The Honorable Board of Supervisors
County of San Mateo
400 County Center
Redwood City, CA 94063-1662
Dear Members of the Board:
I am counsel to the Aircraft Owners and Pilots Association (AOPA), which is a membership organization that represents the interests of more than 355,000 pilots and aircraft owners throughout the United States. AOPA's members engage in the segment of aviation known as "general aviation" and account for about two thirds of the flying (in terms of hours flown) in the National Airspace System. AOPA has made an effort to represent the AOPA members’ interest in preserving access to public airports. We have been advised that you are considering adopting an ordinance that restricts aircraft operations at the San Carlos Airport in a manner that would be in violation of federal law. We urge you reject adoption of the ordinance, as currently proposed, until we may be satisfied that whatever restrictions may be imposed are done so in accordance with the law.
At the outset, we wish to assure you that the peaceful coexistence of airports and the surrounding airport communities is of great interest to AOPA's members. Most communities understand the value that an airport has to their community, including providing transportation access for the residents and visitors, providing employment and business opportunities, providing educational and career opportunities, and providing income to the municipality. However, the safe and efficient operation of aircraft is of paramount interest to AOPA's members.
The operation of aircraft in air commerce is an area specifically regulated by the Federal Aviation Administration (FAA), including the regulation of aircraft noise. Pursuant to 49 U.S.C. § 40103(a)(1), "[t]he United States Government has exclusive sovereignty of airspace of the United States." Inherent in this delegation of authority is the fact that a single, uniform, pervasive, federal system of regulation will ensure that aircraft operations are regulated fairly and consistently at any one of the more than 6,000 public airports in the United States. The act makes it clear that "[t]he Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace." 49 U.S.C. § 40103(b)(1). The administrator's authority to prescribe noise regulations includes the mandate that "[t]o relieve and protect the public health and welfare from aircraft noise and sonic boom, the Administrator of the Federal Aviation Administration, as he deems necessary, shall prescribe...regulations to control and abate aircraft noise and sonic boom." 49 U.S.C. § 44715(a)(1)(A). In fact, the FAA's authority in this area is so pervasive as to preempt local action to regulate the flight of aircraft for noise abatement purposes. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).
We are not suggesting that an airport proprietor does not have any authority to develop appropriate noise abatement programs that may satisfy local concerns as well as meeting the goals of the federal aviation system. However, to the limited extent that a proprietor of an airport may adopt regulations as to the permissible level of noise at an airport, any such regulations must be fair, reasonable, and nondiscriminatory. Id.; see also British Airways Board v. Port Authority of New York and New Jersey, 564 F.2d 1002 (2nd Cir. 1977); Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981). And in those cases where the courts have upheld challenges to airport noise curfews, the courts have found that a study confirmed the existence of a valid noise concern, and that it was appropriately addressed by the proprietor’s imposed restrictions. See, e.g., Santa Monica Airport Association v. City of Santa Monica, 481 F.Supp. 927 (C.D. Cal. 1979), aff'd 659 F.2d 100 (9th Cir. 1981) and National Helicopter Corp. v. City of New York, 137 F.3d 81 (2nd Cir. 1998).
In this case, the county's attempt to effectively prohibit a class of airport operations at the airport, specifically flight training, may go beyond the authority of the airport proprietor to reasonably regulate noise. The pervasive nature of the proposed ordinance goes far beyond what may be necessary to address and remedy what has yet to be demonstrated to be a valid noise concern. At the very least, the county must be prepared to prove the validity of the noise concern and the appropriateness of the remedy imposed by any restrictions in order to properly exercise its proprietary authority.
The fair, reasonable, and nondiscriminatory nature of a proposed ordinance restricting aircraft operations may be demonstrated by submitting to the FAA for approval, a Part 150 noise exposure map and subsequently submitting a noise compatibility study. See 14 C.F.R. §§ 150.21 and 150.23. While a Part 150 study is not necessarily required in this instance, the method afforded under Part 150 is a readily available means of demonstrating a legitimate connection between the restriction on aircraft operations and the alleged harm caused by aircraft noise to the surrounding community.
A Part 150 study or a similar study would serve several purposes in the context of the proposed aircraft operations restrictions at San Carlos Airport. The study could credibly identify the concern and the scope of the restriction needed to address the concern, including the type, frequency, level, and source of the noise. While complaints over airport noise may provide information relevant to determining a harm caused by noise, they do not, by themselves, prove the harm or establish the boundaries for addressing the harm. Without research, investigation, and analysis, it is almost impossible to put operational restrictions in place that adequately respond to the concern without being unnecessarily overbroad. After identifying the source of the alleged harm and the magnitude of the harm, the reasonable restrictions and accommodations can be put in place and may withstand challenges to their legality. In short, the study would reliably determine if the proposed aircraft operations restrictions may appropriately address the noise concern without restricting more operations than are necessary to achieve the desired goal. To our knowledge, no such study has been conducted at San Carlos Airport.
Such a study may also serve the purpose of satisfying the FAA that the county is in compliance with federal grant assurances, which were contractually agreed to when San Carlos Airport received federal funding. Among other things, these assurances require that the "airport be available for public use on fair and reasonable terms and without unjust discrimination." 49 U.S.C. § 47107(a)(1). As indicated in their December 15, 1999 letter, the FAA maintains that the proposed ordinance unjustly discriminates against flight training operations. The consequences of such a determination by the FAA may be severe in that noncompliance with a grant assurance may provide the FAA with grounds to deny future grant applications, to withhold current grant disbursements, and to recover previously disbursed grant monies. And the obligation to comply with assurances given when receiving federal funds to purchase airport land does not expire after 20 years.
Over the years, AOPA has demonstrated its concern for the environment by promoting pilot education and encouraging civilian pilots to voluntarily observe recommended noise abatement procedures. In our experience, most pilots exercise good faith efforts to comply with recommended operational restrictions. AOPA is willing to work with the pilots at San Carlos Airport and the people in the surrounding communities to develop voluntary programs that can help to successfully address any noise complaints.
Kathleen A. Yodice
Bill Dunn, AOPA
March 3, 2000