HomeMy WebLinkAboutS16 - JWA Settlement Agreement: Commuter Air Carrier or Commuter Carrier`t SEW PO CITY OF
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<,FoP City Council Staff Report
May 23, 2017
Agenda Item No. S16
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff, City Manager - 949-644-3001,
dkiff@newportbeachca.gov
PREPARED BY: Dave Kiff, City Manager
TITLE: Amendment to the JWA Settlement Agreement: Definition of
Commuter Air Carrier or Commuter Carrier
ABSTRACT:
This agenda item proposes approving an amendment to the 1985 -era JWA Settlement
Agreement to modify the definition of "commuter air carrier" to include Class E Aircraft
regularly configured with not more than seventy-six (76) passenger seats instead of
seventy (70) seats. This proposed change solely relates to the number of passengers.
RECOMMENDATION:
a) Find that the execution of the Eleventh Supplemental Stipulation to the JWA
Settlement Agreement is not subject to the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or indirectly;
b) Find that the Eleventh Supplemental Stipulation to the JWA Settlement Agreement
complies with City Council Policy A17; and
c) Authorize the City Attorney to execute the Eleventh Supplemental Stipulation to the
JWA Settlement Agreement on behalf of the City.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
In 1985, the City, County of Orange, the Airport Working Group ("AWG"), and Stop
Polluting Our Newport (SPON) (the "Parties") entered into a Settlement Agreement
("Agreement") to resolve litigation related to John Wayne Airport ("JWA").
Over the years, the Agreement has been amended by the Parties to adjust the terms and
to protect the interests of our community. Each amendment generally must not violate
the Federal Airport Noise and Capacity Act of 1990 ("ANCA"). ANCA, passed following
the initial approval of the Agreement, generally prohibits localities from enacting noise -
based or capacity restrictions on airports that could "further limit noise or capacity" without
detailed and expensive plans submitted to and approved by the FAA.
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Amendment to the JWA Settlement Agreement:
Definition of Commuter Air Carrier or Commuter Carrier
May 23, 2017
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In October 2014, the U.S. District Court signed the stipulation order for the most recent
Agreement extension. The Agreement's second extension — like all of its amendments —
was negotiated and signed by the same Parties.
Today, the Agreement says this (among other things):
Noise -Based Curfew. The curfew cannot be adjusted until after 2035. As a result of the
noise limits in the curfew, commercial aircraft may not take off before 7:00 a.m. (Monday
- Saturday) or before 8:00 a.m. on Sundays, nor can commercial carriers schedule
departures after 10:00 p.m. or arrive after 11:00 p.m. on any day.
Passenger Cap. Today, there is a cap on the number of passengers that can transit
through the airport in any one year. An arrival and a departure by one person counts as
two (2) passengers, whether that person be on a commercial carrier (like American,
United, or Southwest) or on a commuter plane (like SkyWest).
Today, the cap is 10.8 million annual passengers (MAP). Starting in 2021, the cap will
go up to 11.8 MAP through 2025. After December 31, 2025, the cap could go up again to
either 12.2 MAP or 12.5 MAP through 2030 (whether it goes to 12.2 MAP or 12.5 MAP
depends upon if MAP exceeds 11.21 MAP in any one year during 2021-2025).
Class A Average Daily Departures ("ADDs"). Today, there is a cap of 85 ADDs (plus
four cargo ADDs) for Class A flights, which are generally the louder commercial flights.
Class A departures can cross over the noise monitoring stations under a higher dB level
(dB limits are forth in the Agreement) than "Class E" flights. Under the 2014 Amendment,
there can be 95 Class A ADDs (plus four cargo ADDs) from 2021 through 2030.
As noted, it is not uncommon that aspects of the Agreement require amendments to
comply with current aviation practices or current law. Recently, the Agreement was
amended by the Parties in November 2015 when new, more sensitive microphones were
placed at the ten (10) noise monitoring stations. The amendment accommodated the
advanced technology and its readings so that the Agreement itself would remain
compliant with ANCA.
About this Proposed Amendment
Commuter air carriers such as SkyWest operate out of JWA and typically partner with
major carriers including Alaska, American, Delta and United for shorter flights and/or
flights to destinations that major carriers do not cover. SkyWest often flies an Embraer
E175 (100 planes in the fleet) and a Bombardier CRJ900 NextGen (36 planes in the fleet)
with a seat configuration of up to 76 seats.
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Amendment to the JWA Settlement Agreement:
Definition of Commuter Air Carrier or Commuter Carrier
May 23, 2017
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Bombardier CRJ900
Currently, the Agreement has a fixed definition for Commuter Air Carrier/Commuter
Carrier that includes both the passenger seat capacity (at 70 seats) and the weight of the
plane (at no more than 90,000 pounds of gross takeoff weight).
Section 21 of the Agreement reads as follows:
"Commuter Air Carrier" or "Commuter Carrier" means any person who: (i) operates
Regularly Scheduled Air Service into and out of JWA for the purpose of carrying
passengers, freight, cargo, or for any other commercial purpose; (ii) with Class E Aircraft
regularly configured with not more than seventy (70) passenger seats; and (iii) operating
at gross take -off weights of not more than ninety thousand (90, 000) pounds. For the
purposes of the Plan, Commuter Air Carrier includes all Commuter Cargo Carriers.
Earlier in 2017, JWA's Airport Director initiated a review of certain provisions of the
Access Plan at JWA as it relates to commuter air carriers. JWA received written
comments from Alaska, American, Delta, SkyWest, Southwest, and United. Following
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Amendment to the JWA Settlement Agreement:
Definition of Commuter Air Carrier or Commuter Carrier
May 23, 2017
Page 4
that review, JWA staff has asked that the Agreement be amended to change the
passenger seating of a commuter air carrier plane (as defined) to not more than 76 seats
in order to "accommodate the evolutionary development in the air transport industry
relating to the increased size of aircraft currently being utilized by Commuter Air Carriers
to serve increasingly dense short -haul markets."
If approved as proposed, a redline of the changes to the Agreement would look like this
and be limited to Section 21:
21. Commuter Air Carrier or Commuter Carrier means any entity which:
(i) operates Regularly Scheduled Air Service into and out of JWA for purposes of carrying
passengers, freight, cargo, or for any other commercial purpose; (ii) with Class E Aircraft
regularly configured with not more than seventy (704 seventy-six (76) passenger seats;
and (iii) operating at gross takeoff weights of not more than ninety thousand (90,000)
pounds. For purposes of this Plan, Commuter Carrier includes all Commuter Cargo
Carriers.
City staff, including the City Manager, City Attorney, and airport consultant Tom Edwards
reviewed this proposal over the past weeks, as well as meeting in person with JWA staff
and representatives from SPON/Air Fair and AWG.
We agree that this change is appropriate and not disadvantageous to the Newport Beach
community. One can argue, too, that the use of the MAP on quieter Class E planes such
as the commuter planes is more beneficial than MAP used on Class A planes.
As of the date of this report, AWG has signed off on the amendment to the Agreement
(they did so in early May, 2017). SPON has not yet done so; however, SPON is expected
to approve the amendment. The County expects to approve the amendment at the
June 6, 2017 meeting of the Board of Supervisors.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING -
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Eleventh Supplemental Stipulation and Proposed Order
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ATTACHMENT A
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
COUNTY OF ORANGE,
Plaintiffs,
V.
AIR CALIFORNIA, et al.
Respondents.
CITY OF NEWPORT BEACH,
Counterclaimant,
V.
COUNTY OF ORANGE; ORANGE
COUNTY BOARD OF SUPERVISORS,
and DOES 1 through 1,000, Inclusive,
Counterdefendants.
AND RELATED COUNTERCLAIMS.
[PROPOSED] ORDER
Case No. CV 85-1542 TJH (MCx)
[PROPOSED] ORDER RE ELEVENTH
SUPPLEMENTAL STIPULATION BY
THE COUNTY OF ORANGE,
CALIFORNIA, THE CITY OF
NEWPORT BEACH, STOP
POLLUTING OUR NEWPORT, AND
THE AIRPORT WORKING GROUP
OF ORANGE COUNTY, INC.,
AMENDING THE TERMS AND
CONDITIONS OF THE PREVIOUS
STIPULATIONS OF THOSE PARTIES
AND REQUESTING A
MODIFICATION OF AN
EXECUTORY JUDGMENT OF THE
COURT
CASE NO. CV 85-1542 TJH (MCx)
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C�]:� 17 X1:7
By the executed stipulation of the parties, and in consideration of the matters recited in
the stipulation, the 1985 Stipulation and the confirming judgment are hereby modified
to amend the definition of Commuter Air Carrier as follows: "Commuter Air Carrier or
Commuter Carrier means any entity which: (i) operates Regularly Scheduled Air
Service into and out of JWA for purposes of carrying passengers, freight, cargo, or for
any other commercial purpose; (ii) with Class E Aircraft regularly configured with not
more than seventy-six (76) passenger seats; and (iii) operating at gross takeoff weights
of not more than ninety thousand (90,000) pounds. For purposes of this Plan,
Commuter Carrier includes all Commuter Cargo Carriers."
IT IS SO ORDERED.
Dated: , 2017 By:
[PROPOSED] ORDER
1
The Honorable Terry J. Hatter, Jr.
United States District Judge
CASE No. CV 85-1542 TJH (MCx)
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Leon J. Page, County Counsel (Bar No. 208587)
Lauren Kramer, Deputy County Counsel (Bar No.
County of Orange
P.O. Box 1379
Santa Ana, CA 92702-1379
Telephone: (949) 252-5280
Facsimile: (949) 252-5044
Attorneys for County of Orange
(See next page for additional counsel)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
COUNTY OF ORANGE,
Plaintiffs,
V.
AIR CALIFORNIA, et al.
Respondents.
CITY OF NEWPORT BEACH,
Counterclaimant,
V.
COUNTY OF ORANGE; ORANGE
COUNTY BOARD OF SUPERVISORS,
and DOES 1 through 1,000, Inclusive,
Counterdefendants
AND RELATED COUNTERCLAIMS.
I I THSUPPLEMENTAL STIPULATION
Case No. CV 85-1542 TJH (MCx)
ELEVENTH SUPPLEMENTAL
STIPULATION BY THE COUNTY OF
ORANGE, CALIFORNIA, THE CITY
OF NEWPORT BEACH, STOP
POLLUTING OUR NEWPORT, AND
THE AIRPORT WORKING GROUP
OF ORANGE COUNTY, INC.,
AMENDING THE TERMS AND
CONDITIONS OF THE PREVIOUS
STIPULATIONS OF THOSE PARTIES
AND REQUESTING A
MODIFICATION OF AN
EXECUTORY JUDGMENT OF THE
COURT
CASE No. CV 85-1542 TJH (MCx)
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Lori D. Ballance (Bar No. 133469)
lballancek,gdandb. com
Gatzke Dillon & Ballance LLP
2762 Gateway Road
Carlsbad, California 92009
Telephone: (760) 431-9501
Facsimile: (760) 431-9512
Attorneys for County of Orange
Aaron C. Harp (Bar No. 190665)
ahgMgnewportbeachca. gov
City Attorney
100 Civic Center Drive
Newport Beach, California 92660
Telephone: (949) 644-3131
Facsimile: (949) 644-3139
Attorneys for City of Newport Beach
Barbara Lichman (Bar No. 13 8469)
blichmangbuchalter. com
Buchalter Nemer
18400 Von Karman Avenue, Suite 800
Irvine, California 92612
Telephone: (949) 224-6292
Facsimile: (949) 720-0182
Attorneys for Airport Working Group of Orange County, Inc. (AWG)
Steven M. Taber (Bar No. 250205)
stabergtaberlaw. com
Taber Law Group PC
P.O. Box 60036
Irvine, California 92602
Telephone: (949) 735-8217
Facsimile: (714) 707-4282
Attorneys for Stop Polluting Our Newport (SPON)
I I THSUPPLEMENTAL STIPULATION
CASE No. CV 85-1542 TJH (MCx)
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The County of Orange, California ("the County"), which is the certificated proprietor of
John Wayne Airport, Orange County (SNA) ("MA"), the City of Newport Beach,
California ("the City"), Stop Polluting Our Newport ("SPON"), and the Airport
Working Group of Orange County, Inc. ("AWG"), by their respective counsel, enter
into the following stipulation:
RECITALS
1. On December 15, 1985, this United States District Court entered a final
judgment ("the confirming judgment") in this action as between the County, the City,
SPON, and AWG (collectively, "the settling parties") based upon a stipulation executed
by their respective counsel and submitted to the Court in November 1985 ("the 1985
Stipulation")
2. In addition to the settling parties, the Federal Aviation Administration
("FAA"), and various other parties, including various certificated commercial airlines,
were also parties to this action. By a series of stipulations and a confirming order of
this Court entered in 1986, the remaining claims and issues in the action were
dismissed, without prejudice.
3. The 1985 Stipulation, as amended, and the confirming judgment (which
incorporated the terms of the 1985 Stipulation) contain certain provisions that are
executory and binding upon, among others, the County, from the date of the Court's
entry of the confirming judgment through December 31, 2030.
11 THSUPPLEMENTAL STIPULATION
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CASE No. CV 85-1542 TJH (MCx)
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4. As a result of recent events occurring in the airline industry generally, and
at JWA specifically, the County has determined that an amendment to the Phase 2
Commercial Airline Access Plan and Regulation ("Phase 2 Access Plan") is required in
order to accommodate the evolutionary development in the air transport industry
relating to the increased size of aircraft currently being utilized by Commuter Air
Carriers to serve increasingly dense short -haul markets.
5. This amendment requires a modification to the definition of a Commuter
Air Carrier (Phase 2 Access Plan, Section 2.18) to include Class E Aircraft regularly
configured with not more than seventy-six (76) passenger seats instead of seventy (70)
passenger seats.
6. The definition of a Commuter Air Carrier is a defined term in the 1985
Stipulation and subsequent amendments to the Stipulation.
7. The Parties have agreed to amendments to the 1985 Stipulation and
confirming judgment to maintain consistency with these modifications to Section 2.18
of the Phase 2 Access Plan, which will now define Commuter Air Carrier as Class E
Aircraft regularly configured with not more than seventy-six (76) seats.
11 THSUPPLEMENTAL STIPULATION
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CASE No. CV 85-1542 TJH (MCx)
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IN LIGHT OF THESE CIRCUMSTANCES AND RECITALS, THE PARTIES
TO THIS STIPULATION AGREE AS FOLLOWS:
AGREEMENT
8. By this written agreement of the settling parties, the 1985 Stipulation and
confirming judgment are modified to amend the definition of Commuter Air Carrier
consistent with amendments to Section 2.18, as follows:
Commuter Air Carrier or Commuter Carrier means any entity which: (i)
operates Regularly Scheduled Air Service into and out of JWA for purposes of
carrying passengers, freight, cargo, or for any other commercial purpose; (ii)
with Class E Aircraft regularly configured with not more than seventy-six (76)
passenger seats; and (iii) operating at gross takeoff weights of not more than
ninety thousand (90,000) pounds. For purposes of this Plan, Commuter Carrier
includes all Commuter Cargo Carriers.
9. This agreement is subject to the following limitations: (a) Provisions of
the 1985 Stipulation and confirming judgment, other than those provisions directly
related to the definition of Commuter Air Carrier, and other than any other provisions
of the agreement already subject to a stipulated modification executed by all of the
settling parties, shall continue to remain in effect and enforceable by the settling
parties; and (b) nothing in this stipulation obligates any of the settling parties to enter
into or agree to any further stipulations modifying the 1985 Stipulation, or the
confirming judgment.
11 THSUPPLEMENTAL STIPULATION
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CASE No. CV 85-1542 TJH (MCx)
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10. This stipulation, if filed and approved by the Court, shall be deemed to
supercede the parties 10th Supplemental Stipulation and it has been executed and
approved in lieu thereof.
Dated:
Dated:
Dated:
11 THSUPPLEMENTAL STIPULATION
Attorneys for Plaintiff and Counterdefendants, the
County of Orange and the Orange County Board of
Supervisors
Leon J. Page
County Counsel, County of Orange
M
Lauren Kramer
Deputy County Counsel
Lori D. Ballance
Gatzke Dillon & Balance LLP
By:
Lori D. Ballance
Attorneys for Defendant, Counterclaimant and
Crossdefendant, the City of Newport Beach
Aaron C. Harp
City Attorney of Newport Beach
M
Aaron C. Harp
Attorneys for Defendant, Counterclaimant and
Crossdefendant, Stop Polluting Our Newport
(SPON)
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CASE No. CV 85-1542 TJH (MCx)
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Attorneys for Defendant, Counterclaimant and
Crossdefendant, Stop Polluting Our Newport
(SPON)
Dated: Steven M. Taber
By:
Steven M. Taber
Attorneys for Defendant, Counterclaimant and
Crossdefendant, Airport Working Group (AWG)
Dated: Barbara E. Lichman
an
Barbara E. Lichman
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11 THSUPPLEMENTAL STIP ULA TION CAsE No. CV 85-1542 TJH (HCx)
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CERTIFICATE OF SERVICE
The undersigned, counsel for COUNTY OF ORANGE, hereby certifies that a true and
correct copy of the attached document was made available for viewing and
downloading through the CM -ECF (Electronic Case Filing) system to all counsel of
record who are registered to receive a Notice of Electronic Filing for this case.
Executed on 12017.
11 THSUPPLEMENTAL STIPULATION
L
/s/ Lori D. Ballance
Lori D. Ballance
CASE No. CV 85-1542 TJH (MCx)
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