Office of the City Attorney City Hall 1685 Main Street PO8ox2200 Santa Monica. California 904lH 

## EXHIBIT



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April 22, 2008
Kevin L. Solco Acting Director, Airport Safety and Standards Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Re: Enforcement ofSantaMonica's Aircraft Conformance Program Ordinance No. 

### 2251 (CCS) 

### Dear Mr. Soleo: Yesterday, youcommunicated to Santa Monica Airport Director Robert Trimbom the FAA's demand that Mr. Trimborn take specified actions by the close ofbusiness today. The actions include withdrawing his letter ofApril 14,2008 notifying aircraft users that the City Council had adopted Ordinance No. 

### 2251 ("Ordinance"), which prohibits the operation ofCategory C and D aircraft atSanta Monica Airport, inorder toprotect public safety. Your communication warns Mr. Trimbom that ifhe fails to accede tothe demand, the FAA win issue acease and desist order requiring that the City refrain from enforcing City Ordinance No. 2251 pending the outcome of the administrative proceeding, which the FAA initiated overfive years ago andrecently attempted to "revive" through issuance ofanOrder to Show Cause. Your letter claims that the proceeding was "stayed," butin factthere was no stay andthe 120day period fordecision expired without extension.
Before responding to your demand, Imust express the City's objections tothe FAA's process. As you are aware from the City's response tothe Order to Show Cause, the City is represented by counsel inthis proceeding. Any communications you issue shouldbe addressed to counsel listed on thatpleading, nottothe Airport Director. The necessity ofyour doing so isparticularly obvious under these circumstances: you threatened legal action andrequired aresponse within one day.
Inthe context ofthis more than five year olddispute, yourdemand appears both unreasonable and misdirected onits face. The FAA is wellaware that the Ordinance was adopted according to the standard process dictated by stateand local law. There were multiple public hearings over the course of several months, four ofwhich your agency attended. Even afterthe Ordinance was approved on first reading, the second reading was postponed to ensure ample opportunity to explore possibilities that might have existed foracooperative resolution. Thus, the City Council took the time to carefully consider boththe safety ofthe community andthe FAA's arguments ngtanst the Ordinance, Ultimately, the Council concluded that the Ordinance should be adopted to ensure safe and appropriate operation ofthe City's Airport. TheCouncil's authority cannot be circumvented by simply demanding that the Airport Director immediately withdraw aletter

tel: 310 458-8336 • fax: 310395-6727Kevin L. Solco Acting Director. Airport Safety and Standards April 22. 2008 Page 2

intended to implement City law and policy by giving fair notification ofthe new law to aircraft operators. Additionally. your communication with Mr. Trimbom is further evidence that this process is infected with prejudgment. As explained, at length, in the City's response to the Order to Show Cause. the FAA has already decided the matter. Months ago, Associate Airport Administrator Shaffer decreed, in writing, that the Ordinance is "flatly illegal". yesterday, the FAA's counsel, conveyed a letter which asserts, without any basis in fact, that there will be dire consequences if the Ordinance goes into effect. This assertion is apparently based solely on the number of operations by noncompliant aircraft within the last year. Itignores the fact that fractional operators have publicly stated that their participants may easily use compliant aircraft and that charter aircraft users may do the same. Thus, the statements in yesterday's communications perpetuate the FAA's practice ofprejudging the outcome ofthis proceeding. The threatened cease and desist order against the City would only constitute further evidence ofthe FAA's bias. Such blind prejudgment has no place in governmental process. Even ifyour agency remains determined to ignore standard requirements ofDue Process in its efforts to place the convenience of a smallpercentage of Airport users above public safety, you should consider the FAA's reputation. It can only be protected, or perhaps salvaged, by treating the City fairly and reasonably in this case.
To date. you have not done so. The FAA asserts that no emergency exists at this time that 'warrants implementation ofthe City's ban on C and D operations at the City's Airport. The FAA further asserts that the City is somehow attempting to "divest the FAA ofitsjurisdiction over its administrative process". Both statements are patently unreasonable. As the extensive record on file with the FAA dearly demonstrates, the Airport facilities are not, according to the FAA's own standards. adequate for C and D aircraft. There are no runway safety areas. and there are homes in singularly close proximity to the runway ends. The City is responsible and liable tOt the Airport's operation. The City must kcep the Airport safe and is simply attempting to implement the FAA's own safety standards.
The City acted prudently to address these risks. The Ordinance was adopted through the standard municipal process
- indeed, as explained above, that process was extended to ensure a full opportunity for consideration of the FAA's concerns and possible solutions. And, it was adopted to fulfill the most basic of governmental duties

- the duty to keep the public safe. Your assertion that this effort is undertaken to divest your agency ofjurisdiction reveals stunning self-absorption or institutional paranoia. Nor, contrary to your assertions, does the law require that an emergency exist prior to the adoption ofthe Ordinance. Like your agency, the City serves the public and does so, by among other things. adopting laws that protect public health and safety. Moreover, as Airport proprietor, the City must both protect the public and lla.lt'iguarl.lugain5tliability for failure to keep the Airport safe. Your agency's assertion that C and D aircraft have been using 

### SMa for over twenty years without incident would not. even iftrue. establish that the City may not meet the

### Kevin L. Solco Acting Director, Airport Safety and Standards April 22, 2008 Page 3

FAA's own safety standards. The FAA's argument tothe contrary is asfoolish as saying that if acity bridge designed tohandle 10,000pound vehicles has been able to support some 25,000 pound vehicles inthepast, the City istherefore required to allow all such overweight vehicles to use the bridge inthe future. Indeed, ifthe "tombstone mentality" evidenced inyour letter were national policy

- which itis not

- compliant runway safety areas would only berequired atthose airports which had already experienced serious runway overrun accidents. Simply put, the lawdoes notrequire Santa Monica to suffer acatastrophe inorder to qualify to meet FAA runway standards. Inrecent years, the number offaster aircraft operating atthe Airport has increased significantly. Atthe same time, federal acknowledgement ofthe importance ofrunway safety areas has grown. Indeed, James Hall, who served asChainnan of the NTSB for sixyears. concluded inhis Declaration, on file inthis case, thatrunway safety areas are "critically important" and "especially important to safety 

### at [Santa Monica Airport] due to its unique topography and close proximity to residential housing." He also concluded that in the absence ofmeeting the federal standards, "Category C and D aircraft should notbepermitted to operate due tothe serious risks ofinjuries and deaths."
The City, as aprudent airport operator, cannot ignore these realities. And, we areconfident that implementation ofthe Ordinance will greatly enhance public safety while only minimally inconvenience Airport users. When the Ordinance was adopted, there were about 25C and0 aircraft perday atthe Airport. When the law goes into effect onApril 24, 2008, the operators of affected aircraft can and will either switch to compliant aircraft ormake adequate arrangements atone ofthe surrounding airports where C and D

### operations do notcreate serious safety risks. They have choices. The City simply does nothavethe choice ofignoring the growing safety risk.
Nor should the FAA ignore it. Youragency is already under criticism and pressure from Congress for putting 

### aviation indu:.1ryconvenience ahead ofpublic safety. The 

### City urges you 

### to change your course and steadfastly put safety rust. Even ifyouwill not, orcannot, the City must. Therefore, itmust respectfully decline to withdraw Mr. Trimborn's letternotifying pilots that the Ordinance win go into effect on April 241h
• 

### Very trulyyours,

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# ~lt#·-i/A!_ M~HA J~!ES MOUUIDE City Attorney cc: Mayor and City Council P. Lamont Ewell, City Manager Bob Trirnborn, Acti.ngAirport Director 

### Marty Tachiki, Deputy City Attorney Frank SanMartin, Office ofChiefCounsel, FAA