Commission chair Randall Hernandez announced at the opening of the Oct. 25 meeting that public comments were welcome, but public questions would not be answered at the meeting...and no Commission members moved under Roberts Rules of Order to change the chair's ruling. On Oct. 11, the City Council voted (6-2, Austin and Supernaw dissenting, Mungo absent) to pay consultant Jacobs Engineering an additional $20,000 sum to explain its methods/conclusions at two City Hall advisory commission meetings...and didn't explicitly direct either Council-advisory body to allow public questions. Airport management stated, and chair Hernandez stated, that written responses would be provided to public questions (taken down by a court reporter) after the meeting [staff indicated within about a week.]

At the Oct. 20 Airport Advisory Commission meeting, its Commissioners voted to allow public questions...although by that time many in the audience had left. Airport management also indicated on Oct. 20, and reiterated on Oct. 25, that it would provide written responses to audience questions that arose during the meeting.

[Scroll down for further.]

Public turnout for Oct. 25 meeting (held in the City Council Chamber) was fairly light. Speakers were split between homeowners/residents opposed (many citing concerns over risks to LB's protective Airport ordinance) and aviation interests in support (downplaying concerns over risks to the city's protective ordinance.)

Those voicing concerns/opposition included Neighborhoods First leader Joe Sopo, area residents Bob Joy, Lloyd Fox, John de la Torre, Jane Nadeau and Nancy Lopez. Supporters of the customs facility/int'l flights included three individuals identifying themselves as JetBlue employees plus Senior VP/Associate Gen'l Counsel Rob Land, Aeroplex owner Curt Castagna and Kevin McAchren [who didn't mention he is a veteran LB Airport business operator, now of Airserv-LGB.]

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Comments on both sides were polite and on the merits until one JetBlue employee made an ad hominem-style argument accusing a "vocal minority" of "a few" of "demagoguing" against the "needs of the many." (He was the only one to do so.)

Commission chair Hernandez posed his own question on the merits -- to which Jacobs rep David Tomber didn't have data immediately available -- seeking information/details not visible in the Feasibility Study on predicted economic benefits specifically for Long Beach. (The Feasibility Study forecasts "regional" benefits for Los Angeles and Orange Counties based on what it calls direct, indirect and induced benefits extrapolated from current data.)

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Observing the Oct. 25 Economic Development Commission meeting from the audience were Councilmembers Daryl Supernaw. Al Austin and Roberto Uranga. On July 7, 2015, all three voted against preparing the customs facility "Feasibility Study"...and on Oct. 11, 2016, Councilmembers Supernaw and Austin voted against paying the consultant roughly $20,000 for presentations to the two Council advisory Commissions.

No representative of the City Attorney's office was invited to present the conclusions of its Oct. 4 opinion memo, with chair Hernandez indicating the meeting would focus on economic impacts...while stating his support for the city's Airport ordinance, a view echoed by other Commission members as well as JetBlue VP Land.

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City Hall's official narrative is that JetBlue requested a federal customs facility in February 2015. However internal Airport and City Hall documents obtained by LBREPORT.com under the CA Public Records Act [LBREPORT.com June 2014 coverage here and July 2014 coverage here] show that LB Airport management and staff worked with JetBlue reps throughout much of 2013 (without publicly voted Council approval or Municipal Code authority that we could find) to explore and pursue a customs facility that would enable international flights. The materials include JetBlue-prepared drawings of the proposed facility and (by late 2013) a proposed "term sheet" for a proposed MOU with the City for the arrangement [that to our knowledge didn't progress further.]

Airport management informed Councilmembers in summary form of what was taking place with memos in August and November 2013 but no Councilmembers (including now-Mayor Robert Garcia) disclosed the developments to the public entering the 2014 election cycle. After a new Council majority took office, the issue advanced publicly.

The City Attorney's Oct. 4, 2016 opinion memo discloses that on March 31, 2015 -- after JetBlue publicly requested a customs facility and a few weeks before the July 2015 Council vote on whether to conduct the "Feasibility Study" -- JetBlue wrote the FAA seeking assurances that allowing international flights wouldn't affect the conclusions of an April 30, 2003 FAA letter. That letter (which is referenced in subsequent City Attorney and Jet Blue letters) concluded that LB Airport is currently exempt ("grandfathered") from review under the federal Airport Noise and Capacity Act [which preempts local airport noise regulations elsewhere], won't create an issue of noncompliance under the Airport's grant assurances and isn't inconsistent [JetBlue letter text] "with the City's obligation to provide reasonable, not unjustly discriminatory access to air carriers."

On May 27, 2015, just weeks prior to the July 7, 2015 Council vote on whether to conduct the Feasibility Study, the FAA provided JetBlue with a letter (Exhibit B to the City Attorney's opinion memo) agreeing with the statements as framed in JetBlue's March 31 letter (Exhibit C to City Attorney's opinion.) It's currently unclear if JetBlue shared its correspondence at the time with the City Attorney's office or with Councilmembers about to vote on whether to pursue the Feasibility Study.

On September 8, 2016, Assistant City Attorney Mais wrote the FAA seeking the agency's assurance that the conclusions in its May 27, 2015 letter to JetBlue remain in effect. On October 18, 2016, the FAA provided the City with a letter to that effect, which the City Attorney's office released on Oct. 18, 2016 (two days before the scheduled Airport Advisory Commission meeting.)

The City Attorney's Oct. 4, 2016 opinion memo also references (and attaches as Exhibit A) an April 30, 2003 FAA letter to LB Airport, an important document cited in City Attorney and JetBlue letters...although the City Attorney's October 4, 2016 opinion memo doesn't explain what brought it about.

On May 15, 2001, an item appeared on the City Council's agenda that proposed to let commercial carriers take and hold LB Airport flight slots longer before flying them. Airport management portrayed it as a way to try and fill many of LB Airport's then-vacant flight slots. The City Attorney's office told the Council and the public that since the action didn't touch the Airport ordinance itself (just the way slots under the Ordinance were allocated), it shouldn't risk the Ordinance. The Council voted 8-1 to approve the change (Yes: Bonnie Lowenthal, Dan Baker, Frank Colonna, Jackie Kell, Laura Richardson-Batts, Ray Grabinski, Rob Webb, Jerry Shultz. No: Dennis Carroll).

Within days of the Council action, a relatively new operator, JetBlue, took all of LB Airport's then-vacant large aircraft flight slots, immediately maxing them out and leaving no vacancies. Only later did the public learn that Long Beach city officials had met quietly with JetBlue prior to the agendizing the May 2001 change in Airport policy, having apparently advanced the change in a way that would suit JetBlue. The public was told none of this before the Council vote.

The Council's voted action displeased two competing carriers, American Airlines and Alaska Airlines. Their objections caused the FAA to launch an administrative proceeding regarding the City's flight slot allocation rule change...amid the possibility of potential litigation.

The City Attorney's office retained expert aviation counsel Mike Gatzke. Mayor O'Neill and Councilmembers scheduled public meetings (in the 8th and 4th Council districts) to tell residents they support the Airport ordinance. [Ed. note: in 2004, 4th and 8th district voters voted out incumbents endorsed by O'Neill, replacing them with LBHUSH2 co-founder Rae Gabelich and Los Altos resident Patrick O'Donnell.]'

JetBlue ultimately relinquished some slots, enabling a settlement of potential litigation issues...and the FAA's April 30, 2003 letter followed.

The April 2003 FAA letter includes text helpful to the City in concluding that LB Airport remains "grandfathered" under ANCA but it also includes cautionary verbiage, which speaks for itself:

[FAA April 30, 2003 letter text]...The parties have not requested the FAA to address the consistency of Chapter 16.43 [LB's Airport ordinance] with the grant assurances, and it is unnecessary at this time for the FAA to take a position on whether Chapter 16.43 meets Federal requirements for airport access. At some point in the future, however, the FAA may be presented with a complaint from a third party under 14 C.F.R. Part 16, or may have reason to review Chapter 16.43 from a compliance standpoint on its own initiative. The FAA thus reserves the right to review the consistency of Chapter 16.43 with Federal law in the future. That review would not be affected by the opinions in this letter related to the settlement agreement at issue. In other words, the FAA would not revisit the settlement terms, but the current finding that the settlement is a reasonable action under existing Chapter 16.43 would not prevent an analysis of whether the provisions of Chapter 16.43 themselves meet Federal access requirements, if that issue were to be raised...

If at some point in the future a potential new entrant carrier believes that it is Chapter 16.43 [the LB Airport ordinance] itself that is the barrier to entry, that carrier is free to challenge Chapter 16.43 by bringing a complaint to the FAA under 14 C.F.R. Part 16. In that case, the City could defend the reasonableness of Chapter 16.43, make modifications thereto, or consider other courses of action.

The FAA reiterated its 2003 position in its 2015 letter to JetBlue and in its 2016 letter to the City Attorney's office.

As previously reported by LBREPORT.com, in November 2013 then-candidate Mungo received a $350 campaign contribution from Aerolease (part of Aeroplex/Aerolease Group at LB Airport). After taking office in July 2014, Councilwoman Mungo received contributions to her officeholder account (second half of 2014) from Aeroplex President/CEO Curt Castagna and the Aeroplex group's Manager as well as the JetBlue Airways Corporation Crewmember Good Government Fund. In the first half of 2015, Councilwoman Mungo received contributions to her officeholder account from Aerolease Long Beach and three individuals with the company, including the spouse of its President/CEO Castagna.

If the City were to allow a federal customs facility, the City couldn't limit its use to JetBlue or any single operator, raising the concern that an operator(s) from within an entirely new category of international cargo and passenger operators might seek LB Airport flight slots beyond the levels allowed under LB's protective Airport ordinance. In February 2015, former Airport Advisory Commission member (and now City Prosecutor) Doug Haubert testified to the Airport Advisory Commission that in his view, allowing a customs facility creates a risk that one or more international operators might seek flight slots beyond the level available under LB's Airport ordinance and thereby put LB's current Airport ordinance at risk. [LBREPORT.com coverage here.]

The City Attorney's opinion says this concerning the issue:

Any argument that consideration of an FIS facility at LGB could result in the City losing regulatory authority, however, is speculating about some possible future loss of regulatory authority and cannot reasonably be linked or shown to be a possible effect in the context of the FIS facility consideration process.

We consider the threat of litigation and the potential invalidation of the Noise Ordinance because of the consideration or approval of an FIS facility at the Airport to be no greater than currently exists if an FIS facility was not located at the Airport. As has been frequently stated, there is no action that the City can reasonably take to prevent an air carrier or other interested party from filing a complaint in court or with the FAA at any time in an attempt to invalidate the Noise Ordinance. However, unlike the litigation that occurred in the late 1980’s and early 1990’s, the City now has an acknowledgement from the FAA that its exemption from ANCA [Airport Noise and Capacity Act] continues to exist, and the City likewise would be able to rely on a Federal Court recognized settlement agreement and CEQA clearance directly relating to the enactment of the Noise Ordinance if the Ordinance is ever challenged in court or with the FAA.

Some have postulated that by approving a FIS facility, economic competition by air carriers or other users of a customs facility could lead to litigation if all competing air carrier or general aviation interests could not be accommodated at such a facility. However, there are no facts to support this scenario, and it is just as likely that other economic factors, currently existing in the air carrier or general aviation industry could spawn litigation whether or not a customs facility is built and operated at LGB. That said, if there is a successful challenge to the Noise Ordinance, the City could re-institute a sound attenuation program to install sound insulation in homes and other noise sensitive uses located in high noise impact areas. Under this type of program, the Airport would typically provide examples and demonstrations of replacement doors and windows, ventilation systems and other sound insulating construction. The City would then contract with the property owner to install the insulation in return for an aviation easement...

As to the City protecting the LB ordinance's current "grandfathering" under ANCA, the City Attorney's office opined:

Although the existing regulatory provisions at the Airport are "grandfathered" under ANCA, any limitations placed on the origin or destination of flights at the Airport could arguably be determined by the FAA to be an amendment to the regulatory environment at the Airport that [ANCA text] "reduces or limits aircraft operations" and, therefore, any such action or amendment would arguably not be exempt from ANCA and could jeopardize the grandfather status of the existing regulations. In addition, the City is required to "make its airport available as an airport for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical uses." Grant Assurance 22(a); 49 U.S.C. 47107.

In summary, and as confirmed by the FAA in its recent letter to JetBlue, the FAA does not believe that the City’s consideration or approval of an FIS facility at the Airport would jeopardize the Noise Ordinance’s exempt and grandfathered status under ANCA...

CONCLUSION

It is our opinion that the City’s consideration of FIS facility improvements would not jeopardize the exempt and grandfathered ANCA status of the Noise Ordinance...

The Feasibility Study and City Attorney opinion are scheduled to come to the City Council on November 15. It's currently unclear if the Council will conduct a study session(s) for itself on the issues raised by both documents before the Council takes action...or whether a Councilmember (with a second) will move to take a voted action directing city management to seek a federal customs facility.

Developing...with further to follow on LBREPORT.com.