2828 DONALD DOUGLAS Loop NORTH

SECOND FLOOR

SANTA MONICA, CALIFORNIA 9°4°5-2966

PHONE (310) 392-5000

FAX (3IG) 392-8091

PATRICK E. BAILEY

Attorney at Law

PBAILEY@BAILEYPARTNERS.COM

OFFICES IN SANTAMONICA & SACRAMENTO

September 30, 2003 VIA FEDERAL EXPRESS

Mr. David L. Bennett

Federal Aviation Administration

Office of Airport Safety and Standards

AASI Room 621

800 Independence Ave., S.W.

Washington, D.C. 20591

EXHIBIT

I~/EItA~

Re: City of Santa Monica's "Aircraft Conformance Program"

Dear Mr. Bennett:

As you know, Patrick is on the road, but in a telephone conversation with him yesterday, he told me

of your very productive meeting. He asked that I forward you our latest draft of the Response by

Patrick E. Bailey to the Reply of the City of Santa Monica to the Notice of Investigation; Declaration

of Scott Wardle in Support.

If you have any questions, please feel free to contact me.

/~.S regar~./1 .

/ ,ji~' /

~~ A-.Yo~t·/

Client Relations

BAILEY & PARTNERS

Enclosure

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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 & Partners
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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 & Partners
1 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

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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 & Partners
1 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 / /

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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

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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

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1 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 //

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Bailey & Partners
1 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

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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.

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3

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

18 stage 3 aircraft be approved by the FAA and require a showing

19 that:

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(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;

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1 (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 //

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1 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.

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September 26, 2003.

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Respectfully submitted,

BAILEY & PARTNERS

BY~
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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. (City's Reply, should be precluded from

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

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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.)

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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. )
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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.

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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

12 powers of the City. (City's Reply, page 18.)

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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.)

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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.)

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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.

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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.

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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 .

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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 ·City did 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 19
1 DATE: September 26, 2003.

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Bailey & Partners

G:\Runway\Pleadings\ReplySMORespNOI0905.wpd 20

Respectfully submitted,

BAILEY & PARTNERS

By

PATRICK E. BAILEY
1 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 & Partners
1 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.

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Bailey & Partners

12 I declare under penalty of perjury that the foregoing

Executed on September 26, 2003.

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10

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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.

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Bailey & Partners

Executed on September 26, 2003.

CAROLYN

~J~tW. SHIELDS
Exhibit A
LI I r vr :)Al~ 1A IVIUI'IILA Page lot'S

CITY OF SANTA MONICA

REGULAR ADJOURNED CITY COUNCIL MEETING AGENDA

CITY HALL COUNCIL CHAMBERS - 1685 MAIN STREET

TUESDAY, DECEMBER 10, 2002

MEETING BEGINS AT 5:45 P.M.

CALL TO ORDER

PLEDGE OF ALLEGIANCE

ROLL CALL

1. CONSENT CA~!=NOAR: (All items will be considered and approved in one motion unless

removed by a Councilmember for discussion.)

1-A: Approval of October 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., in the amount of $7,383,440, for Sewer Project #12

- Repair of Earthquake-Damaged Sanitary Sewer Mains in the area bounded by Pico

Blvd., 34th Street, South City Limits, and 4

th Street; negotiate and execute a contract

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 to negotiate and

execute a construction contract with Mike Prlich and Sons, Inc., in the amount of

$3,104,246, for Sewer Project #14 - Repair of Earthquake-Damaged Sanitary Sewer

Mains in the area bounded by Pico Place South to Dewey Street, and Barnard Way to

Walgrove Avenue; negotiate and execute a contract with Tetra Tech, Inc., in the amount

of $475,625, for construction 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 to authorize

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U 1 r ur ~A!\j lA !V1Vl''11LA Page 2 of5

the City Manager to execute an amendment to Contract No. 7978 (CCS) with Swinerton

Builders, in the amount of $172,595, for the Municipal Pool Project.

STAFF REPORT

1-F: Animal Shelter Improvement Project - recommendation to award a contract to AWl

Builders, in the amount of $414,850, for the construction of the Animal Shelter

Improvements Project.

STAFF REPORT

1-G: Mills Act Historic Property Preservation Agreements - recommendation to adopt

four resolutions and authorize the City Manager to execute Historical Property

Preservation Agreements under the Mills Act, between the City of Santa Monica and

each of the property owners of 211 Alta Avenue, 2612 Third Street, 2402 Fourth Street

#2, and 315 10th Street.

STAFF REPORT

1-H: Approval of Short-Range Transit Plan and application for funds - recommendation

to authorize the City Manager to file the Short Range Transit Plan (SRTP) Update to

permit Santa Monica's Big Blue Bus to remain eligible for federal and state transit funds,

and to file applications for available funds based on the SRTP.

STAFF REPORT

1-1: Bayside Annual Operations and Marketing Plan - recommendation to receive and

file the Bayside District Corporation Annual Report for Fiscal Year 2001-02, and

approve Annual Operations and Marketing Plan for Fiscal Year 2002-03.

STAFF REPORT

1-J: Donation of three used solid waste vehicles and one used Big Blue Bus to

Sinaloa Ecoregion Foundation.

STAFF REPORT

RECESS TO RECEPTION IN CITY HALL LOBBY.

2. CLOSED SESSlor'~tS (To be c;onsid~c?d laterin tbemeeting):

2-A: Conference with Legal Counsel - Existing Litigation: C_ClrolynJ.Qnes .~City of

Santa,.M9niG.~.,Case No. CV 01-09102 (WJR).

2-B: Conference with Legal Counsel - Anticipated Litigation.

Number of cases: Six.

7:00 P.M. INSTALLATION OF NEW OFFICERS:

INSPIRATION: Members of the Santa Monica High School Chamber Orchestra.

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Page 3 of5

A: Resolution adopting results of November 5, 2002, municipal election -

recommendation to adopt resolution certifying the results of the Official Canvass and

Official Statement of Votes Cast for the Consolidated Municipal Election held on

November 5,2002, and declaring the results thereof.

STAFF REPORT

ADJOURNMENT OF COUNCIL, AS PRESENTLY CONSTITUTED.

MEETING TURNED OVER TO CITY CLERK.

B: Administration of oath of office to new members of the Santa Monica College

Board of Trustees.

C: Administration of oath of office to new Santa Monica-Malibu Unified School

District Board of Education Members.

0: Administration of oath of office to new Santa Monica Rent Control Board

Members.

E: Administration of oath of office to new Santa Monica City Council Members.

F: Roll Call

G: Election of Mayor for the ensuing two years.

H: Election of Mayor Pro Tem for the ensuing two years.

END OF INSTALLATION OF NEW OFFICERS

7.. QRQIN8NCI;S: (No public discussion is permitted on ordinances for second reading and

adoption.)

7-A: Second reading and adoption of an Ordinance to Amend the Contract Between

the California Public Employees' Retirement System and the City of Santa

Monica. (First reading held on November 12,2002.)

STAFF REPORT

7-B: Second reading and adoption of an interim ordinance extending a moratorium on

new or expanded retail uses on the Third Street Promenade with limited

exceptions. (First reading held on November 26,2002.)

STAFF REPORT

8. STAFF ADMINISTRATIVE ITEMS:

8-A: Airport Conformance Program - recommendation to approve in concept the Aircraft

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Conformance Program and runway safety area designation and direct staff to explore the

implications of proceeding with implementation.

STAFF REPORT

8-8: Presentation of impact report of the Homeowners Freedom of Choice Initiative.

STAFF REPORT

8-C: Recommendation to either adopt the Homeowners Freedom of Choice Initiative's

proposed ordinance or order a special Election; and supplemental report and

ordinance for consideration of an all-mail election.

STAFF REPORT

10. REPORTS OF f3QA8PSANDCQMMISSIQNS:

10-A: Recommendation to name the auditorium at the new Santa Monica Public Library

in honor of Dr. Martin Luther King, Jr.

STAFF REPORT

10-8: Request of the Recreation & Parks Commission to approve a proposed beach

lots greening, recreation and parking concept.

STAFF REPORT

10-C: Recommendation of Landmarks Commission to place a measure on the ballot to

amend the City's Landmarks Ordinance.

STAFF REPORT

13. COLJNCILME;M6E;RDISCUS~IQN ITE:MS:

13-A: Appointment to one annual vacancy on the Commission on Older Americans for

a term ending June 30, 2006, and appointment to one special vacancy for a term

ending June 30, 2003. (Continued from October 8, 2002.)

13-8: Appointment to one special vacancy on the Accessibility Appeals Board of the

Building and Safety Commission, for a term ending June 30, 2005.

13-C: Appointment of Councilmembers as Liaisons to City Boards and Commissions.

13-0: Acceptance of Steve Irvin's letter of resignation from the Arts Commission and

authorization for the City Clerk to publish the vacancy.

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14. PU6~ICJNPl)T: (Public comment is permitted only on items not on the agenda that

are within the subject matter jurisdiction of the City. Please note that State law prohibits

the City Council from taking any action on items not listed on the agenda, including

issues raised under this agenda item.)

ADJOURNMENT.

City Hall and the Council Chamber is wheelchair accessible. If you require any special

disability related accommodations (i.e. sign language interpreting, access to an amplified

sound system, etc.), please contact the City Clerk's Office at (310) 458-8211 or TOO: (310)

917-6626 at least 3 days prior to the scheduled meeting. This agenda is available in alternate

format upon request by calling the City Clerk's Office.

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Exhibit B
i-age 1 at 4

Council Meeting: December 10, 2002 Santa Monica, California

To: City Council

From: City Staff

Subject: Request that City Council Approve in Concept a Proposed Aircraft Conformance

Program and Designation of Runway Safety Areas at Santa

Monica Airport and Direct

Staff to Evaluate the Implications of Implementation

tntroductlon

This report recommends that the City Council discuss and approve in concept a proposed

Aircraft Conformance Program (ACP) and the designation of appropriate 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 of less than 121 knots and wingspans of less than 79 feet. However, the number of

faster turbine aircraft using the Airport has increased rapidly in recent years and now exceeds

6,000 takeoffs or landings annually. In response to this changing reality, staff initiated a review

of the facility's operational design to determine its compatibility with the emerging aircraft fleet

mix. The Santa Monica Airport Design Standards Analysis was conducted by Airport staff and

the aviation planning firm Coffman Associates. The design standards analysis reviewed:

• the shift in the aircraft fleet mix using the Airport toward larger and faster aircraft

• the relationship between the performance criteria of these larger, faster aircraft and the

design/operational limitations of the Airport's physical plant.

• past and current Federal Aviation Administration (FAA) Airport Design Standards

• overall aircraft operations to ensure the Airport's compatibility with the emerging mix of

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aircraft using the facility.

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 is based upon the critical design aircraft identified in 1984.

Airport facilities were designed and constructed to accommodate B-II compatible aircraft. That

designated category of aircraft had approach speeds of less than 121 knots and wingspans of

less than 79 feet.

The analysis concluded that;

1) there has been a significant trend in recent years towards greater numbers

of faster/larger/heavier aircraft that are incompatible with the Airport's FAA

reference code of B-II, and

2) the Airport lacks sufficient runway safety areas per current FAA design

guidelines.

Runway safety areas are clear areas at runway ends which provide a margin

of safety in the event of an emergency.

DLscussJQI}

The Santa Monica Airport Design Standards Analysis resulted in a recommendation to

implement a specific program to accommodate only those aircraft that are compatible with the

airport reference code of B-II as identified in the 1984 Agreement and defined by the current

FAA Airport Design Standards (hereinafter referred to as the "Aircraft Conformance Program"

or "ACP"). Additionally, the analysis recommended the designation of runway safety areas by

displacing the landing

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rage j or 4

thresholds 300' at either end of the runway consistent with the Airport's reference code of 8-/1.

This change would create runway safety areas at both ends of the 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 at a subsequent meeting

to discuss potential ACP enforcement scenarios.

During its July 22, 2002 meeting, the Airport Commission supported the implementation of a

proposed Aircraft Conformance Program and also discussed potential enforcement

procedures. The Commission requested that staff forward the recommendation to City Council

for adoption.

FAA Notice of Investigation

On October 8,2002 the FAA served the City a 14 page Notice of Investigation (NOI) regarding

"the legality of the Santa Monica Airport Commission's apparentdecision to recommend that

the Santa Monica City Council adopt and implement the Airport Conformance Program". The

NOI further advised that the FAA may issue a determination, among other things, that the City

is:

1) not in compliance with1984 Agreement

2) not in compliance with certain FAA Grant Assurances

3) not in compliance with Federal Law

Additionally, the NOI invites the City to participate in good faith efforts to informally resolve the

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matter. City staff was surprised by the notice because, prior to its issuance, discussions with

the FAA regarding the conformance program had been on-going; and the FAA gave no

indication of any plan to initiate formal proceedings. Once the proceedings were initiated, the

City Attorney and City staff prepared a written response to the NOI rejecting the assertions

made by the FAA regarding the ACP and inviting the FAA to continue to discuss the matter.

That response was filed on November 7, 2002

augg~tLEirtC!D~l~LLmRa~t

There are no budget or financial impacts of approving in concept and directing staff to return

with evaluation of implications of implementation at this time.

Staff recommends that the City Council consider the information and analysis contained in the

design standards analysis presentation, approve the Aircraft Conformance Program and

runway safety area designation in concept and instruct the City Manager and the City Attorney

to:

1) continue to meet with the FAA in an effort to resolve 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 cost of $25,000.

Prepared by: Jeff Mathieu, Director of Resource Management/Airport Director

Robert Trimborn, Airport Manager

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