Developments and Future Trends Jonathan W. Cross W. Eric Pilsk - - PowerPoint PPT Presentation

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Developments and Future Trends Jonathan W. Cross W. Eric Pilsk - - PowerPoint PPT Presentation

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Access Restrictions: Recent Developments and Future Trends Jonathan W. Cross W. Eric Pilsk Branch Manager, Kaplan Kirsch & Rockwell Airport & Environmental Law Division, FAA Counsels Office September 15, 2009 Access Restrictions:

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SLIDE 1

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

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SLIDE 2

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

2

September 13-15, 2009 San Francisco, CA

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

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SLIDE 3

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

3

September 13-15, 2009 San Francisco, CA

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

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SLIDE 4

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

4

September 13-15, 2009 San Francisco, CA

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

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SLIDE 5

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

5

September 13-15, 2009 San Francisco, CA

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
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SLIDE 6

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

6

September 13-15, 2009 San Francisco, CA

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

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SLIDE 7

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

7

September 13-15, 2009 San Francisco, CA

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

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SLIDE 8

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

8

September 13-15, 2009 San Francisco, CA

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

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SLIDE 9

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

9

September 13-15, 2009 San Francisco, CA

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

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SLIDE 10

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

10

September 13-15, 2009 San Francisco, CA

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?

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SLIDE 11

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

11

September 13-15, 2009 San Francisco, CA

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
  • n 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
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SLIDE 12

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

12

September 13-15, 2009 San Francisco, CA

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

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SLIDE 13

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

13

September 13-15, 2009 San Francisco, CA

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

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SLIDE 14

25th Annual AAAE Basics of Airport Law Workshop and 2009 Legal Update

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September 13-15, 2009 San Francisco, CA

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