Michael Gatzke, Esq., Special Aviation Counsel to City of LB
...I'm aware that [the LB Noise Ordinance] is the product of a long and very difficult litigation history the city had to go through in the late 80s and early 90s, and the one result that could not come out of this from our perspective was anything that would jeopardize or weaken the ability of the City to continue to regulate its airport in the manner that the Council deemed best served the interests of the people of Long Beach.
That's not necessarily an easy undertaking. Long Beach, to the best of my knowledge, is the only commercial air carrier in the United States that has a noise budget type of regulation as its referred to in the industry...It's also one of only three air carrier airports in the country that I'm aware of that imposes slot restrictions, in this case, in the form of the 41 base flights that is the maximum allowable to the air carriers unless they can demonstrate that they can operate at quieter noise levels within the CNEL budget that is included within the ordinance.
...As the Council is aware, the FAA became involved early on in the process at the request of American and Alaska airlines. They did communicate to the city that they had some "concerns" about the city's ordinance and its method for allocating flights, and they were concerned about the issues that were being raised by American.
They offered to take the somewhat extraordinary step of actually sending the senior FAA official out here on two separate occasions in an attempt to mediate the agreement. The City and the airlines met with the FAA on two separate days. That process was not successful. The parties did not come to an agreement during that mediation, but after the second session with the FAA, the city and the airlines continued to talk and ultimately were able to identify a resolution that everybody can live with.
...This all stems from the Council's decision to grant the request by JetBlue in 2001 to allocate the 27 slots that were then unallocated to JetBlue for its use. Approximately 8 or 9 months after that allocation was made, American sent a request to the city and asked for 4 additional slots. Alaska then came a month later and asked for 3 additional slots. And of course all 41 had already been allocated. American threatened litigation, and in fact got so far as to actually send me a copy of the complaint that they were prepared to file the next day in the United States District Court, and it would have raised serious questions about the continued enforcement and viability of the city's ordinance.
By preserving the ordinance, by preserving the 41 base flights, and not having to allocate more than that in order to resolve this, essentially we have preserved the ordinance and preserved the goals that the Council and the community set back in 1995 when this ordinance was adopted...
The parties also addressed the question of the annual supplemental flights that are theoretically permitted under the ordinance in the event that the air carriers are operating below their noise budget, below the 65 CNEL limit that is imposed on their total operations. And the ordinance provides that under those circumstances, there can be additional flights allocated, and must be additional flights allocated to the airlines, sufficient to bring them up to the 65 CNEL limit.
This process involved a great deal of controversy over whether or not the City had an obligation to do that last year, whether the City had an obligation to increase the flights in order to accommodate American and Alaska's requests for service. The resolution of that issue in this agreement is that that is not what's going to be done and the agreement resolves the issue of the process by which the City would go through the annual supplemental allocation determination.
Obviously the City did not do that in 2001 and did not do it in 2002. What the agreement provides is that the City will do the necessary study, which is to essentially evaluate a year or so worth of the most recent year of noise data available from the carrier and have a qualified acoustician do the calculations to determine whether or not there is room for any additional flights, and if so how many.
Those flights are only allocated for one year at a time. They're not allocated permanently. It's a process that the City would have to go through every year as is provided in the current ordinance.
In my view, the most important part of the agreement is that it does not become effective unless and until the City has received a written opinion from the Chief Counsel at the Federal Aviation Administration concurring in the agreement, and specifically that issue is addressed in paragraph 4.2 of the proposed agreement...[reads paragraph 4.2. To view it in pdf form, click Feb. 2003 agreement, p. 7]
In other words, before the City is obligated to perform under this agreement and this agreement becomes effective, we must receive the written assurance that Mr. Shannon was referring to from the FAA that they have reviewed the agreement in the context of the ordinance which is the basis for the agreement, and that they are satisfied that the City is in full compliance with all of its federal law obligations under federal aviation law.
What's more, the agreement provides that this letter must be delivered to the City not later than February 28 -- 24 days from now, approximately 3 weeks...This is an extraordinary effort. It is the key and the linchpin to this agreement. The FAA's practice in my experience in responding with opinion letters on these kinds of requests, and they don't do it that often, when they do do it, the typical turnaround time in my experience is anywhere from one to one and a half years...
Recently I've had the experience with another airport of being able to do it in approximately 30 days. I believe we will be successful with this. I have been in continuing contact with the FAA. They understand that this provision is in the agreement. They understand what they are going to be required to do. There are some tough issues that they're going to have to address. There are some tough issues that they're going to have to coordinate with the Dept. of Transportation, which is their parent agency in the federal government.
But I am hopeful that we will be successful. The airlines as part of this agreement have agreed that they will cooperate, they will talk to FAA, talk to DOT, work the issue with the City to make sure that we have a successful result from this process...[I]t is an essential
feature of it. In my view, it is what protects the City and provides the City with the assurance that it is taking a step that will not make the problem worse and it does, as Mr. Shannon indicates, preserve the ordinance...
...If this Council approves this Agreement tonight, all the three airlines have each signed the agreement, it's fully executed, it requires at this point only Council approval. The City will execute it, it would then be sent back to the FAA with a letter requesting the Chief Counsel's opinion and we would be working with the FAA and the DOT over the next few weeks to try and realize the full benefits of this agreement and have it go into effect...
7th District Councilwoman Tonia Reyes-Uranga
I'm just a little concerned about process...[A]s a City Council, and as a City Council representative that represents a large portion of the city that is impacted by the Airport, I have less than 24 hours to review this. I received this last night. And I think that although there have been ongoing discussions and we do know more or less what the terms are, I think that the bottom line is that we should have at least as much time as we've given the airlines and we're going to give FAA [applause]...A week would give me time to at least answer all the calls that came into my office...And that's all I'm asking is a week...
8th district Councilmember Rob Webb
First I must agree with Tonia that it puts me in an awful position with my constituents that we've gotten 24 hour notice of what the details are in the settlement...Having said that, my gut feeling today, and my judgement today, is that delaying this action for a week, there is more downside to it than positive to it...I've had a very spirited debate with my constituency up in the lobby here earlier where we discussed this, and I don't know that we had any agreement quite frankly amongst ourselves...[T]he process for the supplemental flights, and I think this is a real sticking point...Now the supplemental flight scenario is a real scary thing for a lot of people. How many supplemental flights? How will that be allocated? Will be do a one month analysis of things and extrapolate that for the whole year? ...Can I get some input as to where we are at with that?...
Mr. Gatzke re Supplemental Flights
...I don't think the ordinance is definitive on this [but] what I will tell you is, and this argument has been made in advance by the airlines, their argument is the city has failed to meet an obligation that it has under its own ordinance since 1995. The City has never done that study. The City has never done that analysis. And the ordinance is somewhat ambiguous on that. I'm not certainly advocating that the City was obligated to do it; there are arguments that can be made on both sides.
But I think that the important feature of this agreement...when the negotiations on this began, that was certainly our position and what was negotiated was that the, from the city's perspective, we wanted to do two things. We wanted to remove an ambiguity from the ordinance as to when the study should be done. And we put it on a calendar year basis...
This agreement provides that the study would be done later this year, that it would come to the Council by October 15, that the Council would act on it by November 1. If the study indicates, and if the Council approves that there are any supplemental flights available for allocation, they would be allocated for calendar year 2004.
I want to emphasize that the answer when that study is done may be that there are no supplemental flights that are available. The number of supplemental flights is determined by the cumulative CNEL level of all of the air carrier operations...I would certainly recommend to the Airport that they take the data from the city's noise monitoring system...it's all in a database, qualified acoustician can take that database and analyze on a carrier by carrier, aircraft equipment by aircraft equipment basis, how much noise each of those aircraft can be expected to make, taking into account the markets that they're going to serve, the type of aircraft, the engines that they have on the aircraft.
There are so many variables that can go into how much noise is generated...and the best way to look at that in my view is to take one year's worth of data, crunch it numerically and make a determination. And it's entirely possible that when that's done later this year under this agreement, that the answer may be there are no supplemental flights available for 2004.
But whatever the answer is, it would come back to Council, it would have to be acted on by the Council and approved by the Council. And as I've indicated, there wouldn't be a full year of [noise data for] 41 flights but almost, under this agreement, 10 months of 41 flights when JetBlue ramps up to its full schedule, whenever it is these days.
But certainly a qualified acoustician a very, very large noise database to draw from to reach what I think would be a highly reliable, scientific conclusion...So I think that whatever report is prepared, the Council is going to know very precisely and very accurately what can and cannot happen in terms of supplementals...
Councilman Webb, 2d time
...It is my judgment...that we need to move forward with this sooner rather than later. I do recognize what Tonia was saying, we need to be more inclusive in the process. And the fact of the matter is, every time I stick my neck out and use my judgment, my constituents, especially on this airport issue, I'm gettin' my head cut off and then handed back to me. So, you know, I don't know. Perhaps we don't need a Councilman here and we'll just poll everybody in the district and then they can make decisions that way.
Councilwoman Jackie Kell
...I do know that many of you are concerned that, quote, we are going to expand the number of flights at the airport. And that is absolutely, positively, and unequivocally untrue.
We will remain at 25 commuter flights, 41 commercial flights, that's the court settlement. We are not interested in adding more flights.
And when we back up what the airlines have agreed to, because finally we have some peace among the various competing airlines that want to come into our city. When we say to them, you've reached an agreement and yes we will back up this agreement and forward it to the FAA, we will have peace among the airlines that are already coming into our airport.
...I'm going to back up this agreement that was made among the airlines, forward it to the FAA and have peace as long as we can.
Members of the Public
Bruce Alton
...I think from the standpoint of agreeing that we have an ordinance that is important to protect, there is a high degree of unanimity here, that there is far more downside to messing with this ordinance than there is upside.
That being said...it is my opinion that the process is broken here. And what we're looking for and striving for is operating from a basis of understanding and knowledge on this, and it's not being provided and it's not being provided in a timely manner.
...I think you're about to do a good thing today, but not to discount the fact that you have done some very bad things, and you are still doing bad things with respect to process. We would like very much to work with you on this. We can't do it with 24 hours notice.
Mike Kowal
I agree with what Bruce said tonight. The process really, really stinks here. We need more time. If you guys can digest all of this in 24 hours, good for you, you're a lot smarter than everybody else in this city. And that's exactly what you tell us, time after time, when you make these kinds of decisions without including the public...
...You've got to go to your constituents and see what they think. You owe it to 'em. It's what we put you here for...
John Deats
I'm here to support my Councilman Rob Webb's position on this, that this ought to be moved on tonight for two principal reasons. Number one, there are no surprises on this relative to the existing ordinance, and number two, there are no surprises in this relative to the direction you have your legal department...
Could the process have been a little better, a little more open? Yeah, but practically speaking, with the deadline looming of Feb. 28, with the downside risk of not meeting that and having the whole thing blow up on you and go back to square one, I think the greater prudence is in fact, go ahead, pass it tonight...I'm basically delighted that it finally came to fruition...
Joe Sopo
...The citizens deserve the right to fully review this proposal. This proposed agreement is too important to rush. I ask you not to rush this through. I ask you to take it to your constituents and get their feedback. You owe it to the citizens of Long Beach. You are their representatives.
...Jackie, God bless you, you are my Council representative. But you're [eventually] going to be out of office [when your term expires]...and you won't be up there saying, "no more flights." You won't be here, but we will. We'll be here long after you pass this tonight, or next week, or next month, and we'll be stuck with it. And Rob [Webb], we want more time to review this agreement. A week. If it's such a good agreement, let all the citizens review it. Fix this process 'cause it's broken.
Councilman Dennis Carroll (colloquy with Mr. Sopo
...I have a question. Joe, would you mind? I know this is an important issue to you. I want to be clear what you're not saying. I take it you are supportive of preserving our noise ordinance itself.
Mr. Sopo: Absolutely.
Councilman Carroll: Alright. And I take it that the proposal of getting the airlines and the FAA to agree to maintain the integrity of that noise ordinance is also something that you support.
Mr. Sopo: Yes.
Councilman Carroll: Alright, so the proposal in the abstract is one you support. Your argument tonight as I understand it goes to the issue of really sharing whatever information we might have received relative to the ordinance with the folks out there, to make sure the agreement accomplishes what we all hope that it does...
Mr. Sopo: That's correct, it'll give us a chance to review this, take a look at it, see if there's any conflict of interest in this, see what this really says...I don't doubt that it's a good proposal...
Shaun Lumachi, LB Area Chamber of Commerce
...I'm the Vice President of Government Affairs with the LB Chamber of Commerce, and I'd like to recognize Councilwoman Kell for working on this issue and spending the time to hear us out. Last week, the Chamber Board voted unanimously and approved its 2003-2004 policy agenda. One its agenda items is in reference to the Airport.
It reads to review and to support efforts to maximize potential for job growth and job creation at the Long Beach Airport within the existing Airport Noise Compatibility Ordinance. The Chamber believes that the airlines coming together and agreeing on a compromise is in the best interest of growth at the airport within the existing Airport Noise Ordinance.
And in reference to the issue of holding off a week and waiting until next week, we are under the understanding and were communicated with regarding meetings, several meetings that have occurred over the past months, discussions held regarding the slots and the agreement that is being brought forward to you today, and there was plenty of opportunity for the community to give their input.
The Chamber seeks your support of this agenda item tonight...
Alan Hose
As the homeowners association president of Windward Village Mobile Home Park, I am definitely concerned about the process...
I would want to go through that [agreement] with a fine tooth comb, because it's surprising what you can find between the lines, and unless you examine those documents correctly and with full scope, there is something you may miss...
City Attorney Shannon
I'd just like to clarify one point. I remember very specifically coming to this City Council, and also going to the community, indicating very specifically that the terms of this agreement if it was entered into would involve the possibility of supplemental flights no earlier than January of 2004. I remember very specifically telling you that and the public heard it, so this is nothing new...
The Motion and Substitute
Councilwoman Kell made the motion to approve the agreement, seconded by Vice Mayor Colonna. Councilwoman Reyes-Uranga made a substitute motion to delay approval for a week, seconded by Webb for purposes of discussion.
Councilman Dennis Carroll
I am proud and pleased to be here tonight and participate in what I think will be a history making event for our city in terms of protecting the neighborhoods, the families, the business, the quality of life of those persons whose homes and families are being severely impacted by our airport.
I am also pleased tonight that we drew the distinction, and I want to thank Joe Sopo for making that, that we are united tonight in preserving our noise ordinance, preserving the integrity of our noise ordinance, and creating an agreement which will support our noise ordinance. That has been our objective since last spring.
I'm sorry Rae Gabelich was not here tonight, because I believe I have also heard her also make that same statement on other public occasions, that she as well supports keeping the integrity of our noise ordinance. And what I would like to see frankly, is allow us to have from HUSH2 a letter to our City Attorney stating exactly that, if I understand what has been stated here tonight, that they are in support of preserving our noise ordinance and the agreement that would support that by way of the carriers and the FAA, and allow us to carry that letter, as well as all the other information, back to Washington, D.C. to the FAA.
We will have other disagreements; they are inevitable with respect to some of the other issues down the line on the airport, but I think we can all link arms, preserving our noise ordinance, all that stands really between us and catastrophe as far as I'm concerned is that noise ordinance.
...I think it is helpful to remember when this process got initiated back in 1983, we had 15 flights at our airport, and a carrier came in and asked for one more slot, and there was so much resistance in the community to negotiating, to doing the kind of things that we are doing right now. We ended up in federal court, and as a lawyer I know court is a dangerous place to be.
We, after years and years of litigation and spending hundreds and hundreds of thousands of dollars, did get our head handed to us in court. Our flights went from, instead of 15, possibly 16 by embracing an additional carrier, went to what we have now, which is a minimum of 41 and a noise budget that theoretically is unlimited. We are dealing with the mess that was created back then. We are trying to clean up what decisions were made back then. We are trying to do damage control basically.
There has never been, from my perspective, a clear opportunity for us to win here. You have heard on many prior occasions, that if we take any affirmative steps to restrict the number of flights or the noise levels at our airport, we are in danger of losing our grandfathered status and Mr. Gatzke will, and has, told us before if that happens, basically our airport gets turned over to the carriers.
And there are cities who have had that very unfortunate experience. Their numbers of flights have increased drastically, and it can be turned into a 24-hour a day airport. None of us want that. And I think it's important to bear in mind the stakes which we are playing.
We have our families, our businesses and our quality of life on the table. The airlines in court have only attorneys fees, and as you may or may not know those fees are tax deductible. We'd be paying both ends of the freight. That is not a game that you want to play.
And we have I think what people rarely have which is the opportunity to see that we have done this once before. It has been a catastrophe for us. There's absolutely no reason for us to stick our finger back in that fan.
So I think it's very clear to me that the decision we made last spring as a Council, after much, much public input was received, to attempt to negotiate with the airlines this time instead of get dragged into federal court...
...You have seen, and I'm going to ask Mike Gatzke to comment in a moment, what John Wayne [Airport] was willing to pay to create the very kind of agreement we have here. And I think what you're going to hear, is a substantial increase in flights, over a million additional passengers, but they're desperate to avoid the very thing that happened at Burbank and other airports in this country, of losing any control whatsoever of their airport.
So I think it is abundantly clear to me and my constituents, after having town halls in my district, in the 8th district,...this is very straightforward. Do we have an agreement that the airlines are going to join us in supporting our current noise ordinance, and the answer is yes. Is it contemplated that the FAA will support us, and the answer is yes. That's really all that's before us tonight.
Everybody in my district understands it. The calls I get are, 'when are you gonna have this thing signed?'...I am completely pleased that we're able to produce this result...It would have been preferable, and I think everyone understands all this Council's view the more information the earlier to the public the better on this issue...At the same time, I also think it's important to note we believe that everyone is adult enough to understand, if the stakes are delaying another week and losing this whole agreement, doesn't it make sense to move forward tonight...?
So my hat is off to everyone on our legal team who produced this result for us. I would like Mike to comment on two airports, one John Wayne, and second Burbank, who has advanced a whole other assault trying to limit the flights of he airport. And I think what you're going to hear is Burbank has thrown in the towel after twenty years of frustrated and futile and millions of dollars of money spent to absolutely no avail, and I hope we don't adopt their theory as well.
So thank you all, again those of you on the Council I know have worked long and hard on this. Those of you in the community who have supported us and kept the faith and have heard a lot of nay saying frankly during the course of these negotiations.
I think this agreement allows you to have faith and confidence in your elected representatives that we can produce a result that one of the best aviation lawyers in the country tells us is unprecedented and we were able to deliver for you, for our families and for our neighborhoods.
Mr. Gatzke discussed John Wayne, Burbank Airports
Both very complex situations, but essentially John Wayne just reached an agreement with its community to extend its regulatory control over John Wayne Airport. It entered into an agreement in 1985, it was a 20 year agreement going through the end of 2005. That was a case where the airlines were questioning because ANCA [Airport Noise Capacity Act] was adopted five years later in 1990. They were taking the position initially that the Orange County regulatory structure disappeared January 1, 2006 and that it would be open skies over Orange County...
But the community ended up, in return for an agreement to extend the settlement agreement by ten years, taking it from 2005 to 2015, the community agreed to allow an increase in the number of noise regulated flights at John Wayne from 73 a day to 85 a day, plus 4 cargo flights, so it's really 89 a day. They agreed to increase the MAP [million of annul passengers] which had been set in 1985 at 8.4 million annual passengers, they increased that to 10.3 million annual passengers. The significance of that is that at John Wayne there's a whole class of aircraft that isn't noise regulated they're so quiet that we don't regulate them for noise, but they are limited by the number of passengers that are permitted in the agreement and we call those class E flights.
When you add noise regulated flights at John Wayne, which now is 73 and which is going to 89, to the class E flights that are based upon the passengers. the actual number of commercial departures out at John Wayne now is about 120-125 commercial departures a day, and that will go up significantly as a result of the agreement that the parties down there just reached. The airlines did go along with that agreement, the community went along with the agreement, and the FAA did provide a letter accepting that agreement as consistent with all federal law...
The Burbank situation, I'm not directly involved in, I don't represent any of the parties there, but what essentially has happened,...there's been a war going on up there for many years now...
The most recent strategy that that airport authority attempted to implement was they sent a letter to the FAA saying, you know our airport terminal is old, it's not in the right place, it technically doesn't comply with certain FAA regulations on airfield safety, and this is all about building a new terminal, but the community won't let us build the new terminal unless you agree to let us have a nighttime curfew on operations.
The FAA responded to that in December [2002] with a letter that said, we're sorry to hear that, but no we're not going to let you put in a nighttime curfew and we're sorry about your terminal but it's OK with us, and if you don't want to build a new one, that's fine.
So the FAA is not predisposed to buying into agreements of improving facilities necessarily in return for noise restrictions, which makes it very difficult for long term projects and expansion projects...
The Votes
The substitute motion to delay by one week (motion by Uranga, seconded Webb) failed 3-6. (Yes: Uranga, Webb, Lerch; No: Lowenthal, Baker, Colonna, Carroll, Kell, Richardson).
The main motion to approve the agreement (motion by Kell, seconded by Colonna) passed 8-1 (Yes: Lowenthal, Baker, Colonna, Carroll, Kell, Richardson, Webb, Lerch. No: Uranga).
