(June 10, 2006) -- LBReport.com has learned that City Attorney Bob Shannon and Mayor Beverly O'Neill have invited the 49 appellants to a June 12 meeting to discuss procedures for the June 13 City Council hearing on the unprecedented number of appeals (perhaps the largest in LB history) of certification by LB's Mayor-chosen, Council approved Planning Commission of a city management-proferred "Environmental Impact Report" (EIR) on management's desired plan to expand LB Airport's permanent terminal area facilities.
The appellants (complete list below) include the LB Unified School District, LB Council PTA, LBHUSH2, [all titles following for identification only] Chapman University Law Professor John Eastman, retired Councilman/LBCC Trustee Jeff Kellogg, LB Redevelopment Agency Boardmember Terry Jensen, LB Airport Advisory Commission members Doug Haubert, Bruce Alton and Carol Soccio and LB realtors Mike Kowal and Joe Sopo.
The pre-hearing meeting will include the Mayor (presiding officer for the hearing) and City Attorney Bob Shannon (with a major guiding role in the hearing). City Attorney Bob Shannon told LBReport.com the purpose of the meeting is basically to review the process, explain generally what will take place and address potential technical issues (use of power-point and other visuals). All of this is with the understanding that in the proceeding the positions will receive a fair hearing...and the pre-hearing conference isn't intended to dictate terms, City Attorney Shannon said.
So ...when does the right to a due process fair hearing become undue process and fillibuster? Or tilt toward rubberstamping an EIR with defects that ought to be corrected before inviting a court challenge and more delays?
With these potential pitfalls in the high-stakes proceeding, and the mechanical challenge of handling the multi-party appeals, an invitation was extended to appellants who wish to attend a planning conference the day before the hearing.
Mr. Shannon noted that as with any hearing, repetitious or extraneous material can be excluded, a procedure similar to a judge excluding irrelevant testimony (although court rules are stricter than EIR fair hearing standards). In this case, the Mayor (as presiding officer) can make rulings as chair and the City Attorney can provide guidance. However unlike a courtroom, the City Council can -- by a majority vote -- overrule a presiding officer's ruling as chair (assuming the Council's action is fair to all and otherwise legal). For example, the Council might seek additional testimony or more detailed discussion of specific points even if the Mayor doesn't want this, or vice versa.
And the Council is the ultimate decisionmaking body. By a majority vote, the Council will eventually decide whether to certify the management-proferred EIR as it stands, or sustain the appeals in whole or in part, or possibly direct changes which may or may not require additional hearings, or do something else we haven't thought of.
At issue is the key document that can open the door to a major expansion of LB Airport's permanent terminal area facilities...a decision with potential long term consequences for the city and its residents.
The action comes in the wake of a 2004 FAA-sponsored study that put LB Airport on a national list it claimed will need additional "capacity" (flights) by 2013 and 2020. LB Airport management says LB's noise budgeted Airport ordinance is controlling on this matter...and has so advised the FAA and regional authorities including SCAG and others.
In a rare citywide consensus, the publicly stated positions of LB city management, all incumbent and incoming Councilmembers, the incumbent Mayor and Mayor-elect and groups from neighborhood-protective LBHUSH2 to the Airport-boosting LB Alliance are consistent in saying that LB's Airport ordinance must be protected. The ordinance is among the most progressive in the country for permitting additional flights as aircraft grow quieter...but if it were undermined in the future, the result could effectively leave LB citywide in the position of Lennox/Inglewood.
Chapman University law professor (and LB resident) John Eastman -- one of the EIR appellants expected to be heard at the Council's EIR hearing -- says expanding the Airport's permament facilities effectively invites precisely that devastating outcome and the EIR is defective under state law for failing to discuss these potential impacts publicly.
LB City Hall management says expanding the Airport's permanent facilities merely accommodates flight levels permitted under the Airport ordinance.
But in September 2003, Airport management officially proposed a project of roughly 93,000-98,000 sq. ft. That size ballooned when (approaching the 2004 election cycle) the Council diverted the matter to its non-elected "Airport Advisory Commission" Management then used the intervening period to hire HNTB -- a firm that builds public works projects (including the Alameda Corridor) and other Airports. HNTB recommended a project of over 133,000 sq. ft. based on what it called "industry standards" which Airport management said reflects new needs based on new aircraft design and higher load factors.
The non-binding "Airport Advisory Commission" split 6-3 to recommend management's proposal to the Council but after taking its own look at the matter, the Council voted in February 2006 to make a 103,000 sq. ft project (larger than what management proposed originally) the largest evaluated size in the EIR and it's now the "preferred" size in City Hall's proferred EIR.
However EIR testimony by some of the more vocal supporters of management's 103,000 sq. ft. proposal remains vague on how large the Airport terminal facililities should eventually be...and doesn't commit to support its remaining at 103,000 sq. ft. (a size management says will accommodate noise ordinance flight levels).
Others say 103,000 sq. ft. is too large, "supersized"...and could undermine a LB Airport's major strong point: that it is a quick in-and-out Airport that isn't another sprawling LAX.
And still others fear that undersizing the Airport could prompt challenges by industry interests or the FAA, potentially leading to the uncontrolled outcome that virtually all parties say they want to avoid.
And the atmosphere for decisionmaking has also changed. LB's 2006 city elections are over...and over half of the current decisionmaking Council is currently comprised of safely reelected incumbents (B. Lowenthal, Reyes Uranga, Lerch) or soon-to-be exiting incumbents (Colonna [in mid-July], Richardson [in December], and Kell [perhaps in mid-July but too close to call].
As a practical matter, the appellants have to weigh how best to make their points persuasively and effectively without browbeating the decisionmakers (effectively annoying the judges, not smart).
The tsunami of appeals is scheduled to reach the City Council on June 13th. The meeting's general start time has been advanced one hour to 4 p.m. (instead the usual 5 p.m.)...allowing the Airport EIR hearing to begin at 5 p.m. or as soon as practical thereafter.
The hearing will eventually end with some Council action...although it remains to be seen when that will occur (that night or at some subsequent Council meeting) or with what outcome (five Council votes needed to certify the EIR).
A list of the LB Airport EIR hearing appellants: