AOPA battles airport curfews, noise restrictions based on aircraft weight, engine type: City of Naples

City of Naples Airport Authority
Attn: Lisa LeBlanc-Hutchings
160 Aviation Drive North
Naples, FL 34104-3568

Dear Ms. LeBlanc-Hutchings:

This letter is being submitted in response to your invitation for comments on the proposed restriction to prohibit operations by aircraft certificated as Stage 2 under the Federal Aviation Regulations (FAR) Part 36, as analyzed in the FAR Part 161 Study prepared for Naples Municipal Airport dated June 30, 2000.

The Aircraft Owners and Pilots Association (AOPA) represents the general aviation interests of more than 360,000 individual pilots and aircraft owners in the United States, more than 25,800 of whom reside in the state of Florida. AOPA represents the interest of that section of the aviation industry defined as general aviation and provides advocacy for the preservation of the general aviation industry including access to public airports.

AOPA is deeply disappointed by what we view to be a shortsighted and self-detrimental approach the Naples Airport Authority has taken to supposedly reduce airport noise impacts to a moderately impacted vocal minority surrounding the airport. The Naples Airport Authority, as a federally obligated airport sponsor, is supposed to protect the airport for the use and benefit of the entire general public—not to arbitrarily restrict access to a class of user based on flawed logic and unsubstantiated evidence. Therefore, AOPA must strongly oppose the proposed access restrictions based on the following points:

1. The prepared Part 161 Study for Naples Airport has not been conducted in accordance with the requirements set forth in FAR Part 161.205(a)(3), which stipulates an alternative measure that does not involve aircraft restrictions must also be included in the study.
2. No substantial evidence has been provided in the Part 161 analysis to explain and/or prove why the current Federal Aviation Administration (FAA) guidance stipulating all land uses are considered to be compatible with noise levels less than DNL 65 dB has not been followed.
3. The right of local authorities to impose self-determined zoning and land use controls does not include imposing unsubstantiated aircraft access restrictions at a federally obligated airport.
4. With no appropriately identified benefits being derived from this restriction, its imposition would be viewed as an unreasonable, unjustly discriminatory restriction putting the Naples Airport, as recipient of over $11.8 million in FAA Airport Improvement Program (AIP) funds since 1982, in violation of their FAA grant assurances.

1. Required analysis for Part 161 studies

FAR Part 161 implements the requirements set forth in the Airport Noise and Capacity Act of 1990 for airports to propose and implement access restrictions affecting Stage 2 and Stage 3 aircraft. Included in this Part is an outline of the necessary analysis and notice requirements an airport sponsor must provide in order to impose an access restriction on Stage 2 aircraft, as proposed by the Naples Airport Authority.

Part 161.205(a) [as codified in 49 U.S.C. § 47524(b)] lists the following requirements:

1. An analysis of the anticipated or actual costs and benefits of the proposed noise or access restriction;
2. A description of alternative restrictions; and
3. A description of the alternative measures considered that do not involve aircraft restrictions, and a comparison of the costs and benefits of such alternative measures to costs and benefits of the proposed noise or access restriction.

The document available for public review includes a cost benefit analysis and description of three alternatives—all of which are proposed aircraft access restrictions. While it is stated on page four of the document "This report concludes that the NAA has exhausted all reasonably feasible non-restrictive measures to achieve its land use compatibility goal and recommends that the NAA adopt a use restriction on operations at APF," any evidence necessary to satisfy the requirement of 161.205(a)(3) listed above has been ostensibly omitted.

As you are aware, in order to impose a Stage 2 aircraft access restriction at the federally obligated Naples Municipal Airport, all requirements of Part 161 must be satisfied, including Part 161.205(a)(3). Considering a non-access restriction alternative has not been evaluated to the degree required in this Part, this study clearly fails to meet the necessary requirements to legally impose any recommended Stage 2 access restriction at the airport.

2. Proof of non-compatibility within DNL 60 dB contour

The argument for determining a defined level of impact resulting from aircraft related noise has been an ongoing debate as summarized in the Federal Interagency Committee On Noise (FICON) report dated August 1992. In this report, FICON concluded noise impacts calculated to be above DNL 65 dB are not compatible with residential units and "for a variety of reasons, noise predictions and interpretations are frequently less reliable below DNL 65 dB. DNL prediction models tend to degrade in accuracy at large distances from the airport. Therefore, predictions of noise exposure and impact below DNL 65 dB should take the possibility of such inaccuracy into account." While the Schultz curve recognizes some people will be highly annoyed at relatively low levels of noise, as further evidenced in numerous studies conducted by the Environmental Protection Agency (EPA), the FICON study concluded "analysis below the DNL 65 dB level on a case-by-case basis depending upon local circumstances" is warranted. More specifically, the only recommendation the FICON made in relation to the DNL 60-65 dB contour was to conduct further screening analysis within this contour only if a proposed airport action caused an increase of DNL 3 dB or more, which represents a doubling of sound energy and can most commonly be perceived by the human ear.

However, this recommendation was not intended to preclude local communities from instituting their own land use controls to areas exposed to less than DNL 65 dB. The FAA has even encouraged this action at Naples Airport as outlined in their Record of Approval on the 1997 Naples Airport Part 150 Study Update where they state "the FAA would encourage local government to exercise its prerogative to establish noise buffers that meet locally determined needs."

While we support community initiatives to mitigate noise impacts within their zoning jurisdiction, AOPA does not believe this includes imposing an access restriction to an airport as a means of reducing impacts within the DNL 60 dB contour for two reasons. First, the FAA views the level of impact in DNL 55 to 65 dB contours to be "moderate exposure and...generally acceptable for residential use." Therefore, any suggested mitigation for impacts within the DNL 60 dB contour should be accompanied by evidence proving the impacts in this individual case are not moderate, but significant using the case-specific analysis as recommended by the FICON.

No case-specific technical analysis has been provided in the Naples Part 161 Study to support the argument residential units within the DNL 60 dB contour are significantly impacted, as recommended by the FICON, and are in need of federally approved mitigation including an access restriction. Considering there appears to be no residences or other non-compatible land uses in the FAA-approved DNL 65 dB and greater contour, AOPA does not believe sufficient evidence has been provided in the Part 161 Study proving any noise-reduction benefit to significantly impacted noncompatible land uses will be gained by imposing the access restriction.

Secondly, the city of Naples has not followed its own commitment to create a land use buffer within the DNL 60 dB contour, which is claimed to be significantly impacted by airport noise. The city of Naples has repeatedly voted against providing realtors with noise disclosure information and new homes are still being allowed to be constructed within the DNL 60 dB noise contour. In 1998, the FAA issued a policy intended to address continuously inadequate zoning or land use control actions at airports by encouraging "preventive actions where there are currently no noncompatible land uses [such as zoning, subdivision regulation, building codes, and similar land use and/or building codes] and to limit remedial actions and dollars to those uses which are already noise impacted." What this policy resulted in was a commitment by the FAA to only approve remedial noise mitigation measures for noncompatible development that exists as of October 1, 1998. This policy effectually supported existing FAA policy provided in 1996 in the "Policy on Funding of Combined Part 150 and Part 161 Studies and Analyses" where it states:

"The FAA has continuously, consistently, and actively encouraged a balanced approach to address noise problems and discouraged unreasonable and unwarranted airport use restrictions. That policy remains unchanged. A restriction should be considered only as a last resort when all other mitigation measures are inadequate to satisfactorily address the problem and a restriction is the only remaining option that could provide noise relief."

We believe these policies underscore the basic regulatory premise mirrored in Part 161.205(a)(3) requiring airport sponsors to ensure all non-restrictive alternatives are properly evaluated, analyzed, and exhausted prior to initiating remedial or restrictive alternatives. To adopt an aircraft access restriction while allowing the continued construction of non-compatible residential homes within an area the city of Naples claims to be significantly impacted by noise is highly inappropriate, would be in opposition to current FAA policy, and completely discredits the claim that residences in this contour are actually impacted.

3. Land use controls vs. aircraft access restrictions

There is a fundamental difference between a state and/or local communities? ability to zone and establish compatible land use standards and their ability to use that zoning authority and local compatible land use standards in implementing an access restriction to a federally obligated airport. This is a result of the FAA having the responsibility to approve those restrictions in order to ensure compliance with several statutes, regulations, policies and guidelines, including but not limited to 49 U.S.C. §§ 47107 (a) (1), 47521 (2) and (3), FAR Part 152 (Appendix D), and FAA Order 5190.6A, Section 4-8. In order to demonstrate compliance with these statutes, regulations, policies and guidelines, the FAA uses several tools, two of which are Part 150 and Part 161.

Part 150 was created as a means to carry out congressional intent outlined in the Airport Safety and Noise Abatement Act of 1979 and is the basis by which the FAA evaluates and approves remedial and preventative noise mitigation measures at airports. Part 161, established as a result of the Airport Noise and Capacity Act of 1990, is the tool used by the FAA to measure compliance with the congressionally mandated National Aviation Noise Policy—policy enacted, in part, to prevent "uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system."

Within the Part 150 regulation there is a Land Use Compatibility Guideline table outlining a statistically standard model for evaluating the compatibility of different land uses around airports. This table includes a footnote, which states:

"The designations contained in this table do not constitute a Federal determination that any use of land covered by the program is acceptable or unacceptable under Federal, State, or local law. The responsibility for determining the acceptable and permissible land uses and the relationship between specific properties and specific noise contours rests with the local authorities. FAA determinations under Part 150 are not intended to substitute federally determined land uses for those determined to be appropriate by local authorities in response to locally determined needs and values in achieving noise compatible land uses."

The Naples Part 161 study quotes this statement as the justification behind self-imposing the aircraft access restriction in order to achieve a noise reduction benefit within the DNL 60 dB contour. AOPA believes this footnote to be taken completely out of context. What this footnote is intended to clarify is that the federal government does not have preemptive authority over states and/or local communities to impose any requirements directly affecting the use of land (i.e zoning, building codes, etc.). This footnote in no way infers this local preemption extends beyond control over the land to an ability to independently restrict access to an airport that is federally obligated and recognized as being integral to the national airport and airspace system.

The land use compatibility guideline table in Part 150, therefore, effectively serves two purposes: it is a reference for local communities possessing the responsibility to impose land use controls with the recommended level of control needed to maintain compatibility with the airport; and, it is a template by which the FAA evaluates the reasonableness of noise mitigation measures at airports to ensure consistency with congressional intent and policy, which also includes a determination of eligibility for airports to receive federal funding.

In short, the rights of local authorities to impose land use controls cannot be arbitrarily transposed into an independent imposition of airport access restrictions outside of the appropriate federal oversight and approval process. While Part 161 only requires an airport sponsor to publish and make available for public comment the analysis for a proposed Stage 2 access restriction, AOPA believes an actual FAA determination is still required prior to implementation of the restriction, particularly because Naples has received and may intend in the future to receive federal funding. In order for the FAA to make this determination, a clearer explanation than what is provided in the Naples Part 161 study is needed on why FAA guidance on land use compatibility outside of DNL 65 dB has not been followed along with an explanation of why all non-restrictive land use control remedies have not yet been exhausted.

4. Compliance with FAA grant assurances

Any proposed restrictions at Naples Airport are subject to federal scrutiny to ensure their compliance with AIP grant assurances. By accepting over $11.8 million through the AIP grant process since 1982, with the most recent acceptance of $1.3 million in 1999, any access restriction imposed at Naples will need to pass the tests inherently associated with the FAA grant assurances requirements.

Because we believe the submitted Part 161 study inappropriately omits analysis of a non-restrictive alternative, does not provide enough evidence to support why the current FAA land use compatibility guidance has not been followed, and state and/or local communities cannot independently impose aircraft access restrictions at a federally obligated airport, any attempt to implement the preferred access restriction can be construed as a violation of the AIP grant assurances as prescribed in 49 U.S.C § 47107(a).

Specifically, AOPA argues the access restriction would violate Assurance 22 "Economic Nondiscrimination," which states, in part:

1. [the sponsor] will make its airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes or aeronautical uses.

8. "...may establish such equal and not unjustly discriminatory conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport."

Furthermore, by voting against providing realtors with noise disclosure information for the impacted areas and by allowing new homes to be constructed within the DNL 60 dB noise contour, Naples fails to comply with Assurance 21 "Compatible Land Use," which states:

"[the sponsor] will take appropriate action, including the adoption of zoning laws, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended."

FAA Order 5190.6A, Section 4-8 (f) also summarizes both the sponsor’s responsibility with regards to airport access restrictions and the FAA’s responsibility to adhere to that guidance. Section 4-8 (f) states, in part, access restrictions "must be reasonably consistent with reducing noncompatiblity of land uses around the airport, not create an undue burden on interstate or foreign commerce, must not be unjustly discriminatory, meet both local needs and the needs of the national air transportation system to the extent practicable, and must not adversely affect any other powers or responsibilities of the FAA Administrator prescribed by law or any other program established in accordance with the law."

Considering the reasonableness of the proposed restriction has not, in our view, been satisfactorily evaluated and proven to actually provide a noise reduction benefit, this Part 161 study fails to prove consistency with reducing noncompatibility with the airport. As stated previously, we believe further analysis is required in this study that must show a significant level of noncompatiblity with the airport exists in the DNL 60 dB contour. Without establishing the level of noncompatiblity on this case-specific basis outside of current FAA guidance, we believe a reasonable justification for imposing this access restriction cannot be established.

The cost/benefit analysis provided in the study is also fundamentally flawed based on this same premise. The costs incurred for each alternative have been calculated in an attempt to justify prohibiting over 300 average daily operations at the airport. Why should these operations be restricted if no clear benefit will result? This then leads us to conclude interstate commerce, in its most basic sense, will be unduly burdened to the point that it will not only hold senselessly significant economic ramifications to the Naples economy, but to the efficiency needs and requirements of the national aviation system as well.

In conclusion, we urge you to delay further consideration of the access restriction until such time an updated and complete Part 161 study is conducted to meet the compliance requirements of existing federal law and the AIP grant assurances as approved by the FAA.

If you have any questions on this or any other related matter, please contact me at 301/695-2204.

Sincerely,

Christy Gerencher
Manager, Airport Policy

August 18, 2000