HomeMy WebLinkAbout18 - John Wayne Airport General Aviation Improvement Program Draft EIR - CorrespondenceReceived After Agenda Printed
March 12, 2019
Item No. 18
Beverly Blais Moosmann
544 Vista Grande
Newport Beach, CA 92660
bblaisesq@gmail.com
March 8, 2019
Sent Via Email: ddixonPnewportbeachca.gov
Ms. Diane Dixon, Major
Newport Beach City Council
100 Civic Center Drive
Newport Beach, CA 92660
Re: The Proposed General Aviation Improvement Plan
Dear Mayor Dixon:
On behalf of Citizens Against Airport Noise and Pollution ("CAANP"), I wish to advise
you that CAANP, after careful consideration, has determined that Alternative 3 of
the proposed General Aviation Improvement Plan ("GAIP"), WITH the following
CONDITIONS, is the ONLY acceptable option for the residents of Newport Beach.
Alternative 3 appears to be the most limited option that has been proposed by the
Orange County Board of Supervisors. Although it is safe to assume that most
Newport Beach residents would prefer the status quo, without any change,
whatsoever, that does not appear to be an option. More specifically, based on
comments made by Newport Beach Aviation Consultant Tom Edwards, Esq., during
his November 5, 2018 presentation before the Newport Beach Aviation Committee,
it appears that the FAA has mandated certain corrections of non-standard design
features at JWA, and accordingly, the "No Project Alternative" is not a viable option.
Based thereon, CAANP supports Alternative 3; however, ONLY, with the following
CONDITIONS that reflect our concerns:
1. Limit The Number Of And The Noise Levels Of GA Corporate. Charter and
On- Demand Jets (hereinafter "Biz Jets") Using IWA During Curfew Hours:
One of the biggest concerns of CAANP and the residents of Newport
Beach is GA Biz Jets over or near our homes during curfew hours. Since
the implementation of the FAA's NextGen Metroplex program, residents
in many Newport Beach communities have had to bear the burden of
growing numbers of lower flying, loud and polluting commercial aircraft
over or near their homes, starting at 7:00 a.m. and ending at 10:00 p.m.
The only relief has been the curfew; however, under the proposed GAIP,
the county acknowledges there will be an increase in GA jet traffic and it
is unrealistic to believe that this will not include an increase in curfew-
hour flights by GA Biz Jets. The question is how can such limitations be
imposed? We respectfully submit the following:
a. Enforce The Existing Curfew On GA Biz Jets: It is arguable that when
the 1985 Settlement Agreement was negotiated, given the GA mix at
JWA at the time (mostly Cessna, Beechcraft or other small prop type
planes) that it was never anticipated that 33 years later there would
be such a large influx of GA Biz Jets at JWA, many of which are as large
and noisy as commercial aircraft. The current and increasing influx of
GA Biz Jets, which can fly 24/7, is arguably diminishing the intended
protections of the residents of Newport Beach under the 1985
Settlement Agreement. Accordingly, the curfew should be extended to
include GA Biz Jets.
b. Cap The Number Of GA Biz Jets To The Assumptions Made in the
DEIR: Although this would not directly limit nighttime/curfew-hour
flights, it would at least cap the number of daily flights, some of which
would also encompass nighttime/curfew-hour flights. Without such a
cap, there is great concern that the number of GA Biz Jets could grow
to an unacceptable number of daily and nighttime flights, especially
given the planned increases in the number of commercial jets under
the Settlement Agreement and the amendments thereof.
c. Lower The Noise Limitations On GA Biz Jets Flying During Curfew
Hours: There is currently a noise limitation in place for nighttime GA
Biz Jets of roughly 86 decibels at noise monitor 5S (Eastbluff), which
is woefully inadequate and fails to consider the severe impact in noise
caused by the difference in noise levels between an 86 decibel fly -over
vs. the average nighttime ambient noise level of 35-40 decibels. The
difference between 35 and 86 decibels in the middle of the night
would be intolerable and should not be allowed.
Although there may be ANCA limitations on any one of these suggestions,
it would behoove the City to retain a nationally recognized law firm with
proven expertise in aviation law, such as Kaplan, Kirsch & Rockwell, to
render this opinion and other opinions relative to the GAIP and all
significant JWA-related issues.
2. No Separate GA International Terminal: As mentioned by Mr. Edwards in
the same November 5th presentation, the proposed GAIP includes an
"opportunity" for a GA international terminal. CAANP and other
members of the Newport Beach community are extremely concerned
over security issues that would be created by such an international
terminal that would be separate from the existing commercial aircraft
terminal that is secured by the TSA. We are concerned that a privately
operated international terminal would not provide the requisite level of
TSA -provided security, especially given the growing threats of
international terrorism, drug and human trafficking. We are further
concerned that if such a terminal is built, it will encourage the influx of
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more international flights to JWA, the potential for more large and noisy
jets, more flights during the existing nighttime curfew hours and eventual
JWA expansion.
3. No "Uber-Style" or "On -Demand" GA Charter Jets: A recent CNBC news
program cited numerous abuses and the potential for serious security
breaches through these types of services. There were reports of a total
lack of security screening of passengers, verbally abusive and disorderly
passengers, passengers under the influence of illicit drugs or excessive
alcohol and the uncontrolled transportation of drugs and firearms on
these types of flights. Not only does this pose a significant risk to those on
such flights, but it furthermore would create a greater risk of harm to
people on the ground. This should not be allowed at JWA.
4. Do Not Eliminate Or Significantly Restrict The Use Of JWA By The Very
Small Prop Planes That Have Historically Utilized The Airport: As
indicated on JWA's own website, "Orange County's aviation history is
deeply rooted in general aviation (private, non—commercial) operations.
Aviation pioneer Eddie Martin founded the airfield that ultimately
became John Wayne Airport (JWA). From 1923 to 1939, the Airport
operated as a privately owned general aviation facility." It would be
wrong, if not discriminatory, to place severe limitations on this class of
aircraft at JWA in favor of large corporate, on -demand charter or private
jets that only the wealthiest of people are capable of owning or utilizing.
Lastly, although the purpose of this letter is to express the alternative that CAANP
favors as proposed by the County for the GAIP, we do this with great reservation
given what we consider to be a seriously flawed DEIR. Most notably, the basis for
the finding of "No Impact" relative to noise and pollution and the impact on
neighborhoods and schools is based on pre-NextGen data. To truly measure the
impact of the proposed GAIP on neighborhoods and schools, the data should have
been post-NextGen given the dramatic increase in noise and pollution since the
implementation of NextGen.
Thank you for your consideration of CAANP's position on this very important issue
that is of deepest concern to our members and to many Newport Beach residents.
Sincerely,
BeverCy BCais _%loosmann
Beverly Blais Moosmann
Citizens Against Airport Noise and Pollution
cc: City Council Members Herdman, Brenner, Muldoon, Duffy, O'Neil and Avery
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Received After Agenda Printed
March 12, 2019
Item No. 18
AWG
March 11, 2019
VIA E-MAIL (DDIXON@NEWPORTBEACHCA.GOV)
Diane Dixon, Mayor -
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: Legal and Regulatory Barriers to Implementation of CAANP's Proposed
Conditions for Adoption of Alternative 3 to the John Wayne Airport General
Aviation Improvement Plan
Dear Mayor Dixon:
The following constitute the response of the Airport Working Group of Orange County,
Inc. ("AWG") to the "conditions" adopted by Citizens Against Airport Noise and Pollution
("CAANP") as a predicate to CAANP's support of Alternative 3 to the environmental review for
the proposed General Aviation Improvement Program ("GAIP" or "Project") at John Wayne
Airport ("JWA" or "Airport"). As a threshold matter, it should be noted that, while CAANP's
objections to the GAIP as originally proposed may be valid, although as yet unsupported by any
technical analyses, all but two of its proposed "conditions" are conclusively foreclosed by both
federal law and the John Wayne Airport Stipulated Settlement ("Settlement").' The inclusion of
such invalid conditions could seriously weaken the City's credibility with respect to this and
other airport development projects. More importantly, the conditions cannot be adopted by the
County which would jeopardize its federal funding by doing so.
"CONDITIONS" 1, La., l.b., l.c., AND 3 ARE LIMITATIONS ON "ACCESS"
FORECLOSED BY THE AIRPORT NOISE AND CAPACITY ACT OF 1990,4
U.S.C. § 47521, ET SE0. ("ANCA")
CAANP first proposes to "limit the number and noise of general aviation corporate,
charter and on demand jets," or `BizJets;" "cap the number of GA BizJets to the assumptions in
the EIR," and prohibit "'Uber style' or `on demand' GA charter jets." Those "conditions" run
headlong into Congressional intent that aviation noise policy be "carried out at the national
level." 49 U.S.C. § 47521(3). To effectuate that intent, Congress mandated that "... an airport
noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990,
may become effective only if the restriction has been agreed to by the airport proprietor and all
aircraft operators or has been submitted to and approved by the Secretary of Transportation after
an airport or aircraft operator's request for approval..." 49 U.S.C. § 47524(c)(1). The
restrictions to which the paragraph applies include, among others, "(A) a restriction on noise
levels generated on either a single'event or cumulative basis; (B) a restriction on the total number
AWG is one of the four signators on the Settlement, along with the City of Newport Beach, Stop Polluting Our
Newport ("SPON") and the County of Orange ("County").
1048 Irvine Avenue • PMB 467 • Newport Beach, CA 92660 • www.awgoc.com
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of stage 3 aircraft operations; (C) a noise budget or noise allocation program that would include
stage 3 aircraft; (D) a restriction on hours of operations; and (E) any other restriction on stage 3
aircraft." Obviously, these restrictions on local prerogatives include the vast majority of
CAANP's proposed "conditions."
There are, of course, exceptions of which JWA's Settfement is one. See 49 U.S.C. §
47524(d)(4). All of such "exceptions," however, like the JWA Settlement, must have been
entered into on or before November 5, 1990, the date of ANCA's adoption. Even the exemption
for JWA prohibits any subsequent amendment, such as the "conditions" offered by CAANP, that
reduce or limit certain types of aircraft operations. Id.
Similarly, any attempt to distinguish between aircraft types for the purpose of imposing a
limitation selectively on one and not the other, such as the distinction in proposed "condition"
l.a. between GA aircraft in general and GA corporate, charter and on demand in particular, is not
only a foreclosed limitation on access, but is directly discriminatory, as that term is defined by
the FAA, and is similarly prohibited. For example, "conditions" 1.a.and l .c. run directly
contrary to FAA Order 5190.613, § 9. l .a. which "requires the sponsor to make its aeronautical
facilities available to the public and its tenants on terms that are reasonable and without unjust
discrimination." To the extent that CAANP advocEttes differential treatment between BizJets and
other GA aircraft, it flies in the face not only of federal regulations, but also of the JWA
Settlement which currently makes no such distinction.
In short, since the requisite approval of the proposed "conditions" by all aircraft operators
and the airport proprietor, or FAA, is virtually certain to be withheld, CAANP's "conditions" are
not only legally unsupported, but practicably impossible to implement as well.
II. FEDERAL LAW INCLUDING ANCA PREEMPTS ALL LOCAL INITIATIVES ON
NOISE AND ACCESS LIMITATION
If there remains any doubt about the power of the federal government in the arena of
aviation, note the overwhelming legislative authority that vests the federal government with
"exclusive jurisdiction over the airspace of the United States." 49 U.S.C. § 40103(a). The courts
have confirmed that this not only includes FAA preemption of "aviation safety," Montalvo v.
Spirit Airlines, 508 F.3d 464, 468 (9t' Cir. 2007), but also "aircraft operations." Burbank -
Glendale -Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338, 1340 (91' Cir.
1992). Consequently, the County has no independent legal authority to implement CAANP's
proposed "conditions" which facially contravene ANCA's express terms.
III. "CONDITIONS" 2 AND 4 ARE WITHIN THE COUNTY'S INDEPENDENT POWER
TO IMPLEMENT
CAANP's "condition" 2 requiring "no separate GA international terminal," and
"condition" 4, its plea that the County refrain from eliminating, or contributing to the elimination
of, small propeller planes, lie within the County's independent power to effectuate. The courts
have consistently held that scope of federal preemption does not encompass laws regulating local
land use, so long as that land use does not encroach "into the field of airspace management or
safety." Goodspeed Airport v. East Haddam Inland Wetland, 681 F.Supp.2d 182, 202 (2010).
1048 Irvine Avenue - PMB 467 - Newport Beach. CA 92660 - www.awgoc.com
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The County may, therefore, choose, however unlikely such a choice, to step away from
the inclusion of a general aviation international terminal in the proposed Project, and, thus,
reduce the potential for reduction in the number of small GA aircraft, a, result AWG believes is
consistent with the views of both C'AANP and the City.' We therefore urge the City tQ pursue
these avenues of local control over airport Iand use, and decline to endorse the other "conditions"
espoused by CAANP as legally impermissible, and, thus, a distraction from the City's main
purpose of relieving its citizens of the burdens of airport noise and pollution.
Sincerely,
Mel Beale
President, AWG
Barbara t.ichman
Board Member, AWG
It should be noted that Alternative 3 already lacks the international terminal so the "condition" changes nothing.