### UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

) IN THE MATTER OF COMPLIANCE) WITH FEDERAL OBLIGATIONS ) BY THE CITY OF SANTA MONICA, ) CALIFORNIA ) ) 

# ------------) FAA Docket No. 16-02-08

ORDER ON MOTION FOR EXTENSION OF TIME

On March 28, 2008, the City ofSanta Monica requested a20 day extension oftime until April 25, 2008, to file its response to the Order to Show Cause ofMarch 26, 2008.

The Order to Show Cause was issued after the City adopted an Ordinance on March 25, 2008, effective in 30 days on April 24, 2008, banning Category C and D aircraft from Santa Monica Municipal Airport (SMO).

The Order to Show Cause directed the City to show cause within ten days why the FAA should not supplement the existing Part 16investigation regarding aprior similar proposal with the facts pertaining to the adopted Ordinance and expedite the investigation and issuance ofthe initial determination by the Director ofthe Office ofAirport Safety and Standards. 1 The existing Part 16investigation began on October 8, 2002, when this Office initiated an investigation into the legality ofa similar ordinance proposed by the City. At issue in 2002 was aproposed Aircraft Conformance Program (ACP), which would have banned certain jet aircraft from SMO. This investigation has remained pending because the City engaged indiscussions with the FAA to resolve the matter until its recent action adopting the new Ordinance.

The FAA adopted expedited procedures for the recent Order to Show Cause pursuant to 14 CFR §16.11 because ofthe April 24th effective date ofthe Ordinance and because the proposed ACP ordinance and the adopted Ordinance are essentially the same. The proposed ACP and adopted Ordinance have only minor differences and more importantly, the same result: apermanent ban on approximately 9000 Category C and D aircraft operations at SMO. These expedited procedures afford the agency seventeen days to evaluate the City's response and determine whether to take action to halt enforcement ofthe Ordinance before April 24th.

ITen days is the normal time period for responding to amotion under Part 16.



# 102

Inits request for anextension oftime the City argues that it should have the full 30 days provided by section 16.I03 torespond to aNotice ofInvestigation because the existing investigation has been dormant for 5years and the City will not have afurther opportunity to respond before the initial Director's Determination is issued

.. The City further argues that itwould be denied due process ifan extension is not granted because 10days is insufficient to brief the matter and present extensive documentary evidence. Additionally the City argues that itneeds the additional 20 days because itis filing a Freedom ofInformation Act (FOIA) request toobtain information inthe possession of the FAA, such as computer modeling mentioned by the FAA Associate Administrator for Airports inhis presentation to the City Council at its March 25th meeting in which the Council adopted the Ordinance. By letter dated March 28 the City filed arequest for records and documents under FOIA. The City asks the FAA torespond to its FOIA request within the next five days.

Pursuant to 14C.F.R. §16.l I(a) the Director may grant an extension oftime when necessary or appropriate for afair and complete hearing ofthe matter before the agency. Ordinarily, although Part 16is anexpedited process, the Director would grant arequest for a20 day extension oftime. However, under the circumstances ofthis case the City's request must be denied.

The shortened time period forthe City's response is aproblem ofthe City's own making. The City chose to adopt the Ordinance and make iteffective in 30 days, on April 24th

• The City's request for a20 day extension, ifgranted would make its response due one day after the ban goes into effect, thus ensuring that approximately 9000 Category C and D aircraft operations are banned from SMO. The Part 16investigation has been pending subject to good faith efforts to resolve the matter between the City and the FAA. The City filed aresponse in 2002 to the Notice ofInvestigation and could have supplemented the record at anytime during the past five years. Under the circumstances, 10days, the normal time period for responding to amotion under Part 16,isreasonable due to the April 24th effective date imposed bythe City's adoption ofthe Ordinance. The City has waited five years to adopt the ordinance. Itcould have waited until the end ofthe administrative process to make iteffective. Instead itchose to make iteffective within 30 days even though there isno emergency warranting such precipitous action.

On March 31, the FAA denied the City's request for afee waiver and for expedited processing ofits FOIA request. The request for expedited processing was denied on the grounds that the City had "not shown acompelling need based on imminent threat to life

orphysical safety ofan individual, nor an urgency to inform the public ofan actual or alleged FAA activity beyond the public's right generally to know about Government activity." The FAA is diligently gathering documents inresponse to this request. The FOIA request does not warrant anextension oftime to respond to the Order to Show Cause. The documents requested under the FOIA are not critical to the City's ability to respond to the Order to Show Cause. During thepast 5years while the FAA and the City

were indiscussions concerning possible resolution, the FAA provided the City with the bases for its positions incorrespondence and meetings. So the City should already have in its possession most ifnot all ofthe documents that will comprise the record inthis3

matter. Far from having insufficient information, the City's vote to adopt the Ordinance reflects its conclusion that there was ample evidence to address FAA concerns set forth in the Order to Show Cause. Furthermore, under Subpart D ofPart 16for FAA issued Notices oflnvestigation, the City isnot entitled to the full record ofinvestigation until the Director's Determination is issued with an index ofadministrative record. At that time the City may request documents listed inthe index ofadministrative record and decide whether to file an administrative appeal. Respondents are not entitled to an evidentiary hearing as part ofan investigation. Rules ofPractice for Federally-Assisted Airport Proceedings, Final Rule, October 16,1996,61 Fed. Reg. 53998, 539999.

Accordingly, for the reasons provided herein and inthe March 26 Order to Show Cause, the City's motion for an extension oftime torespond to the Order to Show Cause is DENIED, without prejudice to renewal, based upon agreement to suspend enforcement. The City's response to the Order to Show Cause isdue April 7 asper the Order to Show Cause. However, should the City agree inawriting acceptable to the FAA to suspend the enforcement and effect ofthe Ordinance during thependency ofthese administrative proceedings, the FAA would grant the requested extension oftime.

So Ordered on this 151day ofApril, 2008. 

# 4flliiY)

Kelvin L. Soleo Acting Director Office ofAirport Safety and StandardsCERTIFICATE OF SERVICE

IHEREBY CERTIFY that on April 1,2008, Icaused to be served by electronic mail (email) and by overnight express delivery service (Federal Express), atrue copy ofthe foregoing document addressed to:

Arthur P. Berg Kaplan Kirsch &Rockwell, LLP 730 Fifth Avenue, Suite 900 New York, New York 10019 aberg@kaplankirsch.com

Thomas R. Devine Kaplan Kirsch &Rockwell, LLP 1001 Connecticut Avenue, NW, Suite 905 Washington, D.C. 20036 tdevine@kaplankirsch.com

Marsha Jones Moutrie City Attorney City ofSanta Monica 1685 Main Street Santa Monica, CA 9040I marsha.moutrie@smgov,net

P. Lamont Ewell City Manager City of Santa Monica 1685 Main Street, Room 209 Santa Monica, CA 9040I lamont.ewell@smgov.net

Mr. Robert Trimborn Airport Manager Santa Monica Municipal Airport 3223 Donald Douglas Loop S. Santa Monica, CA 90405 bob.trimborn@smgov.net

Sharon Long Airports and Environme tal Law Division Office ofthe Chief Co sel