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 prohibiting 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 seven 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 issue 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 FAAmay notwithhold airportimprovement 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.