In the memo to City Manager Pat West for the Mayor and all Councilmembers, Airport Director Jess Romo states that he's initiating the process in response to the growing number of curfew (10 p.m./11 p.m.) violations and based on an "initial analysis and consideration" by the City Attorney's office with outside legal counsel "as well preliminary discussions with the Federal Aviation Administration (FAA)."
[Romo memo] Based upon the request from the Airport, the City Attorney's office, with the assistance of outside legal counsel, has evaluated potential amendments to the Noise Ordinance that may enhance compliance with the original intent of the Ordinance, address increasing concerns expressed by communities surrounding the airport regarding the failure of airlines to comply with the curfew requirements, and provide continued opportunities for the growth of air transportation services to the public. A few potential amendments were evaluated. The key amendments deemed to be reasonable and legally viable, without possibly endangering the ANCA grandfathered status of the existing Noise Ordinance, are outlined below.
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LB's Airport ordinance includes a "curfew" requiring air carriers to schedule all departures and arrivals between 7:00 a.m. and 10:00 p.m., although air carrier operations between 10 p.m. and 11 p.m. are allowed if the delays result from weather, air traffic, or mechanical issues. Violations between 10 p.m. and 11 p.m. caused by unanticipated delays beyond the operator's reasonable control (such as weather, air traffic or mechanical issues) are waived on presentation of evidence satisfactory to the City that the delayed arrival or departure resulted from these circumstances. Air carrier operations after 11 p.m. are automatically deemed violations and fined; after two warnings, a third violation brings an administrative fine of $100; the fourth and subsequent fines are $300.
Airport management's proposed changes include:
- Raising fines for curfew violations to $2,500 (first through fifth violations during 24 month period); $3,000 to $5,000 for the sixth through tenth violations during 24 month period; and $5,000 to $10,000 thereafter during 24 month period...with disqualification and forfeiture of slots possible for 20 or more violations during 24 month period.
- Addressing the issue of operators that under-utilize their currently assigned flight slots ("squatting" on their slots with minimal flights, arguably in anti-competitive ways) by requiring flight slot utilization of at least 60% per month, 70% per quarter, and 85% per year (October through September.) Airport management also proposes attaching administrative penalties, including reduction in the number of flight slots consistent with utilization and disqualification from receiving additional permanent or supplemental flights slots.
Airport manager Romo indicates he'll send a letter to air carriers and other interested parties for review and comment and the Airport "will also reach out to the greater community to discuss the proposed amendments through public input meetings." Once the Airport has received initial comments, it will "prepare a report to the City Council that includes any comments received, responses and related information, and recommendations regarding any proposed amendments. The staff report and attachment will then be presented to the City Council for consideration," Mr. Romo's memo states.
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A key section of the memo details how Airport management proposes to deal with protecting a federal statutory grandfathering provision that most airports don't have, included in the 1990 Airport Noise & Capacity Act or ANCA, that lets LB maintain its 1995 Airport noise ordinance which protects the City from unlimited flights at all hours on all runways. For roughly two decades, LB's City Attorney office has publicly cautioned against making changes to LB's Airport ordinance that might risk having the FAA or a federal court decide that by changing the original ordinance, LB had forfeited its grandfathering protections. That outcome would mean LB would lose its Airport ordinance in its entirety including all current protections and would effectively be unable to enact other locally protective measures at its Airport.
[Romo memo] Prior to presenting the Airport's final recommendations to the City Council, the Airport will request a formal written opinion from the Chief Counsel of FAA concurring in the following points: (i) within the meaning of, and for all purposes related to Section 9304 of ANCA [the federal statutory grandfathering provision in the Airport Noise Capacity Act], the proposed amendments do not reduce or limit aircraft operations or effect [sic] aircraft safety in violation of ANCA [and] do not jeopardize the [LB] Noise Ordinance's grandfathered status under ANCA; (ii) the proposed amendments are not inconsistent with any of the Airport's "sponsor assurances" or other covenants or obligations under any Airport grant agreement entered into by the City and FAA pursuant to any Federal law or obligation; (iii) the proposed amendments will not adversely affect any application submitted in the future by the City for eligible projects at LGB; (iv) the proposed amendments will not adversely affect any application submitted by the City to impose or use any passenger facility charges with respect to eligible projects at the Airport; (v) the proposed amendments are consistent with and do not violate any provision of existing federal law for which FAA has statutory or delegated enforcement or implementation responsibilities.
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Airport Director Romo's memo states that staff anticipates bringing this matter to a conclusion "prior to the first quarter of 2018."
Airport management's action comes one day after City Prosecutor Doug Haubert announced that JetBlue had agreed to a change in a long-standing consent decree in which JetBlue will now pay $6,000 (instead of $3,000) for the first six violations of the curfew in each calendar quarter, meaning all curfew violations will now be $6,000 payable to the LB Public Library Foundation. [LBREPORT.com coverage here.]
It also follows a somewhat cryptic statement in 4th district Councilman Daryl Supernaw's July 21 e-news letter, in which he stated:
In our July 7th newsletter, I stated that our airport noise ordinance is not serving its intended purpose. The evidence is contained in the chart below that shows the noise violation fines for each year from 2012 to present. You'll notice the column on the far right exceeds the annual dollar amount of all the others. Here's the kicker: it's for only the first half of 2017! It is clearly time to look for solutions, and we're anticipating a major announcement on that front within the next 30 days.
On July 7, Councilman Daryl Supernaw signaled that he planned to introduce a City Council agenda item (date not specified) to examine the issue of the LB Airport ordinance's fine structure in the context of providing a better deterrent. In his July 7th weekly newsletter, Councilman Supernaw headlined an item "JetBlue Fined Record-Breaking $168,900 for June Noise Violations" and wrote:
It has become painfully obvious, especially to those living under the flight path, that our "coveted" noise ordinance is not serving its intended purpose. JetBlue violated the 11:00 pm curfew 31 times (every night on average) and the 10:00 pm curfew 48 times last month. This clearly indicates the fine structure is not an adequate deterrent to violating the curfew. For that reason, I will be introducing a city council agenda item in the very near future to examine this issue.
Councilman Supernaw's newsletter included the following chart:
| Month | 10:00 pm-11:00 pm | 11:00 pm-7: 00 am | Total | Fines |
|---|---|---|---|---|
| January | 39 | 31 | 70 | $144,000 |
| February | 39 | 15 | 54 | $90,300 |
| March | 34 | 17 | 51 | $72,600 |
| April | 30 | 17 | 47 | $85,200 |
| May | 36 | 16 | 52 | $78,900 |
| June | 48 | 31 | 79 | $168,900 |
| Total | 226 | 127 | 353 | $639,900 |
| Monthly Avg. | 37.6 | 21.1 | 58.8 | $106,650 |
In a July 24 Facebook message, 7th dist. Councilman Roberto Uranga also indicated that he recently met with the City Attorney regarding "the continued increase in late night flights and Noise Ordinance violations" at LB Airport and "We have asked the City Attorney to review and recommend options the City can take to maintain compliance with the Noise Ordinance, up to and including enhanced penalties and fees." When a constituent entered the Facebook thread and thanked Councilman Daryl Supernaw for having brought the issue forward, Councilman Uranga replied: "It was brought forward by multiple Councilmembers, but thanks for highlighting my colleague."
Developing. Further to follow on LBREPORT.com.
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