Access Restrictions: Recent Developments and Future Trends Jonathan W. Cross W. Eric Pilsk Branch Manager, Kaplan Kirsch & Rockwell Airport & Environmental Law Division, FAA Counsel’s Office September 15, 2009
Access Restrictions: Current Issues • Bob Hope Airport: Curfew – Pending Part 161 Stage 3 Application • City of Santa Monica: Category C & D Jet Ban – Pending Grant Assurance Enforcement Action • Van Nuys Airport: Noisy Jet Ban – Grandfathered Restriction 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 2
Access Restrictions: Basic Rules • Non-Proprietors: Generally Preempted From Imposing Restrictions On Existing Operations – Retain Land Use Authority over New Facilities • Proprietors: May Impose Access Restrictions Subject to Limitations – Airport Noise and Capacity Act of 1990 • Stage 2: Study and Notice • Stage 3: Study and FAA Approval – Grant Assurances – Constitutional and State Law Requirements 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 3
Bob Hope Airport (BUR): Mandatory Curfew • First Completed and Submitted Stage 3 Part 161 Application • Seeks Approval of a Mandatory Curfew between 10:00 p.m.-6:59 a.m. • Exceptions for law enforcement, disaster relief, military and medical operations 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 4
Bob Hope Airport (BUR): Mandatory Curfew • Study Process began in 1999 • Original Part 161 Application Filed on February 2, 2009 • FAA Deemed Application Incomplete on March 6, 2009 • Revised Application Filed on May 5, 2009 • FAA Deemed Revised Application Complete on May 29, 2009 • Decision Expected by November 1, 2009 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 5
Bob Hope Airport (BUR): Mandatory Curfew • Key Issues to Look For in Decision: – Permissible Scope of Benefits of Restrictions – Measurement of Costs of Restrictions – Weight Given to Hard to Quantify Benefits – FAA Position on How to Comply with Laws and Regulations of United States – How to Assess Impacts on NAS and Interstate Commerce 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 6
Santa Monica (SMO): Category C&D Ban • City Banned Category C&D Aircraft Due to Safety Concerns in Absence of RSAs and Proximity of Streets and Homes • AAS Found Violation of Federal Obligations – Grant Assurances – Exclusive Rights – Surplus Property Act – 1984 Agreement between City and FAA – Preemption • AAS Issued Cease and Desist Order and Obtained Preliminary Injunction Blocking Implementation of Ban 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 7
Santa Monica (SMO): Category C&D Ban • City Appealed Director’s Determination and Requested Hearing • Hearing Officer Found that Ban: – Violated Grant Assurance 22 (Unjust Discrimination) – Violated 1984 Agreement – Violated Surplus Property Act – No Violation of Exclusive Rights Prohibition – No Part 16 Jurisdiction Over Preemption 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 8
Santa Monica (SMO): Category C&D Ban • City and AAS Appealed to Associate Administrator • Associate Administrator Held that Ban: – Violates Grant Assurance 22 – Is Preempted – Does not Violate Exclusive Rights Prohibition – 1984 Agreement is Beyond Scope of Part 16 – No Need to Address Surplus Property Act • City has Appealed Decision to DC Circuit Court of Appeals – Decision Expected in 18-24 Months 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 9
Santa Monica (SMO): Category C&D Ban • Key Issues to Be Decided: – Preemption: Can Proprietors Adopt Access Restrictions to Address Local Safety Issues – Grant Assurance 22: What are standards for reasonableness for a local, safety-based access restriction? • Future: If Santa Monica wins, FAA has reserved right to claim that City must go through Part 161 process – Does ANCA apply to safety restrictions? 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 10
Van Nuys Airport (VNY): Noisier Aircraft Ban • Stage 2 Study only applies to Restrictions Proposed AFTER Oct. 1, 1990. 49 U.S.C. §47524(b) • Stage 3 Process Applies to Any Restriction Not in Effect on Oct. 1, 1990. 49 U.S.C. §47524(c) • June 13, 1990: VNY Proposed a Phaseout of Aircraft with Takeoff Noise Levels of 77dBA over a period of seven years – Would have applied to Stage 2 and Stage 3 Aircraft • Restriction Never Implemented 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 11
Van Nuys Airport (VNY): Noisier Aircraft Ban • April, 2006: VNY began to pursue Phaseout as a Grandfathered Restriction • March 19, 2009: FAA Accepted the Noise Jet Ban was Grandfathered – Only Applies to Stage 2 aircraft – Must also Comply with Grant Assurances – Revised Phase-In Schedule remained 7 years; no more restrictive than original • May 2009: VNY Adopts Ordinance Phasing Out Stage 2 Aircraft with Takeoff Noise Level of 77 dBA or More by Jan. 1, 2016 • VNY Still Considering Additional Restrictions in Ongoing Part 161 Study 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 12
Van Nuys Airport (VNY): Noisier Aircraft Ban • Key Issues – Given cost and difficulty of Part 161 Process, will other airports look for ways to meet ANCA’s Grandfather and Exception provisions – Will Noisier Aircraft Phaseout Raise Compliance Issues 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 13
Access Restrictions: A New Direction? • In 1990 Issue was Noise at Air Carrier Airports – Stage 2 Phase Out and Noise Mitigation Projects Did Much to Address that Issue – Recent Economic Downturn Further Reduced Traffic Levels and Noise • Issue Today is Access Restrictions at GA Airports due to Growth in Size and Volume of Business Jet Traffic – Noise and Community Impacts – Infrastructure and Safety • Challenges – How to Apply ANCA to Safety and Infrastructure-related restrictions – How to Define Reasonableness when Infrastructure Resources are Pushed to Limits 25 th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update September 13-15, 2009 San Francisco, CA 14
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