2828DONALD DOUGLASLoop NORTH SECOND FLOOR SANTAMONICA, CALIFORNIA 9°4°5-2966 PHONE (310)392-5000 FAX(3IG)392-8091 PATRICK E.BAILEY Attorney atLaw PBAILEY@BAILEYPARTNERS.COM

OFFICESINSANTAMONICA &SACRAMENTO September 30,2003 VIAFEDERAL EXPRESS Mr.DavidL.Bennett FederalAviation Administration OfficeofAirport SafetyandStandards AASIRoom 621 800Independence Ave.,S.W. Washington, D.C.20591 

### EXHIBIT 

# I~/EItA~

Re: CityofSanta Monica's "AircraftConformance Program" DearMr.Bennett: Asyouknow,Patrickisontheroad,butinatelephoneconversation withhimyesterday,hetoldme ofyourveryproductive meeting. HeaskedthatIforwardyouourlatestdraftoftheResponse by PatrickE.BaileytotheReplyoftheCityofSantaMonicatotheNoticeofInvestigation; Declaration ofScottWardleinSupport. Ifyouhaveanyquestions, pleasefeelfreetocontactme. /~.S

# regar~./1
. / ,ji~' /

~~ A-. Yo~t·/ ClientRelations BAILEY &PARTNERS

Enclosure

G:\TAY\SantaMonica-Airport Conformance Program\BennettFAA9-30.wpd10

5

G:\Runway\Pleadinqs\ReplySMORespNOI0905.wpd IN THE MATTER OF COMPLIANCE ) FAA Docket No. 16-02-08 11 WITH FEDERAL OBLIGATIONS BY THE ) CITY OF SANTA MONICA, CALIFORNIA) RESPONSE BY BAILEY & PARTNERS TO 12 )THE REPLY OF THE CITY OF SANTA )MONICA TO THE NOTICE OF 13 ) INVESTIGATION; DECLARATIONS OF )SCOTT WARDLE AND CAROLYN SHIELDS 14 ) IN SUPPORT 15 16 17 1 PATRICK E. BAILEY (SBN 86875) BAILEY 

### & PARTNERS 2 A Professional Corporation 2828 Donald Douglas Loop North 3 Second Floor Santa Monica, California 90405-2959 4 Telephone: (310) 392-5000 Facsimile: (310) 392-8091
6 UNITED STATES DEPARTMENT OF TRANSPORTATION 7 FEDERAL AVIATION ADMINISTRATION 8 9 WASHINGTON, D.C.

18 BAILEY & PARTNERS responds herein to the City of Santa 19 Monica's Memorandum in Reply to the FAA Notice of Investigation 20 concerning the Aircraft Conformance Program ("ACP") proposed by 21 the City of Santa Monica. Patrick E. Bailey, of BAILEY & 22 PARTNERS, is a'co-owner of an aircraft and a user of the Santa 23 Monica Municipal Airport ("Airport") and would be affected by the 24 ACP. Bailey & Partners represents clients who are owners, 25 operators and users of the Airport and who would be affected by 26 the ACP. Some of these would be excluded from the Airport if the

28 // 27 ACP were adopted.

Bailey&PartnersG:\Runway\Pleadings\ReplySMORespNOI0905.wpd 2

1 I. THE NOTICE OF INVESTIGATION IS NOT PREMATURE: 2 THE CITY COUNCIL OF THE CITY OF SANTA MONICA 3 "APPROVE[D] THE AIRCRAFT CONFORMANCE PROGRAM IN CONCEPT" 4 A. The City's Representation That the Notice of Investigation Is 5 Premature and That It Has Made No Decision Is Misleading 6 On October 8, 2002, the FAA served Robert Trimborn, Airport 7 Manager, with a Notice of Investigation, FAA Docket No. 16-02-08, 8 pursuant to FAR Part 16, Rules of Practice for Federally Assisted 9 Airport Proceedings, indicating the FAA's concerns about the ACP. 10 On or about November 7, 2002, representatives of the City 11 filed a written response to the Notice of Investigation. 12 On December 10, 2002, the Santa Monica City Council adopted a 13 resolution "to approve in concept the Aircraft Conformance Program 14 . and direct staff to explore the implications of proceeding 15 with implementation." 16 The City in its November 7 Reply represented that it "has not 17 yet taken any action that would commit it to implementing the 18 Aircraft Conformance Program." (City's Reply, page 4.) 19 Approximately one month later, at its December 10, 2002 meeting, 20 the City Council could not take action inconsistent with this 21 representation, and instead voted "to approve in concept" the ACP 22 and to "direct staff to explore the implications of proceeding 23 with implementation." 24 The agenda item for the action of approving the ACP in 25 concept was stated as a "recommendation to approve in concept the 26 Aircraft Conformance Program and runway safety area designation 27 and direct staff to explore the implications of proceeding with 28 implementation." (Shields Declaration, Exhibit A.) The Staff

Bailey&Partners1 Report presented to the City Council stated: The staff "initiated

2 a review of the facility's operational design to determine its 3 compatibility with the emerging aircraft fleet mix" and the "Santa 4 Monica Airport Design Standards Analysis was conducted by Airport 5 staff and the aviation planning firm Coffman Associates." The 6 latter's analysis considered: 7 the shift in the aircraft fleet mix; 8 the relationship between the performance criteria of these 9 larger, faster aircraft and the design/operational limitations of 10 the Airport's physical plant; 11 past and current Federal Aviation Administration (FAA) 12 Airport Design Standards; 13 overall aircraft operations to ensure the Airport's 14 compatibility with the emerging mix of aircraft using the 15 facility. 16 (Shields Declaration, Exhibit A, pages 1-2.) 17 Insufficient notice of the meeting before the Airport 18 Commission was provided, and but two or three minutes were made 19 available for public comment. (Wardle Declaration, en 3.) 20 Without the required notice and opportunity to be heard, the 21 review concluded that certain aircraft were "incompatible" with 22 the Airport's reference code, (Shields Declaration, Exhibit A, 23 page 2), and that "incompatible aircraft" should be precluded from 24 using the Airport (id., page 3). The Staff Report concluded with 25 a recommendation that an engineering review at an estimated cost 26 of $25,000 be conducted (id., page 4). 27 The City has adopted its touchstone of "incompatibility" 28 without providing the public and users of the Airport a meaningful

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 3 Bailey &PartnersG:\Runway\pleadings\ReplySMORespNOI0905.wpd 4

1 opportunity to be heard. "A fundamental requirement of due 2 process is 'the opportunity to be heard.' It is an 3 opportunity which must be granted at a meaningful time and in a 4 meaningful manner." Armstrong v. Manzo, 380 

## u.s. 545, 552, 85 S. 5 Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). Deferring the opportunity 6 to be heard until after criteria like "incompatibility" have been 7 adopted does not afford a meaningful opportunity to be heard. 

### S II. THE CITY'S INVOCATION OF SAFETY AS THE 9 JUSTIFICATION FOR THE ACP IS SPURIOUS 10 A. Safety Is Entrusted to the FAA 11 The City cites in support of its liability for dangerous 12 conditions at airports Slapin v. Los Angeles International 13 Airport, 65 Ca. App. 3d 484, 135 Cal. Rptr. 296 (1976), which 14 overruled the trial court's demurrer and held that a complaint 15 which alleged that inadequate lighting at the airport parking 16 facility could state a claim for liability to a victim of assault 17 under Government Code § 835, which provides that a public entity 18 is responsible for injury caused by a dangerous condition of its 19 property. 20 The City also cites Air Transport Ass'n of America v. Crotti, 21 389 F. Supp. 58 (N.D. Cal. 1975), a case involving an airport's 22 authority over;CNEL but not SENEL regulation, a case that predates 23 the enactment of the Aviation Safety and Noise Abatement Act, 49 24 U.S.C. §§ 47501 et seq., enacted in 1979, and the Airport Noise 25 and Capacity Act, enacted in 1990, including, in particular, 26 section 47524 (c), which restricts an airport proprietor's ability 27 to impose "a restriction on noise levels generated on either a 28 single event or cumulative basis" or "any other restriction on

Bailey&Partners1 stage 3 aircraftN and which applies to restrictions adopted after

2 October 1, 1990. The cited case also predates the FAA decision in 3 In the Matter of Compliance with Federal Obligations by the Naples 4 Airport Authority, Naples, Florida, FAA Docket No. 16-01-15 (June 5 30, 2003), aff'd, August 26, 2003 (Stage 2 ban not consistent with 6 statutory and contractual obligations to make airport available to 7 the public on reasonable terms and to all classes). 8 B. The City Is Required to Comply with Part 161 and Provide 

### 9 Notice and an Opportunity To Be Heard, an Environmental 10 Impact Study or Assessment, and Submit the Proposed Access 11 Restriction to the FAA Showing that the Statutory 12 Requirements Are Satisfied 13 The City's Reply states that the ACP "is a reasonable and 14 appropriate response to a combination of the Airport's physical 15 characteristics and increased usage by larger, faster aircraft. N 16 (Shields Declaration, Exhibit A, page 8.) Reasonableness is a 17 factor, but it is a factor to be shown to the FAA in an 18 application for approval of restrictions like those included in 19 the ACP. 49 U.S.C. § 47524(c); 14 C.F.R. § 161.305. 20 C. Unique Characteristics of Santa Monica Airport 21 Even if all of the facts offered by the City to show the 22 unique characteristics of the Airport were true, they would not 23 relieve the City from complying with federally-mandated procedures 24 for restrictions on access. 

### rd. The City arrogates to itself the 25 role of the FAA in approving restrictions like those of the ACP. 26 // 27 // 28 //

G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 5 Bailey&PartnersBailey&Partners 1 III. THE ACP WOULD CONSTITUTE A BREACH OF THE 1948 INSTRUMENT OF

2 TRANSFER AND OF THE 1984 AGREEMENT 3 A. The ACP Would Constitute a Breach of the 1948 Instrument of 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Transfer

The 1948 Instrument of Transfer (hereinafter "Instrument of Transfer"), recorded on August 23, 1948 as Document 1746, Book 28055, Page 211 of the official records of the County of Los Angeles, State of California, effected transfer from the United States of America to the City of Santa Monica of the interests in the real property being operated as the Santa Monica Municipal Airport. The Instrument of Transfer made the transfer subject to the following restrictions:

" (1) That. . the land, buildings, structures, improvements and equipment in which this instrument transfers any interest shall be used for public airport purposes for the use and benefit of the public, on reasonable terms and without unjust discrimination and without grant or exercise of any exclusive right for use of the airport .. " "(2) That the entire landing area, as defined in WAA Regulation 16, dated June 26, 1946, and all structures, improvements, facilities and equipment in which this instrument transfers any interest shall be maintained for the use and benefit of the public at all times in good and serviceable condition .

" The ACP, in restricting access to the Airport to certain classes of aircraft, breaches these conditions and covenants governing the City's operation of the Airport. It also gives rise to a right in the United States of America, in the event that the G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 61 City fails to cure theses breaches after demand, to exercise its

2 right of reversion to take back the Airport for the Government. 3 B. The ACP Would Breach the City's Obligations Under the 1984 4 Agreement 5 The City argues that restricting access to the Airport to 6 aircraft within the B-II airport reference code is consistent with 7 its obligations under the 1984 Agreement. The City is mistaken. 8 Under section 8 of the 1984 Agreement, the City is required to 9 "operate and maintain the Airport" so that it "will be capable of 10 accommodating most kinds of general aviation aircraft, generally 11 consistent with Group II Design Standards set forth in FAA 12 Advisory Circular 150/5300.4B dated February 24, 2983." The 13 Agreement says nothing about limiting access to approach category 14 B aircraft. 15 Section 9 of the 1984 Agreement requires the City to 16 "continuously maintain[ ]" its runway. Its exact language is: 17 '"At the present time the Santa Monica Airport has 18 one runway designated 3/21 which is 5,000 feet long and 19 150 feet wide. This runway will be continuously 20 maintained in good operating condition by the City." 21 The City argues that its proposal to eliminate 600 feet of the 22 runway from availability for use on takeoff (and 300 feet on 23 landing) leaves it still in compliance with the obligation to 24 "maintain" a runway "which is 5,000 feet long." There is implied 25 in the obligation to maintain a runway a term that maintaining the 26 runway means maintaining the runway for use as a runway. The ACP 27 would constitute a breach this contractual obligation. 28 //

G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 7 Bailey&Partners1 IV. THE CITY IS NOT NOW IN COMPLIANCE, AND WOULD NOT BE IN

2 COMPLIANCE IF THE ACP WERE ADOPTED, WITH ALL APPLICABLE LAWS, 3 INCLUDING ANCA AND PART 161 

### 4 A. The ACP Is Not Reasonable and Is Unjustly Discriminatory 5 The ACP would ban aircraft with approach speeds greater than 6 category B approach speeds. The City amazingly states that a ban 7 on entire classes of aircraft (those falling within approach 8 categories C and D) "would not ban any person or business entity 

### 9 from the Airport" because they "could . . . continue to use the 10 Airport by simply opting for a smaller aircraft that is compatible 11 with" the ACP. (Shields Declaration, Exhibit A, page 15). That 12 is, the City argues there is no disparate treatment of similarly 13 situated classes because the relevant classes are the people, not 14 the aircraft which they are using, and the people can use smaller 15 aircraft. But the City is not regulating people; it is 16 regulating aircraft. The relevant classes being treated 17 differently for constitutional purposes are category B aircraft, 18 on the one hand, and category C and D aircraft, on the other hand. 19 The ACP's classification is not even rationally related to any 20 legitimate municipal purpose. 21 B. The City's Argument That There Is No Preemption 

### ~sses the 22 Point that The City Must Obtain Approval for the ACP 23 Restrictions 24 If the City proposes to adopt restrictions on stage 3 25 aircraft, it is required to comply with the procedures of ANCA and 26 part 161. 49 U.S.C. § 47524(c), requiring FAA approval of a 27 restriction, applies to "any other restriction on stage 3 28 aircraft." 49 U.S.C. § 47524(c) (E); 14 C.F.R. § 161.305. The G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 8 Bailey&PartnersBailey &Partners 1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City's argument that the ACP restrictions "would not conflict with federal law" (Shields Declaration, Exhibit A, page 17) is not an exemption from the statutory procedure. C. The City Is Mistaken in Stating that ANCA Is Inapplicable Because It Involves "Noise, Not Safety Enhancements" ANCA procedures expressly apply to noise restrictions and also to "any other restriction on stage 3 aircraft." 49 U.S.C. § 47524(c) (E); 14 C.R.F. Part 161. The restrictions subject to ANCA
are not restricted to restrictions related to noise. Cf. Millard Refrigerated Services, Inc. v. FAA, 98 F.3d 1361 (D.C. Cir. 1996) (weight-based restriction) . D. The City Has Not Prepared an Environmental Assessment As Required by 14 C.F.R. § 161.305(c) 14 C.F.R. § l61.305(c) requires that an adequate Environmental Assessment be prepared to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. Under NEPA, an Environmental Assessment is required "to provide sufficient data and analysis to determine whether an EIS or a finding of no significant impact is required." 40 C.F.R. § 6.l05(d). The City has represented that its finding of no significant impact relieves it of the obligation to conduct an Environmental Assessment. (Wardle Declaration, ~ 6.) While that might be true under state law, it is not true under applicable federal law, and, absent compliance, the City may not adopt the ACP. The City is required by NEPA to assess whether the ACP would have any effects on the environment, "effects" including indirect effects, 40 C.F.R. § lS08.8(b), California v. United States Department of Transportation, 260 F. Supp. 2d 969 (N.D. Cal.
G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 93

Those lower altitudes over the

1 2003), and cumulative effects, 40 C.F.R. § 1508.27 (b) (7). The 2 City did not comply with this requirement.

(1) The reduction in runway available for takeoff would 4 require shorter takeoff rolls and would result in lower altitudes 5 over the surrounding neighborhood. 6 adjacent residential neighborhood would almost assuredly have an 7 environmental effect. 8 (2) The ban on entire classes of aircraft from using the 9 Airport would result in an increase in aircraft using airports at 10 Van Nuys, Burbank, and other communities in southern California. 11 (Wardle Declaration, ~ 6.) This impact on other airports 12 constitutes an indirect effect which the City has impermissibly 13 failed to recognize and address. The City's denial of any impact 14 is a cavalier abdication of its environmental responsibility. 15 V. THE CITY HAS FAILED EVEN TO ADDRESS THE REQUIRED FACTORS 16 ANCA, 49 U.S.C. § 47524(c), and its implementing regulations 17 under 14 C.F.R. Part 161, require that a proposed restriction on a

3 aircraft be approved by the FAA and require a showing 18 stage 19 that: 20 21 22 23 24 25 26 27 28

Bailey &Partners (A) the restriction is reasonable, nonarbitrary, and nondiscriminatory; (B) the restriction does not create an unreasonable burden
on interstate or foreign commerce; (C) the restriction is not inconsistent with maintaining the safe and efficient use of the navigable airspace; (0) the restriction does not conflict with a law or regulation of the United States;

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 101 (E) an adequate opportunity has been provided for public

2 comment on the restriction; and 3 (F) the restriction does not create an unreasonable burden 4 on the national aviation system. 5 The City incompletely and inaccurately addressed (A); the City 6 has failed to address (B) through (F). 7 VI. THE ACP IS JUST THE LATEST IN A SERIES OF INROADS BY THE CITY 8 ON THE PUBLIC'S RIGHT OF ACCESS TO THE AIRPORT ON REASONABLE 9 AND NOT UNJUSTLY DISCRIMINATORY TERMS 10 The ACP is just the latest in a series of strategies which 11 the City has undertaken to undermine the Airport. See, e.g., 12 Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 13 100 (9th Cir. 1981) (categorical ban on jet aircraft operations at 14 the airport is unconstitutional); the progressive fine schedule 15 for violating the noise ordinance; and the 2003 landing fee 16 program. The ACP proposal does and would infringe the due process 17 and equal protection rights of airport users, fails to comply with 18 the statutory procedure required for proposed restrictions, and 19 breaches the City's obligations under the 1984 Agreement and the 20 1948 Instrument of Transfer. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 //

G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 11 Salley & Partners1 In addition, the ACP would be a threat to the national

2 airspace system by disabling a key reliever airport and inflicting 3 a surge of traffic on other communities. 4 5 DATE: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Bailey & Partners September 26, 2003.

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 12 Respectfully submitted, BAILEY & PARTNERS

BY~Bailey & Partners 1

2 3 4 l. 5 6 7 8 9 10 11 12 13 14 15 2. 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY TO THE CITY'S STATEMENTS OF FACTS AND CONCLUSIONS OF LAW SHOWING THEY ARE CONTROVERTED City's Statement of Fact Reply

The City has taken no The City Council, at its action that could violate December 10, 2002 meeting, its legal obligations. voted "to approve in (City's Reply, page 3.) concept" the ACP and to "direct staff to explore The City has made no the implications of decision as to the ACP. proceeding with (City's Reply, page 4.) implementation." (Shields Declaration, Exhibit A.)

The City's Airport The ACP which the City Commission conducted a "approved in concept" presentation and a public adopted the goal that hearing on the ACP on May "incompatible aircraft" 20, 2002. should be precluded from

(City's Reply, page 5.) using the Airport (Shields Declaration, Exhibit A, page 3) without complying with the required procedure. (Wardle Declaration, ~~ 2, 3.) The May 20, 2002 presentation and "public hearing" was conducted on
G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 131

2 3 4 5 6 7 3. 8 9 10 11 12 13 14 15 16 17 18 19 

## II 20 

## II 21 

## II 22 

## II 23 

## II 24 

## II 25 

## II 26 

## II 27 

## II 28 

## II The ACP addresses a City

concern illustrated by a fatal crash which occurred earlier this year when a pilot attempted to abort a takeoff, failed and skidded off the runway. (City's Reply, page 10 n. 8, 12.)

Bailey &Partners G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 14 insufficient notice and allowed approximately two
or three minutes for public comment. (Wardle Declaration, ~ 3.)

The referenced accident
was contained on Airport property. Had the ACP been in place, the outcome of the crash would not have been different. (Wardle Declaration, ~ 13. )Bailey &Partners 1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTROVERTED CONCLUSIONS OF LAW

The City is mistaken with respect to the following issues of law:

1. City: The ACP would not violate the law because it is consistent with federal guidelines.

Reply: Whether this is so is a matter for the FAA. The City is required to comply with the application and approval procedures of 14 C.F.R. Part 161. It may not make the approval decision itself.

2. City: The ACP would not effect any prohibited classification
or ban any persons, for persons "could . continue to use the Airport by simply opting for a smaller aircraft." (City's Reply, page 15.)

The City argues there is no disparate treatment of similarly situated classes because the relevant classes are the people, not the aircraft they are using, and the people can
use smaller aircraft. But the City is not regulating people; it is regulating aircraft. The relevant classes being treated differently for constitutional purposes are category B aircraft, on the one hand, and category C and D aircraft, on the other hand. The ACP's classification is not even rationally related to any legitimate municipal purpose.

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 1510

3

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 16 1 3. City: Federal law does not preempt the ACP, and the ACP does 2 not conflict with federal law. (City's Reply, pages 16-17.)

4 The preliminary issue is whether the City has complied with 5 the notice, environmental, application, and approval 6 requirements of the Airport Noise and Capacity Act, 49 7 U.S.C. § 47524(c), and its implementing regulations, 14 8 C.F.R. § 161.305. Federal law has preempted the approval 9 procedure, and the City may not avoid it.

11 4. City: Regulation through the ACP falls within the reserved (City's Reply, page 18.) 12 powers of the City. 13 14 15 16 17 The City is regulating in occupied waters: Congress has

legislated the procedure which the City must follow. 49 U.S.C. 

### § 47524(c); 14 C.F.R. 

### § 161.305.

18 5. City: The Airport Noise and Capacity Act ("ANCA"), 49 U.S.C. 19 § 47524(c), and 14 C.F.R. Part 161, only applies to noise 20 restrictions. (City's Reply, pages 19, 22.)

Bailey&Partners21

22 23 24 25 26 ANCA expressly applies to noise restrictions and also to

"any other restriction on stage 

### 3 aircraft." 

### 49 U.S.C. 

### § 47524 (c)(E); 14 C.R.F. Part 161. Cf. Millard Refrigerated Services, Inc. v. £4A, 98 F.3d 1361 (D.C. Cir. 1996) (weight-based restriction) .1 7. City: The ACP would not breach the 1984 Agreement because the

2 ACP would only ban aircraft not complying with the B-II Airport 3 Reference Code, and because the Runway Safety Area program would 4 still allow "maintenance" of a 5000 foot runway. (City's Reply, 5 pages 20-22.) 6 7 Section 8 of the 1984 Agreement obligates the City to 8 "operate and maintain the Airport" so that it "will be 9 capable of accommodating most kinds of general aviation 10 aircraft, generally consistent with Group II Design 11 Standards set forth in FAA Advisory Circular 150/5300.4B 12 dated February 24, 2983." The Agreement says nothing about 13 limiting access to approach category B aircraft. 14 15 The City argues that it complies with the 1984 Agreement by 16 maintaining a 5000-foot runway but not allowing all of it to 17 be used as a runway. (The ACP would eliminate 600 feet of 18 the runway from use on takeoff and 300 feet on landing.) 19 Section 9 of the 1984 Agreement obligates the City to 20 "continuously maintain[ 

### 1" its runway: "At the present time 21 the Santa Monica Airport has one runway designated 3/21 22 which is 5,000 feet long and 150 feet wide. This runway 23 will be continuously maintained in good operating condition 24 by the City." There is implied in the obligation to 25 maintain a runway a term that maintaining the runway means 26 maintaining the runway for use as a runway. 27 28
G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 17 Bailey & PartnersBailey &Partners 1

2 3 4 l. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 

# 0~1 L I 28 ADDITIONAL CONCLUSIONS OF LAW

There are the following relevant additional issues of law:

The ACP would breach the City's obligations under the 1948 Instrument of Transfer ("Instrument of Transfer"), recorded
on August 23, 1948 as Document 1746, Book 28055, Page 211 of the official records of the County of Los Angeles, State of California, and which effected transfer from the United States of America to the City of Santa Monica of the interests in the real property being operated as the Santa Monica Municipal Airport. The Instrument of Transfer made the transfer subject to the following restrictions:

" (l) That . . the land, buildings, structures, improvements and equipment in which this instrument transfers any interest shall be used for public airport purposes for the use and benefit of the public, on reasonable terms and without unjust discrimination and without grant or exercise of any exclusive right for use of the airport . rr

"(2) That . the entire landing area, as defined in WAA Regulation 16, dated June 26, 1946, and all structures, improvements, facilities and equipment in which this instrument transfers any interest shall be maintained for the use and benefit of the public at all times in good and serviceable condition .

G:\Runway\Plead.ngs\ReplySMORespNOI090S.wpd 18Bailey&Partners 1 2.

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 

### II 27 II 28 

### II The City's finding of no significant impact does not relieve

it of the obligation to conduct an Environmental Assessment.

14 C.F.R. § 161.305(c) requires that an adequate Environmental Assessment be prepared to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. Under NEPA, an Environmental Assessment is required "to provide sufficient data and analysis to determine whether an EIS or a finding of no significant impact is required." 40 C.F.R. § 6.105(d).

The City is required to assess whether the ACP would have any effects on the environment, "effects" including indirect effects, 40 C.F.R. § 1508.8(b), California v. United States Department of Transportation, 260 F. Supp. 2d 969 (N.D. Cal. 2003), and cumulative effects, 40 C.F.R. § 1508.27(b) (7). The ·Citydid not comply with this requirement. (1) The reduction in runway available for takeoff would require shorter takeoff rolls and would result in lower altitudes
over the surrounding neighborhood. Those lower altitudes
over the adjacent residential neighborhood would have an environmental effect. (2) The ban on entire classes of aircraft from using the Airport would result in an increase in aircraft using airports at Van Nuys, Burbank, and other communities in southern California.

G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 19September 26, 2003.

1 DATE: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Bailey &Partners G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 20 Respectfully submitted, BAILEY & PARTNERS

By PATRICK E. BAILEY1 DECLARATION OF SCOTT WARDLE

2 (28 U.S.C. § 1746) 3 I, SCOTT WARDLE, declare: 4 1. I am General Manager of Supermarine, a Fixed Base 5 Operator located at the Santa Monica Municipal Airport. I have 6 personal knowledge of the facts set forth herein and if called as 7 a witness could and would competently testify thereto. 8 2. In May of 2002, City staff introduced the Aircraft 9 Performance Program ("ACpU) through an agenda item called "Airport 10 Design Standards Study.u A consultant presented the report in a 11 slide show format. A printed copy was not made available to the 12 public at that time. 13 3. The agenda item did not accurately represent what was 14 in the consultant's fast-paced presentation and we were afforded 15 minimal time to prepare for what was presented and only allowed 16 two to three minutes to speak prior to a vote by the Airport 17 Commission~ To the best of my knowledge, I and most others did 18 not receive the Airport Commission agenda until the day of the 19 meeting, as is the usual custom and practice. 20 4. The City's Reply refers to a fatal crash at the Airport 21 last year. That accident was contained on Airport property. I 22 believe, had the ACP been in place, the outcome of the crash would 23 not have changed. 24 5. Paragraph 7 of the Declaration of Mr. Trimborn refers 25 to Class C and D aircraft as "larger.u As shown by the City's own 26 Exhibit E, this is mistaken. 27 6. The City stated in its presentation on May 20, 2002, 28 that there would be no impact on the environment and therefore no

Bailey&Partners1 environmental impact study would be required. This statement

rue

2 overlooks the environmental impact of increased operations at 3 other airports in the area caused by the exclusion of these 4 operations from Santa Monica Airport. In contrast to the City's 5 apparent lack of concern about environmental impacts of its own 6 actions, the City, a couple of years ago, denied the application 7 for a permit of a jet charter operator, who was a tenant at the 8 Airport. This jet charter operator applied for a permit to base a 9 couple Hawker turbine aircraft at the Airport. His application 10 was denied on the ground that he had not conducted the mandatory 11 one-year environmental study as required by the City.

13 and correct. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Bailey &Partners12 I declare under penalty of perjury that the foregoing Executed on September 26, 2003.

G:\Runway\Pleadings\ReplySMORespNOI090S.wpd 2210

1

G: \Runway\ Pleadillys\Repl ySMOHespNOI0905 .•..•• pd 23 11 Staff Report submitted to the City Council on the subject "Request DECLARATION OF CAROLYN J. SHIELDS 2 (28 U.S.C. § 1746) 3 I, CAROLYN J. SHIELDS, declare: 4 1. I am a partner in Bailey & Partners and have personal 5 knowledge of the facts set forth herein. If called as a witness I 6 could and would competently testify thereto. 7 2. Attached as Exhibit A is a true and correct copy of the 8 Agenda of the December 20, 2002 meeting of the City Council of the 9 City of Santa Monica as posted on the City's website.

3. Attached as Exhibit B is a true and correct copy of the

12 that City Council Approve in Concept a Proposed Aircraft 13 Conformance Program and Designation of Runway Safety Areas at 14 Santa Monica Airport and Direct Staff to Evaluate the Implications 15 of Implementation," as posted on the City's website. 16 I declare under penalty of perjury that the foregoing is true 17 and correct. 18 19 20 21 22 23 24 25 26 27 28

Bailey &Partners Executed on September 26, 2003. 

# ~J~tW CAROLYN . SHIELDS

# ExhibitALI Ir vr :)Al~ 1A IVIUI'IILA Page lot'S
CITYOFSANTA MONICA REGULAR ADJOURNED CITY COUNCIL MEETING AGENDA CITY HALL COUNCIL CHAMBERS -1685 MAIN STREET

TUESDAY, DECEMBER 10,2002 

### MEETING BEGINS AT5:45 P.M.

CALLTOORDER PLEDGE OFALLEGIANCE ROLL CALL 1. CONSENT CA~!=NOAR: (All items will beconsidered and approved inone motion unless removed byaCouncilmember fordiscussion.) 1-A: Approval ofOctober 22,2002, City Council meeting minutes. MINUTES 1-8: Award of Construction Contracts for Sewer Project #12 - recommendation to authorize the City Manager to negotiate and execute a construction contract with Miramontes Construction Co., Inc., inthe amount of$7,383,440, for Sewer Project #12

- Repair of Earthquake-Damaged Sanitary Sewer Mains inthe area bounded by Pico Blvd., 34th Street, South City Limits, and 4th Street; negotiate and execute acontract with Tetra Tech, in the amount of $1,442,811, for construction management and inspection services; and, approve recommended appropriations. STAFF REPORT 1-C: Construction contract for Sewer Project #14- recommendation tonegotiate and execute aconstruction contract with Mike Prlich and Sons, Inc., intheamount of $3,104,246, forSewer Project#14-RepairofEarthquake-Damaged Sanitary Sewer Mains intheareabounded byPicoPlace South toDewey Street, and Barnard Wayto Walgrove Avenue; negotiate andexecute acontract withTetra Tech, Inc., intheamount of$475,625, forconstruction management and inspection services; and, approve recommended appropriations. STAFF REPORT 1-0: Authorization for City Manager and City Attorney to Negotiate and Execute Employment Agreements with Certain Unclassified Employees. STAFF REPORT 1-E: Contract amendment for the Municipal Pool Project - recommendation toauthorize http://www.santa-monica.org/cityclerk/council/agendas/2002/20021210/a20021210.htm 8/25/2003U 1r ur ~A!\j lA !V1Vl''11LA Page2of5

theCityManager toexecute anamendment toContract No.7978 (CCS) with Swinerton Builders, intheamount of$172,595, fortheMunicipal Pool Project. STAFF REPORT 1-F: Animal Shelter Improvement Project - recommendation toaward acontract toAWl Builders, intheamount of$414,850, fortheconstruction oftheAnimal Shelter Improvements Project. STAFF REPORT 1-G: Mills Act Historic Property Preservation Agreements - recommendation toadopt fourresolutions and authorize theCityManager toexecute Historical Property Preservation Agreements undertheMillsAct, between the CityofSanta Monica and each ofthe property owners of211 AltaAvenue, 2612Third Street, 2402 Fourth Street #2,and 315 10thStreet. STAFF REPORT 1-H: Approval ofShort-Range Transit Plan and application for funds - recommendation toauthorize theCity Manager tofiletheShort Range Transit Plan (SRTP) Updateto permit Santa Monica's BigBlue Bustoremain eligible forfederal andstatetransitfunds, andtofileapplications foravailable funds based ontheSRTP. STAFF REPORT 1-1: Bayside Annual Operations and Marketing Plan - recommendation toreceive and filethe Bayside District Corporation Annual ReportforFiscal Year 2001-02, and approve Annual Operations and Marketing Planfor Fiscal Year 2002-03. STAFF REPORT 1-J: Donation ofthree used solid waste vehicles and one used Big Blue Bus to Sinaloa Ecoregion Foundation. STAFF REPORT RECESS TO RECEPTION INCITYHALL LOBBY. 2. CLOSED SESSlor'~tS

## (Tobec;onsid~c?dlaterin tbemeeting): 2-A: Conference with Legal Counsel - Existing Litigation: C_ClrolynJ.Qnes.~City of Santa,.M9niG.~.,Case No. CV01-09102 (WJR). 2-B: Conference with Legal Counsel - Anticipated Litigation. Number ofcases: Six. 7:00 P.M. INSTALLATION OFNEWOFFICERS: INSPIRATION: Members ofthe Santa Monica High School Chamber Orchestra. http://www.santa-monica.org/cityclerk/council/agendas/2002/20021210/a20021210.htm 8/25/2003Page3of5

A: Resolution adopting results of November 5, 2002, municipal election - recommendation to adopt resolution certifying the results ofthe Official Canvass and Official Statement of Votes Cast for the Consolidated Municipal Election held on November5,2002, anddeclaringtheresultsthereof. STAFF REPORT ADJOURNMENT OFCOUNCIL,AS PRESENTLYCONSTITUTED. MEETINGTURNED OVERTOCITYCLERK. B: Administration ofoath ofoffice to newmembers ofthe Santa Monica College Board ofTrustees. C: Administration ofoath ofoffice to newSanta Monica-Malibu Unified School District Board of Education Members. 0: Administration ofoath ofoffice to newSanta Monica Rent Control Board Members. E: Administration ofoath ofoffice to newSanta Monica City Council Members.

F: Roll Call G: Election of Mayorforthe ensuing two years. H: Election of Mayor ProTemfortheensuing two years. ENDOFINSTALLATION OFNEWOFFICERS 7

..

### QRQIN8NCI;S: (Nopublicdiscussion ispermittedonordinances forsecond readingand adoption.) 7-A: Second reading and adoption ofanOrdinance toAmend the Contract Between the California Public Employees' Retirement System and the City ofSanta Monica. (FirstreadingheldonNovember12,2002.) STAFF REPORT 7-B: Second reading and adoption ofan interim ordinance extending amoratorium on neworexpanded retail uses ontheThird Street Promenade with limited exceptions. (Firstreading heldonNovember26,2002.) STAFF REPORT 8.STAFFADMINISTRATIVE ITEMS: 8-A: Airport Conformance Program - recommendationtoapprove inconcepttheAircraft http://www.santa-monica.org/cityclerk/council/agendas/2002/20021210/a20021210.htm 8/25/2003'-JJ 1 VJ ui\.l"ll\,ll'lVJ."lJ\......f-\. rage '+ VI .J

ConformanceProgramandrunwaysafetyareadesignation anddirectstafftoexplorethe implicationsofproceedingwithimplementation. STAFF REPORT 8-8: Presentation ofimpact report ofthe 

### Homeowners Freedom of 

### Choice Initiative. STAFF REPORT 8-C: Recommendation toeither adopt the 

### Homeowners Freedom of

### ChoiceInitiative's proposed ordinance ororder aspecial Election; andsupplemental report and ordinance for consideration ofanall-mail election. STAFF REPORT 10. 

### REPORTSOFf3QA8PSANDCQMMISSIQNS: 10-A: Recommendation to namethe auditorium atthe newSanta Monica Public Library inhonor of Dr. Martin Luther King, Jr. STAFF REPORT 10-8: Request ofthe Recreation &Parks Commission to approve aproposed beach lots greening, recreation and parking concept. STAFF REPORT 10-C: Recommendation of Landmarks Commission to place ameasure onthe ballot to amend theCity's Landmarks Ordinance. STAFF REPORT 13. COLJNCILME;M6E;R 

### DISCUS~IQN ITE:MS: 13-A: Appointment to oneannual vacancy onthe Commission on Older Americans for aterm ending June 

### 30,2006,and appointment to onespecial vacancy for aterm ending June 

### 30,2003. (ContinuedfromOctober8,2002.) 13-8: Appointment to onespecial vacancy ontheAccessibility Appeals Board ofthe Building and Safety Commission, for aterm ending June 

### 30,2005. 13-C: Appointment ofCouncilmembers asLiaisons toCity Boards and Commissions. 13-0: Acceptance ofSteve Irvin's letter ofresignation from theArts Commission and authorization forthe CityClerkto publish thevacancy.

http://www.santa-monica.org/cityclerk/councillagendas/2002/20021210/a20021210.htm 8/25/2003~ <15'"' .J Vi J

14. PU6~ICJNPl)T: (Public comment ispermitted onlyon items notontheagenda that arewithin thesubject matterjurisdiction oftheCity. Please notethatState lawprohibits theCityCouncil from taking anyaction on items notlisted ontheagenda, including issues raised underthisagenda item.) ADJOURNMENT. CityHallandtheCouncil Chamberiswheelchair accessible. Ifyourequire anyspecial disability relatedaccommodations (i.e.signlanguage interpreting, access toanamplified soundsystem, etc.),please contact theCityClerk's Officeat(310)

### 458-8211 orTOO:(310) 917-6626 atleast

### 3dayspriortothescheduled meeting. Thisagenda isavailable inalternate format uponrequest bycalling theCityClerk's Office.

http://www.santa-monica.orglcityclerklcouncil/agendas/2002120021210/a20021210.htm 8/25/2003

# ExhibitBi-age 1at4

Council Meeting: December 10,2002 Santa Monica, California

To: CityCouncil From: CityStaff Subject: Request that CityCouncil Approve inConcept aProposed Aircraft Conformance Program and Designation of Runway Safety Areas at Santa Monica Airport and Direct

StafftoEvaluate the Implications ofImplementation


### tntroductlon This report recommends that the City Council discuss and approve in concept a proposed Aircraft Conformance Program (ACP) and the designation ofappropriate runway safety areas to ensure continued safe, compatible Airport operations. If approved in concept, the City Council should direct staff to thoroughly explore the implications of proceeding to implementation. Background Santa Monica Airport is designed and is currently rated to handle aircraft with approach speeds ofless than 121 knots and wingspans ofless than 79feet. However, the number of faster turbine aircraft using theAirport has increased rapidly 

### inrecent years and nowexceeds 6,000 takeoffs orlandings annually. Inresponse tothis changing reality, staff initiated areview ofthe facility's operational design todetermine itscompatibility with the emerging aircraft fleet mix. The Santa Monica Airport Design Standards Analysis was conducted byAirport staffand theaviation planning firm Coffman Associates. Thedesign standards analysis reviewed:

• theshift inthe aircraft fleet mixusingtheAirport toward larger andfaster aircraft

• the relationship between the performance criteria ofthese larger, faster aircraft andthe design/operational limitations oftheAirport's physical plant.

• pastandcurrent Federal Aviation Administration (FAA) Airport Design Standards

• overall aircraft operations toensure theAirport's compatibility with theemerging mixof

http://www.santa-monica.org/cityclerklcouncil/agendas/2002/20021210/s2002121008-A.htm 8/25/2003..•.. -b"'" ~ '-'.•..•
aircraft usingthefacility.

The analysis of the operational data collected confirmed that there are increasingly larger and/or faster aircraft operating at the Airport. These aircraft are not compatible with the Airport's designated FAA design standards airport reference code. The Airport's FAA reference code is B-II (two) and isbased upon the critical design aircraft identified in 1984. Airport facilities were designed and constructed toaccommodate B-IIcompatible aircraft. That designated category ofaircraft hadapproach speeds oflessthan 121 knots and wingspans of lessthan 79feet. Theanalysis concluded that; 1) there has been asignificant trend in recent years towards greater numbers of faster/larger/heavier aircraft that are incompatible with the Airport's FAA reference code ofB-II, and 2) the Airport lacks sufficient runway safety areas per current FAA design guidelines. Runway safety areas areclear areas atrunway endswhich provide amargin ofsafety intheeventofanemergency. DLscussJQI} The Santa Monica Airport Design Standards Analysis resulted in a recommendation to implement aspecific program toaccommodate onlythose aircraft that are compatible with the airport reference code of B-II as identified inthe 1984 Agreement and defined bythe current FAAAirport Design Standards (hereinafter referred to asthe "Aircraft Conformance Program" or"ACP"). Additionally, the analysis recommended the designation ofrunway safety areas by displacing the landing

http://www.santa-monica.org/cityclerk/council/agendas/2002/20021210/s2002121008-A.htm 8/2512003rage j 

### or4

thresholds 300' ateither end ofthe runway consistent withtheAirport's reference code of8-/1. This change would create runway safety areas at both ends ofthe existing runway without shortening the runway itself. Airport Commission Review and Recommendation At its meeting on May 20, 2002 the Airport Commission considered the information and analysis contained in the Design Standards Analysis and unanimously voted to forward a recommendation to the City Council supporting the establishment of a program that would preclude incompatible aircraft from using the Airport and requested that staff conduct an engineering review and analysis leading to the designation of appropriate runway safety areas. Additionally, the Commission recommended that staff return atasubsequent meeting todiscuss potential ACP enforcement scenarios. During itsJuly 22, 2002 meeting, the Airport Commission supported the implementation of a proposed Aircraft Conformance Program and also discussed potential enforcement procedures. The Commission requested thatstaffforward the recommendation toCityCouncil foradoption.

FAANotice ofInvestigation OnOctober 8,2002 the FAAserved theCitya 14page Notice of Investigation (NOI) regarding "the legality ofthe Santa Monica Airport Commission's apparentdecision to recommend that the Santa Monica City Council adopt and implement theAirport Conformance Program". The NOIfurther advised thatthe FAAmay issueadetermination, among otherthings, thatthe City is: 1) notincompliance with1984 Agreement 2) notincompliance withcertain FAAGrantAssurances 3) notincompliance with Federal Law Additionally, the NOI invites the Citytoparticipate ingood faith efforts toinformally resolve the
http://www.santa-monica.orglcityclerklcouncil/agendas/2002120021210/s2002121008-A.htm 8/25/2003matter. Citystaffwas surprised bythe notice because, prior to its issuance, discussions with

the FAA regarding the conformance program had been on-going; and the FAA gave no indication ofanyplan toinitiate formal proceedings. Once the proceedings were initiated, the City Attorney and City staff prepared awritten response to the NOI rejecting the assertions made bythe FAA regarding theACP and inviting the FAA tocontinue todiscuss the matter. That response wasfiled on November 7,2002


# augg~tLEirtC!D~l~LLmRa~t There are nobudget orfinancial impacts ofapproving in concept and directing staffto return with evaluation ofimplications ofimplementation atthistime.

Staff recommends thatthe CityCouncil consider the information and analysis contained inthe design standards analysis presentation, approve the Aircraft Conformance Program and runway safety areadesignation inconcept and instruct theCity Manager andtheCityAttorney to: 1) continue tomeetwith the FAAinanefforttoresolve the matter 2) conduct an in-depth review of the legal, environmental and operational consequences related to the implementation of the Airport Commission's recommended Aircraft Conformance Program 3) conduct an engineering review and analysis leading to the implementation of appropriate runway safety areas within the current Airport boundaries at an estimated costof$25,000. Prepared by: Jeff Mathieu, Director ofResource Management/Airport Director Robert Trimborn, Airport Manager

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