Florida Lawyer News Services | Robbins Equitas

Battle Over Airport Noise Ordinances Goes Bi-Coastal

A battle over the authority of a local municipality to enact aircraft noise ordinances is shaping up simultaneously on both the “left coast” (California) and the “right coast” (Florida). In California, the city of Santa Monica has appealed an FAA decision that prohibited the city from banning certain jets from operating at the Santa Monica Municipal Airport (SMO). The city adopted an ordinance in March 2008, banning Category C and D jets (e.g. Gulfstreams, Challengers, and some Citations) based on what the city called “safety issues.” The FAA issued a cease and desist order on April 24th, the day that the ordinance was to go into effect, and a District Court granted the FAA a temporary restraining order which stopped the ordinance from being enforced. The city then appealed the FAA decision and the case will soon be heard by the U.S. Court of Appeals, D.C. Circuit.

Both AOPA and NBAA have been actively involved in the dispute (which has been going on for more than 7 years) and each will file briefs as amicus curiae or “friends of the court” with the D.C. Circuit. Kathy Yodice, legal counsel for AOPA, explained why this issue is important to the national “alphabet” aviation groups, and why they are weighing in on this issue: “The implications of this case extend beyond the instant dispute between the city and the FAA, and any decision by this court could potentially affect how similar circumstances are treated elsewhere . . . If the city of Santa Monica is allowed to implement its desired bans, such precedent could provide airport sponsors nationwide with a basis to implement restrictions at a publicly funded airport, an action that should and always has been within the exclusive province of the FAA.”

Meanwhile, back here in Florida, a similar battle is brewing at the Vakaria Airport which proves AOPA’s point. Although the Valkaria Airport (X59) is owned and operated by Brevard County, it sits within the Town of Grant-Valkaria. The Town (which is located between Melbourne and Sebastian on the east coast of Florida) passed an ordinance that prohibited commercial flight training/instruction at the airport and prohibited commercial flight training/instruction schools from being located at the airport. Like Santa Monica, the Town cited noise and safety concerns as the basis for its ordinance claiming that homeowners have been “victimized and harassed by the
noise associated with certain low flying aircraft over or near their property.”

After passing the ordinance, the Town asked the FAA if it could enforce the ordinance and the FAA was unequivocal in pointing out that it could not. In its August letter to the Town, the FAA cited the abundant legal authority giving the FAA the sole and exclusive authority to regulate “airspace use, management and efficiency, air traffic control, safety, navigational facilities, and the regulation of aircraft noise at its source.” Based on this authority, the FAA advised the Town that the ordinance is not enforceable because, among other things, the Town is not the “proprietor” of the airport: “Nonproprietor jurisdictions such as the Town of Grant- Valkaria have no role in determining the legal requirements affecting the operation of the airport or airport development. This would include prohibiting the basing of commercial flight schools and flight instruction at the Airport for purposes of controlling aircraft noise and safety.” It is presently uncertain whether the Town will appeal the decision, or whether the airport proprietor (Brevard County) will take steps to enact regulations that mirror the ordinance adopted by the Town.

These two battles provide us with an example of federal preemption of state and local law, as discussed in an article that appeared in the Fall, 2008, edition of Florida Aviation Business (“Pre What? The Fight Over Federal Preemption and What it Means to You”). As we have seen at the Naples Municipal Airport, the power of the FAA is not unlimited, and a municipality can enact “reasonable” regulations to reduce aircraft noise at an airport that is owned and operated by the municipality. In such cases, the FAA may not withhold airport improvement grants based on the FAA’s determination that the municipality violated grant assurances. The problem for both Santa Monica and Valkaria airports, however, is that the ordinances the municipality wishes to enact will most likely be found to be unreasonable and discriminatory. That is so because the ordinances prohibit one activity, while another similar activity has precisely the same noise and/or safety impact.

Nevertheless, the process underway at Santa Monica (and possibly Valkaria) airport provides an excellent example of the process of FAA/federal preemption at work. A municipality enacts an ordinance, the FAA decides that the ordinance is either expressly preempted and/ or unreasonably discriminates against certain flight activities, the municipality appeals, and the D.C. Circuit decides the issue. We know how the process turned out at Naples, and it will be important to monitor the outcome of the Santa Monica and Valkaria disputes. While it might appear on the surface that only aviation businesses at Santa Monica and Valkaria will be affected by the outcome of these disputes, there is no question that the entire aviation industry will be adversely impacted if the FAA loses either one of these battles. This is one time that it might serve all of us to cheer, rather than jeer, the FAA.

Aviation Insurance Newletter for Fall 2009

TOPICS INCLUDE:

BAD GAMBLE: LESSONS FROM AN INDEMNITY CLAIM THAT WENT SOUTH

OVER-60 PILOTS: THE IMPACT OF AGE ON SAFETY AND RISK FACTORS

LOOKING BACK: FOLLOWING THE HISTORY OF FRONTIER AIRLINES

Wojciechowicz v. United States

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Florida Aviation Law Update Newsletter for Fall 2009

TOPICS INCLUDE:

FILE A LIEN: THE EQUITY IN AIRCRAFT CAN GET YOU YOUR MONEY

ONLINE TRAINING: WEIGH IN ON PILOTS EARNING ONLINE CREDENTIALS

LOOKING BACK: FOLLOWING THE HISTORY OF FRONTIER AIRLINES

BIO-DIESEL AS ONE SOLUTION TO OVERCOMING THE FUEL PRICE ISSUE

THE AIRCRAFT BROKERAGE MARKET

THE ROBBINS EQUITAS LAW FIRM WILL NOT ATTEND NBAA THIS YEAR

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Why is one of the nation’s leading aviation law firms boycotting the NBAA convention?

ORLANDO, Florida- For several years, the aviation law firm of Robbins Equitas exhibited at the annual NBAA convention. The firm’s attorneys, often garbed in wigs and robes for the event, doled out free legal advice to hundreds of NBAA members.  They were the only lawyers who did so.

Regrettably, they will be sorely missed this year. The firm says that it is boycotting the 2009 convention.  Here is why:

Each year, the NBAA selects attorneys and other experts to host seminars and educational events during the annual convention. Topics include aviation ownership structures and transactions, aviation taxation, new and changing regulations, human resources, risk management, insurance, and much more.

Since 2006, Robbins Equitas, has asked the NBAA for permission to participate in these seminars.  Oliver J. Janney, Esq. (footnote) and J. Christopher Robbins (footnote) each volunteered to speak, host, or participate in panel discussions.

The firm did not expect to have this opportunity as a matter of right.  Indeed, it expected the NBAA to make decisions on the basis of merit.  Yet as the only law firm in the country that consistently showed loyalty and dedication by exhibiting at the convention, it expected the NBAA brass to consider our requests to participate in good faith. They did no do so, the firm says.

After three years of letters, phone calls, and conversations with NBAA staff at the conventions, the firm’s partners have concluded that neither merit, nor experience, nor education, nor skills much matter.  The firm even tried money. It offered to speak for free (NBAA charges for these events).  When that didn’t work, it tried the opposite approach: on the theory that the NBAA’s idea of a qualified speaker might be one who stroked a large check.  It tried that, too.

At the 2008 convention, a partner at the firm says he thinks he may have finally received an honest answer to the question: “How does the NBAA choose its speakers?” One of the NBAA employees we spoke to over the past three years indicted that it might come down to “who you know.”

One of the best aspects of the aviation industry is that the sky – not social status or who you know – is the limit.  New aircraft, trend setting products and services, start-up companies, and emerging technologies succeed (or fail) on their merits.  That’s the way the free enterprise system works.

So this year, instead of paying thousands of dollars to shuttle, feed, and house half a dozen of our lawyers and staff to exhibit, the firm is instead going to hold a three-day open house at its Orlando office.

Just as in previous years it will offer free legal advice and assistance on any issue the community might have.  The firm will have its books and databases ready, and will be able to answer most regulatory questions that fall under Part 121, 135, or 145.  The firm is also going to have private tutorials for on how to structure transactions, lien aircraft, creditors’ rights when aircraft owners file bankruptcy, trends in products liability laws, and much more.

The firm’s Orlando office is just minutes from the Orange County Convention Center.  It will have fresh pastries, a catered lunch and open bar throughout the day and evening.  A driver will be available to pick you up and take you back to the convention at your convenience.

Please RSVP by emailing at crobbins@aviation-law.org or calling our Denver office: (720) 254-9110.  As always you can Chris anytime if you have a legal matter to discuss.

FOOTNOTE Mr. Janney is Harvard Law School graduate with 38 years of experience.  He was general counsel of RKO General when it owned Frontier Airlines.

FOOTNOTE Mr. Robbins is a former law clerk to a federal judge, a professor of law, and published author on a variety of aviation law and aviation insurance issues.