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    Councilman Carroll Discusses LB Airport Issues On City Hall Cable TV Show with City Atty Shannon, Deputy City Attorney Mais, Aviation Counsel Gatzke & Airport Mgr. Kunze

    (November 28, 2003) -- 4th district Councilman Dennis Carroll has devoted a quarter hour segment on "Heart of the City" -- a talk show with rotating segments hosted by Councilmembers (and in some cases the Mayor) on City Hall's cable TV channel -- that discussed LB Airport issues with City Attorney Robert Shannon, Deputy City Attorney Mike Mais, Aviation Counsel Mike Gatzke and Airport Manager Chris Kunze.

    The program, taped on August 26 with additional production (pictures of planes, etc.) overlaid in October, has been airing in November on LBTV cable channel 8.

    We provide salient excerpts below.

    [Initial portion with City Attorney Shannon discusses 1980's litigation history with airlines; Dep. City Attorney Mais discusses Airport Noise and Capacity Act [ANCA]; Councilman Carroll turns to Airport Manager Kunze.]

    Councilman Carroll: ...We're now up to 1991. ANCA has been passed. Our litigation [settlement] in 1995 occurred and we had our ordinance confirmed, what then happened between 1995 and 2001, Chris, in terms of carriers' interest in the airport and how JetBlue came to be landing at our airport?

    Mr. Kunze: OK, starting in 1991-92, the airlines as an industry went through the worst time they've ever had. It's not as bad as right now, but in their history they lost more money than they had earned in the history of the airlines. We had several bankruptcies. Several of the seven airlines that we had at the airport went through bankruptcies, and because of that we went from 41 [daily] flights down to I believe the lowest was probably four airline flights.

    Councilman Carroll: Now all that changed when JetBlue came to Long Beach. The 41 flights filled up, and suddenly American Airlines came on the scene and they demanded four flights and threatened to sue. At that point, we retained one of the preeminent aviation counsel in our country, that's Mike Gatzke. And I'm going to ask Mike to share with our viewers what his assessment our circumstances was at that time American Airlines threatening to invalidate our entire ordinance.

    Mr. Gatzke: My assessment in looking at the situation echoes a lot of what's been said here. The most important thing is for the City of Long Beach to maintain the integrity of its ordinance, to be able to continue to implement and enforce it. It's a very, very unique asset. There are very, very few cities like Long Beach that have that kind of control of their airports any more, and that's a control that Congress really intended to take away in 1990 when they passed ANCA.

    Councilman Carroll: Alright.

    Mr. Gatzke: And so preserving the ordinance certainly seemed to me to be an extraordinarily valuable thing.

    The risk was obvious. You had reached the point where you'd allocated all 41 flights. That's the heart of this ordinance, that's the 41 flight limit, plus the CNEL constraint. American Airlines came in and said, for competitive reasons as is often the case in these situations: wait a minute, we want to have four of those flights.

    And from there, it became apparent to me that they probably weren't going to be the last one, that there would be some other airlines that would want to jump on as well.

    And that creates an extremely dangerous situation where it can lead to litigation, and as the city had experienced before in the twelve years of litigation that led up to the ordinance, things don't always go well, and things can get out of control, and in the post-ANCA environment, it was foreseeable or possible that if the lawsuit really got out of control, that the city might effectively lose its ability to control the city's airport.

    ...[intervening discussion]

    Councilman Carroll: And if I understand Mike, then the new numbers for Orange County are anticipated to be 9.8 million [passengers per year], is that it?

    Mr. Gatzke: 9.8 growing to 10.3. It's actually a two-phased program, and that's up from 8.4 million passengers. That's the other comparison. Long Beach's ordinance has a specific flight limit of 41 flights. John Wayne's ordinance and regulations are a little bit different, but effectively there are somewhere around 120 to 130 commercial departures a day out of John Wayne airport, not including the commuters [commuter flights].

    Councilman Carroll: But is it fair to say, Mike, that but for our ordinance, that possibility would exist at Long Beach if the carriers decided they wanted to fly that number of flights?

    Mr. Gatzke: If you didn't have your ordinance, what would happen is you'd have a level of activity at this airport that met the marketplace.

    Councilman Carroll: Maybe you can share a little bit about Burbank Airport. I know they wanted to have a curfew, which of course we do have. Tell us how they fared, and what they did wrong that we would not want to repeat here in Long Beach.

    Mr. Gatzke: Burbank feels that they need a new terminal. They have a terminal that doesn't meet that doesn't meet FAA safety standards, at least based on current design standards. Burbank wouldn't agree to do that unless the airport also put in a nighttime curfew. Part of the problem, of course, is that's exactly what ANCA was designed to prevent in the first instance, which is having local airport proprietors adopt these kinds of restrictions on operations.

    And so Burbank has been in a struggle for a number of years now, probably the last, I'd have to check, but anywhere between five and eight years they've been going back and forth, and at great expense, they're in the process of doing what's called a Part 161 Study to try and comply. But it's not going well. It appears that the terminal project is dead. In fact, to the point where the FAA administrator has now corresponded with the city of Burbank that they return a substantial amount of federal funds that had been given to the city to purchase a parcel for the new terminal. The FAA has given up on the fact that that's going to occur and they've actually asked to have their money back, so it's a very uncomfortable situation.

    Councilman Carroll: And the bottom line from Burbank's point of view is although they want a curfew, they don't have one. It is now a 24 hour a day airport. And the other aspect of our noise ordinance is not only limiting the number of flights but providing the curfew which we do have which protects our residents from late nighttime incursions.

    Mr .Gatzke: Which is why it's so important for the city to maintain the grandfathered status of its current regulations. The problem that Burbank is experiencing is without that grandfathered protection of an existing curfew, the chances of getting a new one adopted in post-1990 [ANCA] environment are very slim, in fact there has never been a successful effort in the United States since 1990 by an air carrier airport to impose a new local restriction on aircraft operations.

    Councilman Carroll: Let me ask you a final question there, Mike. You did after a long and difficult period of negotiations involving almost everyone here, well actually it was everyone here, with the FAA what's your assessment, how pleased are you with the agreement that we have?

    Mr. Gatzke: I think it's extremely important to have the letter that we got from the FAA, where they reviewed this very carefully. They reviewed the agreement very carefully, and they reached, I think, the critical conclusions correctly which is, the city is grandfathered; its ordinance is grandfathered; under ANCA, you don't have to get FAA approval for your regulations and the agreement that you've negotiated with the airlines about how you're going to handle these slots is acceptable to the FAA under federal aviation law.

    Councilman Carroll: This brings us to the heart of the story, and I'm going to ask Mike Mais to address it. Our current ordinance does require us to provide reasonable accommodation to the airlines. And of course as Mike knows, the projected passenger load is going to be 3.8 million [annual passengers]. What should the city do, Mike, in order to provide reasonable accommodation and protect our ordinance?

    Mr. Mais: We are in the process of preparing what's called a Notice of Preparation [since released] in doing the full environmental review in the report. That should be ready in late September. After that's ready and it goes out for circulation, the public will be invited to give their input. Ultimately it will come back to the City Council in December for a final scope of what the enhancements are going to entail.

    After that is completed, we will prepare the environmental impact report, and it will go out for circulation, again to the public, in June of next year, for a 45 day comment period. The public will have more scoping meetings. The public will be given an opportunity to give their input. And ultimately, the issue will come back before the City Council probably in December of next year for consideration of certifying the Environmental Impact Report.

    Councilman Carroll: OK. And Chris, let me ask you. In determining the extent of the enhancements, that is the capacity of the holding rooms and the parking expansion, tell us the criteria that were used, the federal guidelines that might apply. How did you decide how big a building to have, basically, to accommodate the 3.8 million [annual passengers] which is both commercial flights and commuter flights.

    Mr. Kunze: And this, to qualify what you say, we haven't decided totally on the...

    Councilman Carroll: Of course.

    Mr. Kunze: ...on the size of the facilities. That's going to depend on our EIR. It's looking at several options. Several years ago, we started planning because we knew we wanted to accommodate 41 [large aircraft] and 25 [commuter aircraft] flights [per day].

    Councilman Carroll: Which brings us to the next issue, Mike and Bob. What kind of protections will adding to the space of the passenger holding room really bring us, and will it protect us from lawsuits from the airlines?

    Mr. Gatzke: I think that the advantage I see is that this is a situation where prior City Councils, the City Council has made a decision about where the proper balance is between the ability of the local airport to provide air service to the community and all of the economic benefits that go with that, and the environmental effects of having that air service. And the Council has said this is where we're going to draw the lines.

    And I think that to the extent that the city offers the airlines and the air travelling public facilities which are reasonably designed by accepted and established design standards in the industry, reasonably designed to accommodate that level of activity -- not more but not less -- to the extent that you do that you enhance, and I think further strengthen the city's position in terms of the reasonableness in which it's approaching this difficult issue of striking that balance.

    Councilman Carroll: And Bob, how confident are you of our legal position?

    City Attorney Shannon: I think it's very, very important in order to maintain the continued viability of this ordinance that we not wink at it, and that we not just give it lip service. We have to enforce it with good faith. We have to build out to the extent that we accommodate the people that are authorized to come through our airport.

    If we don't do that, the FAA is going to reexamine that ordinance, and we're running the very severe risk, very significant risk, that either by way of litigation or by way of all of the enforcement activities that the FAA can take, we're going to lose this extremely important asset that we have.

    Councilman Carroll: Alright, thank you Bob. And thank you for joining us today on Heart of the City. And I want to thank my guests, and I hope you have been provided with some really critical information about what we need to do in Long Beach to protect our ordinance, to limit the flights to 41, and the answer has been to provide reasonable accommodation, to add some space to the holding room and allow us to protect our residents and our city and keep Long Beach Airport a neighborhood airport.

    Thank you for being with us. My name is Dennis Carroll. This is Heart of the City.

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