy can be discerned, it is that aircraft noise abatement with respect to particular airports is primarily up to the local pro- prietor, not the FAA. The district court pointed out that requests for noise abatement relief such as moratoriums on airport expansion, airport curfews, or restrictions on the types of planes allowed to use Logan, have to be addressed to Massport rather than to the FAA. Massport, stated the court, "is 1/ For a recent state court decision containing the same fcind of analysis of the current dual responsibility situation, see Krueger v. Mitchell, 112 Wis. 2d 88, 332 N.W. 2d 733 (1983). - 4 - the entity authorized to impose reasonable restrictions on which aircraft may use Logan Airport." The cases strongly support the district court's view. The Supreme Court has said that the airport proprietor -- not the federal government -- is liable for inverse condemnation suits due to over- flights, see Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), and a number of courts have said that local proprie- tors are also liable for nuisance claims brought by local residents. E.g., Greater Westchester v. City of Los Angeles, 26 Cal.3d 86, 160 Cal. Rptr. 733, 603 P.2d 1329 (1979), cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22 (1980); Hub Theatres, Inc. v. Massachusetts Port Authority, 370 Mass. 153, 346 N.E.2d 371, cert. denied, 429 U.S. 891, 97 S.Ct. 249, 50 L.Ed.2d 174 (1976) (Massport enjoys limited immunity from nuisance suits brought by property owners, but Massport may not act to cause unreasonable or unnecessary damage to community). In part because of this assignment of liability, most courts have held that airport proprietors have primary responsibility to reduce airport noise. See Santa Monica, 659 F.2d 100 (oth Cir. 1981) airport proprietor has authority to impose flight curfew and aircraft restrictions without preemption by FAA); British Airways Board v. Port Authority of New York, 558 F.2d 75 (2d Cir. 1977) (upholding temporary ban on operation of Concorde at New York airport). But cf. Luedtke v. County of Milwaukee, 521 F.2d 387, 390 -91 (7th Cir. 1975) (court- ordered regulation of airport operations would { violate preemption of federal authority over aircraft noise). The FAA itself has steadfastly maintained that the local proprietor has primary responsi- bility for the regulation of • noise. In a 1976 Noise Abatement Policy Statement, the FAA and the Department of Transportation stated that - 5 - [a]airport proprietors are primarily responsible for planning and implementing action designed to reduce the effect of noise on residents of the surrounding area. Such actions include optimal site location, improve- ments in airport design, noise abatement ground procedures, land acquisition, and restric- tions on airport use that do not unjustly discriminate against any user, impede the federal interest in safety and management of the air navigation system, or unrea- sonably interfere with inter- state or foreign commerce. We have been urged to under- take -- and have considered carefully and rejected -- full and complete federal preemption of the field of aviation noise abatement. In our judgment the control and reduction of airport noise must remain a shared responsibility among airport proprietors, users, and governments. FAA and DOT Noise Abatement Policy Statement at 5, 18 (Nov. 18, 1976), quoted in Greater Westchester v. City of Los Angeles, 160 Cal. Rptr. at 743, 603 P.2d at 1340. New Developments As indicated above, the Airline Deregulation Act of 1978 -- which provided for unlimited entry in domestic markets -- clearly prohibited airport proprie- tors from attempting directly to control that entry. - 6 - The effect of this "open skies" approach was not immediately seen, due at least in part to rapid increases in fuel prices, a downturn in the economy and the lag time required for any industry to adjust to an 180 - degree change in its competitive environment. The effect now, however, is clearly evident. A number of communities have been deluged with carriers requesting entry, creating serious problems of landside congestion and noise pollution. A number of legal battles developed, with the FAA and the airlines generally ranged against the local community. Efforts by the community to limit air carrier access in terms of numbers of flights have been most strongly opposed and it is generally felt that this approach may not be the soundest vehicle to use. The Westchester approach, which is based on imposing land - side constraints (i.e., terminal capacity allocations) while leaving the airside portion alone, was recently the subject of an agreed stipulation. Another approach, now being worked at in a cooperative endeavor by the Town of Islip and the FAA, involves imposing an airside cap on an airport in terms of total daily ncise impact (expressed as a 65 Ldn noise contour area). Allocations within the cap would be made on the basis of noise -- not numbers of flights. Thus a carrier receiving a noise allocation could increase its permitted number of flights through use of quieter aircraft. The objective would be - 7 - to maintain a certain overall noise level -- not a specific number of flights. It is too early to tell what impact these actions will have on shifting noise pollution liability. With the effects of deregulation now clearly evident, the argument that an "open skies" situation caused by federal action should impose equal federal liability for the noise damages it causes, clearly becomes more attractive. This argument could be quite persuasive if it could be shown that community efforts to resolve the problems created by excessive air carrier operations were being impeded or directly opposed by the FAA. This would be particularly true if the community efforts involved directly acting in the noise impact area (such as the proposed Islip plan) since this is the area which Congress and the FAA with court approval have consistently said is the domain of the airport proprietor, not the federal govern- ment. While the FAA may claim that there are many indirect actions which a community might take to alleviate its noise problems and that FAA help is available in this area (e.g., the Part 150 study approach), these actions are generally not equivalent in actual effect or in community acceptance to some sort of direct limit on air carrier operations. . - 8 - Consequently, efforts by communities to deal in a reasonable, nonsidscriminatory manner directly and effectively to limit airport noise impact should be monitored carefully to determine whether such efforts 2/ are actually receiving federal government cooperation. If not, a new era of liability for noise damage could be opening up since if a community is prevented from taking effective action to solve its own problems in this area, it should not be held liable for the consequences. 2/ A possible indicator of this may be seen in the soon - to released FAA rulemaking in response to the ATA petition which requested overly -rigid overall FAA standards for and supervision of all airport use allocation plans. 4 , • N ~. . V E 7 CI ' 03 U C OQ C O N ❑a L ')7:. C N N E c ' ar L / a c° • CZ ' _ c •O * C " .; v (� O u • c U C h U 7. u . u. p. C O N y 0 G p L _ cI y E - ' N L W a 3 N L u • N cc L U L O L G L L C�'� L • N L N o ci U ' C o !,.: � O as y u a °- �1 r .—. �ri ¢ v i n O ' • N C C 2 '��- :..); 'C L C O > •'' , cS . ' � O E U C cS O o o h c tC C • > C- 7 O c: . ¢ O O U i '- .. U U - • L • _ . z J 7,4' E c p N O • • O �_,,, N - a -• . t O U W U ~' • ' - � N v U o0 C a o L o. C A cs U O .. L U r--+ ^y ..d c 4 c , O 7 •- O pco -0 c3 GD L >. LI •. 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O U Q� ';n „, — o u �, t a'b 0 3 E , o v s °" ..= .D 0. `° ._ - w of) T c ' ' � • _ > ro , n o L • v �s L L u o- o L a L vi c c� c c s u p= C C a n = a O U N y U E L O = O ' 3 O 'fl O ° 'O ro 00 w C u G T T v) O ±_ y y C • C E O 3 n 0 C C aY cr u .0 C- L C ^.. .0•- n L •- .`n '` 0 0` :7 ° u ° _ ° o o `-- s_ i c a E -a -5 c .L c • c �.= en U y el ^ Q 71 cs U U L a � a C C O O O O= O C C 1-, C a . E +" • L 3 '. , .... • J y a m Q U = 3 O • = " - U L n C ro T .0 3 u >' , ..- v, n > :! X c _ c 3 = s ° Q c u c= c L ro c vi 'n ca ° = c a •c .L .E "° � n " E o L O 7 `' ,..,"1) L C LL 0...g. U O U E U U U — n c c n C U C V , J E 0 a° CC • u " C c cs -3 a 6) C u u E .- -c ai • C > o c ' r n .0 Fa E c u c c o a " c U— u O z CU c" L4 ■43 • ` - c U o = • E u L U ro u 3 B ` I . 5 0 E . E CZ u s E V CC C.0 ` C G E ^t ^= E L o o u u L a 0 U u > c o a) u n E = E u n o n. c o c c ro` C. 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O ro - L O .- L U 'J E L L n a` C C •> ° G C - u u ? . ? u p v) u O ro T, O >' L.= ` C ' ` L • = u o , u • v r 17:'''' u L Q i i ! - IU c u o o CA v° 00 y 0 °_ C. ^ ro 5 v 3 c c. u L 00 C c° t Q =_ n 0 C.0 > o n C C o o u w . c • " c C = G r o �` o ro M Q �' ro a �, C c o 3 us o ro-, n v L u LL T c n . n ro J n a • ,„- L G T= � " E E ' H ro c c et C !n u 3 U V C Q in ca L '- 3 Q L .0 Q) A u C C "0 • ' > u = = E o ro a) C L) C cal C n_ w_ pp L n ro Q O L cJ v U • .c a E 2 , ° 2 G t ° 3 w A =- C 'b s . � v ` u " G a . 3 vi 3 u Cn L C �'� .�' U n U . O 'G U ro c H U y ro L C U , w >` ° L n L - V Q = C U c ° U E n n U a u U _ ,n n O a .4 U ° cs L U L . t C L > n F- O n s 3 E 0= n 3 ' > t , C U U 0 C O 0 r% N U ' i C `U' • H d 0 o4 n U c7 E G n i: «. v i r M >•. 0 >, 0 u= u n n CO 0 E n ° ro a) C ro s u ai �O = L a• E r o E _ E L x Z ai ca U U u ¢ :u C cs 04 •7 °p ° c '0 s c ' U O .G c4 n L E C - y �- a) L T > f V L O n U L cat n U G— c L C _ p ... T ..... O O c G. E 0 L Cl.) = 'n 'U U 3 co - 'D o' L O u c 3 ON o C c el a 'I. L c L o 3 a U ° ° E ° G ° C L ° Q t - J C 3 w a n ) - 0 U L U L '++ Q j C C { w 71 u G c 4 'C L L L O u n p L :n • V = u O O u L c O U° .0 C an O L C G U U ro F" % U a C U 4 L- U L "p Q C C) ,. •- C U C p ro C 17; C- O ro E • - ro u C 3 L o Q 3 '-`p E E • ° _ c • - n cc E p .v ' - ' u u? o • u "2 ` U . E• c -2 ° c • 3 u' a 4 ) x 0 u 3 = "c E u • u a o i 6. E 7 L T L c ca ' 3 L U c w L v G U c �.- u v n ° c co CE G o cc: 3> u o a u ' 0 u y o C >, - L O Cr- Q 0 n > n ro U O i7 •% E . L 0 p L L v , p L C' C .')•' 3 0. u o 'v •- C c ' = L c n ' u _ Q E .5 el 7,3 of 2 0 0 ., u u E L G G oo = u s J u v E L u O" o f . o . 5 n ? o ° .5 E= Q c c u s y c o c- .E E z o y o E 3 c.) . , G gin - .. G a) � •�, E Q . ro c 0 0. ° :. ro C c 7 �.- >, o L x • C L n O L c 0 u 0> U O ro L 0..) c3 ' O U CI O ' R n U ' O ` O • U p C • -. C a n M -- a ° �... n C E • • ` ` ro n vv) L �n.. ' c , .0 . `M ►U. U p = `n n E C S .° u n a c•' -0 6. C) 'O U O O `O ro H T . 0 'w L T p n L C.) y C OU T U _ a al n= n G c0 0 L C n 7 L c O G= a L C 3 .+ �. n L i ., ° C . n O L n 0 u O • 3 v O u .r w "O c u '- 23.0.,22„„._—. N 7 u r U . E n J n C `- • U E n u T w C ° U ro U = E. � . •0 ca �«: L U La c u a u c '.. Q v c i u E n a) a U _ u ` E c° a = n T u :7 ` u ., L L c �0c� • 6 Q t. .` ' 2 o C.2 . n ro E o > L c MI L o" u S3 L Q . L U u F. a. u v; ero G. a 3 Cl. .» • .. . C - 'ca u E 3 a C ,.: 3° 3 0 E a H o f I . M - >. >.-= oc G T r Z E " � . l = > •- _ ez v O u O nq 3 s-- vi M •— C -7 V L v to rs vz Z 0 ° 0 o ° _ u E Irl = V) /2, u = u V .0 c " c 3 t) o :J I... •• CJ ... E ^ >-. L; 1.) ^tA t..) O . u D. 3 s t 3 0 -J u ¢ C G _ H < v o • 0 •• .. 5 L A O '. y I.. V ■ : s C u o 7 u = .. u 0 J ` V 1 1 7 ,o = aU ^ u > E c. en u :-.• S O '7 V, �- NOISY that airports can be operated in a proprietors, not with the FAA, the manner that would reasonably pro- airlines, or the airplane manufactur- tect the health, safety, welfare and ers. Recognizing a certain inherent property of persons residing nearby unfairness in this allocation of au- • without seriously affecting the na- thority and liability, the courts have tional air transportation system or created the doctrine known as the • the safety of air travelers. "proprietor exception" to the rule of THE And therein lies the dilemma. federal preemption, which allows air - W hile airport proprietors are liable port proprietors to take certain ac- for damages, they and they alone tions to reduce noise in order to SOUND decide what measures they will take shield themselves from damage to reduce noise and their exposure to claims. The proprietor exception is damage claims. not absolute, however. The rules and AND Liability for damages caused by regulations promulgated by airport n oise occurs only after someone has proprietors must be reasonable. non - been damaged and after that person arbitrary and non - discriminatory. has paid the price in terms of time FURY and money to see a case through INVERSE CONDEMNATION complicated and slow court pro- cedures. That person may be damaged for life and may not live a A number of recent cases have Airport proprietors —not full and productive life because of attempted to delineate the limits of those damages. It would seem rea- this proprietor exception by ruling on the federal government, sonable, therefore. that because of challenges to specific locally imposed not the FAA, not the airlines, the potential for damage to human noise rules. In many of these cases, not the airline health and the environment, airport the challenges were brought by resi- proprietors would want to operate dents or communities adjacent to the manufacturers —are liable their facilities not to avoid liability, airports in question. and were re- for damages caused but to provide a better environment sisted by the proprietors of those by noise. And therein lies for those who live nearby. Unfortu- airports. In some instances an entity y nately, not all airport operators have found itself involved in different the dilemma. taken this humanistic approach, but cases in different capacities —that is, rather, concern themselves solely as an adjacent landowner in one By Leland C. Dolley and with their role of providing a service, action and as an airport proprietor in y y many times at a profit, to the public. another action, and the entity's ap- Douglas G. Carroll The FAA is also demonstrably proaches to the cases can be inconsis- more concerned with a national tent, if not duplicitous. The recent Since 1959 when the advent of the transportation system than with any actions of the City of Los Angeles commercial jet triggered an explo- serious effort to protect human constitute a case in point and high- _ sion of air travel, airports have had a beings who are damaged by noise light the dilemma. significant impact on their neighbor- pollution. Its motivation may be as- The liability of airport proprietors hoods. sociated with the enormous costs is well established and is being ex- The chief complaints about air- associated with a complete federal panded constantly. It is generally ports are that noise, air pollution, preemption. agreed that judicial recognition of traffic patterns and airport expan- The federal government, through this liability began in 1946 with the sions contaminate and degrade the the FAA, claims for itself almost case of United States v. Causbi :' in surrounding communities. exclusive authority to regulate the which the U.S. Supreme Court held Airport proprietors —not the movement of airplanes and the noise the United States could be held liable federal government, not the Federal they make, pursuant to the Federal to an adjacent landowner for inverse Aviation Administration (FAA), not Aviation Act of 1958, as amended by condemnation caused by low -flying the airlines and not the airline manu- the 1968 Noise Certification Amend- military aircraft if the interference facturers —are liable for damages ment and the 1972 Noise Control with use and enjoyment of the prop - caused by noise. Critics maintain Act. It denies, however, any liability erty was severe enough to constitute for aircraft noise- related damages, an uncompensated "taking" of prop - Leland Dolley is a partner in the Los preferring that such burden be borne erty. An action for inverse condem- Angeles firtn of Burke, Williams & by local airport proprietors. . nation against a county was allowed Sorenson. He is the city attorney of El The courts concur with this ar- in Griggs v. Allegheny County' where Segundo and the chairman of the rangement, ruling that attempts by the Supreme Court held that the FAA ABA's Airport Law Cotnmittee. He local government to use police power was not liable because the county. as received his J.D. from the University to regulate aircraft are preempted by airport proprietor. was the entity that of San Diego in 1967. Douglas Carroll federal law, and that financial had established navigational ease - received his J.D. from Loyola Law accountability for damages for air- ments over the p:aintifl's land by School in 1981. plane noise rests with airport overflights of aircraft landing and 34 Los Angeles Lawyer/October/1984 taking oft at the airport. and had the not be held liable on those theories authority to acquire property border- for actions authorized by federal reg- ing the airport. ulations. in San Diego Unified Port Attempts by airport proprietors to District v. Superior Court (Brio),' a shift some of the liability to others California appellate court ruled that Airport proprietors have been unsuccessful. In City of an airport proprietor could not be do not like Los Angeles v. Japan Air Lines Co. held liable in negligence or nuisance Ltd.,' the city, as owner/operator of for flights which comply with federal imposed noise regulations Los Angeles International Airport laws and rules because of the federal that reduce the (LAX). was sued by adjacent land- government's preemption of regulat- owners on an inverse condemnation ing aircraft in flight. use of the airport and theory. The court rejected the city's In 1979, the California Supreme thus the revenue attempt to obtain equitable or con- Court broke the tort barrier in derived from it. tractual indemnity from the airlines Greater Westchester Homeowners As- and manufacturers who owned or sociation v. City of Los Angeles, had built the airplanes making the holding that federal preemption was noise. reasoning that only the city not a shield to block state nuisance had the power to acquire air ease- claims for personal injury and emo- held that complexity of issues does ments. tional distress. This case was quickly not relieve the Small Claims Court of followed by Smart v. City of Los jurisdiction, nor does consolidation. Angeles. which held that an airport since the jurisdictional amount ap- proprietor can be held liable on a plies to each individual claim and not nuisance theory not only for personal the total of those claims. The court esidents, concerned injury caused by aircraft noise but for also held that the landowners were ' pr with the noise property damage as well. not prevented from bringing The liability of an airport proprie- "waves" of claims since they could emanating from tor for noise - related damages was elect to treat the nuisance as continu- nearby airports, generally further delineated in Baker v. Bur- ing and therefore bring successive feel that the more bank- Glendale- Pasadena Airport Au- actions as damages accrue» thoritt; o in which adjacent home - noise restrictions owners sued an airport proprietor for FEDERAL PREEMPTION implemented, the better both inverse condemnation and nui- sance. The appellate court held that an inverse condemnation action The doctrine of federal preemp- could not be maintained against an tion of the field of airspace manage - entity unless it had the power of In a similar inverse condemnation eminent domain, which the defen- '1328 U.S. 256 (1946). suit that same year. the defendant. dant did not. On the nuisance claim, :43619c U.S. 84 (31d96421)6. the City of Los Angeles. futilely ar- the court held that the plaintiff could , al. A p p. ngele. gued that the federal Aaron v. City of Los Angeles, 40 Cal. App. - g government elect to characterize it as continuing 3d 471 (1974), cert. denied, 419 U.S. 1122 should be held liable for damages even though it may not or need not (1975). caused by overflying aircraft since it be abated, thereby avoiding a statute '396 F. Supp. 632 (N.D. I11. 1975). alone had the power to regulate air- of limitations bar. The court also 'Luedtke v. County of Milwaukee, 371 F. craft flight in navigable airspace. The noted that although an activit au- vacated 1040 w 1p n g � p activity vacated and remanded in part on other grounds, court used the same reasoning as in thorized by statute cannot be a nui- 521 F.2d 387 (7th Cir. 1975). the preceding case, noting that the sance, the manner in which the '67 Cal. App. 3d 361, cert. denied sub nom. city had failed to appropriate land activity is performed may constitute Britt v. San Diego Unified Pori District, 434 U.S. 859 (1977). and air space necessary to provide for a nuisance." '26 Cal. 3d 86 (1979), cert. denied, 449 U.S. adequate aircraft approaches. Liability of airport proprietors was 820 (1980). Other states have followed Cal - And in State of Illinois ex rel. Scott again expanded in City and County of ifornia's lead. Owen v. City of Atlanta, 282 v. Butterfield.' a federal district judge San Francisco v. Small Claims S.E.2d 906 (Ga. 1981), cert. denied, 456 U.S. rejected the argument that the Court, in which a group of land- 97 (1982)' 1 federal government, rather than the owners adjacent to San Francisco California 1 Cal. App. court of f ppe (1 In 1 a appeal m mad ad e the some - airport proprietor, was liable for International Airport filed 183 indi- what belated ruling that the Britt holding noise damages because the Federal vidual claims in Small Claims Court (that federal preemption barred recovery of Aviation Act of 1958 provided for against the city and county as airport tort damages for harm caused by aircraft in total federal control over routing of proprietor alleging that noise from fl i ght was no longer good law in California. Andrews v. County of Orange 130 Cal App. airlines and over design of airplanes the airport constituted a continuing 3d 944 (1982). and airports. nuisance causing damages in the 10 349 Cal. App. 3d 872 (1983). Courts originally were reluctant to maximum jurisdictional amount. "Id. at 895. expand liability to negligence and The claims were consolidated and 12 141 Cal. App. he 3d 470 previous (1983). rea group r the nuisance claims on the grounds that the damages sought totaled more Id at had obtaineed d s T mal: claims court judgments nts in airlines and airport proprietors could than $135,000. The court of appeal favor of 116 plaintiffs on similar claims. 35 ment was expounded by the U.S. Secretary of the Department of that a total curfew on nighttime Supreme Court in City of Burbank v. Transportation had given provisional flights was covered by the proprietor Lockheed Air Terminal, Inc.," in authority for Concorde operations at exception, but was nevertheless in- which the city, using its police power, Kennedy International on a 16- valid because it unreasonably and attempted to reduce noise at a pri- month trial basis. The Second Cir- arbitrarily applied to all aircraft re- vately owned airport by adopting a cuit court ruled that the actions of the gardless of the degree of accompany - curfew on nighttime jet takeoffs. The port authority were covered by the ing noise. Notwithstanding the court held that the preemption man- proprietor exception to federal pre- proprietor exception, the court held dated by the Federal Aviation Act of emption, but remanded the case on that the curfew was preempted by 1958, as amended by the 1972 Noise the question of reasonableness of the federal grant law. The airport had Control Act, left no room for local continued "temporary" ban. The received a number of grants under curfews or other local controls. trial court dissolved the ban, ruling the Airport and Airways Develop - However, the court stated that the that the port authority's 17 -month ment Act of 1970, and, pursuant to decision applied only to the exercise delay in devising noise standards for the act, had given assurances that all of police power by a local govern- the Concorde was unreasonable, dis- facilities developed with federal fi- mental entity which was not an air- criminatory, and unfair. This ruling nancial assistance would be available port proprietor, and Left open the was upheld on appeal. to all aircraft at all times. The court question of "what limits, if any, apply interpreted this to mean 24 hours a to a municipality as a proprietor. " I Santa Monica Airport Ass oc i a- day—a direct conflict with the lion v. City of Santa Monica. the curfew. Finally, in Pirolo v. City of This decision was interpreted by a city, as operator of the airport, passed Clearwater- - s a federal district court three -judge district court to provide a a number of noise- related re- ruled that the city, which had enacted , proprietor exception to the rule of P ro P P strictions including a nighttime a curfew ordinance, had contracted federal preemption in Air Transpor- curfew, a ban on `touch and go" away its proprietary power to repu- tation Association v. Crotti. That operations on weekdays, a prohibi- court held in a challenge to Califor- lion against helicopter landings, a late its airport when it leased it to a nia airport noise regulations that one single -event noise limit of 100 deci- company that subleased it to the standard, the Single Event Noise Ex- bels and a categorical ban on jet plaintiff. The only other authority to posure Level (SENEL), which mea- aircraft. The court upheld all the enact ordinances ity necessarily caame me from the sures noise from an individual restrictions except the ban on jet • he city's pollice ice power, airplane, was per se invalid as an aircraft because it was not based on `Which the U.S. Supreme Court had held was • intrusion into the exclusive federal noise and was unreasonably discrim- Burbank federally v. L lly ockhhee Air Terminal, T Te in n al, of 2 The e v Lockheed of control over aircraft inatory and violative of the equal i all I ft to the state flights and airspace management. protection and commerce clauses of a courts i Inc. s the question n of However, the court found that re- ft courts the question the U.S. Constitution. The court ex- whether a city which is the owner, but quirements concerning the Commu- panded the proprietor exception by not the operator, of an airport can be nityNoiseEquivalentLevel(CNEL), rejecting the argument that the ex- held liable for noise - related a weighted average of aircraft noise ception should be limited to ordi- 2, measured over a period of time, were nances necessary to avoid Griggs22 damages. not per se invalid because they re- liability and held that a proprietor quired airport operators to take vari- should be allowed to .,define the STATE NOISE STANDARDS ous noise abatement steps which threshold of its liability and to enact were not federally preempted for air- noise ordinances if it has a rational Airport proprietors generally do port proprietors who needed a way to belief that the ordinances will reduce not like imposed noise regulations protect themselves from liability for the possibility of liability or enhance noise- related damages. Similarly, in the quality of the human environ- because the regulations, to varying National Aviation v. City of Hay- ment. degrees, reduce the use of the airport ward,'s the court ruled that a curfew and thus the revenue derived from it. ordinance, adopted by the city as the The Ninth Circuit court signifi- Residents, concerned principally airport proprietor, was not pre- cantly expanded the proprietor ex- with the noise emanating from empted by federal regulations by vir- ception when it held that Santa nearby airports, generally feel that tue of the proprietor exception rule. Monica's 100- decibel SENEL was the more noise restrictions imple- Subsequent cases began defining not federally preempted, despite the s, the bett Aisp use suuch ch as airlines, e r. flight schools s and d d limitations on an airport proprietor's holding of Air Transport Association charter services, do not favor regula- ability to enact noise regulations. In v. Crotti. The court ruled that a mu- tions restricting their actions, British Airways Board v. Port Author- nicipal airport operator can govern whether they are imposed by the ity of New York and New Jersey" the the noise levels of planes which have proprietor or the FAA. Airport port authority refused to permit the taken off from its airport both before proprietors need the ability to adopt supersonic Concorde airplane to op- and for a reasonable distance after regulations to protect themselves erate out ofJohn E Kennedy Interns- from noise damage suits by neigh - tional Airport until it had time to the wheels have left the ground. bors. And, in deciding what re- study the environmental effects of In United States v. State of New strictions to implement, they must the aircraft, despite the fact that the York, a federal district court held balance their exposure to legal lia- 36 Los Angeles Lawyer /October /1984 \ / • ACCELERATED , bility against the risk of decline in ports (a proprietary department of COMPUTER income. the city), is proprietor of a number of In California, airport proprietors airports, including Los Angeles Inter- TRAINING also must contend with state noise national Airport located within the FOR PROFESSIONALS standards" governing the amount of city and Ontario International Air - noise emitted by airports. Those port located outside the city. As such, The Approved Microsoft' standards provide that: the city periodically must apply for Training Center for L.A. variances for those airports from the No airport proprietor shall oper- state noise standards. IBM PC's - One Day ate his airport with a noise im- Intensive Hands -On Courses pact area of other than zero In variance proceedings, the city Approved for C.E.U. Credits unless said operator has a vari- has argued that its noise- reduction ante as prescribed in Article 13 efforts are sufficient under the g uide- • Fundamentals • WordStar lines of the state noise standards, or of this subchapter of these reg- that proposed conditions to a vari- • Lotus 1 -2 -3 • MultiMate ulations. • dBase II • Multi Plan ance are encroaching in the area by • VisiCalc •BASIC Since almost no commercial airport preempted P Y federal law, or both. SuperCalc •Pascal in California has a noise impact area The City of Los Angeles also com- • dBase II Programming of zero, most airport proprietors in pletely surrounds the Burbank -Glen- • And Many Others the state must apply to the California dale- Pasadena Airport (Burbank • $149 per course day Department of Transportation for a Airport), which is operated by the variance from the noise standards. Burbank- Glendale- Pasadena Airport The applicant is required to demon- Authority. The Burbank Airport also COMPUTER TECHNOLOGY CENTER strate that he has or will implement must apply periodically for variances Call for Reservations 8, Information noise - reduction techniques, the suffi- from the state noise standards. In ciency of which is measured by these variance proceedings, the City 11625 west y of Los Angeles participates as an Los Angeles, 90015 guidelines in the noise standards. The g P P rM (213) 388 -0551 application process involves public airport neighbor concerned with the administrative hearings at which in- amount of noise from that airport. Fulfilling the PC Promise terested parties (such as airport users, Recently, in separate variance pro - adjacent property owners and neigh- ceedings for these different airports, - boring community representatives) the City of Los Angeles has taken ; can attend and introduce evidence on different positions depending on the -' the adequacy of the noise reduction circumstances. Following the Octo- - r • ` actions and programs instituted or ber 1982 hearing on LAX's applica- `` .1 , ...;‘,.-1,..,4i i 4 ' `` planned by the airport proprietor. tion fora variance, the city submitted -fir �' - , Wh a variance is granted it invari- apost- hearing brief in January 1983 _ Xl =' ably is subject to a number of condi- which argued against adoption of the `•s' ,ai tions concerning noise abatement following variance condition: .. '* , ( procedures with which the applicant - " ° y :; must comply. ' U.S. 624 (1973). - Y Obviously, the combination of the "Id at 638. .., � . • .... California Noise Standards and the "Id. at 635 n.14. The footnote quoted from _ ro exception from federal a June 22, 1968, letter to the Senate Com .. OHNSON proprietor P lion merce Committee from the Secretary of Vow { preemption allows room for legal Transportation, who expressed the view that OTORS +' Kt.' maneuvering by the various inter- the addition in July 1968 of § 611 to the ested parties. This is one reason for Federal Aviation Act would not affect the ' . ' OU MAID: °" the amount of litigation in this area rights of airport proprietors to regulate, in a ;, . nondiscriminatory fashion, the level of noise ' BO OK& EYALUAT «t and the continuing legal dilemma. It created by aircraft using their airports. ' - �� is not difficult to imagine which way 17 389 F. Supp. 58 (N.D. Cal. 1975). . = U :YOU' . 4a • a particular party will argue in a "418 F. Supp. 417 (N.D. Cal. 1976). OMTO - given circumstance. Sometimes an "431 F. Supp. 1216 (S.D.N.Y.), rev'd, 558 OHNSON.MOT _RS- la F.2d 75 (2d Cir.), on remand. 437 F. Supp. 804 "' - .. entity . ' Y ma y find itself playing in g differ - ( S.D.N.Y.), affd as modified, 564 F.2d 1002 ' ", ' , OULL .' j, -' - ent roles, depending on the setting, (2d Cir. 1977). : UYDR :LEASE '' - and if its arguments are inconsistent, 20 564 F.2d 1002 (2d Cir. 1977). - •7+ ' Y its credibility may be open to ques- 11 659 F.2d 100 (9th Cir. 1981). R01111. US:: ._ ... . lion. 22 Griggs v. Allegheny County, supra n.2 and ° v •" -"`° • ` ' accompanying text. T - `; 18/915 . •4.... For instance, the City of Los An- 23552 F. Supp. 255 (N.D.N.Y. 1982). . ` �.r 13/686=1005 geles is both an airport proprietor 24 49 U.S.C. §§ 1701 et seq. • and a community adjacent to an 27 711 F.2d 1006 (11th Cir. 1983). '" _ `. • ' . 14/599- 5436 ",' • " n airport it does not control. The city, 20411 U.S. 6124 (1973). i- 0116'E. ARVEY$O.. .- '• 711 F 1006 1009 n. ( 11 th C ir. 1983). ; ES OVINA ' ' through its board of airport commis- 292 C AL. A DMIN . C ODE § § 5 000 et seq. ' a-- ;..+.u. ., .s n `' sioners and the department of air- 29 21 CAL. ADMIN. CODE § 5062. . 37 Respondent shall not permit any Burbank Airport, but not to LAX or and their property. As noted. a case activity under its control to occur Ontario International, made the un- in point is the Los Angeles Interna- in conjunction with the opera- usual suggestion that the Burbank tional Airport, in which the proprie- tion of the Los Angeles Interna- Airport variance should be condi- tors, despite a number of adverse tional Airport which relates to tioned upon compliance with the judgments, have refused to institute a an increase of the noise impact California Environmental Quality noise control program. In such area described by the present Act, apparently trying to avoid an cases, the state noise standards are CNEL boundaries.... appearance of inconsistency with the the best method available for achiev- The city argued that this condition arguments it made in its own vari- ing noise reduction. Yet the LAX was an attempt by the state to regu- ance proceedings for LAX and On- operators, the creator of the noise late airspace management and con- tario International. It is plain that the problems, seek to shield themselves trol of the source of aircraft noise, an city was seeking a result in the Bur- from being required to institute noise area that was federally preempted. bank Airport variance proceeding far reduction measures by arguing that In 1983, Ontario International different than the results it sought in the FAA has preempted the field. On Airport (OIA) was granted a variance the LAX and Ontario variance pro- the other hand, the FAA, which has from the state noise standards. One ceedings. the power to force airport operators of the conditions of that variance was The city sought to avoid condi- to consider the suffering airports in- that the city could not permit any tions to variances in the LAX and flict on neighboring communities, activity under its control to occur in Ontario cases while seeking to im- has abdicated such authority, and by conjunction with the operation of pose conditions in the Burbank vari- doing so, avoids liability. OIA whose activity resulted in an ance proceedings. The state noise What is needed is a new look at the increase in a noise impact area which standards provide that in granting issues, one that truly considers the the city claimed was already being variances, the state shall be guided by damage caused by airports and one exceeded. The city filed a suit against the underlying intent of regulations. that seeks to reduce such damage in a the state in April 1984 to have that The standards then Iist four items, all fair, reasonable and equitable man - condition declared unconstitutional of which refer to reduction of the ner, without resorting to litigation. and void, claiming that the state was surrounding noise impact area to Because the FAA already has abdi- trying to force the city to implement zero. The clear import is that a cated its authority and because the various airport use restrictions, in- variance from the state noise stan- FAA views its responsibility to be to a cluding: flight curfews; limitations on dards is to be conditioned on efforts national transportation system, it is the number of daily operations; re- to reduce the noise impact area sur- unlikely to be the entity to imple- duction of the number of current rounding airports, the ultimate result ment noise control methods which operations; limitations on operations the city sought in the Burbank vari- may affect the "system." By law, at the airport to those types of air- ance. Despite this bit of legal sleight- airport proprietors are responsible in craft which create the lowest level of of -hand, it is clear that the City of tort for damages which occur to per - noise; and denial of additional opera- Los Angeles is taking advantage of sons and property. But the current tional permits to new air carriers. the dilemma to argue two different system is not enough. Again, the city argued that this was ways as suits its purpose. The legal Where an airport proprietor fails regulation in a federally preempted uncertainty involved lends itself to to take steps to limit its liability, but - area. this and human beings continue to could do so, no good reason exists The City of Los Angeles partici- suffer. why the state should not direct that pated in the 1984 variance proceed- As demonstrated in a number of certain actions be taken, provided the ings for Burbank Airport and the cases, some airport proprietors actions are reasonably related to the submitted a brief as an intervenor acting from various motives choose reduction of noise and are not dis- which contained proposed findings to adopt noise abatement policies criminatory or arbitrary or an undue of fact and proposed conditions to be which make their airports more com- burden on commerce. attached to a variance. One of those patible with the surrounding com- The impositiot, of reasonable re- conditions was that the airport au- munities. Other proprietors choose strictions would do little to interfere thority not take certain actions until not to, preferring instead to absorb with the air transportation system or after it had prepared an Environmen- the economic costs of inflicting the profits derived therefrom by tal Impact Report which discussed noise - related injury on their neigh- manufacturers, operators and airport the noise impacts of such actions, bors. proprietors —and it would improve including: approval of further in- Presently, liability to adjacent the lives of many real and suffering creases in air carrier operations; ex- landowners is not always sufficient human beings. .� pansion of the physical facilities at incentive for airport proprietors to the airport; and any other action reduce the noise impact on the sur-- 7° The city relied on the decision in San which results in a noise impact area rounding community. If the airport is ego ni fied rict eo65 , F. 30 (1981)Port in Dist wh ich the v. Giantur Ninth Circui greater than 180 acres. The city al- large enough to generate sufficient held that a variance condition imposing a leged in the brief that Burbank Air- income, occasional noise damage flight curfew was unconstitutional as an at- port already had a noise impact area judgments may not provide the pecu- tempt to regulate in a federally preempted greater than 180 acres. niary motivation to institute policies arr. The City of Los Angeles, while that may reduce revenue as well as 7 2 Pu.B. R Es. C ODE §§ 21000 et seq. Y g Y Findings of Hea Officer (1982) LAX urging that restrictions be applied to noise - related harm to human beings Variance Proceedings, No. L-23871. 38 Los Angeles Lawyer /October /1984 • • �nneso a ou rna Creating effective schools. — Page 1. A publication of the Citizens League Intricacies of airport noise. — Page 1. How to create jobs. — Page 2. New kind of accountability. — Page 5 Volume 2, Number 19 September 3, 1985 Airport noise problems grow, Income support options for relief limited linked to jobs by Ted Kolderie by new law remember being astonished, a couple of around MSP, which is plaguing residents cars ago, to hear an executive of Royal again this summer, and causing the resi- by Robert de la Vega Dutch Airlines say casually, "The best place dents to plague the public officials. for an airport is right in the center of the Conservatives often argue that many in- city." That's where the railroad station used come - support recipients would find jobs if to be, when trains were the dominant mode The corridor to the southeast — northern they had to. Liberals counter that programs of inter -city transportation. But the airport?!? Dakota County (the municipality of Eagan to help the poor hinder workforce entry. to be precise) has been the only undevel- Yet that is in fact the way things are working oped "outlet" for the runways at MSP. Changes made in income - support, job - out. Not, perhaps for Kansas City, with its training, and job - placement programs by airport way beyond the city. But certainly for And in recent years, with jet aircraft that do the 1985 Legislature created a system in the Twin Cities area. With the rapid growth not have to take.off and land into the wind, Minnesota which may put these assump- of Dakota County, following construction of it has been possible for the tower to run a tions to the test by integrating jobs pro= the new bridges across the river, Minnea- system of "preferential runways," with air- grams with income- support programs to a polis /St. Paul International Airport (MSP on craft taking off to the southeast on runway degree unknown in the past. your baggage ticket) is now on its way to 11 left and landing from the southeast on being fully surrounded by urban develop- runway 29 left or taking off to the southwest Sweeping changes in income - support ment. The airport won't be precisely at the (up the Minnesota River valley) on runway programs like General Assistance (GA) and center. But it will be close. 22 left and landing from the southwest on Aid to Families with Dependent Children runway 4 left. (AFDC), the Minnesota Emergency Eco- One question, currently, is whether this change might be the source of the noise Continued on Page 4 Continued on Page 7 St. Paul schools push for higher test scores An "effective school," according to material by Stephen Alnes Bennett said about 2,200 schools across prepared for a recent St. Paul schools the nation have "demonstrated the efficacy" "principals' academy," is "committed to the That program, said Superintendent David A. of the approach. The St. Paul effort differs achievement of all students — in excess of Bennett, is based on "research and philo- from earlier urban efforts in that it will in- predetermined criteria — with no disparity sophy that purport that all students can. volve all of the city's schools, not just a based on socioeconomic status, race or learn and that all students can learn all the "handful of schools," Bennett said. lender." things that school has to teach them. All we need do is apply both high expectation for An important part of the alliance effort will The "academy" session was a step in the students, along with specific techniques be a concentrated attempt to raise the test development of what St. Paul school offi- (that) research has proven to be instruc- scores of St. Paul pupils on standardized cials are calling the "Alliance for Effective tionally effective to get the outcomes we Schools." desire." Continued on Page 6 September 3. 1985 Minnesota Journal 1 Ai rport ... carriers at MSP by ground transport.) Continued from Page 1 People involved with aviation typically Quote obviously, if anything — homeowners' 1� 0 shrug off these possibilities. They tend to protests, for example — should close this il display a sense of "utility responsibilit' " 'n corridor the takeoffs and landings, the .% accommodate demand, and are ac "aircraft operations," and therefore the t'•,,': sensitive to the political influence both of noise, would have to be spread around all general- aviation fliers and of the owners of four corridors; including the corridor to the • ` corporate jets. northwest over south Minneapolis and to the northeast over St. Paul. So the room for policy change, particularly little, some people say. In time what hap- in local policy, seems small. With Eagan now reported to have been the pened with outboards on the lake will fastest - growing suburb in the Twin Cities happen with the jets. Or, in time, the houses And the potential for the growth of the noise area since 1980 there was some reason to under the flight path in south Minneapolis problem seems large. MSP, now at about 11 wonder if this might be the source of the will be removed. million boardings a year, has a projected noise problem this summer. capacity of almost 30 million boardings a But some people, not inclined to wait, want year. With the completion of the Green and Not so, say airport officials. The preferential quieter aircraft now. One proposal locally is Gold concourses, the next stage of devel- runway system works well up to about 60 to come up with money to help the airlines opment will involve a new, "mirror- image" operations per hour. Above that level the buy more of the quieter planes available terminal on the Mother Lake side of the tower — for safety reasons — wants to shift now. In Orange County, California — in a airport, probably with an underground to the "parallel runway" system, in which much - watched experiment — the airport is people -mover to shift passengers between planes (in the most common case) land requiring the airlines to use the quieter air- the two. side -by -side from the southeast and take off craft available now (only the "super DC9s," side -by -side to the northwest. This system for example). There are two actions that can be taken can handle as many as 120 operations per locally, that offer some prospect of relief. hour. And in recent months the volume of Another possibility is to bring the volume of airport operations has required the use of operations back down to the level that will One is to maintain that noise corridor to the the parallel runways system. permit, again, the greater use of the prefer- southeast, so that the preferential runway ential runways that push the noise out the system can be used as often as possible. This is not what was supposed to happen. corridor to the southeast in which — if the The other is to make sure there are enough A year or two ago these same officials were land -use controls hold — few people live. satellite "reliever" airports for general avia- saying that as larger aircraft came into use tion. (Under existing law these planes are the number of flight operations would de- This might happen if the economics of the entitled to use MSP if they wish. The policy cline. More people would be flying in fewer business shake out some of the airlines of the Metropolitan Airports Commi: planes. now trying to get established in this market (MAC) has long been to draw these pla. _s away by offering low fees and good service Things did not work out this way, they now Another possibility would be to reduce the at the smaller suburban airports.) say. Deregulation meant more competition volume of general aviation operations. for air travel. Something like 25 airlines are Something over a third of the operations are Happily, the first of these appears to be go- now competing for the same 11 million by light planes or business jets, landing with ing well. The controls intended to discour- passengers flying out of MSP each year; at most a handful of people on board. age single - family housing under the flight they were served by about 12 airlines only path in Eagan seem so far to be observed. a few years ago. Fewer passengers in more Every aircraft requires the same minimum of The problem is with the second. The MAC planes. valuable airspace (but light planes, because has not created a new airport in the Twin they are slower, require more). The user Cities area for a good many years now, and In addition, airlines have now shifted to the charges at MSP are based on landed has had really no effective political support hub - and -spoke system, which means that weight, and thus provide no disincentive to for such an effort from the Metropolitan a good many flights (especially in the middle its use by small aircraft. A different system, Council. of the day) are not mainly to pick up pas- with charges based on the use of this val- sengers leaving the Twin Cities or to dis- uable resource, could conceivably give Even these efforts may not help much, if the charge passengers going to the Twin Cities, priority to large scheduled air carriers that volume of aircraft operations remains high but are mainly to exchange passengers use the airspace efficiently. (Another pos- and continues to grow. In that event the only coming from someplace else and going to sibility would be to bring "third- structure," hope will be for the new equipment with the someplace else. (At least MSP is not — like commuter, aircraft in to Holman Field in St. quieter engines. Memphis or Louisville — burdened with Paul, and move passengers to the trunk -line night flights simply exchanging parcels Or, of course, to site a new air- carrier field coming from and going to someplace else.) on the fringe of the metropolitan area. The simplest solution is for (Query: half -way to St. Cloud, or half -way to This forms the background for the current fall to arrive, when people Rochester ?) Such a site was in the metro- — increasingly political — debate about politan planning, in the early 1970s. Then it "what can be done." shut their windows and was taken off the maps. The simplest solution is for fall to arrive, patio doors and gO insid It would be interesting to explore that deci- when people shut their windows and patio again for the long winter. sion. Was it a sound decision? Or does the doors and go inside again for the long win- airport, really, belong — as the KLM ex( ter. Noise, after all, is "apparent noise." If you Noise, after all, is 'apparent tive said, "in the middle of the city?" don't hear it, it isn't there. noise.' If you don't hear it, it Ted Kolderie is a senior fellow in the Hubert Some of this debate looks toward the next, Isn't there. H. Humphrey Institute of Public Affairs at the and quieter, generation of aircraft. Wait a University of Minnesota. 4 Minnesota Journal September 3, 1985 AIRPOT WOI3E _ SPEAK Lip ,Q,t/ 6E �EAR� !�/3o TAE (i014/ OF TH F TE7 A KI NG OFF OVE YOUR /1g4 b S /ILL DAy E vE/2 y 7Ay, )7o CAAv you No - r moYiGF f/ A/o ise ? 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