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HomeMy WebLinkAboutC-2535 - John Wayne Airport (JWA), Stipulation and Settlement AgreementsCONTRACT NO. C-2535 Eleventh Stipulation IS VOID (NOT PASSED, NEVER ENTERED INTO) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 1 of 13 Page ID #:110 2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Leon J. Page, County Counsel (Bar No. 208587) Paul M. Albarian, Deputy County Counsel (Bar No. 232833) palbarian@ocair.com 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. Case No. CV 85-1542 TJH (MCx) ) TENTH 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 ) STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 2 of 13 Page ID #:111 1 2 4 10 11 12 13 14 15 16 17 18 19 20 21 Lori D. Ballance (Bar No. 133469) lallance@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) aharp@newportbeachca.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. 138469) blichman@buchalter.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) staber@taberlaw.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) STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 3 of 13 Page ID #:112 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The County of Orange, California ("the County"), which is the certificated proprietor of John Wayne Airport, Orange County (SNA) ("JWA"), 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 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 the original term of the settlement stipulation that required it to remain in effect through December 31, 2005. 1 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 4 of 13 Page ID #:113 4. The teiin of the original settlement stipulation has been extended by the settlement parties and modified by Court Order and Judgment. The teiiii of the current settlement stipulation requires the stipulation to remain in effect through December 31, 4 2030. 5. In 1997, a new noise monitoring system was installed at JWA to replace 6 the noise monitoring system that was originally installed at JWA in 1979. Based on the results of a side -by -side comparison of noise levels as recorded by the new system and the system installed at JWA in 1979 and recommendations from the County's noise consultant, amendments were made to the 1985 Settlement Agreement in 1999 10 regarding permitted noise levels for regularly scheduled commercial operations. 11 Corresponding amendments were also made to the maximum permitted noise levels in 12 the Phase 2 Access Plan and the County's General Aviation Noise Ordinances 13 ("GANG"). The objective of the modifications to the maximum permitted noise levels 14 was to maintain parity with the existing noise compliance limits and to preserve 15 operational capacity at JWA as agreed to by the settling parties in the 1985 Stipulation, 16 as amended. 17 ADJUSTMENTS TO MAXIMUM PERMITTED NOISE LEVELS 18 6. In early 2015, a new noise monitoring system was installed at JWA to 19 replace the current noise monitoring system that was originally installed at JWA in 20 1997. A side -by -side comparison of the noise levels recorded by the new system and 21 the current system was conducted commencing March 1 through May 31, 2015. Based 2 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 5 of 13 Page ID #:114 1 2 3 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 on the results and the data collected through May 31, 2015, and recommendations from the County's noise consultant, the parties wish to once again make appropriate technical adjustments to the maximum permitted noise levels as presently defined in the amended Phase 2 Access Plan, effective October 6, 2015. The objective of these modifications is to maintain parity with the existing noise compliance limits, to preserve operational capacity of JWA as agreed to by the settling parties in the 1985 Stipulation (as amended) and to maintain the County's grandfathered status of its noise and access restrictions under the Airport Noise and Capacity Act of 1990, commonly known as ANCA. The proposed technical adjustments do not result in an increase in actual noise levels at JWA beyond that contemplated by the parties at the time of execution of the 1985 Stipulation and any amendments to the 1985 Stipulation. 7. Based upon an analysis of the side -by -side noise data, the maximum peiniitted noise levels would have to be modified for Class A and Class E Aircraft at noise monitoring stations ("NMS") 1S, 2S, 3S, 4S, 5S, 6S, and 7S. The existing sections of the Phase 2 Access Plan which regulate noise levels for scheduled commercial operations are Sections 2.11 (Class A Aircraft) and 2.12 (Class E Aircraft). Those sections of the Phase 2 Access Plan are set forth in Appendix A to this Stipulation, which is incorporated by this reference and made an express part of this document. 8. The parties have agreed to allow the County to amend the relevant sections of the Phase 2 Access Plan (those sections quoted above) to modify the maximum 3 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 6 of 13 Page ID #:115 2 6 10 11 12 13 14 15 16 17 18 19 20 21 permitted noise levels for regularly scheduled commercial airline operations at JWA as follows, effective October 6, 2015: Class A Aircraft To maintain parity with the existing noise compliance limits and to preserve existing operational capacity and ANCA grandfathered status at JWA, the maximum permitted noise levels, as measured at the Departure Monitoring Stations, must be modified from 101.8 to 102.5 dB SENEL at NMS 1S, from 101.1 to 101.8 dB SENEL at NMS 2S, from 100.7 to 101.1 dB SENEL at NMS 3S, from 94.1 to 94.8 dB SENEL at NMS 4S, from 94.6 to 95.3 SENEL at NMS 5S, from 96.1 to 96.8 dB SENEL at NMS 6S, and from 93.0 to 93.7 dB SENEL at NMS 7S. Class E Aircraft In order to maintain parity with the existing noise compliance limits and to preserve existing operational capacity and ANCA grandfathered status at JWA, the maximum permitted noise levels must be modified from 93.5 to 94.1 dB SENEL at NMS 1S, from 93.0 to 93.5 dB SENEL at NMS 2S, from 89.7 to 90.3 dB SENEL at NMS 3S, from 86.0 to 86.6 dB SENEL at NMS 4S, from 86.6 to 87.2 dB SENEL at NMS 5S, from 86.6 to 87.2 at NMS 6S and from 86.0 to 86.6 at NMS 7S. 4 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 7 of 13 Page ID #:116 IN LIGHT OF THESE CIRCUMSTANCES AND RECITALS, THE PARTIES TO THIS STIPULATION AGREE AS FOLLOWS: AGREEMENT Subject to the approval of the Court: 10. The noise level limitations and aircraft noise class definitions of the 1985 Stipulation, the confirming judgment, and the Phase 2 Access Plan, as modified by subsequent amendments, shall be further modified as set forth in "Appendix A" to this stipulation which is incorporated by this reference and made an express part of this document, effective October 6, 2015. 11. This agreement is subject to the following limitations: (a) provisions of the 1985 Stipulation and the continuing judgment, as amended, other than those provisions directly related to the permitted noise levels for regularly scheduled commercial airline operations at JWA shall continue to remain in effect and enforceable by the stipulating 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. 5 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 10 11 12 13 14 15 16 17 18 19 20 By: Steven M. Taber 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 8 of 13 Page ID #:117 Dated: Dated: Dated: Dated: Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Leon J. Page County Counsel, County of Orange Bv: Paul M. Albarian Deputy County Counsel Lori D. Ballance Danielle K. Morone By: Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Aaron C. Harp City Attorney of Newport Beach By: Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Steven M. Taber 21 6 ................................... . STIPULtiTIONAND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) C e 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 9 of 13 Page ID #:118 1 4 6 7 14 15 16 17 18 19 20 '1 Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Leon J. Page County Counsel, County of Orange Dated: By: Paul M. Albarian Deputy Counter Counsel Dated: 10/23/15 Dated: Lori D. Ballance Danielle K. Morone By: Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City- of Newport Beach Aaron C. Harp City Attorney of Newport Beach Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) [dated: Steven M. Taber B Steven M. Taber 6 .5iip'r i irION .1 \)) IPRQPOsrn/ ORPFR C:LVt....Vr . C't'8'5-1 5-1? TJH (.lfC �-i Cas :85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 10 of 13 Page ID #:119 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Leon J. Page County Counsel, County of Orange Dated: By: Paul M. Albarian Deputy County Counsel Lori D. Ballance Danielle K. Morone Dated: By: Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Aaron C. Harp City Attorpey of Newport Be, ch Dated: (C)/z G 7( S� B Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Dated: Steven M. Taber By: Steven M. Taber S71Pt;L:1 rIO:vANVDD [PROPOSED] ORDER C=1sE No. CI%85-I542 TJH (ILICx,, Cas 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 11 of 13 Page ID #:120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Leon J. Page County Counsel, County of Orange Dated: By: Paul M. Albarian Deputy County Counsel Lori D. Ballance Danielle K. Morone Dated: By: Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Aaron C. Harp City Attorney of Newport Beach Dated: By: Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Dated: October 27, 2015 Steven M. Taber By: 6 Steven MTaber STIPULATION AND PROPOSED_% ORDER CASE No. CV 85-1542 TJH (MCx) Cas 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 12 of 13 Page ID #:121 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Defendant, Counterclaimant and Crossdefendant, Airport Working Group (AWG) Dated: / 0 11?! /S Barbara E. Lichman B Barbara E. Lichman 7 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) Cas t 2:85-cv-01542-TJH-G Document 243 Filed 10/28/15 Page 13 of 13 Page ID #:122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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 October 28, 2015 8 /s/ Lori D. Ballance Lori D. Ballance STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 CCO NOT OFR 0 Nicholas S. Chrisos, County Counsel (Bar No. 70442) Paul M. Albarian, Deputy County Counsel (Bar No. 232833) palbarian a@ocair.com 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 tOV102014 OFFICE OF THE CITY ATTORNEY FILED CLERK. U.S. DISTRICT COURT LAITIToIlt __ MUTT UNITED STAPES DISTRICT COURT CEN I'HAL 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. ) Case No. CV 85-1542 TJH (MCx) )©RO•Ef .RE NINTII 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 ) )<ANY ) ) ) STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TM (MCx) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q-ika MODIFIED FINAL JUDGMENT 1. In 1985, the County of Orange, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group ("Settling Parties") entered into a Stipulation for Entry of Final Judgment by Certain Settling Parties, settling all pending actions and claims related to the 1985 Master Plan of John Wayne Airport ("JWA") and related actions ("the 1985 Settlement Agreement"). On December 13, 1985, this Court entered Final Judgment on Stipulation for Entry of Judgment by Certain Settling Parties which accepted the stipulation of the Settling Parties and incorporated certain portions of their stipulation into that judgment. The principal terms of the 1985 Settlement Agreement relate to restrictions and limitations on aircraft operations and commercial passenger facilities. 2. In the intervening years, by stipulations of' the Settling Parties, orders of the Court have been entered to reflect certain modifications in the agreement of the Settling Parties which were contained in stipulations presented to and approved by the Court. None of these modifications further restricted operations or facilities as compared to the 1985 Settlement Agreement. 3. The Settling Parties have now presented to the Court a Ninth 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 32. STIPULATION AND [PROPOSED) ORDER CASE NO. CV 85-1542 TJH {MCnc) 4 ••.. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 0 0 ("Amended Stipulation") and Requesting a Modification of an Executory Judgment of the Court and (Proposed] Order. IT IS HEREBY ORDERED, ADJUDGED AND DECREED: A. The Amended Stipulation contains many of the terms of the 1985 Settlement Agreement and the eight (8) previous stipulations of the Settling Parties and for clarity and ease of reference, the Amended Stipulation is deemed to contain all of' the agreements and obligations of the Settling Parties. B. The provisions of paragraphs 15 through 44 and 53 through 61 of the Amended Stipulation are hereby incorporated as part of this Modified Final Judgment. C. The Settling Parties shall each bear their own costs and attorneys' fees in connection with the entry of this Modified Final Judgment. IT IS SO ORDERED. Dated: Oc4Mtra3,°0il By: The Honorable Terry J. Hatter, Jr. United States District Judge 33 STIPULATION AND [PROPOSED) ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Nicholas S. Chrisos, County Counsel (Bar No. 70442) Paul M. Albarian, Deputy County Counsel (Bar No. 232833) palbarianaocair. com 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. ) Case No. CV 85-1542 TJH (MCx) ) NINTH 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 ) ) AND ) [PROPOSED] ORDER ) ) ) STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Lori D. Ballance (Bar No. 133469) lballanceegdandb.com Danielle K. Morone (Bar No. 246831) dmorone(a,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) aharp@,newportbeachca.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. 138469) blichman(cr�,buchalter.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) staber c@ taberlaw.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) STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I. BASIS FOR THE "1985 SETTLEMENT AGREEMENT" 1. In November 1985, the County of Orange and the Orange County Board of Supervisors ("Board") (collectively, the "County"), the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") (City, SPON and AWG are sometimes collectively referred to as "the City"), by their respective counsel of record, entered into a stipulation to implement the settlement of the longstanding dispute between the County and the City concerning the development and operation of John Wayne Airport ("JWA") ("the 1985 Settlement Agreement"). The parties are sometimes collectively referred to in this Ninth Supplemental Stipulation ("Amended Stipulation") as the "Settling Parties." On December 15, 1985, the U.S. District Court entered a final judgment ("the confirming judgment") pursuant to the 1985 Settlement Agreement, which: (1) adjudicated that Environmental Impact Report 508/Environmental Impact Statement ("EIR 508/EIS") was legally adequate for the "EIR 508/EIS Project" (as that term is hereafter defined) under the California Environmental Quality Act ("CEQA"), the National Environmental Policy Act ("NEPA"), and all relevant state and federal implementing regulations; (2) adjudicated that all other claims, controversies and/or counterclaims were dismissed without prejudice; and (3) contained specific provisions for enforcement of the 1985 Settlement Agreement. STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2. The compromise settlement reached by the Settling Parties reflected, under all of the circumstances, the individual judgments of the Settling Parties regarding an appropriate or acceptable balance between demand for air travel services in Orange County and any adverse environmental effects associated with the operation of JWA. The Settling Parties acknowledge that, without the 1985 Settlement Agreement and confirming judgment, protracted litigation would have continued and created an ongoing risk of impeding or preventing the County's development of JWA, and its ability to create additional access opportunities for commercial operators desiring to use JWA. 3. Other provisions of the Settling Parties' agreement included actions that were generally described in, but not implemented directly through, the 1985 Settlement Agreement. Those provisions included actions undertaken by the County in adopting and implementing Resolution Nos. 85-1231, 85-1232 and 85-1233 (all adopted on August 27, 1985) concerning certification of EIR 508/EIS, adoption of additional mitigation measures and additional airport site studies in Orange County, and the parties' dismissal of other litigation concerning JWA. 4. In reaching the 1985 Settlement Agreement, the Settling Parties considered operational and other factors applicable to JWA that are not applicable to any other airport. As such, the 1985 Settlement Agreement is site specific to JWA, premised upon its unique history, operational characteristics and limitations. Specifically, the essential character of JWA as an airport facility, both operationally 2 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 and environmentally, is defined by the significant and substantial physical and environmental constraints affecting public use of the facility, including, but not limited to, the extremely confined airport area that includes a total of approximately five hundred and four (504) acres, less than four hundred (400) acres of which are available for airfield operations, an extensive highway and local street system that surrounds the area, and residential and commercial areas located generally to the southeast, south, west, southwest, and north of the airport area, and commercial areas to the east of the airport area. 5. Regularly scheduled commercial service was first initiated at TWA in 1967; and, since the late 1960s, the County has regulated the use and operation of JWA by a variety of means in an effort to control and reduce any adverse environmental impacts caused by aircraft operations to and from TWA. These regulations have included such restrictions as: (i) strict noise -based limitations on the type of aircraft that are permitted to use JWA, including both commercial and general aviation aircraft; (ii) a nighttime "curfew" on aircraft operations exceeding certain specified noise levels; and (iii) Iimitations on the number of average daily commercial departures which can occur at the facility, either directly or through a limit on the permitted number of annual commercial passengers. Even prior to 1985, the controlled nature of the airport's operation, arising from a wide range of political, environmental, social and economic considerations, had become institutionalized to the extent that the regulated nature of the airport was a definitional component of its character as an air transportation facility. 3 STIPULATION AND [PROPOSED] ORDER CASENO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 6. The 1985 Settlement Agreement and confirming judgment were not intended to, and did not: (i) create any rights in favor of any persons other than the Settling Parties; or (ii) make the Settling Parties (other than the County) or any other person, parties to, or third party beneficiaries of, any contractual agreement between the County, as airport proprietor of JWA, and the United States of America (or any of its agencies). II. BASIS OF AMENDMENTS TO THE TERMS AND CONDITIONS 7. Subsequent to execution of the 1985 Settlement Agreement and prior to this Ninth Supplemental Stipulation, the County and other Settling Parties negotiated eight series of amendments to the original agreement, which were filed with this Court. Those eight previous stipulations made various amendments to the provisions of the 1985 Settlement Agreement and reflect a long-standing, collaborative relationship between the County and other Settling Parties. Consistent with historical practice, in January 2012, the County and other Settling Parties initiated discussions regarding the possibility of amending the 1985 Settlement Agreement to extend beyond 2015. 8. On April 16, 2013, the Board approved a Memorandum of Understanding ("MOU")' between the County and the Settling Parties pursuant to which the County would act as lead agency (with the City designated a responsible agency) in the ' For purposes of evaluating potential amendments to the 1985 Settlement Agreement, the MOU identified a "Proposed Project," as defined by the operational parameters set forth in Paragraphs 15, 37 through 39, and 41 below, as well as four alternatives, referred to as the CEQA-mandated No Project Alternative, Alternative A, Alternative B and Alternative C. 4 STIPULATION AND PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 preparation of an Environmental Impact Report ("EIR") that would support County and City approval of an operational scenario evaluated in the EIR regarding amendments to the terms and conditions of the 1985 Settlement Agreement concerning restrictions at JWA. This EIR was designated as EIR 617 and was circulated for public review and comment pursuant to and consistent with CEQA (Pub. Resources Code, §21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). 9. Final EIR 617 was found complete and adequate under CEQA by the Board of Supervisors on September 30, 2014. On that date, the Board: (a) Certified Final EIR 617 as adequate and complete and as containing all information required by CEQA, the State CEQA Guidelines, and the County Local CEQA Procedures Manual; (b) Adopted the statutorily required Findings, Mitigation Monitoring and Reporting Plan and Statement of Overriding Considerations consistent with CEQA and the State CEQA Guidelines; (c) Approved the Proposed Project, thereby authorizing an increase in permitted operational capacities at levels defined in Paragraphs 15, 37 through 39, and 41 below; and, (d) Authorized execution of an Amended Stipulation after its approval and execution by the City, SPON and AWG, and subject to the Airport Director receiving a letter from the Federal Aviation Administration ("FAA") stating that the Amended Stipulation is consistent with federal law. 5 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCi) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 10. Consistent with the MOU's provisions, EIR 617 evaluated proposed modifications to some of the provisions of the 1985 Settlement Agreement, including an increase in permitted operational capacities and an extension of the term of the agreement. In order to permit the Board and the City to determine the final terms of any amendments to the 1985 Settlement Agreement, the "Proposed Project," and four other alternatives (see, supra, footnote 1), were each evaluated in the EIR to an equivalent level of detail that would permit the County and the City to adopt amendments to the 1985 Settlement Agreement consistent with all or a portion of either the Proposed Project or the alternatives. 11. On October 14, 2014, the City authorized execution of this Amended Stipulation subject to certain conditions, including receipt of the FAA Chief Counsel opinion letter referenced above. On or about September 3 and 17, 2014, respectively, AWG and SPON each authorized execution of this Amended Stipulation subject to conditions similar to those specified by the City and the County. 12. All conditions to the execution of this Amended Stipulation by each of the Settling Parties have been satisfied and, a copy of the FAA's letter to the Airport Director, dated September 29, 2014, confirming that the Amended Stipulation is consistent with federal law is attached to this Stipulation as "Exhibit A." 13. The goals and objectives of the County, as the lead agency, the project proponent and the airport proprietor, in preparing EIR 617 and entering into this Amended Stipulation, included: 6 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (a) Modifying some existing restrictions on aircraft operations at JWA in order to provide increased air transportation opportunities to the air -traveling public using JWA without adversely affecting aircraft safety, recognizing that aviation noise management is crucial to continued increases in JWA's capacity; (b) Reasonably protecting the environmental interests and concerns of persons residing in the vicinity of JWA, including their concerns regarding "quality of life" issues arising from the operation of JWA, including but not limited to noise and traffic; (c) Preserving, protecting, and continuing to implement the important restrictions established by the 1985 Settlement Agreement, which were "grandfathered" under the Airport Noise and Capacity Act of 1990 and reflect and accommodate historical policy decisions of the Board regarding the appropriate point of balance between the competing interests of the air transportation and aviation community and local residents living in the vicinity of JWA; (d) Providing a reasonable level of certainty to the following interests regarding the level of permitted aviation activity at JWA for a defined future period of time: surrounding local communities, Airport users (particularly scheduled commercial users), and, the air -traveling public; and, (e) Considering revisions to the regulatory operational restrictions at JWA in light of the current aviation environment, the current needs of the affected communities, and industry interests represented at JWA. 7 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 These objectives are consistent with a long-standing and adopted policy of the County to operate JWA in a manner that provides the maximum air transportation opportunities at TWA, while ensuring that airport operations do not unreasonably result in adverse environmental effects on surrounding communities. 14. Subject to the approval of the Court by entry of a Modified Final Judgment consistent with this Amended Stipulation ("the Modified Final Judgment"), this Amended Stipulation contains all of the obligations of the Settling Parties. The County shall have no obligation to the City, SPON or AWG, nor shall there be any restriction on the discretion of the County in its capacity as airport proprietor of JWA, except as that obligation or restriction is expressly stated in this Amended Stipulation. 15. This Amended Stipulation continues the essential terms and conditions of the 1985 Settlement Agreement regarding the County's development and operation of JWA, with certain capacity enhancing modifications, including: (a) Increasing the number of regulated flights allocated to passenger Commercial Carriers at JWA from eighty-five (85) average daily departures ("ADDs") to ninety-five (95) ADDs, beginning on January 1, 2021, through December 31, 2030; (b) Increasing the Million Annual Passengers ("MAP") level served at JWA from 10.8 MAP to 11.8 MAP, beginning on January 1, 2021, through December 31, STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2025, and increasing the MAP level served at JWA from 11.8 MAP to 12.2 or 12.5 MAP,' beginning on January 1, 2026, through December 31, 2030; and, (c) Eliminating the limit on the permitted number of commercial passenger loading bridges at JWA beginning on January 1, 2021. III. DEFINITIONS For purposes of this Amended Stipulation and the proposed Modified Final Judgment, the terms below are defined as follows: 16. "ADD" means "average daily departure," which is computed on an annual basis from January 1 through December 31 of each calendar year. One ADD authorizes any person requiring ADDs for its operations at JWA to operate 365 (or 366 in any "leap year") authorized departures during each Plan Year, subject to the definitions, provisions, conditions and limitations of this Amended Stipulation and implementing regulations of the County. "ADD" includes all Class A departures, except emergency or mercy flights, departures resulting from mechanical failures, emergency or weather diversions to JWA necessary to reposition an aircraft into its normal scheduling rotation, the repositioning of aircraft to another airport in connection with a published change in the 2 The trigger for the capacity increase to 12.5 MAP beginning on January 1, 2026 requires that air carriers be within five (5) percent of 11.8 MAP (i.e., 11.21 MAP) in any one calendar year during the January 1, 2021 through December 31, 2025 timeframe. If the operational levels are not equal to or greater than 11.21 MAP during that timeframe, then the MAP level shall only increase to 12.2 MAP beginning on January 1, 2026. 9 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 previous schedule of operations of the airline, test or demonstration flights authorized in advance by the airport director, or charter flights by persons not engaged in regularly scheduled commercial service at JWA. 17. "Class A Aircraft" means aircraft which: (i) operate at gross takeoff weights at JWA not greater than the maximum permitted gross takeoff weight for the individual aircraft main landing gear configuration, as set forth in the text of Section 2.27 of the Plan (defined below), as amended through November 8, 2011; and which (ii) generate actual energy -averaged single event noise exposure levels ("SENEL"), averaged during each Noise Compliance Period, as measured at the Departure Monitoring Stations, which are not greater than the values: NOISE MONITORING STATION ENERGY AVERAGED DECIBELS NMS1S: 101.8 dB SENEL NMS2S: 101.1 dB SENEL NMS3S: 100.7 dB SENEL NMS4S: 94.1 dB SENEL NMSSS: 94.6 dB SENEL NMS6S: 96.1 dB SENEL NMS7S: 93.0 dB SENEL In determining whether an aircraft is a Class A aircraft, its noise performance at the Departure Monitoring Stations shall be determined at each individual station, and 10 STIPULATION AND [PROPOSED) ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 the aircraft must meet each of the monitoring station criteria, without "trade-offs," in order to qualify as a Class A aircraft. 18. "Class E Aircraft" means aircraft which: (i) operate at gross takeoff weights at JWA not greater than the maximum permitted gross takeoff weight for the individual aircraft main landing gear configuration, as set forth in the text of Section 2.27 of the Plan, as amended through November 8, 2011; and which (ii) generate actual energy averaged SENEL levels, averaged during each Noise Compliance Period, as measured at the Departure Monitoring Stations, which are not greater than the values: NOISE MONITORING STATION ENERGY AVERAGED DECIBELS NMS 1 S: 93.5 dB SENEL NMS2S: 93.0 dB SENEL NMS3S: 89.7 dB SENEL NMS4S: 86.0 dB SENEL NMS5S: 86.6 dB SENEL NMS6S: 86.6 dB SENEL NMS7S: 86.0 dB SENEL In determining whether an aircraft is a Class E Aircraft, its noise performance at the Departure Monitoring Stations shall be determined at each individual noise monitoring station, and the aircraft must meet each of the noise monitoring station criteria, without "trade-offs," in order to qualify as a Class E Aircraft. 11 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 19. "Commercial Air Carrier" or "Air Carrier" means any person other than a Commuter Air Carrier or Commuter Cargo Carrier who operates Regularly Scheduled Air Service into and out of JWA for the purpose of carrying passengers, freight, cargo, or for any other commercial purpose. For purposes of the Plan, Commercial Air Carrier includes all Commercial Cargo Carriers. 20. "Commercial Cargo Carrier" means any person which is an Air Carrier, but which conducts its operations at JWA solely for the purpose of carrying Commercial Cargo with aircraft, regularly configured with zero (0) passenger seats available to the general public, and which does not offer passenger service to the public in connection with its operations at JWA. 21. "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. 22. "Commuter Cargo Carrier" means any person which is a Commuter Air Carrier, but which conducts its operations at JWA solely for the purpose of carrying Commercial Cargo with aircraft regularly configured with zero (0) passenger seats 12 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 available to the general public, and which does not offer passenger service to the public in connection with its operations at JWA. 23. "Departure Monitoring Stations" means JWA noise monitoring stations NMS1S, NMS2S, NMS3S, NMS4S, NMSSS, NMS6S and NMS7S. 24. "EIR 617 Project" means the flight, passenger and loading bridge increases authorized by this Amended Stipulation together with the mitigation measures adopted by the Board pursuant to Resolution No. 14-088, adopted on September 30, 2014. 25. "MAP" means million annual passengers, consisting of the sum of actual deplaning and enplaning passengers served by all Commercial and Commuter Air Carriers at JWA during each Plan Year, except that it does not include passengers excluded from such calculations under relevant provisions of the Plan. 26. "Noise Compliance Period" means each calendar quarter during the Project Period. 27. "Plan" means the Phase 2 Commercial Airline Access Plan and Regulation for John Wayne Airport, Orange County, and any successor regulations or amendments to the Plan. 28. "Plan Year" means the period from January 1 to December 31 of each calendar year. 29. "Project Period" means the period from February 26, 1985 to December 31, 2030. Notwithstanding the foregoing, the Settling Parties agree that none of the 13 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 limits on operations or facilities contained in this Amended Stipulation will expire at the end of the Project Period absent affirmative action by the Board of Supervisors of Orange County, taken in accordance with CEQA and other applicable laws, that is intended to alter the limits. 30. "Regularly Scheduled Air Service" means all operations conducted by Regularly Scheduled Commercial Users at JWA. 31. "Regularly Scheduled Commercial User" means any person conducting aircraft operations at JWA for the purpose of carrying passengers, freight or cargo where: (i) such operations are operated in support of, advertised, or otherwise made available to members of the public by any means for commercial air transportation purposes, and members of the public may travel or ship Commercial Cargo on the flights; (ii) the flights are scheduled to occur, or are represented as occurring (or available) at specified times and days; and (iii) the person conducts, or proposes to operate, departures at JWA at a frequency greater than two (2) times per week during any consecutive three (3) week period. 32. "Regulated ADDs" means average daily departures by Class A aircraft operated by Commercial Air Carriers. Supplemental Class A Authorized Departures, as defined in Section 4.0 of the Plan, are also "Regulated" within the meaning of this section. 33. "RON" means any aircraft operated by a Qualified Air Carrier or Qualified Commuter Carrier which "remains overnight" at JWA. 14 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IV. STIPULATION FOR MODIFICATION OF EXISTING JUDGMENT In recognition and consideration of the foregoing recitals and definitions, the Settling Parties agree to this Amended Stipulation and for a related and conforming Modified Final Judgment of the Court that contains the terms stated below. A. FLIGHT AND MAP LIMITS 34. Prior to January 1, 2021, there shall be a maximum of eighty-five (85) Commercial Air Carrier Class A ADDS and four (4) Commercial Cargo Air Carrier Class A ADDs serving JWA. 35. No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permitted to engage in Regularly Scheduled Air Service at TWA. 36. Prior to January 1, 2021, JWA shall serve no more than 10.8 MAP during any Plan Year. 37. Beginning January 1, 2021 through December 31, 2030, there shall be a maximum of ninety-nine (99) Class A ADDs allocated to Regularly Scheduled Commercial Air Carriers. 38. Four (4) of the ninety-nine (99) Class A ADDs permitted under Paragraph 37 above shall be designated as Commercial Cargo Class A ADDs and shall be allocated to Commercial Cargo Carriers to the extent demand exists. A maximum of two (2) of the four (4) Commercial Cargo Class A ADDs may be allocated by the County to Commercial Air Carriers for any Plan Year in which the demand for such flights by Commercial Cargo Air Carriers is less than four (4) ADDs. 15 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 39. Beginning on January 1, 2021 through December 31, 2025, JWA shall serve no more than 11.8 MAP during any Plan Year. Beginning on January 1, 2026 through December 31, 2030, JWA shall serve no more than 12.2 or 12.5 MAP during any Plan Year.3 B. FACILITY CONSTRAINTS 40. Prior to January 1, 2021, there shall be a maximum of twenty (20) loading bridges in use at JWA. Each loading bridge may serve no more than one (1) flight at a time. 41. Beginning January 1, 2021 through December 31, 2030, there shall be no limit on the number of' loading bridges in use at JWA. 42. During the term of this Amended Stipulation (through December 31, 2030), all air carrier aircraft regularly configured with ninety (90) or more passenger seats shall load and unload passengers only through the loading bridges in use at JWA, except that: (a) Through December 31, 2030, arriving air carrier aircraft regularly configured with ninety (90) or more passenger seats may unload passengers by stairway or other means not involving the use of loading bridges (hardstands) as (i) the Airport Director or his designee reasonably deems necessary to accommodate arriving commercial aircraft operations, and (ii) only to the extent that the total of the number of arriving, hardstand positions does not exceed two (2) positions; 3 See, supra, footnote 2. 16 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (b) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate commercial aircraft operations authorized by this Amended Stipulation during periods when construction and maintenance activities at or on the commercial terminal, terminal apron or proximate taxiways temporarily precludes or impairs the use of any loading bridges; (c) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may Load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate temporarily commercial aircraft operations authorized by this Amended Stipulation during any airport or airfield emergency condition which precludes or impairs the regular use of any loading bridges; and (d) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate commercial aircraft operations authorized by this Amended Stipulation during any period where compliance with safety or security directives of any federal agency with lawful jurisdiction over airport operations or activities [including, but not necessarily limited to, the FAA and the Transportation Security 17 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Agency ("TSA")] imposes or adopts any safety or security directive or requirement that impairs the full and effective utilization of the loading bridges at JWA. C. OTHER STIPULATED PROVISIONS 43. The existing curfew regulations and hours of operation for JWA, contained in County Ordinance 3505, and the provisions of paragraph 4, at page 62, of Board of Supervisors' Resolution 85-255 (February 26, 1985), reducing the curfew exemption threshold to 86.0 dB SENEL, shall remain in effect for no less than five (5) years past the end of the Project Period. Nothing in this paragraph precludes or prevents the JWA Airport Director, his designated representative, or some other person designated by the Board, from exercising reasonable discretion in authorizing a regularly scheduled departure or landing during the curfew hours where: (1) such arrival or departure was scheduled to occur outside of the curfew hours; and (2) the arrival or departure has been delayed because of mechanical problems, weather or air traffic control delays, or other reasons beyond the control of the operator. In addition, this paragraph does not prohibit authorization of bona fide emergency or mercy flights during the curfew hours by aircraft that would otherwise be regulated by the curfew provisions and limitations. 44. In mitigation of the EIR 508/EIS Project, and for other reasons, the County adopted a "General Aviation Noise Ordinance" ("GANO") (County Ordinance 3505). One principal policy objective of the GANO is to exclude from operations at JWA general aviation aircraft that generate noise levels greater than the noise levels permitted for aircraft used by Commercial Air Carriers. During the Project Period, the 18 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 T.TH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 County shall maintain in effect an ordinance that meets this basic policy objective. Nothing in this Amended Stipulation precludes the County from amending the GANO to enhance or facilitate its reasonable achievement of its principal purpose, or the effective enforcement of its provisions. 45. During the Project Period, the City, SPON, AWG, their agents, attorneys, officers, elected officials and employees agree that they will not challenge, impede or contest, by or in connection with litigation, or any adjudicatory administrative proceedings, or other action, the funding, implementation or operation of the EIR 617 Project, or any facilities that are reasonably related to implementation of the EIR 617 Project at JWA, by the County and the United States; nor will they urge other persons to do so, or cooperate in any such efforts by other parties except as may be expressly required by law. Nothing in this paragraph prohibits the Settling Parties from submitting comments or presenting testimony regarding any future environmental documentation prepared by the County with respect to implementation of the EIR 617 Project. 46. The Settling Parties recognize that it is in the best interests of each of them and in furtherance of the interests, health, welfare and safety of the citizens of Orange County that any potential disputes, controversies or claims with respect to the growth and expansion of JWA through the Project Period be resolved in accordance with the terms and conditions of this Amended Stipulation and the Modified Final Judgment. This Amended Stipulation does not constitute an admission of the sufficiency or 19 STIPULATION /4ND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 insufficiency of any claims, allegations, assertions, contentions or positions of any other party, or the sufficiency or insufficiency of the defenses of any such claims, allegations, contentions or positions. 47. Upon execution of this Amended Stipulation, the Settling Parties, their agents, officers, directors, elected officials and employees each agree to release, acquit and forever discharge each other, their heirs, employees, officials, directors, supervisors, consultants and successors -in -interest from any and all claims, actions, lawsuits, causes of action, liabilities, demands, damages, costs, attorneys' fees and expenses which may arise from or concern the subject matter of this Amended Stipulation, including, but not limited to, the legal adequacy of EIR 617, the legal adequacy of the teems and conditions for the modification of the 1985 Settlement Agreement and confirming judgment, and/or the legal adequacy of any of the amendments to the Plan through the Project Period. Nothing in this release shall limit in any way the ability of any Settling Party to enforce the terms, conditions and provisions of this Amended Stipulation and the Modified Final Judgment. 48. All Settling Parties to this Amended Stipulation specifically acknowledge that they have been informed by their legal counsel of the provisions of section 1542 of the California Civil Code, and they expressly waive and relinquish any rights or benefits available to them under this statute, except as provided in this Amended Stipulation. California Civil Code section 1542 provides: 20 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Notwithstanding section 1542 of the California Civil Code, or any other statute or rule of law of similar effect, this Amended Stipulation shall be given its full force and effect according to each and all of its express terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands or causes of action. All parties to this Amended Stipulation have been advised specifically by their legal counsel of the effect of this waiver, and they expressly acknowledge that they understand the significance and consequence of this express waiver of California Civil Code section 1542. This waiver is not a mere recital, but rather forms a material part of the consideration for this Amended Stipulation. 49. During the Project Period, the Settling Parties agree that they will jointly defend, using their best efforts, any pending or future litigation, administrative investigation, administrative adjudication, or any similar or related enforcement action or claim against the County related to, or arising from, this Amended Stipulation, or the agreement(s) embodied in this Amended Stipulation, the EIR 617 Project at JWA, or the County's regulations or actions in implementation of, or enforcing limitations upon, the Project. If SPON does not have adequate funds to retain legal counsel, SPON shall be deemed to satisfy the requirements of this paragraph if SPON cooperates with the 21 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 other Settling Parties in the litigation or administrative proceeding if, and to the extent, requested by the other Settling Parties. 50. During the Project Period, the City (but not SPON or AWG) agrees that it will, at its own expense, reimburse the County for all reasonable attorneys' fees and costs incurred by the County in defending any pending or future litigation, administrative investigation, administrative adjudication, or any similar or related enforcement action or claim against the County challenging: the legality of this Amended Stipulation or the agreement embodied in this Amended Stipulation, the EIR 617 Project, the authority of the County to approve or use any facilities generally consistent with, and reasonably related to, implementation of the DR 617 Project at JWA, or the County's regulations in implementation of, or enforcing limitations upon, the Project. The City's obligations pursuant to this paragraph do not extend to any litigation or enforcement action initiated against the County by any other Settling Party alleging a breach by the County of this Amended Stipulation. Reasonable costs include, but are not limited to, the costs of retaining experts or consultants to provide legal counsel, the costs of preparing documents for introduction in any litigation, administrative investigation, administrative adjudication, or any similar or related enforcement action or claim, or to assist legal counsel, the costs of reproducing any document, and reasonable expenses such as transportation, meals, lodging and communication incurred in attending meetings or proceedings related to litigation or administrative proceedings. The County shall be obligated to defend, using its best 22 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 efforts, any litigation, administrative challenge or enforcement proceeding related to this Amended Stipulation. In recognition of the County's obligation to defend using its best efforts, the County shall have full discretion to select counsel, experts or other professionals to represent or advise it in respect of any such matters. The City shall reimburse the County for all reasonable litigation or administrative attorneys' fees or costs within thirty (30) days after an invoice is submitted to the City for reimbursement. The rights and obligations set forth in this paragraph shall survive the termination or expiration of this Amended Stipulation. 51. The Settling Parties acknowledge that the County intends, in the near future, to develop amendments to the current Plan and/or other airport regulations relative, among other issues, to the manner in which the County allocates Class A ADDs and exempt aircraft operating opportunities within the MAP level agreed to in this Amended Stipulation. The development and implementation of amendments to the Plan was contemplated by, and is considered an element of, all of the Scenarios evaluated in EIR 617, and the parties agree that no additional or further environmental documentation is required under CEQA or NEPA to allow the County to develop or implement the amendments. 52. Any notices given under this Amended Stipulation shall be addressed to the parties as follows: 23 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 FOR THE COUNTY: Paul M. Albarian Deputy County Counsel John Wayne Airport 3160 Airway Avenue Costa Mesa, California 92626 with a copy to: Lori D. Ballance Danielle K. Morone Gatzke Dillon & Ballance LLP 2762 Gateway Road Carlsbad, California 92009 FOR THE CITY: Aaron C. Harp City Attorney 100 Center Civic Drive Newport Beach, California 92660 FOR AWG: FOR SPON: Barbara Lichman Buchalter Nemer 18400 Von Karman Avenue, Suite 800 Irvine, California 92612 Steven M. Taber Taber Law Group PC P.O. Box 60036 Irvine, California 92602 Any party may, at any time during the Project Period, change the person designated to receive notices under this Amended Stipulation by giving written notice of the change to the other parties. V. ENFORCEMENT OF THE JUDGMENT 53. If a dispute arises concerning the interpretation of, or a Settling Party's compliance with, the Modified Final Judgment, and if no exigent circumstances require immediate court proceedings, any Settling Party interested in the interpretation or 24 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 compliance shall provide written notice of the dispute to the other Settling Parties. Within twenty-one (21) days of the sending of such notice, the parties shall meet in person (or by their authorized representatives) and attempt in good faith to resolve the dispute. 54. If a dispute has not been resolved within thirty-five (35) days after the sending of written notice, or if exigent circumstances require immediate court proceedings, any Settling Party may initiate enforcement proceedings in this action. A Settling Party seeking to compel another Settling Party to obey the Modified Final Judgment must file a Motion to Enforce Judgment. The Settling Parties agree not to resort to, request, or initiate proceedings involving the contempt powers of the Court in connection with a Motion to Enforce Judgment. 55. If the Court determines that a Settling Party is not complying with the Modified Final Judgment, the Court shall issue an order, in the nature of specific performance of the Modified Final Judgment, requiring the defaulting party to comply with the Modified Final Judgment within a reasonable period of time. If the defaulting party fails to comply with the order, any other Settling Party may then seek enforcement under any authorized processes of the Court. VI. TERM OF AGREEMENT 56. This Amended Stipulation is contingent upon the Court's entry of the Modified Final Judgment such that the obligations, duties and rights of the parties are only those that are contained within this Amended Stipulation amending the terms and 25 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 conditions of the 1985 Settlement Agreement. If the Modified Final Judgment is not entered, this Amended Stipulation shall be null and void, and shall not be admissible for any purpose. Unless the Modified Final Judgment is vacated at an earlier date in the manner described in paragraphs 57 through 61, this Amended Stipulation and Modified Final Judgment shall remain in full force and effect during the Project Period. 57. The City, SPON and/or AWG may, after consultation with one another, file a Motion to Vacate Judgment if, in any action that they have not initiated: (a) Any trial court enters a final judgment that determines that the limits on the number of: (i) Regulated Class A ADDs; (ii) MAP levels; or (iii) facilities improvements contained in this Amended Stipulation or the curfew provisions of paragraphs 43 and 44 of this Amended Stipulation are unenforceable for any reason, and any of these stipulated limitations are exceeded; (b) Any trial court issues a preliminary injunction that has the effect of precluding implementation or enforcement of the limits on the number of Regulated Class A ADDs, MAP levels or facilities improvements contained in this Amended Stipulation or the curfew provisions of paragraphs 43 and 44 of this Amended Stipulation based upon a finding of a probability of making at trial any of the determinations described in subparagraph (a) above, and such preliminary injunction remains in effect for a period of one (1) year or more, and any of these stipulated limitations are exceeded; or 26 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (c) Any appellate court issues a decision or order that makes any of the determinations described in subparagraphs (a) or (b) above, or affirms a trial court ruling based upon such a determination, and any of these stipulated limitations are exceeded. 58. The County may file a Motion to Vacate Judgment if: (a) The City, SPON or AWG fail to comply with the provisions of paragraph 45 of this Amended Stipulation; (b) A trial or appellate court issues an order that has the effect of prohibiting the County from implementing or enforcing any of the operational restrictions or facilities limitations required by this Amended Stipulation; or (c) The FAA, or any successor agency, withholds federal grant funds from the County, or declines to permit the County to impose or use passenger facility charges at JWA based on a determination by the FAA that the adoption or implementation of all or a portion of this Amended Stipulation is illegal or unconstitutional as a matter of federal law, and (i) the FAA has issued an order or other determination to that effect which is subject to judicial review; and (ii) the County has, using reasonable efforts, been unable to secure a judicial order overruling or vacating the FAA order or other determination. This provision shall not apply to activities expressly permitted by paragraph 45 of this Amended Stipulation. 27 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 59. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Court shall, after consideration of a motion to vacate judgment, enter an order vacating the Modified Final Judgment if the Court determines that any of the conditions described in paragraphs 57 or 58 have occurred. Once vacated, the Modified Final Judgment and this Amended Stipulation shall be null and void, unenforceable and inadmissible for any purpose, and the Settling Parties will, pursuant to paragraph 60, be deemed to be in the same position that they occupied before the Modified Final Judgment and this Amended Stipulation were executed and approved, and the Settling Parties shall have the full scope of their legislative and administrative prerogatives. 60. If the Modified Final Judgment is vacated before December 31, 2015, the Settling Parties agree that the original 1985 Settlement Agreement, the original Confirming Judgment and the eight (8) subsequent amendments to the 1985 Settlement Agreement shall remain in full force and effect through December 31, 2015, if, for any reason, all or a portion of this Amended Stipulation is determined to be invalid and the Modified Final Judgment is vacated. 61. For the period after December 31, 2015, if any of the events described in paragraphs 57 or 58 occur during the Project Period, this Amended Stipulation and the Modified Final Judgment shall remain in full force and effect with respect to those terms and conditions or portions thereof that are not affected by the event(s) unless the court has granted a motion to vacate judgment pursuant to paragraphs 57 and 58. 28 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 VII. MODIFICATION 62. The limitations on Regulated Class A ADDs, MAP levels and facilities provided for in this Amended Stipulation, the provisions of paragraphs 43 and 44 of this Amended Stipulation, and the agreements of the City, SPON and AWG not to contest or impede implementation of the EIR 617 Project (paragraph 45 of this Amended Stipulation), are fundamental and essential aspects of this Amended Stipulation, and were agreed upon with full recognition of the possibility that economic, demographic, technological, operational or legal changes not currently contemplated could occur during the Project Period. It was in recognition of these essential aspects of this Amended Stipulation, and the inability to accurately predict certain future conditions that the Settling Parties have agreed to the specific and express provisions of paragraph 57 of this Amended Stipulation. The Settling Parties further acknowledge that this Amended Stipulation provides for the Settling Parties to perform undertakings at different times, and that the performance of certain of the undertakings, once accomplished, could not be undone. Accordingly, except as provided herein, the Settling Parties expressly waive any potential right to seek to modify or vacate the terms of this Amended Stipulation or the Modified Final Judgment, except by written mutual agreement. 29 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Nicholas S. Chrisos County Counsel, County of Orange Dated: /0 _8 -z0/Y By: Paul M. Albarian Deputy County Counsel Lori D. Ballance Danielle K. Morone Dated: By: Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Aaron C. Harp City Attorney of Newport Beach Dated: By: Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Steven M. Taber Dated: 4lar/a0/ri By: Steven MUfaber 30 STIPULATION AND [PROPOSEDJ ORDER CASE No. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Nicholas S. Chrisos County Counsel, County of Orange Dated: By: Paul M. Albarian Deputy County Counsel Dated: 9- 9- )`f Lori D. Ballance Danielle K. Morone By: —'' Lori D. Ballance Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Aaron C. Harp City Attorney of Newport Beach Dated: ' I4 — I y Y� B Aaron C. Harp Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Steven M. Taber Dated: By: Steven M. Taber 30 STIPULATION AND [PROPOSED) ORDER CISE'NO. CV 85-1542 TJH (MCx) 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Attorneys for Defendant, Counterclaimant and Crossdefendant, Airport Working Group (AWG) Barbara E. Liebman Dated: � By: easteast& et Barbara E. Liebman 31 STIPULATION AND [PROPOSED] ORDER CASE No. CV 85-1542 TJH (MCx) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MODIFIED FINAL JUDGMENT 1. In 1985, the County of Orange, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group ("Settling Parties") entered into a Stipulation for Entry of Final Judgment by Certain Settling Parties, settling all pending actions and claims related to the 1985 Master Plan of John Wayne Airport ("JWA") and related actions ("the 1985 Settlement Agreement"). On December 13, 1985, this Court entered Final Judgment on Stipulation for Entry of Judgment by Certain Settling Parties which accepted the stipulation of the Settling Parties and incorporated certain portions of their stipulation into that judgment. The principal terms of the 1985 Settlement Agreement relate to restrictions and limitations on aircraft operations and commercial passenger facilities. 2. In the intervening years, by stipulations of the Settling Parties, orders of the Court have been entered to reflect certain modifications in the agreement of the Settling Parties which were contained in stipulations presented to and approved by the Court. None of these modifications further restricted operations or facilities as compared to the 1985 Settlement Agreement. 3. The Settling Parties have now presented to the Court a Ninth 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 32 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ("Amended Stipulation") and Requesting a Modification of an Executory Judgment of the Court and [Proposed] Order. IT IS HEREBY ORDERED, ADJUDGED AND DECREED: A. The Amended Stipulation contains many of the terms of the 1985 Settlement Agreement and the eight (8) previous stipulations of the Settling Parties and for clarity and ease of reference, the Amended Stipulation is deemed to contain all of the agreements and obligations of the Settling Parties. B. The provisions of paragraphs 15 through 44 and 53 through 61 of the Amended Stipulation are hereby incorporated as part of this Modified Final Judgment. C. The Settling Parties shall each bear their own costs and attorneys' fees in connection with the entry of this Modified Final Judgment. IT IS SO ORDERED. Dated: By: The Honorable Terry J. Hatter, Jr. United States District Judge 33 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TM (MCx) EXHIBIT A U.S. Department of Transportation Federal Aviation Administration SEP 2 9 2014 Mr. Alan Murphy Airport Director John Wayne Airport 3160 Airway Avenue Costa Mesa, CA 92626 Office of the Chief Counsel 800 Independence Ave., S.W. Washington, D.C. 20591 RE: John Wayne Airport (JWA) Settlement Agreement Proposed Amendments Dear Mr. Murphy: You have asked for advice from the Office of the Chief Counsel, Federal Aviation Administration (FAA), regarding a proposed Ninth Supplemental Stipulation (Ninth Stipulation) that amends prior stipulations that implement the settlement of a dispute between Orange County and the City of Newport Beach, the Airport Working Group, and Stop Polluting Our Newport concerning the development and operation of John Wayne Airport, Orange County (the 1985 Settlement Agreement). You have provided us via electronic mail on September 7, 2014 an undated and unexecuted copy of the Ninth Stipulation that is enclosed herein, and is cited to by "Paragraph" or "Section" number herein. On December 3, 2002, JWA sought an opinion from FAA on modifications to the 1985 Settlement Agreement that were agreed to by the parties on June 25, 2002, and were intended to take effect in 2003 (the 2003 Amendments). The 2003 Amendments changed certain provisions of the original settlement and extended its term to December 31, 2015. By letter dated December 31, 2002 (copy enclosed), FAA found that the proposed 2003 amendments were exempt from Airport Noise and Capacity Act (ANCA), codified at 49 U.S.C. §§ 47521, et seq., since they would not reduce or limit aircraft operation or affect aircraft safety. FAA also advised that the amendments would not adversely affect future AIP grant applications or applications to impose or collect passenger facility charges (PFC). Letter from James W. Whitlow, Deputy Chief Counsel, FAA, to Alan Murphy, December 31, 2002. Upon review of the Ninth Stipulation, we understand that it generally authorizes an "increase in permitted operation capacities" at TWA, Paragraph 9(c), and, in particular, implements the following changes: 1. It will impose various flight and Million Annual Passengers ("MAP") limits through December 31, 2030, see, e.g., paragraphs 37 and 39. The Ninth Stipulation also defines a "Project Period" through December 31, 2030, paragraph 29. FAA understands that the current agreements would expire on December 31, 2015. 2 2. It provides that the existing curfew will remain in effect no less than five years past the end of the Project Period. Paragraph 43. FAA understands that under the current agreements the curfew remains in effect until 2020. 3, It will increase the MAP level served at JWA from 10.8 to 11.8 MAP, beginning on January 1, 2021, through December 31, 2025 (Phase 2), and increase the MAP level served at JWA from 11.8 MAP to 12.2 or 12.5 MAP, beginning on January 1, 2026, through December 31, 2030 (Phase 3). Paragraph 15(b). 4. It will increase the number of regulated flights allocated to "passenger Commercial Carriers" at JWA from 85 Class A average daily departures (ADDs) to 95 Class A ADDs, beginning on January 1, 2021, through December 31, 2030. Paragraph 15(a). Additionally a maximum of 2 of the 4 Commercial Cargo Class A ADDs may be allocated by the County to Commercial Air Carriers for any PIan Year in which the demand for such flights by Commercial Cargo Air Carriers is less than 4 ADDs. Paragraph 38. 5. Beginning January 1, 2021 through December 31, 2030 there shall be no limit on the number of loading bridges in use at TWA. Paragraph 41. Our advice is limited to these five proposals and does not apply to any additional term, aspect, information, plan or fact, whether expressly contained within, implied by, or referenced by the Ninth Stipulation or otherwise. Circumstances or facts not encompassed above or that have not been disclosed to FAA or that are contrary to assumptions made herein (both express and implied) could either change FAA's opinion or render it inapplicable. This letter expresses no opinion on prior stipulations or current or past California Environmental Quality Act (CEQA) Environmental Impact Statements or Reports. The FAA expresses no opinion on any document referenced by the Ninth Stipulation, including, but not limited to, Orange County resolutions or ordinances and the Phase 2 Commercial Airline Access Plan and Regulation for JWA, as amended or succeeded. In FAA's opinion letter of December 31, 2002, which examined the 2003 amendments, FAA made certain findings that remain relevant today. These include: 1. Since JWA had a settlement agreement containing noise and access restrictions in place prior to October 1, 1990, the restrictions in the original 1985 Settlement Agreement are "grandfathered" under ANCA. 2. The seven amendments considered by FAA in 2002 and enumerated in the FAA letter of December 31, 2002, constituted "a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety" and is therefore exempt from ANCA and 14 CFR Part 161. 49 U.S.C. § 47524(d)(4), 14 C.F.R. § 161.7(b)(4). 3. FAA's letter of December 31, 2002 compared the proposed 2003 amendments to the conditions that would exist when the Settlement Agreement would otherwise expire ("baseline"). At the point of expiration, FAA concluded that the restrictions of the Settlement Agreement would remain in effect or, in other words, the baseline would be a "continuation of the status quo." This was as opposed to a situation where all restrictions would be considered expired and baseline operations at JWA would be considered unconstrained. Therefore the principal legal effect of expiration of the Settlement Agreement would be to return to the Orange County Board of Supervisors 3 the full measure of its normal legislative and proprietary discretion to, at a subsequent time, consider and approve modifications to the air carrier facilities, to the level of permitted commercial operations at JWA, or to any other JWA related restriction which is a subject of the Settlement Agreement, subject to CEQA review. The FAA reached the decision on the baseline based on a number of factors. First, FAA considered the intent and understanding of the County with regard to the continued regulation of access at JWA. FAA found that the County Board "clearly contemplated and intended that access restrictions at JWA would continue after 2005." Second, FAA noted that the restrictions constituted binding mitigation measures related to the airport's 1985 Master Plan project under CEQA, and were thus an ongoing requirement under state environmental law. Third, the FAA noted that to the extent the Board of Supervisors, at a subsequent time, considered and approved, for example, an increase to the number of ADD and MAP being served at the Airport, then the County would have to comply with CEQA and thus such requirements could not be considered to expire automatically. Because this rationale still holds today and for purposes of consistency, with regard to the proposed amendments at issue here, the FAA will again consider the baseline to be a continuation of the status quo. Comparing the proposal to the status quo, FAA believes the amendments imposed by the Ninth Stipulation constitute the same type of "relaxation and extension" of the existing conditions that FAA examined in 2002. In this case, all of the changes enhance operating capacity at JWA. As discussed above, the MAP cap increases hum 10.8 to 11.8 in Phase 2 and then either 12.2 or 12.5 in Phase 3. The number of regulated flights allocated to passenger Commercial Carriers will increase from 85 Class A ADDs to 95. And beginning 2021, limitations on the number of passenger loading bridges will be dropped. Thus, because the amendments will not "reduce or limit aircraft operations or affect aircraft safety," the amendments (as we understand them and as listed above) are exempt from ANCA. The adoption of such amendments will not adversely affect future County grant applications under the Airport Improvement Program or applications to impose or collect PFCs under 49 U.S.C. § 40117. The proposed amendments do not currently present an issue of noncompliance under the County's grant assurances. As in 2003, our advice is based on the unique history and circumstances of noise and access restrictions at JWA. For example, since the late 1960s, the County has regulated the use and operations of JWA by a variety of means in an effort to control and reduce any adverse environmental impacts caused by aircraft operations to and from JWA. The original 1985 Settlement Agreement reflects the fact that the County faced extensive litigation as far back as 1968 by individual property owners, the City of Newport Beach, and citizen groups challenging the expansion and operation of JWA. The advice expressed above is not intended to apply to any other airport. Also, there are related issues that are not addressed by this letter, including but not limited to, the County's intended means of allocating Class A ADDs and exempt aircraft operating opportunities within the MAP level agreed to in the Ninth Supplemental Stipulation. This letter is not intended, and should not be construed, as expressing an opinion on the legality under Federal 4 law, including, but not limited to, the former Airport and Airway Improvement Act of 1982, as amended and recodified, 49 U.S.C. § 47101, et seq., the County's grant assurances, and the Federal Aviation Act of 1958, as amended and recodified, 49 U.S.C. § 40101, et seq., of the allocation methodology or the resulting air carrier allocations that may be proposed or implemented by the County under the modified, Amended Settlement Agreement. The advice stated herein is not binding on FAA and does not constitute a final order of the agency. It is based on an informal and expedited review of an unexecuted draft document. Although it has no current intent or reason to do so, as a matter of FAA's inherent discretion and authority, FAA retains right to modify or withdraw this opinion at any time, or take any action as described in Paragraph 58(c), as warranted and within its sole discretion. The FAA also retains the right to review, docket, and adjudicate a formal complaint filed under 14 C.F.R. part 16 alleging that the County's implementation of the amendments to the Settlement Agreement are inconsistent with the County's grant assurances. The FAA looks forward to continue working with the County to ensure that its access plan amendments and any future allocation of airport capacity fully comply with Federal law. Sincerely, Jonathan W. Cross Manager, Airport Law Airport and Environmental Law Division Enclosures: Ninth Supplemental Stipulation Letter from James W. Whitlow, Deputy Chief Counsel, FAA, to Alan Murphy, December 31, 2002. • USDepanl„, it etlfonsparblien Federal Aviation Administration DEC 3 I 2002 Mr, Alan Murphy Airport Director John Wayne Airport 3160 Airway Avenue Costa Mesa, CA 92626 V VVS 800 Independence Ave., S.W. Washington, D.C. 20591 Re: John Wayne Airport (JWA) 1985 J'WA Settlement Agreement Proposed Amendments Dear Mr. Murphy: This is in response to your December 3, 2002 letter to David G. Leitch, Chief Counsel, Federal Aviation Administration ("FAA"), on behalf of the County of Orange, California ("County"), in which you request the Office of the Chief Counsel's views concerning the consistency Of certain proposed amendments to the 1985 John Wayne Airport ("JWA") Settlement Agreement ("the 1985 Settlement Agreement" )1 with the Airport Noise and Capacity Act of 1990 ("ANCA"), recodifred at 49 U.S.C. §§ 4752147533: a In this letter, we conclude that the proposed amendments to the 1985 Settlement Agreement ("the proposed amendments" or "the modified Amended Settlement Agreement'), a copy of which was attached to your December 3 letter, are exempt from ANCA since the amendments would not "reduce or limit aircraft operations or affect aircraft safety." 49 U.S.C. § 47524(d)(4). We also advise that the FAA will not act to The 1985 JWA Settlement Agreement is embodied in a Stipulation For Entry of Judgment by Certain Settling Parties filed with the United States District Court, Central District of California in Case No. CV 85-1542 TJR (MCx) and approved by the Honorable Terry J. Ratter, Jr. on December 12, 1985. The settling parties included the County of Orange, California, the City of Newport Beach, California, the Airport Working Group, and Stop Polluting Our Newport 2 We understand, from JWA's•August 15, 2002 letter, that the proposed amendments to the 1985 Settlement Agreement will be implemented through amendments to the John Wayne Airport Phase 2 Commercial Airline Access Plau and Regulation ("the Phase 2 Access Plan"). To the extent that the proposed amendments to the 1985 Settlement Agreement also apply to the Phase 2 Access Plan, this letter applies to both documents. i Jl/V< 10:4.1L rAa 4 2 prevent adoption and approval of the terms of the modified Amended Settlement Agreement, either nnder any transfer or grant agreements, or under the Federal Aviation Act of 1958, as amended ("FAA Act"), and that adoption and approval itself will not adversely affect future County grant applications under the Airport and Airway Improvement Act of 1982, es amended ("AAIA") or applications to impose or collect passenger facility charges under 49 U.S.C. § 40117. The County's December 3, 2002, letter, and prior letters of August 15, 2002, September 6, 2002, September 26, 2002, and November 18, 2002, have provided 1ielpful information concerning the nature and history of noise and access regulations at JWA, the type and extent of aviation facilities and operations at TWA, and the 1985 JWA Settlement Agreement and Phase 2 Access Plan as well as prior and proposed amendments. These letters also point out how the airport is unique in many respects among commercial airports in the United States and describe the terms and conditions of the seven prior amendments3 of the 1985 Settlement Agreement and the proposed amendments. The proposed amendments and amended court stipulation, as described in the documents you have provided, would continue the essential terns and conditions of the 1985 Settlement Agreement regarding the County's development and operation of TWA, with certain capacity enhancing modifications, including: • Defining all regulated passenger flights as Class A flights and eliminating the Class AA Aircraft definition/distinetion, effective upon execution of a modified final fadgment by the court. The definition/distinction for Class E Aircraft is preserved 'unaffected in the.Amended Stipulation; • Increasing the number of regulated flights alioc ded to passenger commercial carriers at TWA from 73 average daily departures (ADDs) to 85 ADDs, beginning on January 1, 2003, through December 31, 2015; • increasing the level in million of annual passengers ("MAP") served at the Airport from 8.4 MAP to 10.3 MAP, beginning on January 1, 2003, through December 33, 3 The prior seven amendments to the settlement agreement were implemented for three different categuiies of changes: all -cargo operations (to increase in average daily departures ("ADDs") to accommodate cargo flights), FAA Advisory Circular AC-91-53A (to increase the safety of departure procedures at TWA), and noise monitoring system upgrades (due to physical relocation of some monitors and improved technology). Most of the seven amendments relate to an extension of the cargo operating capacity since these operations required approval on an annual or bi-annual basis. 3 2010, and increasing the MAP level served at the Airport from 10.3 MAP to 10.8 MAP, beginning on January 1, 2011, throughDecember 31, 2015; • Continuing to allow the permitted number of operations by Class E Aircraft to be -unlimited, except that the combined number ofpassengers served by commuter aircraft, Class E Aircraft and Class A Aircraft in regularly scheduled commercial service will not exceed 10.3 MAP, beginning an January 1, 2003, through December 31, 2010, and 10.8 MAP, beginning January 1, 2011, through December 31, 2015; • Increasing the number of cargo flights from JWA from two Class A ADD cargo flights to a total of four Class A ADD cargo flights, for atotal of 89 Class A ADD flights, beginning on January 1, 2003, through December' 31, 2015; • Providing the passenger commercial carriers with the opport, mity to use up to two of the Class A ADD cargo flights if there is no demand for these cargo flights by cargo air carriers; and • Increasing the permitted number of commercial passenger loading bridges at TWA from 14 loading bridges to 20 loading bridges, through December 31, 2015, and providing up to two bardstand positions¢ for aircraft arriving at the Airport. We understand that none of these changes would reduce or limit aircraft operations from the airport's current levels or affect aircraft safety. Under Federal law, sponsors of federally -funded airports like the County must comply with the national program for review of airport noise and access restrictions under ANCA before implementing restrictions on operations by Stage 2 and Stage 3 aircraft. Airport noise and access restrictions on operations by Stage 2 aircraft that were proposed on or before October 1, 1990, and by Stage 3 aircraft that were in effect on or before October I,. 1990 are "grandfathered" under ANCA and are therefore not subject to its requirements. 49 U.S.C. § § 47524(b), 47524(c)(1); 14 C.F.I. § I61.3(a). In addition, certain restrictions are exempt from ANCA, including "a subsequent amendments to an airport noise or access agreement or restriction in effect on November 5, I990, that does not reduce or limit aircraft operations or affect aircraft safety." 49 U.S.C. § 47524(d)(4); 14 C.F.R. § 161.7(b)(4). Since TWA had a settlement agreement containing noise and access restrictions in place prior to October 1, 1990, the restrictions in the original 1985 Settlement Agreement and Phase 2 Access Plan are grandfathered under ANCA. 49 U.S.C. §§ 47524(b), 47524(c)(1); 14 C.FR. § 161.3(a). Additionally, each of the seven prior amendments to the 1985 Settlement Agtcxruent was "a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety" and is therefore exempt from ANCA and Part 161. 49 U.S.C. § 47524(d)(4); 14 C.F.R. § 161.7(b)(4). ° Le., stair -loading an aircraft on the tarmac when a gate andjetway are not available. 5 Although the plain language of §47524(d)(4) states "a" subsequent amendment (and thus could be read to authorize only one amendment per airport), we interpret "a" to mean "say." See 23Iack3 Law Dict1onary 1 (6th ed. 1999), "lt]he word "a' has varying meanings and uses. "A" means "one" or "any .... lY/31/UZ 13:U3 ±AA 4 The proposed amendments would extend the terms of the 1985 Settlement Agreement by ten years to December 31, 2015. Both the 1985 Settlement Agreement and the Phase 2 Access Plan note that the limitations on operations and terminal size, among other limitations, "shall end. on December 31, 2005," or are in effect for "the period from February 26, 1985 to December 31, 2005." See Resolution Nos. 85-1233, 85-255, 90- 1161; Settlement Agreement 11120, 27, 29-36, 38. The proposed amendments would extend this expiration date to December 31, 2015. Compared to the current restrictions, the proposed amendments would liberalize air carrier access to JWA. To determine whether ANCA applies to Orange County's proposal to both relax and extend existing restrictions requires intetyrttation of 49 U.S.C. § 47524(d)(4). The first inquiry in statutory interpretation is whether a statute speaks clearly and unambiguously to a subject. If so, then the clearly -expressed intent of Congress must be given effect Chevron USA v_ Natural Resources Defense Council, 467 U_S. 837, 84243 (1984). Section 47524(d)(4) does not explicitly address restrictions in local agreements that have termination clauses and that will continue as part of ongoing mitigation programs under existing state environmental laws as new agreements are developed. Moreover, since ANCA was adopted as part of omnibus Federal budget legislation, its legislative history is sparse and does not provide clear congressional guidance on how restrictions that include expiration dates should be interpreted, Under these circumstances, the FAA has discretion to "fill() the statutory gap 'in a way that is reasonable in light of the legislature's revealed design."' Lopez v. Davis, 531 U.S. 230, 242 (2001). As the FAA is the administrative agency charged to administer ANCA, its interpretation of the statute will be accorded deference, provided the interpretation is "based on a permissible construction of the statute." Yellow Transportation, Inc v. Michigan, 123 S. Ct 371, 377 (2002), quoting Chevron, .supra, 467 U.S. at 843. Under the present circumstances, including contemporaneous evidence reflecting the intent and understanding of the County about continued regulation of access at JWA, it is reasonable for the FAA to conclude that the proposed amendments to the 1985 Settlement Agreement to extend the expiration date and relax the existing restrictions on air carrier access do not "reduce or limit aircraft operations" within the meaning of 49 US.C. § 47524(d)(4). For the past 11 years, the FAA has consistently interpreted ANCA to require airports seeking to qualify for exemption under the intergovernmental agreement provisions of ANCA, 49 U.S.C. § 47524(d)(3), to provide evidence that the sought-after restrictions were in effect, in existence, or contemplated at the time of the intergovenmental agreement. Our interpretation of § 47524(d)(4) in these circumstances is consistent with this prior interpretation of a comparable exemption. This is a reasonable interpretation of the statutory language that the FAA was delegated to administer. As explained in detail below, the County adopted the current airport noise and access restrictions in the Phase 2 Access Plan as binding mitigation measures for the 1985 Master Plan project pursuant to the California Environmental Quality Act ("CEQA"). The County is proposing to extend and relax the current restrictions on air carrier access 12/31/UZ 13133 teas vuo 5 at TWA. Where, as here, airport noise and access restrictions fulfill ongoing requirements under state environmental law, it is reasonable to determine the applicability of ANCA to proposed amendments in comparison to continuation of the status quo. To discern the intent and understanding of the Orange County Board of Supervisors ("County Board" or "Board") regarding the effect of the current expiration date on cont wring arrPss regulation at JWA after 2005, we examined the contemporaneous legislative history of noise and access restrictions at JWA, as reflected in various County resolutions and other documents provided to the FAA by representatives of the County. We also reviewed the County's letters to the FAA and the relevant law and regulations. The following statement in the County Board's resolution certifying the EIR for the 1985 Master Plan project is pertinent in our examination of the history of the settlement agreement? Any project proposed for JWA must be evaluated in the context of the airport's unique regulatory character and history. JWA is, and has been for many years, a 'controlled' airport facility where operations levels (particularly by commercial operators) are determined not by the available physical facilities, nor the level of 'market demand' for air carrier service, but by the number of ADDs permitted by the County. Based not only on the EIR itself, but on the years of controversy, public hearings, staff reports and other information presented both to this Board and prior Boards on airport related issues, we find that any planning or policy evaluation of JWA which ignores its unique history and operational characteristics must inevitably be misleading. Resolution No. 85-255 at 8-9. The legislative history of noise and access restrictions at JWA demonstrates that when the County Board approved the 1985 Master Plan project and adopted the access plans (including the Phase 2 Access Plan) to implement the two phases of the Master Plan (in accordance with the 1985 Settlement Agreement), the County Board clearly contemplated and intended that access restrictions at TWA would continue after 2005_ The Board also understood that any further relaxation of these restrictions would require action by the Board, including compliance with CEQA (as the County Board has done for the proposed amendments in Environmental Impact Report ("E.IR") 582). Based on information provided by representatives ofthc County, including the letters dated September 6 and September 26, 2002, we understand that the County Board has an ongoing obligation under CEQA to mitigate the significant adverse impacts of the 1985 Master Plan project, and that this obligation is not affected by the expiration date in the 1985 Settlement Agreement and the Phase 2 Access Plan. In the resolution adopting the Phase 2 Access Plan, the County Board stated that the restrictions in that plan (and its predecessor access plan for Phase 1 of the 1985 Master Plan project) constitute "the single most significant operational mitigation measure" for the project Resolution No. 90-1161 at 3. 12/31/02 13:34 FAX • Lai OUT 6 In certifying the final LIR for the 1985 Master Plan project (EIR 50S), the Board addressed public comments contending that the project would "inevitably' lead to further future increases in authorized levels of ADDS because of `substantial pressure' on the Board —or future Boards to increase operations because of a continuing growth of • unmet air-traffic demand in Orange County." Resolution No. 85-255 at 10. The County Board responded to these comments as follows: We cannot speculate on what future Boards of Supervisors may do if they consider future projects of [sic] JWA, Certainly, they will have to comply with CEQA as it then exists, It is, however, by no means clear to us that further increases in ADDs before Or after 2005 will even be considered, let alone approved by future Boards. hi In the Phase 2 Access Plan, the County Board made clear it intent to amend the Plan "when and as necessary (in the sole and exclusive exercise of the Board's legislative discretion) to effect or maintain the regulatory, environmental and service level goals, policies and objectives of the County in its management and operation of TWA.'" Phase 2 Access Plan,' 1.7. Evidence of these "goals, policies and objectives" includes the following: In certifying the final EIR for the 1985 Master Plan project, the County Board stated that implementation of the project, es mitigated, was - "essential to adequately serve the existing and future air traveling, public at TWA, and to strike an appropriate, responsible and desirable balance between the community's need for reasonable air transportation services, and the consequences or potential consequences of related airport operations." Resolution No. 85-255 at 5. st When the Board adopted the Access Plan for the first phase of the 1985 Master Plan project, it "reaffirm[ed] again its consistent and long-standing policies, goals and intent to strike a reasonable balance between the air transportation needs of the citihcus of Orange County, and the need to impose reasonable restraints and regulations on the operation of JWA." Resolution No. 85-259 at 4-5. = In the resolution approving the Phase 2 Access Plan, the Board stated that "the County's ability to continua to effectively regulate the development and use of JWA within the environmental parameters previously established by this Board necessitate the immediate adoption of the [sic] this Phase 2 Access Plan in order to protect the best interests of the Co unty, its constituents and the air travelling public ... " Resolution No. 90-1161 at 5-6, The County legislative history shows that the expiration dates in access plans were not intended to discontinue regulation of access; expired plans at JWA have consistently been 14., 01!Vq 1J.JY L'41-8 7 either eictended or replaced by subsequent plan% up to and including the current Phase 2 Access Plan. See, e.g., ResolutionNos. 85-259, pp. 1-3, and 90-1161 at3_ As part of the 1985 Settlement Agreement, the County Board agreed to lower the maximum MAP in Phase 2 of the Master Plan project to 8.4 MAP and reduce the number of Class A ADDS, In doing so, the County Board found that a reduction in the planned expansion of the terminal and related facilities was "appropriate and economically prudent to create a fanility designed to serve the ultimate maximum project service level of 8.4 MAP, and no more ...." Resolution No. 85-1233 at 5 (emphasis added); see also id at 7 (stating that Phase 2 "refers to the increase in authorized Class A ADD to 73 occurring upon completion ofthe new facilities, approximately in the year 1990"). Similarly, in adopting the Phase 2 Access Plan the County Board stated: (T)he 1985 Master Plan and the associated EIR 508/EIS also contemplated as part of the master plan project an increase in the maximum number of permitted commercial flights by regularly scheduled commercial air carriers in order to support the increased passenger handling capacity improvements contemplated by the 1985'Master Plan ... _ Resolution No. 90-1I61 at 2 (emphasis added). Thus, the County Board consciously tied the permitted number of commercial flights at JWA in Phase 2 of the 1985 Master Plan project to the approval capacity of the terminal facilities, showing that the Board did not contemplate unrestricted access tb the airport after 2005 without a commensurate expansion of terminal capacity. The 1985 Settlement Agreement provides additional support for this position. It allows any party to move to vacate it and the restrictions it contains, if it is held unenforceable for any reason. 1985 Settlement Agreement, ¶ 50. It further specifies that "the parties will be deemed to be in the same situation that they occupied" prior to its execution. 1d. at q 52. Perhaps the strongest point is that the agreement allows the parties to modify its terms "by mutual agreement " Id. at 153. The modified Amended Settlement Agreement that extends and relaxes restrictions until 2015 is "by mutual agreement" of the parties. In light of the above analysis, we conclude that the proposed extension of the 2005 expiration date in the 1985 Settlement Agreement to 2015 would not "reduce or limit aircraft operations" for purposes of §47524(d)(4), and that the proposed amendments are exempt from ANCA under that section. We base this conclusion on the unique history and circumstances of noise and access regulation at .TWA, as reflected in the documentation provided by the County. For example, the County has continually regulated and enforced maximum permitted noise levels, permitted hours of operation, and maximum number of commercial operations since the inception of commercial service at JWA in 1967_ This history supports our finding that the County did not intend for airport restrictions to terminate at the end of the period provided for in 1990. The increased limits introduced by Phase 2 in 1990 were in fact tied to the completion of a terminal expansion project. In addition, the County rejected the alternative of meeting all 8 passenger and traffic demands in 2005 (i.e., eliminating all restraints at JWA when it adopted the access plan). As you know, airport access restrictions are also subject to other applicable Federal law in addition to ANCA, including the Airport Improvement Program ("AIIW") grant assurances prescribed by 49 U.S.C. §47101, et seq. Compliance with the provisions of ANCA does not ensure compliance with other Federal law. Note that our decision, as indicated above, not to prevent the adoption or approval of the modified Amended Settlement Agreement is based in part on the fact that throughout the process of developing the settlement amendments, the County conducted a significant public process that encouraged and facilitated input from airport users and the public, including the local community and commercial airlines serving TWA, and those desiring to do so, on issues relating to the new capacity authorized by the June 25, 2002 agreement between the County Board, the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON") and the Airport Working Group ("AWG"). Our decision is also based on the unique history and circumstances of noise and access regulation at JWA. The original 1985 Settlement Agreement reflects the fact that the County faced extensive litigation as far back as 1968 by individual property owners (includi a noise damage lawsuits by residents of Santa Ana Heights and Newport - Beacdi), the City, and citizen groups challenging the expansion and operation of JWA. During the 1980's as well, the County bad also been a defendant in federal court in various suits initiated by air carriers concerning the County's noise and access restrictions. In order to avoid potentially inconsistent and conflicting rulings and obligations, the County initiated an action in federal court resulting in the 1985 Settlement Agreement. Concerning the application of 49 U.S.C. § 47526, the FAA can also advise that it is satisfied that JWA is not impoair+g an airport noise or access restriction not in compliance with ANCA or Part 161. As a result, JWA may receive money under the AIP grant program, and impose a passenger facility charge under 49 U.S.C. § 40117. In addition, the FAA will not act to prevent the County's adoption and approval of the proposed amendments as they do not currently present an issue of noncompliance under the County's grant assurances. Thus, that adoption and approval itself would also not adversely affect any applications for ATP grant funds submitted in the future by the County. The opinions expressed above are not intended, and should not be construed, to apply to any other airport. Also, there are related issues that are not addressed by this letter, in particular the County's intended means of allocating the new capacity authorized by the modified Amended Settlement Agreement. This 1Ltt a is not intended, end should not be construed, as expressing an opinion on the legality under Federal law, including the AAIA and the Cotmty's grant assurances, and the FAA. Act, of the allocation methodology or the resulting air carrier allocations that may be proposed or implemented by the County under the modified Amended Settlement Agreement, The FAA looks 9 forward to continue working with the County to ensure that Phase 2 Access PIan amendments and any future allocation of airport capacity fully comply with Federal law. I appreciate the considerable time and effort that representatives of the County have spent in meeting with representatives of the FAA and respondi g to our inquiries. Sincerely, Les W. Whitlow Deputy Chief Counsel Office of the Chief Counsel 1 CERTIFICATE OF SERVICE 2 I declare that I am employed with the law firm of Gatzke Dillon & Ballance LLP, 3 whose address is 2762 Gateway Road, Carlsbad, California 92009. I am not a party to the within cause, and I am over the age of eighteen years. 4 I further declare that on October 15, 2014, I served a copy of the following 5 document(s): 6 1. NINTH SUPPLEMENTAL STIPULATION BY THE COUNTY OF ORANGE, CALIFORNIA, THE CITY OF NEWPORT BEACH, STOP 7 POLLUTING OUR NEWPORT, AND THP, AIRPORT WORKING GROUP OF ORANGE COUNTY, INC., AMENDING THE TERMS AND 8 CONDITIONS OF THE PREVIOUS STIPULATIONS OF THOSE PAR1`1ES AND REQUESTING A MODIFICATION OF AN 9 EXECUTORY JUDGMENT OF THE COURT AND 10 [PROPOSED] ORDER 11 ® BY U.S. MAIL [Fed. R. Civ. P. 5(b)(2)(C)] by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, addressed as 12 follows, for collection and mailing at Gatzke Dillon & Ballance LLP, 2762 Gateway Road, Carlsbad, CA 92009 in accordance with Gatzke Dillon & 13 Ballance LLP's ordinary business practices. 14 I am readily familiar with Gatzke Dillon & Ballance LLP's practice for collection and processing of correspondence for mailing with the United States 15 Postal Service, and know that in the ordinary course of Gatzke Dillon & Ballance LLP's business practice the document(s) described above will be deposited with 16 the United States Postal Service for collection and mailing on the same date that it (they) is (are) placed at Gatzke Dillon & Ballance LLP with postage thereon 17 fully pre -paid. 18 Nicholas S. Chrisos, County Counsel Paul M. Albarian, Deputy County Counsel 19 County of Orange P.O. Box 1379 20 Santa Ana, CA 92702-1379 21 Attorneys for County of Orange 34 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 Tiff (MCx) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Aaron C. Harp (Bar No. 190665) City Attorney 100 Civic Center Drive Newport Beach, California 92660 Attorneys for City of Newport Beach Barbara Lohman blichman@buchalter.com Buchalter Nemer 18400 Von Karman Avenue, Suite 800 Irvine, California 92612 Attorneys for Airport Working Group of Orange County, Inc. (AWG) Steven M. Taber Taber Law Group PC P.O. Box 60036 Irvine, California 92602 Attorneys for Stop Polluting Our Newport (SPON) I declare under penalty of perjury that the foregoing is true and correct. Executed at Carlsbad, California on October 15, 2014. Rainee Fend 35 STIPULATION AND [PROPOSED] ORDER CASE NO. CV 85-1542 TJH (MCx) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael Scott Gatzke (#57076) Lori D. Ballance (#133469) Gatzke, Dillon & Ballance LLP 1921 Palomar Oaks Way, Suite 200 Carlsbad, California 92008 (760)431-9501 Benjamin P. de Mayo, County Counsel (#65618) Richard Oviedo, Deputy County Counsel (#62331) County of Orange P.O. Box 1379 Santa Ana, CA 92702-1379 (714) 834-3303 Attorneys for the County of Orange Robert H. Burnham (#44926) City Attorney City of Newport Beach P.O. Box 1768 Newport Beach, California 92658-8915 (949)644-3131 Attorney for the City of Newport Beach UNITED STATES DIS Barbara E. Lichman (#138469) Chevalier, Allen & Lichman - 695 Town Center Drive, Suite 700 Costa Mesa, California 92626 (714) 384-6520 Attorney for Airport Working Group of Orange County, Inc. (AWG) Roy B. Woolsey (#18019) 113 Via Venezia Newport Beach, California 92663-5516 (949) 673-3731 Attorney for Stop Polluting Our Newport (SPON) FEB s5 CENTRAL DISTRICT OF CALIFORNIA COUNTY OF ORANGE, Plaintiff, v. AIR CALIFORNIA, et al., Defendants. 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) AND ) [PROPOSED] ORDER 4114 DEPOT ) ) ) No. CV 85-1542 TJH (MCx) EIGHTH 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 PERMS AND CONDITIONS OF THE PREVIOUS STIPULATIONS OF THOSE PARTIES AND REQUESTING A MODIFICATION OF AN EXECUTORY JUDGMENT OF THE COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BASIS FOR TEE "1985 SETTLEMENT AGREEMENT" 1. In November 1985, the County of Orange and the Orange County Board of Supervisors ("Board") (collectively, the "County"), the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") (City, SPON and AWG are sometimes collectively referred to as "the City"), by their respective counsel of record, entered into a stipulation to implement the settlement of the longstanding dispute between the County and the City concerning the development and operation of John Wayne Airport, Orange County (SNA) ("JWA") ("the 1985 Settlement Agreement"). The parties are sometimes collectively referred to in this Eighth Supplemental Stipulation ("Amended Stipulation") as the "Settling Parties". On December 15, 1985, the United States District Court entered a final judgment ("the confirming judgment") pursuant to the 1985 Settlement Agreement. The confirming judgment: (1) adjudicated that Environmental Impact Report 508/Environmental Impact Statement ("EIR 508/EIS") was legally adequate for the "BIR 508/EIS Project" (as that term is hereafter defined) under the California Environmental Quality Act ("CEQA"), the National Environmental Policy Act ("NEPA"), and all relevant state and federal implementing regulations; (2) adjudicated that all other claims, controversies and/or counterclaims were dismissed without prejudice; and (3) contained specific provisions for enforcement of the 1985 Settlement Agreement. 2. The compromise settlement reached by the Settling Parties reflected, under all of the circumstances, the individual judgments of the Settling Parties regarding an appropriate or acceptable balance between demand for air travel services in Orange County and any adverse environmental effects associated with the operation of JWA. The Settling Parties acknowledge that, without the 1985 Settlement Agreement and confirming judgment, protracted litigation would have continued and created an ongoing risk of impeding or preventing the County's development of STIPULATION AND [PROPOSED] ORDER 1 • 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JWA, and its ability to create additional access opportunities for commercial operators desiring to use JWA. 3. Other provisions of the Settling Parties' agreement included actions that were generally described in, but not implemented directly through, the. 1985 Settlement Agreement. Those provisions included actions undertaken by the County in adopting and implementing Resolution Nos. 85-1231, 85-1232 and 85-1233 (all adopted on August 27, 1985) concerning certification of EIR 508/EIS, adoption of additional mitigation measures and additional airport site studies in Orange County, and the parties' dismissal of other litigation concerning JWA. 4. In reaching the 1985 Settlement Agreement, the Settling Parties considered operational and other factors applicable to JWA that are not applicable to any other airport. The 1985 Settlement Stipulation is site specific to JWA, premised upon its unique history, operational characteristics and limitations. Specifically, the essential character of JWA as an airport facility, both operationally and environmentally, is defined by the significant and substantial physical and environmental constraints affecting public use of the facility, including, but not limited to, the extremely confined airport area that includes a total of approximately five hundred and four (504) acres, less than four hundred (400) acres of which are available for airfield operations, an extensive highway and local street system that surrounds the area, and residential and commercial areas located generally to the southeast, south, west, southwest, and north of the airport area, and commercial areas to the east of the airport area. 5. Regularly scheduled commercial service was first initiated at JWA in 1967, and since the late 1960s, the County has regulated the use and operation of JWA by a variety of means in an effort to control and reduce any adverse environmental impacts caused by aircraft operations to and from- JWA. These regulations have included such restrictions as: (i) strict noise -based limitations on the type of aircraft which are permitted to use JWA, including both commercial and STIPULATION AND [PROPOSED) ORDER 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 general aviation aircraft; (ii) a nighttime "curfew" on aircraft operations exceeding certain specified noise levels; and (iii) limitations on the number of average daily commercial departures which can occur at the facility, either directly or through a limit on the permitted number of annual commercial passengers. Even prior to 1985, the controlled nature of the airport's operation, arising from a wide range of political, environmental, social and economic considerations, had become institutionalized to the extent that the regulated nature of the airport was a definitional component of its character as an air transportation facility. 6. The 1985 Settlement Agreement and confirming judgment were not intended to, and did not: (i) create any rights in favor of any persons other than the Settling Parties; or (ii) make the Settling Parties (other than the County) or any other person, parties to, or third party beneficiaries of, any contractual agreement between the County, as airport proprietor of JWA, and the United States of America (or any of its agencies). II. BASIS OF AMENDMENTS TO THE TERMS AND CONDITIONS OF THE 1985 SETTLEMENT AGREEMENT 7. On December 5, 2000, the Board, by a unanimous vote, directed the County Executive Officer ("CEO") to work with the City to study the potential of extending certain restrictions at JWA beyond December 31, 2005. The Board agendized this matter on December 5, 2000, as a result of a request by the City to review the possibility of amending the 1985 Settlement Agreement to extend beyond 2005, and the desire of the County for amendments to certain terms and conditions of the 1985 Settlement Agreement, that would increase airport capacity and not adversely affect safe airport operations. 8. On May 22, 2001, the Board approved a Memorandum of Understanding ("MOU") between the County and the City pursuant to which the County would act as lead agency (with the STIPULATION AND [PROPOSED] ORDER 3 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City designated a responsible agency) in the preparation of an Environmental Impact Report ("EIR") that would support County and City approval of one, or a combination, of the three project case scenarios identified in the EIR regarding amendments to the terms and conditions of the 1985 Settlement Agreement concerning restrictions at JWA. This EIR was designated as EIR 582 and was circulated for public review and comment pursuant to, and consistent with, CEQA and CEQA GUIDELINES requirements. 9. Final EIR 582 was found complete and adequate under CEQA by the Board of Supervisors on February-26, 2002. On June 25, 2002, the Board: (a) Certified Final EIR 582 as adequate and complete and as containing all information required by CEQA, the CEQA GUIDELINES, and the County Local CEQA Procedures Manual; (b) Adopted the statutorily required Findings, Mitigation Monitoring and Reporting Plan and Statement of Overriding Considerations ("Findings") consistent with CEQA and CEQA GUIDELINES requirements; and (c) Authorized execution of an Amended Stipulation after its approval and execution by the City, SPON and AWG. On or about June 25, 2002, the City, SPON and AWG each approved amendments to the Settlement Agreement consistent with Scenario 1. 10. The three project case scenarios ("Scenarios") evaluated in EIR 582 proposed modifications to some of the provisions of the 1985 Settlement Agreement, including an increase in permitted operational and facility capacity and an extension of the term of the agreement. In order to permit the Board and the City to determine the final terms of any amendments to the 1985 Settlement Agreement, the three Scenarios were each evaluated in the EIR to an equivalent level of detail that would permit the County and the City to adopt amendments to the 1985 Settlement STIPULATION Alp [PROPOSED] ORDER 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement consistent with all or a portion of any Scenario. Each of the three Scenarios proposed for the County's and the City's consideration assumed modifications to the terms of the 1985 Settlement Agreement prior to December 31, 2005. Each of the three Scenarios contemplated modifications that would increase noise regulated departures and passenger service levels. 11. Subsequent to June 25, 2002, the airlines serving (or interested in serving) JWA requested certain capacity opportunities beyond those authorized by the Settling Parties on June 25, 2002. As a result of those discussions, the Settling Parties approved modifications to the Amended Stipulation ("Modified Amended Stipulation") that were substantially responsive to the airlines' requests. 12. On December 10, 2002, the Board: (a) Accepted Addendum 582-1 to Final EIR 582 and approved the related amendments to the Findings consistent with this Modified Amended Stipulation as required by CEQA and CEQA GUIDELINES requirements; (b) Approved modifications to the Amended Stipulation as reflected in the terms and conditions of this Modified Amended Stipulation; and (c) Authorized execution of this Modified Amended Stipulation after its approval and execution by the City, SPON and AWG, and subject to the Airport Director receiving a letter from the Federal Aviation Administration ("FAA") which, in the opinion of Counsel, is substantially consistent, and in concurrence, with the Airport Director's letter to the FAA Chief Counsel dated December 3, 2002, stating that the modified Amended Stipulation is consistent with federal law. A copy of the Airport Director's December 3, 2002, letter to the FAA is attached to this Stipulation as Exhibit A. 13. On December 10, 2002, the City accepted Addendum 582-1 to Final EIR 582, STIPULATION AND [PROPOSED) ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adopted amendments to the findings made by the City on June 25, 2002, consistent with the action taken by the County as lead agency, and authorized execution of this Amended Stipulation subject to certain conditions, including receipt of the FAA Chief Counsel opinion letter referenced above. On or about December 10, 2002, SPON and AWG each authorized execution of this Amended Stipulation subject to conditions similar to those specified by the City and the County. 14. All conditions to the execution of this Amended Stipulation by each of the Settling Parties have been satisfied including the issuance and receipt of the FAA Chief Counsel opinion letter, a copy of which is attached as Exhibit B to this Stipulation. 15. The goals and objectives of the County, as the lead agency, the project proponent and the airport proprietor, in preparing EIR 582 and entering into this Amended Stipulation, included: (a) Recognizing that aviation noise management is crucial to the continued increase in airport capacity; (b) Modifying some restrictions on aircraft operations at JWA under the 1985 Settlement Agreement in a manner that would provide increased air transportation opportunities to the air traveling public using JWA without any adverse effect on aircraft safety; (c) Continuing the County's historical protection of the environmental interests and concerns of persons residing in the vicinity of JWA; and (d) Maintaining a reasonable balance between air service and local environmental impacts of that service in a manner that controls and minimizes the County's risk of noise damage claims that otherwise might be made against the County. STIPULATION AND [PROPOSED] ORDER 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These objectives are consistent with a long-standing and adopted policy of the County to operate JWA in a manner that provides the maximum air transportation opportunities at JWA, while ensuring that airport operations do not unreasonably result in adverse environmental effects on surrounding communities. 16. Subject to- the approval of the Court by entry of a Modified Final Judgment consistent with this Amended Stipulation ("the Modified Final Judgment"), this Amended Stipulation contains all of the obligations of the Settling Parties. The County shall have no obligation to the City, SPON or AWG, nor shall there be any restriction on the discretion of the County in its capacity as airport proprietor of JWA, except as that obligation or restriction is expressly stated in this Amended Stipulation. 17. This Amended Stipulation continues the essential terms and conditions of the 1985 Settlement Agreement regarding the County's development and operation of JWA, with certain capacity enhancing modifications, including: (a) Defining all regulated passenger flights as Class A flights and eliminating the Class AA Aircraft defmition/distinction, effective upon execution of the Modified Final Judgment by the Court. The definition/distinction for Class E Aircraft is preserved unaffected by this Amended Stipulation; (b) Increasing the number of regulated flights allocated to passenger Commercial Carriers at JWA .from seventy-three (73) ADDs to eighty-five (85) ADDs, beginning on January 1, 2003, through December 31, 2015; Increasing the MAP level served at the Airport from 8.4 MAP to 10.3 MAP, beginning on January 1, 2003, through December 31, 2010, and increasing the MAP level served at the Airport from 10.3 MAP to 10.8 MAP, beginning on January 1, 2011, through December 31, 2015; (c) STIPULATION AND [PROPOSED] ORDER 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) Continuing to allow the permitted number of operations by "Exempt Aircraft" (Le., Class E Aircraft) to be unlimited, except that the combined number of passengers served by Commuter Aircraft, Class E Aircraft and Class A Aircraft in regularly scheduled commercial service will not exceed 10.3 MAP, beginning on January 1, 2003, through December 31, 2010, and 10.8 MAP, beginning January 1, 2011, through December 31, 2015; • (e) Increasing the number of cargo flights from JWA from two (2) Class A ADD cargo flights to a total of four (4) Class A ADD cargo flights, for a total of eighty-nine (89) Class A ADD flights, beginning on January 1, 2003, through December 31, 2015; (f) Providing the passenger commercial carriers with the opportunity to use up to two (2) of the Class A ADD cargo flights if there is no demand for these cargo flights by cargo air carriers; and (g) Increasing the permitted number of commercial passengerloading bridges at JWA from fourteen (14) loading bridges to twenty (20) loading bridges, through December 31.-,2015, and providing up to two (2) hardstand positions for aircraft arriving at the Airport. III. DEFINITIONS For purposes of this Amended Stipulation and the proposed Modified Final Judgment, the terms below are defined as follows: 18. "ADD" means "average daily departure," which is computed for purposes of the Plan on an annual basis, from April 1 of each year during which the Plan is in effect, to March 31 of the following year. One ADD authorizes any person requiring ADDs for its operations at JWA STIPULATIONAND [PROPOSED) ORDER 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to operate 365 (or 366 in. any "leap year") Authorized Departures during each Plan Year, subject to the definitions, provisions, . conditions and limitations of this Amended Stipulation and implementing regulations of the County. "ADD" includes all Class A departures, except emergency or mercy flights, departures resulting from mechanical failures, emergency or weather diversions to JWA necessary to reposition an aircraft into its normal scheduling rotation, the repositioning of aircraft to another airport in connection with a published change in the previous schedule of operations of the airline, test or demonstration flights authorized in advance by the airport director, or charter flights by persons not engaged in regularly scheduled commercial service at JWA. 19. "Class A Aircraft" means aircraft which: (i) operate at gross takeoff weights at JWA not greater than the Maximum Permitted Gross Takeoff Weight for the individual aircraft main landing gear configuration, as set forth in the text of Section 2.30 of the Phase 2 Access Plan, as amended through July 1, 1999; and which (ii) generate actual energy averaged SENEL levels, averaged during each Noise Compliance Period, as measured at the Departure Monitoring Stations, which are not greater than the values: NOISE MONITORING STATION ENERGY AVERAGED DECIBELS NMS1S: 101.8 dB SENEL NMS2S: 101.1 dB SENEL NMS3S: 100.7 dB SENEL NMS4S: 94.1 dB SENEL NMSSS: 94.6 dB SENEL NMS6S: 96.1 dB SENEL NMS7S: 93.0 dB SENEL In determining whether an aircraft is a Class A aircraft, its noise performance at the Departure Monitoring Stations shall be determined at each individual station, and the aircraft must meet each of the monitoring station criteria, without "trade-offs," in order to qualify as a Class A STIPULATION AND [PROPOSED) ORDER 9 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 aircraft. 20. "Class E Aircraft" means aircraft which: (i) operate at gross takeoff weights at JWA not greater than the Maximum Permitted Gross Takeoff Weight for the individual aircraft main landing gear configuration, as set forth in the text of Section 2.30 of the Phase 2 Access Plan, as amended through July 1 1999; and which (ii) generate actual energy averaged SENEL levels, averaged during each Noise Compliance Period, as measured at the Departure Monitoring Stations, which are not greater than the values: NOISE MONITORING STATION ENERGY AVERAGED DECIBELS NMS1S: 93.5 dB SENEL NMS2S: 93.0 dB SENEL NMS3S: 89.7 dB SENEL NMS4S: 86.0 dB SENEL NMSSS: 86.6 dB SENEL NMS6S: 86.6 dB SENEL NMS7S: 86.0 dB SENEL In determining whether an aircraft is a Class E Aircraft, its noise performance at the Departure Monitoring Stations shall be determined at each individual noise monitoring station, and the aircraft must meet each of the noise monitoring station criteria, without "trade-offs," in order to qualify as a Class E Aircraft. 21. "Commercial Air Carrier" or "Air Carrier" means any person other than a Commuter Air Carrier or Commuter Cargo Carrier who operates Regularly Scheduled Air Service into and out of JWA for the purpose of carrying passengers, freight, cargo, or for any other commercial purpose. For purposes of the Plan, Commercial Air Carrier includes all Commercial Cargo Carriers. 22. "Commercial Cargo Carrier" means any person which is an Air Carrier, but which conducts its operations at JWA solely for the purpose of carrying Commercial Cargo with aircraft STIPULATION AND (PROPOSEDJ ORDER 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regularly configured with zero (0) passenger seats available to the general public, and which does not offer passenger service to the public in connection with its operations at JWA. 23. "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. 24. "Commuter Cargo Carrier" means any person which is a Commuter Air Carrier, but which conducts its operations at JWA solely for the purpose of carrying Commercial Cargo with aircraft regularly configured with zero (0) passenger seats available to the general public, and which does not offer passenger service to the public in connection with its operations at JWA. 25. "Departure Monitoring Stations" means JWA noise monitoring stations NMS1S, NMS2S, NMS3S, NMS4S, NMSSS, NMS6S and NMS7S. 26. "EIR 582 Project" means the flight, passenger and gate increases and the facility improvements authorized by this Amended Stipulation together with the mitigation measures adopted by the Board pursuant to Resolution No. 02-186, as amended by County Resolution No. 02-381, adopted on December 10, 2002. The Settling Parties agree that implementation of the FIR 582 Project may result in modifications to the Airport that are generally described in Exhibit 2-4 to EIR 582. The Settling Parties also agree that Exhibit 2-4 is only a conceptual plan and that further study by the County will likely require modifications to, or increases in, the areas depicted for commercial or cargo aircraft facilities or operations. 27. "MAP" means million annual passengers, consisting of the sum of actual deplaning and enplaning passengers served by all Commercial and Commuter Air Carriers at JWA during each Plan Year, except that it does not include passengers excluded from such calculations under STIPULATION AND [PROPOSED) ORDER 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relevant provisions of the Plan. 28. "Noise Compliance Period" means each calendar quarter during the Project Period. 29. "Plan" means the Phase 2 Commercial Airline Access Plan and Regulation for John Wayne Airport, Orange County, and any successor regulationsor amendments to the Plan. 30. "Plan Year" means each period during the Project Period, from April 1 of one year, to March 31 of the following year; except that the County shall have the discretion, beginning January 1, 2003, to redefine "Plan Year" as the calendar year (January 1 to December 31) or other equivalent time period. 31. "Project Period" means the period from February 26, 1985, to December 31, 2015. Notwithstanding the foregoing, the Settling Parties agree that none of the limits on operations or facilities contained in this Amended Stipulation will expire at the end of the Project Period absent affirmative action by the Board of Supervisors of Orange County, taken in accordance with CEQA and other applicable laws, that is intended to alter the limits. 32. "Regularly Scheduled Air Service" means all operations conducted by Regularly Scheduled Commercial Users at JWA. 33. "Regularly Scheduled Commercial User" means any person conducting aircraft operations at JWA for the purpose of carrying passengers, freight or cargo where such operations: (i) are operated in support of, advertised, or otherwise made available to members of the public by any means for commercial air transportation purposes, and members of the public may travel or ship Commercial Cargo on the flights; (ii) the flights are scheduled to occur, or are represented as occurring (or available) at specified times and days; and (iii) the person conducts, or proposes to operate, departures at JWA at a frequency greater than two (2) times per week during any consecutive three (3) week period. 34. "Regulated ADDs" means average daily departures by Class A aircraft operated by Commercial Air Carriers. Supplemental Class A Authorized Departures, as defined in Section 4.0 STIPULATION AND [PROPOSED] ORDER 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the Phase 2 Access Plan, are also "Regulated" within the meaning of this section. 35. "RON" means any aircraft operated by a Qualified Air Carrier or Qualified Commuter Carrier which "remains overnight" at JWA. IV. STIPULATION FOR MODIFICATION OF EXISTING JUDGMENT In recognition and consideration of the foregoing recitals and definitions, the Settling Parties agree to this Amended Stipulation and for a related and conforming Modified Final Judgment of the Court that contains the terms stated below. A. FLIGHT AND MAP LIMITS 36. Prior to December 31, 2002, there shall be a maximum of seventy-three (73) Commercial Air Carrier Class A and Class AA ADDS and two (2) Commercial Cargo Air Carrier Class A ADDs serving JWA. . 37. No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permitted to engage in Regularly Scheduled Air Service at JWA. 38. Prior to December 31, 2002, JWA shall serve no more than 8.4 MAP during any Plan Year. 39. Beginning January 1, 2003, through December 31, 2015, there shall be a maximum of eighty-five (85) Class A ADDs allocated to Regularly Scheduled Commercial Passenger Carriers. 40. In addition to, and beyond the eighty-five (85) Class A ADDs permitted under Paragraph 35 above, beginning on January 1, 2003, through December 31, 2015, there shall be a maximum of four (4) Commercial Cargo Class A ADDs permitted for Commercial Cargo Air Carriers for a combined total maximum of eighty-nine (89) Class A ADDs (commercial and cargo). A maximum of two (2) of the four (4) Commercial Cargo Class A ADDs may be allocated STIPULATION AND [PROPOSED] ORDER 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by the County to Commercial Passenger Air Carriers for any Plan Year in which the demand .for such flights by Commercial Cargo Air Carriers is less than four (4) ADDs. 41. Beginning on January 1, 2003, through December 31, 2010, JWA shall serve no more than 10.3 MAP during any Plan Year. Beginning on January 1, 2011, through December 31, 2015, JWA shall serveno more than 10.8 MAP during any Plan Year. B. FACILITY CONSTRAINTS 42. Prior to December 31, 2002, there shall be a maximum of fourteen (14) loading bridges in use at JWA. Each loading bridge may serve no more than one (1) flight at a time. 43. Beginning January 1, 2003, through December 31, 2015, there may be a maximum of twenty (20) loading bridges in use at JWA. Each loading bridge may serve no more than one (1) flight at a time. 44. During the term of this Amended Stipulation (through December 31, 2015), all air carrier aircraft regularly configured with ninety (90) or more passenger seats shall load and unload passengers only through the loading bridges in use at JWA, except that: (a) Prior to January 1, 2006, air carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges (hardstands) as (i) the Airport Director reasonably deems necessary to accommodate commercial aircraft operations authorized by this Amended Stipulation, and (ii) only to the extent that the total of the loading bridges and the number of "hardstands" does not exceed twenty (20); (b) Through December 31, 2015, arriving air carrier aircraft regularly configured with ninety (90) or more passenger seats may unload passengers by stairway or other means not involving the use of STIPULATION AND [PROPOSED] ORDER 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 loading bridges (hardstands) as (i) the Airport Director or his designee reasonably deems necessary to accommodate arriving commercial aircraft operations, and (ii) only to the extent that the total of the number of "arriving" "hardstand" positions does not exceed two (2) positions; (c) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate commercial aircraft operations authorized by this Amended Stipulation during periods when construction and maintenance activities at or on the commercial terminal, terminal apron or proximate taxiways temporarily precludes or impairs the use of any loading bridges; (d) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate temporarily commercial aircraft operations authorized by this Amended Stipulation during any airport or airfield emergency condition which precludes or impairs the regular use of any loading bridges; and (e) Air Carrier aircraft regularly configured with ninety (90) or more passenger seats may load and unload passengers by stairway or other means not involving the use of loading bridges as the Airport Director reasonably deems necessary to accommodate commercial aircraft operations authorized by this Amended Stipulation during any period where compliance with safety or security directives of any federal agency with lawful jurisdiction over airport operations or STIPULATION AND [PROPOSED] ORDER 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 activities [including, but not necessarily limited to, the Federal Aviation Administration ("FAA") and the Transportation Security Agency ("TSA")], imposes or adopts any safety or security directive or requirement affecting the airport which- impairs the full and effective utilization of the loading bridges at the airport. C. OTHER STIPULATED PROVISIONS 45. The existing curfew regulations and hours for JWA, contained in County Ordinance 3505, and the provisions of paragraph 4, at page 62, of Board of Supervisors' Resolution 85-255 (February 26, 1985), reducing the curfew exemption threshold to 86.0 dB SENEL, shall remain in effect for no less than five (5) years past the end of the Project Period. Nothing in this paragraph precludes or prevents the JWA Airport Director, his designated representative, or some other person designated by the Board, from exercising reasonable discretion in authorizing a regularly scheduled departure or landing during the curfew hours where: (1) such arrival or departure was scheduled to occur outside of the curfew hours; and (2) the arrival or departure has been delayed because of mechanical problems, weather or air traffic control delays, or other reasons beyond the control of the operator. In addition, thisparagraphdoes not prohibit authorization of bona fide emergency or mercy flights during the curfew hours by aircraft that would otherwise be regulated by the curfew provisions and limitations. 46. In mitigation of the EIR 508/EIS Project, and for other reasons, the County has adopted a "General Aviation Noise Ordinance" ("GANO") (County Ordinance 3505). One principal policy objective of the GANO is to exclude from operations at JWA general aviation aircraft that generate noise levels greater than the noise levels permitted for aircraft used by Commercial Air Carriers. During the Project Period, the County shall maintain in effect an ordinance that meets this basic policy objective. Nothing in this Amended Stipulation precludes STIPULATION AND [PROPOSED] ORDER 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the County from amending the GANO to enhance or facilitate its reasonable achievement of its principal purpose, or the effective enforcement of its provisions. 47. During the Project Period, the City, SPON, AWG, their agents, attorneys, officers, elected officials and employees agree that they will not challenge, impede or contest, by or in connection with litigation, or any adjudicatory administrative proceedings, or other action, the funding, implementation or operation of the EIR 582 Project, or any facilities that are reasonably related to implementation of the EIR 582 Project at JWA, by the County and the United States; nor will they urge other persons to do so, or cooperate in any such efforts by other parties except as may be expressly required by law. Nothing in this paragraph prohibits the Settling Parties from submitting comments or presenting testimony regarding any future environmental documentation prepared by the County with respect to implementation of the EIR 582 Project. 48. The Settling Parties recognize that it is in the best interests of each of them and in furtherance of the interests, health, welfare and safety of the citizens of Orange County that any potential disputes, controversies or claims with respect to the growth and expansion of JWA through the Project Period be resolved in accordance with the terms and conditions of this Amended Stipulation and the Modified Final Judgment. This Amended Stipulation does not constitute an admission of the sufficiency or insufficiency of any claims, allegations, assertions, contentions or positions of any other party, or the sufficiency or insufficiency of the defenses of any such claims, allegations, contentions or positions. 49. Upon execution of this Amended Stipulation, the Settling Parties, their agents, officers, directors, elected officials and employees each agree to release, acquit and forever discharge each other, their heirs, employees, officials, directors, supervisors, consultants and successors -in -interest from any and all claims, actions, lawsuits, causes of action, liabilities, demands, damages, costs, attorneys' fees andexpenses which may arise from or concern the STIPULATION AND (PROPOSED] ORDER 17 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subject matter of this Amended Stipulation, including, but not limited to, the legal adequacy of EIR 582, the legal adequacy of the terms and conditions for the modification of the 1985 Settlement Agreement and confirming judgment, and/or the legal adequacy of any of the amendments to the Plan through the Project Period. Nothing in this release shall limit in any way the ability of any Settling Party to enforce the terms, conditions and provisions of this Amended Stipulation and the Modified Final Judgment. 50. All Settling Parties to this Amended Stipulation specifically acknowledge that they have been informed by their legal counsel of the provisions of section 1542 of the CALIFORNIA CIVIL CODE, and they expressly waive and relinquish any rights or benefits available to them under this statute, except as provided in this Amended Stipulation. CALIFORNIA CIVIL CODE § 1542 provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Notwithstanding section 1542 of the CALIFORNIA CIVIL CODE, or any other statute or rule of law of similar effect, this Amended Stipulation shall be given its full force and effect according to each and all of its express terms and provisions, including those related to any unknown or unsuspected claims, liabilities, demands or causes of action. All parties to this Amended Stipulation have been advised specifically by their legal counsel of the effect of this waiver, and they expressly acknowledge that they understand the significance and consequence of this express waiver of CALIFORNIA CIVIL CODE § 1542. This waiver is not a mere recital, but rather forms a material part of the consideration for this Amended Stipulation. 51. During the Project Period, the Settling Parties agree that they will jointly defend, using their best efforts, any pending or future litigation, administrative investigation, STIPULATION AND [PROPOSED] ORDER 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative adjudication, or . any similar or related enforcement action or claim against the County related to, or arising from, this Amended Stipulation, or the agreement(s) embodied in this Amended Stipulation, the EIR 582 Project at JWA, or the County's regulations or actions in implementation of, or enforcing limitations upon, the Project. If SPON does not have adequate funds to retain legal counsel, SPON shall be deemed to satisfy the requirements of this paragraph if SPON cooperates with the other Settling Parties in the litigation or administrative proceeding if, and to the extent, requested by the other Settling Parties. 52. During the Project Period, the City (but not SPON or AWG) agrees that it will, at its own expense, reimburse the County for all reasonable attorneys' fees and costs incurred by the County in defending any pending or future litigation, administrative investigation, administrative adjudication, or any similar or related enforcement action or claim against the County challenging: the legality of this Amended Stipulation or the agreement embodied in this Amended Stipulation, the EIR 582 Project (including any Addendum to EIR 582), the authority of the County to approve or use any facilities generally consistent with, and reasonably related to, implementation of the EIR 582 Project at JWA, or the County's regulations in implementation of, or enforcing limitations upon, the Project. The City's obligations pursuant to this paragraph do not extend to any litigation or enforcement action initiated against the County by any other Settling Party alleging a breach by the County of this Amended Stipulation. Reasonable costs include, but are not limited to, the costs of retaining experts or consultants to provide legal counsel, the costs of preparing documents for introduction in any litigation, administrative investigation, administrative adjudication, or any similar or related enforcement action or claim, or to assist legal counsel, the costs of reproducing any document, and reasonable expenses such as transportation, meals, lodging and communication incurred in attending meetings or proceedings related to litigation or administrative proceedings. The County shall be obligated to defend, using its best efforts, any STIPULATION AND [PROPOSED] ORDER 19 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation, administrative challenge or enforcement proceeding related to this Amended Stipulation. In recognition of the County's obligation to defend using its best efforts, the County shall have full discretion to select counsel, experts or other professionals to represent or advise it in respect of any such matters. The City shall reimburse the County for all reasonable litigation or administrative attorneys' fees or costs within thirty (30) days after an invoice is submitted to the City for reimbursement. The rights and obligations set forth in this paragraph shall survive the termination or expiration of this Amended Stipulation. 53. The Settling Parties acknowledge that the County intends, in the near future, to develop amendments to the current Plan and/or other airport regulations relative, among other issues, to the manner in which the County allocates Class A ADDs and exempt aircraft operating opportunities within the MAP level agreed to in this Amended Stipulation. The development and implementation of amendments to the Plan was contemplated by, and is considered an element of, all of the Scenarios evaluated in EIR 582, and the parties agree that no additional or further environmental documentation is required under CEQA or NEPA to allow the County to develop or implement the amendments. 54. Any notices given under this Amended Stipulation shall be addressed to the parties as follows: FOR THE COUNTY: Richard Oviedo Deputy County Counsel John Wayne Airport 3160 Airway Avenue Costa Mesa, CA 92626 with a copy to: Michael Scott Gatzke Lori D. Ballance Gatzke Dillon & Ballance LLP 1921 Palomar Oaks Way, Suite 200 Carlsbad, CA 92008 STIPULATION AND (PROPOSED) ORDER 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOR THE CITY: City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 FOR SPON: Roy B. Woolsey 113 Via Venezia Newport Beach, CA 92663-5516 FOR AWG: Barbara E. Lichman Chevalier, Allen & Lichman 2603 Main Street, Suite 1000 Irvine, CA 92714 Any party may, at any time during the Project Period, change the person designated to receive notices under this Amended Stipulation by giving written notice of the change to the other parties. V. ENFORCEMENT OF THE JUDGMENT 55. If a dispute arises concerning the interpretation of, or a Settling Party's compliance with, the Modified Final Judgment, and if no exigent circumstances require immediate court proceedings, any Settling Party interested in the interpretation or compliance shall provide written notice of the dispute to the other Settling Parties. Within twenty-one (21) days of the sending of such notice, the parties shall meet in person (or by their authorized representatives) and attempt in good faith to resolve the dispute. 56. If a dispute has not been resolved within thirty-five (35) days after the sending of written notice, or if exigent circumstances require immediate court proceedings, any Settling Party may initiate enforcement proceedings in this action. A Settling Party seeking to compel another Settling Party to obey the Modified Final Judgment must file a Motion to Enforce Judgment. The. Settling Parties agree not to resort to, request, or initiate proceedings involving the contempt powers of the Court in connection with a Motion to Enforce Judgment. 57. If the Court determines that a Settling Party is not complying with the Modified STIPULATION AND [PROPOSED] ORDER 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Final Judgment, the Court shall issue an order, in the nature of specific performance of the Modified Final Judgment, requiring the defaulting party to comply with the Modified Final Judgment within a reasonable period of time. If the defaulting party fails to comply with the order, any other Settling Party may then seek enforcement under any authorized processes of the Court. VI. TERM OF AGREEMENT 58. This Amended Stipulation is contingent upon the Court's entry of the Modified Final Judgment such that the obligations, duties and rights of the parties are only those that are contained within this Amended Stipulation amending the terms and conditions of the 1985 Settlement Agreement. If the Modified Final Judgment is not entered, this Amended Stipulation shall be null and void, and shall not be admissible for any purpose. Unless the Modified Final Judgment is vacated at an earlier date in the manner described in paragraphs 59 through 63, this Amended Stipulation and Modified Final Judgment shall remain in full force and effect during the Project Period. 59. The City, SPON and/or AWG may, after consultation with one another, file a Motion to Vacate Judgment if, in any action that they have not initiated: (a) Any trial court enters a final judgment that determines that the limits on the number of: (i) Regulated Class A ADDs; (ii) MAP levels; or (iii) facilities improvements contained in this Amended Stipulation or the curfew provisions of paragraphs 45 and 46 of this Amended Stipulation are unenforceable for any reason, and any of these stipulated limitations are exceeded; (b) Any trial court issues a .preliminary injunction that has the effect of precluding implementation or enforcement of the limits on the number of Regulated Class A ADDs, MAP levels or facilities improvements STIPULATION AND [PROPOSED] ORDER 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained in this Amended Stipulation or the curfew provisions of paragraphs 45 and 46 of this Amended Stipulation based upon a finding of a probability of making at trial any of the determinations described in subparagraph (a) above, and such preliminary injunction remains in effect for°a period of one (1) year or more, and any of these stipulated limitations are exceeded; or (c) Any appellate court issues a decision or order that makes any of the determinations described in subparagraphs (a) or (b) above, or affirms a trial court ruling based upon such a determination, and any of these stipulated limitations are exceeded. 60. The County may file a Motion to Vacate Judgment if: (a) The City, SPON or AWG fail to comply with the provisions of paragraph 47 of this Amended Stipulation; (b) A trial or appellate court issues an order that has the effect of prohibiting the County from implementing or enforcing any of the operational restrictions or facilities limitations required by this Amended Stipulation; or (c) The FAA, or any successor agency, withholds federal grant funds from the County, or declines to permit the County to impose or use passenger facility charges at JWA based on a determination by the. FAA that the adoption or implementation of all or a portion of this Amended Stipulation is illegal or unconstitutional as a matter of federal law, and (i) the FAA has issued an order or other determination to that effect which is subject to judicial review; and (ii) the County has, using reasonable efforts, been unable to secure a judicial order overruling or vacating the FAA order or other STIPULATION AND [PROPOSED] ORDER 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determination. This provision shall not apply to activities expressly permitted by paragraph 47 of this Amended Stipulation. 61. Pursuant to Rule 60(b) of the FEDERAL RULES OF CIVIL PROCEDURE, the Court shall, after consideration of a motion to vacate judgment, enter an order vacating the Modified Final Judgment if the Court determines that any of the conditions described in paragraphs 59 or 60 have occurred. Once vacated, the Modified Final Judgment and this Amended Stipulation shall be null and void, unenforceable and inadmissible for any purpose, and the Settling Parties will, pursuant to paragraph 62, be deemed to be in the same position that they occupied before the Modified Final Judgment and this Amended Stipulation were executed and approved, and the Settling Parties shall have the full scope of their legislative and administrative prerogatives. 62. If the Modified Final Judgment is vacated before December 31, 2005, the Settling Parties agree that the original 1985 Settlement Agreement, the original Confirming Judgment and the seven (7) subsequent amendments to the 1985 Settlement Agreement shall remain in full force and effect through December 31, 2005, if, for any reason, all or a portion of this Amended Stipulation is determined to be invalid and the Modified Final Judgment is vacated. 63. For the period after December 31, 2005, if any of the events described in paragraphs 59 or 60 occur during the Project Period, this Amended Stipulation and the Modified Final Judgment shall remain in full force and effect with respect to those terms and conditions or portions thereof that are not affected by the event(s) unless the court has granted a motion to vacate judgment pursuant to paragraphs 59 and 60. /// /// /// STIPULATION AND [PROPOSED] ORDER 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. MODIFICATION 64. The limitations on Regulated Class A ADDs, MAP levels and facilities provided for in this Amended Stipulation, the provisions of paragraphs 45 and 46 of this Amended Stipulation, and the agreements of the City, SPON and AWG not to contest or impede implementation of the EIR 582 Project (paragraph 47 of this Amended Stipulation), are fundamental and essential aspects of this Amended Stipulation, and were agreed upon with full recognition of the possibility that economic, demographic, technological, operational or legal changes not currently contemplated could occur during the Project Period. It was in recognition of these essential aspects of this Amended Stipulation, and the inability to accurately predict certain future conditions that the Settling Parties have agreed to the specific and express provisions of paragraph 59 of this Amended Stipulation. The Settling Parties further acknowledge that this Amended Stipulation provides for the Settling Parties to perform undertakings at different times, and that the performance of certain of the undertakings, once accomplished, could not be undone. Accordingly, except as provided herein, the Settling Parties expressly waive any potential right to seek to modify or vacate the terms of this Amended Stipulation or the Modified Final Judgment, except by written mutual agreement. Dated: Attorneys for Plaintiff and Counterdefendants, the County of Orange and the Orange County Board of Supervisors Michael Scott Gatzke Lori D. Ballance Gatzke Dillon & Ballance LLP Michael S ott Gatzke STIPULATION AND [PROPOSED] ORDER 25 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date: Dated: f: Dated: Dated: R County Counsel, County of Orange By: ,,`'�e chard Oviedo Deputy County Counsel Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach Robert H. Burnham City Attorney of Newport Beach By; Robert H. Burnham Attorneys for Defendant, Counterclaimant and Crossdefendant, Stop Polluting Our Newport (SPON) Roy B. Woolsey By:1yi Roy B. Woolsey Attorneys for Defendant, Counterclaimant and Crossdefendant, Airport Working Group (AWG) Barbara E. Lichman Chevalier, Allen & Lichman BY: V'<JGuX.(.2L.[.A 9, I.ZdAtiw Barbara E. Lichman STIPULATION AND [PROPOSED] ORDER 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MODIFIED FINAL JUDGMENT 1. In 1985, the County of Orange, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group ("Settling Parties") entered into a Stipulation for Entry of Final Judgment by Certain Settling Parties, settling all pending actions and claims related to the 1985 Master Plan of John Wayne Airport ("JWA") and related actions ("the 1985 Settlement Agreement"). On December 13, 1985, this Court entered Final Judgment on Stipulation for Entry of Judgment by Certain Settling Parties which accepted the stipulation of the Settling Parties and incorporated certain portions of their stipulation into that judgment. The principal terms of the 1985 Settlement Agreement relate to restrictions and limitations on aircraft operations and commercial passenger facilities. 2. In the intervening years, by stipulations of the Settling Parties, orders of the Court have been entered to reflect certain modifications in the agreement of the Settling Parties which were contained in stipulations presented to and approved by the Court. None of these modifications further restricted operations or facilities as compared to the 1985 Settlement Agreement. 3. The Settling Parties have now presented to the Court an Eighth 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 ("Amended Stipulation") and Requesting a Modification of an Executory Judgment of the Court and [Proposed] Order. IT IS HEREBY ORDERED, ADJUDGED AND DECREED. A. The Amended Stipulation contains many of the terms of the 1985 Settlement Agreement and the seven (7) previous stipulations of the Settling Parties and for clarity and ease of reference, the Amended Stipulation is deemed to contain all of the agreements and obligations of the Settling Parties. STIPULATION AND [PROPOSED] ORDER 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The provisions of paragraphs 17 through 46 and 55 through 63 of the Amended Stipulation are hereby incorporated as part of this Modified Final Judgment. C. The Settling Parties shall each bear their own costs and attorneys' fees in connection with the entry of this Modified Final Judgment. IT IS SO ORDERED. Dated: „>�` z;,y , 200 TERRY J. HATTER, Jf?. The Honorable Terry J. Hatter, Jr. United States District Judge STIPULATION AND [PROPOSED] ORDER 28 EXHIBIT A AIR WYK Inge County, California an L Murphy 1 port Director 160 Airway Avenue osta Mesa, CA 2626.4608 49 .252.5171 49.252.5178 fax ww.oeair.eom December 3, 2002 David G. Leitch Chief Counsel Federal Aviation Administration AGC 200 800 Independence Avenue, SW Washington, D.C. 20591 Re: John Wayne Airport: County of Orange Request for Legal Opinion Regarding Amendments to a 1985 "Settlement Agreement" Relating to Aircraft Operations at SNA Dear Mr. Leitch : The County of Orange, Califomia ("County") is the owner and operator of John Wayne Airport, Orange County (SNA) ("JWA" or "the airport"). The Countyintends to implement certain modifications to a pre-existing "settlement agreement" which was originally entered into in 1985and included various noise based restrictions and regulations on aircraft operations at JWA. On June 25, 2002, the parties to that agreement took action agreeing to settlement agreementamodifications d 2003 nstheat "settlerized ment increases in operational capacity at TWA beginning eet amendment"). The settlement amendment also permits important capacity increases additional and airport facilities improvements which would allow and supp t operational opportunities to the airlines, permitting them to provide additional and enhanced service to the air traveling public. The amendment would have no effect on airport or aircraft safety. Further, in recent discussions between the County and airlines serving (or interested in serving) TWA, the airlines have requested certain capacity opportunities beyond those authorized by the parties on June 25, 2002. As a Tuesday, result, the settling parties are currently scheduled to consider approving next December 10, 2002, modifications to the settlement amendment which weird be substantially responsive to those requests, subject to our receipt of the opinion from FAA requested by this letter. The 1985 settlement agreement was embodied in a federal court stipulation for judgment, and the amendments to the settlement agreement would be simillarly reflected in a filed stipulation that, with the consent of the federal court, wouldthe original 1985 judgment permitting the additional operational capacity and improvements contemplated by the settlement amendment. We have enclosed with this letter a draft of the amended stipulation which reflects not only the amendments authorized by the actions of the parties on June 25, 2002, but which also reflects the additional capacity requested by the airlines, which the parties are prepared to authorize once we have received the requested concurring opinion from FAA. EXHIBIT A 29 David G. Leitch, Chief Counsel Federal Aviation Administration December 3, 2002 Page 2 REQUESTED OPINION In order to obtain the consent of the other settling parties to the proposed modifications to the settlement amendment, the County requests an opinion of the Chief Counsel of FAA concurring in the following points: 1. Within the meaning of, and for all purposes related to Section 9304 of ANCA, the Aviation Noise and Capacity Act of 1990 (49 U.S.C. § 47524) and Section 161.3(a) of the Federal Aviation Regulations (14 C.F.R. § 161.3(a)), the 1985 Settlement Agreement is an airport regulation that contains airport noise and access restrictions (such as the provisions related to limits on noise -regulated departures, passenger service levels and nighttime operations) in effect as of October 1, 1990. In other words, the airport noise and access restrictions contained in the 1985 Settlement Agreement are permissible pursuant to the provisions of ANCA and Part 161. 2. Within the meaning of, and for all purposes related to Section 9304(a)(2)(C)(iii) of ANCA (49 U.S.C. § 47524(d)(3)) and Section 161.7(b)(3) of the Federal Aviation Regulations (14 C.F.R. § 161.7(b)(3)), the 1985 Settlement Agreement is an "intergovernmental agreement including airport noise or access restrictions" (such as the provisions related to limits on noise -regulated departures, passenger service levels and nighttime operations) that was "in effect on November 5, 1990." In other words, the airport noise and access restrictions contained in the 1985 Settlement Agreement are permissible pursuant to the provisions of ANCA and FAR Part 161 relating to intergovernmental agreements. 3 pursuant to Section 9304(a)(2)(C)(iv) of ANCA (49 U.S.C. § 47524(d)(4)) and Sections 161.3(b) and 161.7(6)(4) of the Federal Aviation Regulations (14 C.F.R. §§ 161.3(b) and 161.7(b)(4)), "a subsequent amendment of an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety" is permitted by ANCA and Part 161. The seven prior amendments of the 1985 TWA Settlement Agreement and the modified Amended Settlement Agreement, including the provisions related to limits on noise - regulated departures, passenger service levels and nighttime operations, are each subsequent amendments that are permitted pursuant to the sections quoted above because they do not, in comparison to the analogous provisions of the 1985 TWA Settlement Agreement, reduce or limit aircraft operations or affect aircraft safety. 4. A subsequent amendment of an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety can be approved and implemented by the County pursuant to Section 105(6)(1) of the Airline Deregulation Act of 1978 (49 U.S.C. § 41713 b 3 in EX&II'UT A 30 David G. Leitch , Chief Counsel Federal Aviation Administration December 3, 2002 Page 3 accordance with its powers and rights as proprietor of JWA. The modified Amended Settlement Agreement is such a subsequent amendment. 5. Implementation of the provisions of the modified Amended Settlement Agreement: Is not inconsistent with any of the County's "sponsor eemeurt ences" or tes"dinto other covenants or obligations under any airport gran g< by the County and FAA pursuant to any Federal law or regulation; Will not adversely affect any application for Federal grant funds submitted in the future by the County for eligible projects at JWA; and Will not adversely affect any application submitted in the future by the County to impose or use passenger facility charges with respect to eligible projects at TWA. 6. The modified Amended Settlement Agreement is consistent with and does not violate any provision of existing federal law for which FAA has statutory or delegated enforcement or implementation responsibilities. (a) (b) (c) We are aware of the substantial and important national issues that FAA is addressing on a continuing basis. We are also aware that our request that we receive your response, if at all possible, by December 10, 2002, in order to allow the County and the other parties to take their scheduled action to approve the settlement amendment modifications proposed by the airlines is extraordinary. SETTLEMENT AGREEMENT AMENDMENTS Settlement Agreement Amendments On June 25, 2002, the parties to the 1985 Settlement Agreement (the County, the City of Newport Beach ["City'"], Stop Polluting Our Newport ["SPON"] and the Airport Working Group of Orange County, Inc. ["AWG"]) approved amendments to the agreement. Those amendments did not impose any restrictions on airport use at JWA beyond those in effect under the 1985 Settlement Agreement. However, the amendments, did provide important access and capacity enhancements which will allow TWA to serve substantially more passengers and air cargo than permitted under the 1985 Settlement Agreement. In general terms, some of the more significant amendments include: (a) authorizing, as early as January 1, 2003, increases in the permitted level of noise regulated commercial air carrier departures (from 73 ADD to 89 ADD — inclusive EXHIBIT A 31 David G. Leitch, Chief Counsel Federal Aviation Administration December 3, 2002 Page 4 of 4 all -cargo ADD)t ; (b) effective January 1, 2003, authorizing increases in the permitted passenger service level from 8.4 million annual passengers ("MAP") to 9.8 MAP; and (c) authorizing immediate construction to increase the number of permitted passenger loading bridges from 14 to 18 bridges. The amendments also extend the term of the settlement stipulation between the parties to December 31, 2015. The Amendments were the outgrowth of an extensive public information program designed, in part, to obtain widespread community support for increases in flights, passengers and loading bridges in consideration of an extension of the term of the Settlement Agreement. Approval of the Amendments, including the capacity enhancements, was supported by every city impactedby operations at TWA and every "pro -airport" and "anti -airport" city that was actively involved in the El Toro reuse planning. The Orange County Congressional delegation and Orange County representatives in the State Legislature are unanimous in their support for the Amendments. Air Carrier Requested Modifications to the Settlement Amendment In August 2002, the County solicited input from airport users and the public on a wide range of issues relating to allocation of the new capacity authorized by the settlement amendment and related modifications to the Phase 2 Access Plan, by which the County has regulated capacity allocations and use since 1985. Written comments were submitted by all ten (10) incumbentffered carriers and two (2) potential new entrant airlines in September 2002_ The County also offered to meet with individual airlines, any airline trade organization, andheTWA cTnaemAirportto Airline Affairs Committee ("AAAC") representing airlines serving TWA, discuss any issues of significance to them. A number of such meetings have occutred, including a continuing series of meetings with the AAAC. The County has held a number of helpful meetings with FAA staff during 2002 in order to advise the agency of the status of the County's process, and to discuss with them potential iessuesis oof importance to the agency. At the request of FAA staff, we provided the agency In this respect, the City, AWG and SPON agreed to an important capacity enhancement which significantly improves the flexibility of the air carriers in using their noise regulated operating capacity at M.A. As part of the 1985 Master Plan project (approved by the Board of Supervisors on February 26, 1985) and as subsequently agreed to in the 1985 settlement agreement, the 73 regulated ADDS were divided into two classes: "Class A ADDS" and "Class AA ADDS"). These "classes" were differentiated and defined noise upon rcr knoise ll levels. The permitted Class A single event noise levels are higher than the Class AA p other factors remaining equal, this means that the Class A flight can operate with a greater passenger load to omfo'e distant markets. Of the 73 regulated ADDS permitted under the current settlement agreement, a maxim may be allocated as Class A ADDs, and 34 must be allocated as Class AA ADDs. In the settlement amendment the parties have eliminated the Class AA distinction. and all of the regulated ADDS permitted under the amendment are defined as Class A ADDS. EXHIBIT A 32 David G. Leitch , Chief Counsel Federal Aviation Administration December 3, 2002 Page 5 historical information regarding the unique history of IWA noise regulations and the settlement amendment process. We remain willing to provide any other information you may find helpful to your consideration of this request. Finally, we have periodically met with and briefed the members of the Orange County delegation and other members of Congress regarding the status of the settlement amendment process. The AAAC has requested modifications to the settlement amendments to increase passenger service levels and permitted loading bridges beyond those originally agreed to by the parties on June 25, 2002. These include increasing the number of gates from eighteen (18) to twenty (20), increasing flexibility in using stair loading when necessary and some flexibility in passenger carrier use of authorized cargo ADDs when there is not full demand for the cargo ADDS from all -cargo carriers, and an increase in authorized passengers from 9.8 to 10.8 MAP. The City, AWG and SPON are each willing to agree to, and expeditiously proceed to implement, these modifications and the capacity enhancing provisions of the amendments on or before January 1, 2003, provided the County receives FAA's written concurrence on the questions presented in this letter so that they can have the comfort of knowing that they will be able to receive the benefit of their "bargain" without FAA opposition or legal challenge. The County both understands and supports this request 2 Additional Discussion The County and the other settling parties, of course, believe that the 1985 Settlement Aweas the ent clearly qualifies under the "general grandfathering" provisions of ANCA, as "intergovernmental agreement" statutory exception of 49 U.S.C.A. §47524(d)(4). Even prior to the 1985 agreement, and concurrent with the initiation of commercial operations at JWA, the County has regulated maximum permitted noise and flight levels in an attempt to balance the needs of the Orange County community for reasonable air service opportunities with the legitimate environmental interests of communities located in the immediate vicinity of JWA. In fact, the regulated nature of airport operations has been a defining characteristic of e facility We are since the 1960's. The history and circumstances at JWA are, we believe, truly unique. aware of only two other airports which have adopted "slot" restrictions similar to the County's ADD limitations: South Lake Tahoe Airport and Long Beach Municipal Airport. Both operate under special ANCA statutory exceptions. Since adoption of the limitations at South Lake Tahoe Airport, due principally to lack of sufficient demand, commercial service has been In addition to our desire to receive your response by December 10, 2002, so the County and the City can take action on their scheduled regular agendas CO approve the settlement amendment modifications, under the the carriers on rouPhase Afthes Plan,eingcapacity year. Normally, allocatedotthe County attett>Qgtssntogomple the allocationil 1 of each ear to be process 60to through Marchdv 31of he 1 nior 90 days in advance of April 1 in order to allow the air carriers rime to make any necessary schedule changes. In order to complete the process of allocating the new capacity by April 1 of 2003, it is important that we receive FAA's response to this letter at the earliest possible date. EXHIBIT A 33 David G. Leitch , Chief Counsel Federal Aviation Administration December 3, 2002 Page 6 intermittent, at best and, so far as we are aware, there is no scheduled commercial service at that airport at the present time. The history of the adoption and final form of the Long Beach regulations is, as FAA is aware, also unique, but Long Beach is not presently proposing a regulatory increase in the number of operations permitted under its regulations and, until just recently, had not experienced sufficient demand from air carriers to even fully allocate the "slots" presently authorized by its regulations. It seems equally clear to us that, since the settlement amendment (June 25, 2002) and the settlement amendment modifications (proposed for action on December 10, 2002) only increase capacity and do not adversely affect airport or aircraft safety, the settlement amendment and d to same e plain ant agoof 49t U.S.C.A.tt§47524(d)(4)ons are leand aree exempt from further'status comp compliance wr ith plain language ANCA or FAR Part 161. Finally, the County also believes that the amendment is plainly non-discriminatory, fair and reasonable on its face within the meaning of the County's sponsor assurances in its airport grant agreements with the FAA. In this respect, we do wish to make clear that the opinion requested by this letter would, at least at this stage of the process, relate only to the terms of the settlement amendment. Issues relating to questions regarding the allocation of the new capacity authorized by the settlement amendment are presently being addressed by the County in the context of possible amendments to the Phase 2 Access Plan. Since the County has not yet made final decisions regarding its intended means of allocation, we recogpi7e that FAA cannot yet comment on those allocation issues. We do intend, however, to continue to solicit input from FAA staff as that process proceeds to ensure that the County satisfies its goals, and those of the FAA, in ensuring that the allocation methodology is fair, reasonable and not unjustly discriminatory. On October 28, 1985, the then Chief Counsel of FAA provided a letter to us, on behalf of the County, concluding that the 1985 settlement agreement was not unjustly discriminatory and did not otherwise violate the County's AIP sponsor assurances, but reserved the right to comment further on any implementing location process. The County understands that the FAA may wish to reserve j dgntent on the lallocation process until it is completed in this instance as well. CONCLUSION The significant improvements that have occurred in aircraft noise reduction technology since 1980, and the cooperation of the local communities affected by or concerned with the environmental effects of airport operations, has permitted the County to significantly increase air service opportunities at TWA. From an outdated and facilities strained airport which served a total of two commercial carriers with a maximum of 41 permitted flights per day in 1980, JWA has been able to grow to a modern airport which presently accommodates 10 commercial air BXIIIBLT A 34 David G. Leitch , Chief Counsel Federal Aviation Administration December 3,2002 Page 7 carriers and three commuter airlines operating as many as 130 daily flights.; This has been accomplished at an airport that operates on a total of less than 500 acres and one (5700 foot) runway suitable for air carrier operations. The settlement amendment modifications further recosents the latest effort by the County, the City and the citizens of Orange County ize the important contributions that the aviation industry has made to noise reduction, and the local environmental benefits which have resulted from their aircraft investments and their cooperation for the past 17 years in successfully implementing the 1985 Settlement Agreement. All of the settling parties, including the County, recognize and are respectful of the le ichmhe ate federal interest in aviation matters; and the cooperation, assistance and guidance County has received from FAA staff during that period has been of critical importance to the County's success in increasing airline service at JWA. Once again, FAA's assistance in that process is critically important, and we hope that the agency will be able to provide us with the requested early date so that we can proceed the allocation and operation hcapac enhancements afforded by the settlement and settlement amenment modifications. Again, if we can answer any questions, or provide you with any additional information, please contact us at your convenience. Sincerely, Alan L. Murphy Airport Director cc: Assistant Airport Director Deputy Director, Public Affairs Deputy Director, Operations Deputy Director, Finance and Administration Deputy Director, Facilities Deputy Director, Business Development Manager, Access and Noise Access and Noise Office County Counsel Airport Special Counsel 3 There have, since 1980, been a number of ocher air carriers and commuter airlines which have served DMA but left the airport due to mergers, bankruptcy or business decisions by the individual carriers. EXHIBIT A 35 EXHIBIT B 0 U.S.Department of Transportation Federal Aviation Administration DEC 3 1 2002 800 Independence Ave., S.W. Washington, D.C. 20591 Mr. Alan Murphy Airport Director John Wayne Airport 3160 Airway Avenue Costa Mesa, CA 92626 Re: John Wayne Airport (JWA) 1985 JWA Settlement Agreement Proposed Amendments Dear Mr. Murphy: This is in response to your December 3, 2002 letter to David G. Leitch, Chief Counsel, Federal Aviation Administration ("FAA"), on behalf of the County of Orange, California ("County"), in which you request the Office of the Chief Counsel's views concerning the consistency of certain proposed amendments to the 1985 John Wayne Airport Settlement Agreement ("the 1985 Settlement Agreement")t with the Airport Noise and Capacity Act of 1990 ("ANCA"), recodified at 49 U.S.C. §§ 47521-47533."2 In this letter, we conclude that the proposed amendments to the 1985 Settlement Agreement ("the proposed amendments" or "the modified Amended Settlement Agreement"), a copy of which was attached to your December 3 letter, are exempt from ANCA since the amendments would not "reduce or limit aircraft operations or affect aircraft safety." 49 U.S.C. § 47524(d)(4). We also advise that the FAA will not act to The 1985 JWA Settlement Agreement is embodied in a Stipulation For Entry of Judgment by Certain Settling Parties filed with the United States District Court, Central District of California in Case No. CV 85-1542 TJH (MCx) and approved by the Honorable Terry J. Hatter, Jr. on December 12, 1985. The settling parties included the County of Orange, California, the City of Newport Beach, California, the Airport Working Group, and Stop Polluting Our Newport. 2 We understand, from JWA's August 15, 2002 letter, that the proposed amendments to the 1985 Settlement Agreement will be implemented through amendments to the John Wayne Airport Phase 2 Commercial Airline Access Plan and Regulation ("the Phase 2 Access Plan"). To the extent that the proposed amendments to the 1985 Settlement Agreement also apply to the Phase 2 Access Plan, this letter applies to both documents. EXHIBIT B 36 7 prevent adoption and approval of the terms of the modified Amended Settlement Agreement, either under any transfer or grant agreements, adopeion and approval Fitself ederal al Avination Act of 1958, as amended ("FAA Act"), and a adversely affect future County grant applications under the Airport and Airway Improvement Act of 1982, as amended ("AAIA") or applications to impose or collect passenger facility charges under 49 U.S.C. § 40117. The County's December 3, 2002, letter, and prior letters of August 15, 2002, September 6, 2002, September 26, 2002, and November 18, 2002, have provided helpful information concerning the nature and history of noise -and access regulations at JWA, the type and extent of aviation facilities and operations at JWA, and the 19850o dA Settlement Agreement and Phase 2 Access Plan as well as prior and espects amendments. These letters also point out how the airport is unique in many the terms and the seven prior amendments3 of the 1985 Settlement Agr ee ial airports in the United States and describment and the p oposedions of amendments. The proposed amendments and amended court stipulation, as described in the documents you have provided, would continue the essential terms and conditions of t e 1985 oJWA, with Settlement Agreement regarding the County's development and op certain capacity enhancing modifications, including: ® Defining all regulated passenger flights as Class A flights and eliminating the Class AA Aircraft definition/distinction, effective upon execution of a modified final judgment by the court. The definition/distinction for Class E Aircraft is preserved unaffected in the Amended Stipulation; ® Increasing the number of regulated flights allocated to passenger commercial carriers at JWA from 73 average daily departures (ADDS) to 85 ADDs, beginning on January 1, 2003, through December 31, 2015; served at the o Increasing the level in millions of annual passengers ("MAP") throughse at the Airportr 31, • from 8.4 MAP to 10.3 MAP, beginning on January , The prior seven amendments to the settlement agreement were implemented for three different categories of changes: all -cargo operations (to increase in average daai`y departures safety ("ADDS") to accommodate cargo flights), FAA Advisory Circular AC-91-53Aupgrades (due toe tphysa el ofcation departure procedures at JWA), and noise monitoring system of some monitors and improved technology). Most of the seven amendments relate to an extension of the cargo operating capacity since these operations required approval on an annual or bi-annual basis. EXHIBIT B 37 3 2010, and increasing the MAP level served at the Airport from 10.3 MAP to 10.8 MAP, beginning on January 1, 2011, through December 31, 2015; ® Continuing to allow the permitted number of operations by Class E Aircraft to be unlimited, except that the combined number of passengers served by commuter aircraft, Class E Aircraft and Class A Aircraft in regularly scheduled commercial service will not exceed 10.3 MAP, beginning on January 1, 2003, through December 31, 2010, and 10.8 MAP, beginning January 1, 2011, through December 31, 2015; ® Increasing the number of cargo flights from JWA from two Class A ADD cargo flights to a total of four Class A ADD cargo flights, for a total of 89 Class A ADD flights, beginning on January 1, 2003, through December 015 • Providing the passenger commercial carriers with the opportunity to use up to two of the Class A ADD cargo flights if there is no demand for these cargo flights by cargo air carriers; and ® Increasing the permitted number of commercial passenger loading bridges at JWA from 14 loading bridges to 20 loading bridges, through December 31, 2015, and providing up to two hardstand positions4 for aircraft arriving at the Airport. We understand that none of these changes would reduce or limit aircraft operations from the airport's current levels or affect aircraft safety. Under Federal law, sponsors of federally -funded airports like the County must comply with the national program for review of airport noise and access restrictions under ANCA before implementing restrictions on operations by Stage 2 and Stage 3 aircraft. Airport noise and access restrictions on operations by Stage 2 aircraft that were proposed on or before October 1, 1990, and by Stage 3 aircraft that were in effect on or before October 1, 1990 are "grandfathered" under ANCA and are therefore not subject to its requirements. 49 U.S.C. §§ 47524(b), 47524(c)(1); 14 C.F.R. § 161.3(a). In addition, certain restrictions are exempt from ANCA, including "a subsequent amendment' to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety. 49 U.S.C. § 47524(d)(4); 14 C.F.R. § 161.7(b)(4). Since JWA had a settlement agreement containing noise and access restrictions in place prior to October 1, 1990, the restrictions in the original 1985 Settlement Agreement and Phase 2 Access Plan are grandfathered under ANCA. 49 U.S.C. §§ O, 47524(c)(1); 14 C.F.R. § 161.3(a). Additionally, each of the seven prior amendments to the 1985 Settlement Agreement was "a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety" and is therefore exempt from ANCA and Part 161. 49 U.S.C. § 47524(d)(4); 14 C.F.R. § 161.7(b)(4). A i.e., stair -loading an aircraft on the tarmac when a gate and jetway are not available. 5 Although the plain language of §47524(d)(4) states "a" subsequent amendment (and thus could be read to authorize only one amendment per airport), we interpret "a" to mean "any." See Black's Law Dictionary( (6th ed. 1999), "[t]he word "a" has varying meanings and uses. "A' means "one" or "any ....' EXHIBIT R 38 4 The proposed amendments would extend the terms of the 1985 Settlement Agreement by ten years to December 31, 2015. Both the 1985 Settlement Agreement and the Phase 2 Access Plan note that the limitations on operations and terminal size, among other limitations, "shall end on December 31, 2005," or are in effect for "the period from February 26, 1985 to December 31, 2005." See Resolution Nos. 85-1233, 85-255, 90- 1161; Settlement Agreement 11120, 27, 29-36, 38. The proposed amendments would extend this expiration date to December 31, 2015. Compared to the current restrictions, the proposed amendments would liberalize air carrier access to JWA. To determine whether ANCA applies to Orange County's proposal to both relax and extend existing restrictions requires interpretation of 49 U.S.C. § 47524(d)(4). The first inquiry in statutory interpretation is whether a statute speaks clearly and unambiguously to a subject. If so, then the clearly -expressed intent of Congress must be given effect. Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). Section 47524(d)(4) does not explicitly address restrictions in local agreements that have termination clauses and that will continue as part of ongoing mitigation programs under existing state environmental laws as new agreements are developed. Moreover, since ANCA was adopted as part of omnibus Federal budget legislation, its legislative history is sparse and does not provide clear congressional guidance on how restrictions that include expiration dates should be interpreted. Under these circumstances, the FAA has discretion to "fill[] the statutory gap 'in a way that is reasonable in light of the legislature's revealed design.' Lopez v. Davis, 531 U.S. 230, 242 (2001). As the FAA is the administrative agency charged to administer ANCA, its interpretation of the statute will be accorded deference, provided the interpretation is "based on a permissible construction of the statute." Yellow Transportation, Inc. v. Michigan, 123 S. Ct. 371, 377 (2002), quoting Chevron, supra, 467 U.S. at 843. Under the present circumstances, including contemporaneous evidence reflecting the intent and understanding of the County about continued regulation of access at JWA, it is reasonable fortheto FAA eto the conclude that the proposed amendments to the 1985 Settlement Agreement expiration date and relax the existing restrictions on air carrier access do not "reduce or limit aircraft operations" within the meaning of 49 U.S.C. § 47524(d)(4). For the past 11 years, the FAA has consistently interpreted ANCA to require airports seeking to qualify for exemption under the intergovernmental agreement provisions of ANCA, 49 U.S.C. § 47524(d)(3), to provide evidence that the sought-after restrictions were in effect, in existence, or contemplated at the time of the intergovernmental agreement. Our interpretation of § 47524(d)(4) in these circumstances is consistent with this prior interpretation of a comparable exemption. This is a reasonable interpretation of the statutory language that the FAA was delegated to administer. As explained in detail below, the County adopted the current airport noise and access restrictions in the Phase 2 Access Plan as binding mitigation measures for the 1985 Master Plan projectpursuant to the California Environmental Quality Act ("CEQA"). The County is proposing to extend and relax the current restrictions on air carrier access EXHIBIT B 39 at JWA. Where, as here, airport noise and access restrictions fulfill ongoing requirements under state environmental law, it is reasonable to determine the applicability of ANCA to proposed amendments in comparison to continuation of the status quo. To discern the intent and understanding of the Orange County Board of Supervisors ("County Board" or "Board") regarding the effect of the current expiration date on continuing access regulation at JWA after 2005, we examined the contemporaneous legislative history of noise and access restrictions at JWA, as reflected in various County resolutions d other s provided to the FAA by representatives of the County. We also reviieew d the County's letters to the FAA andthe relevant law and regulations. The following statement in the County Board's resolution certifying the EIR for the 1985 Master Plan project is pertinent in our examination of the history of the settlement agreement: Any project proposed for JWA must be evaluated in the context of the airport's unique regulatory character and history. JWA is, and has been for many years, a `controlled' airport facility where operations levels (particularly by commercial operators) are determined not by the available physical facilities, nor the level of `market demand' for air r carrier only service, but by the number of ADDs permitted by the County. hearings,Based not staff on the EIR itself, but on the years of controversy, public reports and other information presented both to this Board and prior Boards on airport related issues, we find that any planning or policy evaluation of JWA which ignores its unique history and operational characteristics must inevitably be misleading. Resolution No. 85-255 at 8-9. The legislative history of noise and access restrictions at JWA demonstrates that when the County Board approved the 1985 Master Plan project and adopted the access plans (including the Phase 2 Access Plan) to implement the two phases of the Master Plan (in accordance with the 1985 Settlement Agreement), the County Board clearly contemplated and intended that access restrictions at JWA would continue after 2005. The Board also understood that any further relaxation of these restrictions would require action by the Board, including compliance with CEQA (as the County Board has done for the proposed amendments in Environmental Impact Report ("EIR") 582). Based on information provided by representatives of the County, including the letters dated September 6 and September 26, 2002, we understand that the County Board has an ongoing obligation under CEQA to mitigate the significant adverse impacts of the 1985 Master Plan project, and that this obligation is not affected by the expiration date in the 1985 Settlement Agreement and the Phase 2 Access Plan. In the resolution adopting the Phase 2 Access Plan, the County Board stated that the restrictions in that plan (and its predecessor access plan for Phase 1 of the 1985 Master Plan project) constitute "the single most significant operational mitigation measure" for the project. Resolution No. 90-1161 at 3. EXHIBIT 40 6 In certifying the final EIR for the 1985 Master Plan project (EIR 508), the Board addressed public comments contending that the project would "inevitably' lead to further future increases in authorized levels of ADDs because of `substantial pressure' on the Board —or future Boards —to increase operations because of a continuing growth of unmet air-traffic demand in Orange County." Resolution No. 85-255 at 10. The County Board responded to these comments as follows: We cannot speculate_on what future Boards of Supervisors may do if they consider future projects of [sic] JWA_ Certainly, they will have to comply with CEQA as it then exists. It is, however, by no means clear to us that further increases in ADDs before or after 2005 will even be considered, let alone approved by future Boards. Id. In the Phase 2 Access Plan, the County Board made clear its intent to amend the Plan "when and as necessary (in the sole and exclusive exercise of the Board's legislative discretion) to effect or maintain the regulatory, environmental and service level goals, policies and objectives of the County in its management and operation of JWA." Phase 2 Access Plan, ¶ 1.7. Evidence of these "goals, policies and objectives" includes the following: In certifying the final EIR for the 1985 Master Plan project, the County Board stated that implementation of the project, as mitigated, was "essential to adequately serve the existing and future air traveling public at JWA, and to strike an appropriate, responsible and desirable balance between the community's need for reasonable air transportation services, and the consequences or potential consequences of related airport operations." Resolution No. 85-255 at 5. 9 When the Board adopted the Access Plan for the first phase of the 1985 Master Plan project, it "reaffirm[ed] again its consistent and long-standing policies, goals and intent to strike a reasonable balance between the air transportation needs of the citizens of Orange County, and the need to impose reasonable restraints and regulations on the operation of JWA." Resolution No. 85-259 at 4-5. In the resolution approving the Phase 2 Access Plan, the Board stated that "the County's ability to continue to effectively regulate the development and use of JWA within the environmental parameters previously established by this Board necessitate the immediate adoption of the [sic] this Phase 2 Access Plan in order to protect the best interests of the County, its constituents and the air travelling public ...." Resolution No. 90-1161 at 5-6. The County legislative history shows that the expiration dates in access plans were not intended to discontinue regulation of access; expired plans at JWA have consistently been EXHIBIT B 41 either extended or replaced by subsequent plans, up to and including the current Phase 2 Access Plan. See, e.g-, Resolution Nos. 85-259, pp• 1-3, and 90-1161 at 3. As part of the 1985 Settlement Agreement, the County Board agreed to lower the maximum MAP in d InPhase 2 the oter ylBoard found that project to 8.4 a educ on reduce the planned expansion of ADDS. In doing so, the County prudent create a terminal and related facilities was "appropriate and ecooMall to MAP, and no facility designed to serve the ultimate maximum project ice levelalse id.oat 7 (statingAP,a that more ...." Resolution No. 85-1233 at 5 (emphasis added); Phase 2 "refers to the increase in authorized Class A ADD to 73 occurring ulpo in adopting n completion of the new facilities, approximately in the year 1990"). the Phase 2 Access Plan the County Board stated: [T]he 1985 Master Plan and the associated EIR 508/EIS also contemplated as part of the master plan project an increase in the maximum number of permitted commercial flights by regularly scheduled commercial air carriers in order to support the increased passenger handling capacity improvements contemplated by the 1985 Master Plan .. - • Resolution No. 90-1161 at 2 (emphasis added). Thus, the County Board consciously tied the permitted number of commercial flights at JWA in Phase 2 of the 1985 Bard dPlan not project to the approved capacity of the terminal facilities, showing that the contemplate unrestricted access to the airport after 2005 without a commensurate expansion of terminal capacity. The 1985 Settlement Agreement provides additional support for this position. It allows any party to move to vacate it and the restrictions it contains if it is held unenforceable for any reason. 1985 Settlement Agreement, 150. It further specifies that "the parties will be deemed to be in the same situation that they occupied" prior to its execution. Id. at 152. Perhaps the strongest point is that the agreement allows the parties to modify its terms "by mutual agreement." Id. at ¶ 53. The modified Amended u� agreement" of nt Agreement that extends and relaxes restrictions until 2015 is "by the parties. In light of the above analysis, we conclude that the proposed extension of the 2005 expiration date in the 1985 Settlement Agreement to 201thatwo would not proposedr amendments or limit areaircraft operations" for purposes of §47524(d)(4), exempt from ANCA under that section. We base this conclusion on the unique history and circumstances of noise and access regulation at JWA, as reflected in the documentation provided by the County. For example, the Coty unahas cont f °aeration, inually regulated and enforced maximum permitted noise levels, p ted and maximum number of commercial operations since the inception of commercial service at JWA in 1967. This history supports our finding that the County did not intend for airport restrictions to terminate at the end of the period provided for in 1990. The increased limits introduced by Phase 2 in 1990 were in fact tied to the completion of a terminal expansion project. In addition, the County rejected the alternative of meeting all jEXIIIBIT B 42 8 passenger and traffic demands in 2005 (Le., eliminating all restraints at JWA when it adopted the access plan). As you know, airport access restrictions are also subject to other appliccabble Federal law in addition to ANCA, including the Airport Improvement Program assurances prescribed by 49 U.S.C. §47101, et seq. Compliance with the provisions of ANCA does not ensure compliance with other Federal law. Note that our decision, asindicated above, not to prevent the adoption or approval of the modified Amended Settlement Agreement is based in part on the fact that throughout the process of developing the settlement amendments, the County conducted a significant public process that encouraged and facilitated input from airport users and the public, including the local community and commercial airlines serving JWA, and those desiring to do so, on issues relating to the new capacity authorized by the June 25, 2002 agreement between the County Board, the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON") and the Airport Working Group ("AWG"). Our decision is also based on the unique history and circumstances of noise and access regulation at JWA. The original 1985 Settlement Agreement reflects the fact that the County faced extensive litigation as far back as 1968 by individual property owners (including noise damage lawsuits by residents of Santa Ana Heights and Newport Beach), the City, and citizen groups challenging the expansion and operation of JWA. During the 1980's as well, the County had also been a defendant in federal court in various suits initiated by air carriers concerning the County's noise and access restrictions. In order to avoid potentially inconsistent and conflicting rulings and obligations, the County initiated an action in federal court resulting in the 1985 Settlement Agreement. Concerning the application of 49 U.S.C. § 47526, the FAA can also advise that it is satisfied that JWA is not imposing an airport noise or access restriction not in compliance with ANCA or Part 161. As a result, JWA may receive money under the AIP grant program, and impose a passenger facility charge under 49 U.S.C. § 40117. In addition, the FAA will not act to prevent the County's adoption and approval of the proposed amendments as they do not currently present an issue of noncompliance under the adoption and County's grantc aany apfor AIP grant funds approval ubmitted the future by the adversely affect any applications Couny. The opinions expressed above are not intended, and should not be construed, to apply to any other airport. Also, there are related issues that are not addressed by this letter, in particular the County's intended means of allocating the new capacity authorized by the modified Amended Settlement Agreement. This letter is not intended, and should not be construed, as expressing an opinion on the legality under Federal law, including the AAIA and the County's grant assurances, and the FAA Act, of the allocation methodoloy or the by the County under the lmodified Amended Settlement Agreement. The FAAsed implemented looks EXHIBIT B 43 9 forward to continue working with the County to ensure that Phase 2 Access PlanFederal law. amendments and any future allocation of airport capacity fully comply with I appreciate the considerable time and effort that representatives of the County have spent in meeting with representatives of the FAA and responding to our inquiries. Sincerely, / 'fames W. Whitlow Deputy Chief Counsel ' Office of the Chief Counsel EXHIBIT 44 • 11/23/94 14:13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 „i 15 15 17 18 19 20 21 22 23 24 25 26 27 26 t619 431 9512 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Wool COUNTY OP ORANGE, ) No. Cv 85-1542 'NH (MCX) ) Plaintiff, ) ) v. ) ) AIR CALIFORNIA, et a1., ) Defendants. ) ) CITY OP NEWPORT BEACH. ) a Municipal Corporation, ) Counterclaimant, ) v. 1 ) COUNTY OF ORANGE: ORANGE COUNTY ) BOARD OF SUPERVISORS; and DOES 1 through 1,000, Inclusive, ) ) Counterdefendante.. ) ) AND RELATED ACTIONS ) ) STIPULATION FOR ENTRY OS FINAL JUDGMENT BY CERTAIN SETTLING PARTIES FYLif1T A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BASIS FOR STIPULATION 1. The County of Orange ("County"), the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") (herein- after collective referred to as "the settling parties"), by their respective counsel of record, enter into this stipulation to implement the settlement of the longstanding dispute between the settling parties concerning the development and operation of John Wayne Airport ("JWA"). The Judgment to be entered pursuant to this stipulation would (1) adjudicate that EIR 508/EIS is legally adequate for the "EIR 508/EIS Project" (as that term is hereafter defined) under the California Environmental Quality Act, the National Environmental Policy Act, and all relevant state and federal implementing regulations; and (2) provide for enforcement of certain specific aspects of the settlement agreement of the parties in respect of, or related to the controversies among them regarding the development and operation of JWA (and agreed upon limitations regarding such development and operation) through the year 2005. 2. The compromise settlement reached by the settling parties reflects, under all of the circumstances, the individual judgments of the settling parties regarding an appropriate or acceptable balance between demand for air travel services in Orange County and any adverse environmental effects associated with the operation of JWA. Recognizing that JWA is incapable of satisfying the demand for air travel in Orange County, this settlement is also designed to permit studies regarding the 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 possible future development of an additional airport to serve Orange County. The settling parties acknowledge that, without this settlement and Judgment, protracted litigation would continue and create a continuing risk both of impeding or preventing the County's development of JWA, and its ability to create additional access opportunities for commercial operators desiring to use JWA. 3. Other provisions of the settling parties' agree- ment will not be embodied in the Judgment. Those provisions include the actions undertaken by the County in connection with the adoption of Resolution Nos. 85-1231, 85-1232 and 85-1233 concerning certification of EIR 508, adoption of additional mitigation measures, and additional airport site studies in Orange County, and the parties' -dismissal of other litigation concerning JWA. These provisions also include a resolution of the City of Newport Beach (Resolution 85-67). The parties acknowledge that each of the undertakings in the referenced resolutions represent a material part of the consideration pertaining to this settlement. 4. In reaching this settlement, the settling parties have considered operational and other factors applicable to John Wayne Airport which may not be applicable to any other airport. This stipulation is site specific to JWA, premised upon its unique history, operational characteristics and limitations, and shall not be deemed applicable to any other airport. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Not all of the parties to this litigation have agreed to the terms of this settlement. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the judgment to be entered pursuant to this Stipulation is a final judgment only as to the claims between the settling parties. 6. This stipulation and judgment is not intended to, and shall not, create any rights in favor of any persons other than the settling parties. II. DEFINITIONS For purposes of this Stipulation and Judgment, the terms below are defined as follows: 7. "ADD" means "average daily departure," which is computed on an annual basis, from April 1 of each year to March 31 of the following year ("the Plan Year"). One ADD is equal to 365 departures by Class A or Class AA aircraft during each Plan Year (or 366 departures in any "leap year"), subject to any adjustments which may result from the implementation or enforce- ment of any County regulation for JWA or this Judgment (except that no ADD shall consist of more departures in a Plan Year than there are days in that year). "ADD" includes all Gass A or Class AA departures, except emergency or mercy flights, depar- tures resulting from mechanical failures, emergency or weather diversions to JWA necessary to reposition an aircraft into its normal scheduling rotation, the repositioning of aircraft to another airport in connection with a published change in the 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 previous schedule of operations of the airline, test or demon- stration flights authorized in advance by the airport manager, or charter flights by persons not engaged in regularly scheduled commercial service at JWA. 8. "Class A Aircraft" means aircraft which: (a) are used in regularly scheduled commercial service at JWA; and (b) generate actual energy average SENEL levels, averaged during each Noise Compliance Period, as measured at the Criterion Monitoring Stations, which are not greater than the following values: Mi: 98.5 dB SENEL M6: 100.0 dB SENEL M7: 100.0 dB SENEL In determining whether an aircraft is a Class A aircraft, its noise performance at the Criterion Noise Monitoring Stations shall be determined at each individual station. An aircraft must meet each of the monitoring station criteria, without "trade-offs," in order to qualify as a Class A aircraft. The existing Departure Noise Monitoring Stations will be kept in operation and in good repair during the Project Period, and test procedures for determination of Class A, Exempt Aircraft shall be no less stringent than for in the County's commercial airline access on August 1, 1985. During the Project Period, Class AA, and those provided plan in effect quarterly noise 4 1 2 3 4 5 6. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reports and all test data concerning aircraft classification qualification tests at JWA shall be prepared and maintained as public records. 9. "Class AA Aircraft" means aircraft, other than Exempt Aircraft, which: (a) are used in regularly scheduled commercial service at JWA; and (b) generate actual energy averaged SENEL levels, averaged during each Noise Compliance Period, which are not greater than 89.5 dB SENEL at any- Departure Noise Monitoring Station. In determining whether an aircraft is a Class AA aircraft, its noise performance at the Departure Noise Monitoring Stations shall be determined at each individual station. An aircraft must meet each of the Departure Noise Monitoring Station criteria, without "trade-offs," in order to qualify as a Class AA aircraft. 10. "Commercial Air Carrier" means any person which operates regularly scheduled commercial service into and out of JWA for the purpose of carrying passengers or freight, or for any other regularly scheduled commercial purpose. 11. "Commuter Air Barrier" means any person which operates regularly scheduled commercial service into and out of JWA for the purpose of carrying passengers or freight, or for any -other regularly scheduled commercial purpose, with aircraft 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which, under the definitions and limitations of this stipulation and Judgment, do not require an allocation of ADDs for their operation at JWA (i.e., "Exempt Aircraft"). 12. "Criterion Noise Monitoring Stations" means those noise monitoring stations of the JWA noise monitoring system at the location of monitoring stations M6, M7 and M1 as of August 1, 1985. 13. "Departure Lounge Holding Area" means interior square footage adjacent to an air carrier or commuter gate within a "secure holding area" that is designed to be used as a seating lounge or waiting area in connection with arriving and departing flights. "Departure Lounge Holding Area" does not mean, for purposes of this stipulation and Judgment, any common passage areas in a secure holding area intended to allow the public to achieve access to a Departure Lounge Holding Area, or any other public space in a secure holding area which is devoted to public purposes other than a seating lounge or waiting area. 14. "Departure Noise Monitoring Stations" means those noise monitoring stations of the JWA noise monitoring system at the location of JWA monitoring stations M6, M7, M1, M2, M3 and MS as of August 1, 1985. 15. "EIR 508/EIS Project" means that certain "project" including related plans for development, activities and other related elements and approvals which are collectively defined and 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mitigated by County EIR 508, Board of Supervisors' Resolutions 85-255 through 85-258 and the related resolutions 85-259 and 85-260, all adopted on February 26, 1985, Board of Supervisors' Resolution 85-387 (March 20, 1985), and Board of Supervisors' Resolutions 85-1231 through 85-1233. It also includes all processing and approvals, and contemplated activities considered by the Federal Aviation Administration in its consideration and approval of the EIR 508 documentation as an Environmental Impact Statement prepared, circulated, considered and approved under the National Environmental Policy Act. The term also includes the terms of this stipulation and the Stipulated Judgment. 16. "Exempt Aircraft" means any aircraft used in regularly scheduled commercial service at JWA which, when measured by actual energy averaged SENEL levels during any Noise Compliance Period, does not exceed 86.0 dB SENEL on departure at any of the Departure Monitoring Stations. 17. "MAP" means million annual passengers, consisting of the sum of actual deplaning and enplaning passengers served by all Commercial and Commuter Air Carriers at SWA during each Plan Year. 18. "Noise Compliance Period" means each calendar quarter during the Project Period. 19. "Phase I" means the period from February 26, 1985, to the date on which Phase II begins. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. "Phase II" means the period that begins on April 1, 1990, or the date on which the County records a notice of completion on the new commercial passenger terminal, whichever is later, and ends on December 31, 2005- 21. "Plan Year" means each period during the Project Period, from April 1 of one year to March 31 of the following year. 22. "Project Period" means the period from February 26, 1985 to December 31, 2005. 23. "Regulated ADDs" means average daily departures during a Plan Year by Class Aand Class AA aircraft operated by Commercial Air Carriers. III. STIPULATION FOR ENTRY OF JUDGMENT In recognition and consideration of the foregoing recitals and definitions, the settling parties stipulate to the entry o: Judgment that contains the terms stated below. A. Adeuuacv of EIR 508/EIS 24. Judgment may be entered by the Court on the County's First Amended Complaint for. Declaratory and Injunctive Relief, and the Counterclaims of the City, SPON, and AWG, adjudicating that EIR 508/EIS is legally adequate and complete under the California Environmental Quality Act ("CEQA") (Cali- 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,3 fornia Public Resources Code Section 21000 et sea.), the State CEQA Guidelines (14 Ca1.Admin.Code Section 15000 et seq.), the National Environmental Policy Act ("NEPA") (42 U.S.C. Section 4321 at seq.) and all relevant federal implementing regulations with respect to the EIR 508/EIS Project, including, but not limited to, implementation of the physical facilities improve- ments, airport layout plan, land use plans, and aircraft operat- ions and MAP levels permitted by the project. To the extent that the County's First Amended Complaint, or the counterclaims in this action by the City, SPON and the AWG, raise any controver- sies other than the adequacy of EIR 508/EIS under the provisions of CEQA, NEPA and all relevant implementing regulations, such claims and controversies shall be dismissed without prejudice. 25. Each settling party shall bear its own costs and attorneys' fees in connection with this litigation. Flight and MAP Limits 26. During Phase I, there shall be a maximum of 55 ADDs by Class A and Class AA aircraft (regardless of whether or not the County has specifically allocated any such ADbs to any Commercial Air Carrier). No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permit- ted to engage in regularly scheduled commercial service at JWA. Of the 55 ADDs permitted during Phase I, no more than 39 ADDs may be by Class A aircraft. yowl 9 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. During Phase I, JWA shall serve no more than 4.75 MAP during any Plan Year. 28. During Phase II, there shall be a maximum of 73 ADDs by Class A and Class AA aircraft (regardless .of whether or not the County has specifically allocated any such ADDS to any. Commercial Air Carrier). No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permit- ted to engage in regularly scheduled commercial service at JWA. Of the 73 ADDs permitted during Phase II, no more than 39 ADDs may be by Class A aircraft. 29. During Phase II, JWA shall serve no more than 8.4 MAP during any Plan Year. C. Facilities Constraints 30. Paragraphs 31 through 35, below, contain agree- ments of the County on the maximum permissible size of certain facilities improvements related to the proposed commercial passenger terminal to be developed as part of the EIR 508/EIS Project (and reducing the capacity of certain other related facilities) that can be made at JWA through the end of Phase II. 31. During the Project Period, John Wayne Airport shall have a commercial passenger terminal with a maximum interior floor space consisting of areas which are leaseable to 10 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tenants, or common areas available for public use and access, of not more than 271,000 square feet. This interior floor space restriction does not include, and does not apply to space utilized for airport administration areas, "mechanical/electrical areas," "structural areas," or "terminal curb areas." The total terminal size, including the "mechanical/electrical areas" and "structural areas", but excluding any "terminal curb area," may not exceed 337,900 square feet. 32. During Phase II, no building at JWA, other than the commercial passenger terminal, or buildings leased to Fixed Based Operators with limited commuter operations, shall be used by Commercial or Commuter Air Carriers for passenger or cargo handling activities. 33. Any Departure Lounge Holding Area designed to serve a loading bridge in the terminal shall be designed for use in connection with only one loading bridge. Each such Departure Lounge Holding Area shall have a physical separation from any other such Departure Lounge Holding Area with a perman- ent fixture barrier not less than 36 inches high. The commercial passenger terminal shall contain a maximum of 37,000 interior square feet for all Departure' Lounge Holding Areas. 34. There may be a maximum of fourteen (14) loading bridges, of which no more than nine (9) may be sized for aircraft as large as the Boeing-767. The remaining five (5) loading bridges shall be designed for aircraft no larger than the Boeing 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 757 aircraft. Each loading bridge may serve no more than one flight at a time. 35. There may be a maximum of 8,400 parking spaces, not including spaces contained in the existing North Clear Zone Parking Facility. The terminal parking structure may have no more than four levels. Space devoted to parking may not be converted to other terminal uses. D. Other Stipulated Provisions 36. Consistent with its existing or to be assumed obligations under contractual agreements with the United States of America under provisions of the Airport and Airway Develop- ment Act of 1970 (as amended) (former 49 U.S.C. Section 1701 et seq.) or the Airport and Airway Improvement Act of 1982 (49 U.S.C. Section 220'1 et sec.), the County shall establish and maintain a rate and fee structure which will ensure that the operation of JWA will be self-supporting during the Project Period. Except for short-term borrowing in order to alleviate temporary cash flow problems, or other emergency needs, the County will not use its general funds to subsidize directly the construction or routine operation of JWA. (This limitation recognizes that in the ordinary course of the County's business, certain County staff and personnel engage in activities supported by general funds which may indirectly relate to the operation of JWA. It is not the purpose or effect of this stipulation to preclude the County from continuing such general fund supported Cala 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 activities which are incidental to the routine operation of the airport.) Nothing in this paragraph, or this stipulation, is intended to, nor shall 'it be construed as, making the settling parties (other than the County), or any other person, parties to, or third party beneficiaries of, any contractual agreements between the County, as airport proprietor of JWA, and the United States of America (or any of its agencies). 37. The existing curfew regulations and hours for JWA, contained paragraph 4 in County Ordinance 3505, and the provisions of at page 62 of Board of Supervisor's Resolution 85-255 (February 26, 1985), reducing the curfew exemption threshold to 86.0 dB SENEL, shall remain in effect during the Project Period; except that the County shall retain its full discretion to extend the curfew hours. Nothing in this paragraph precludes or prevents the JWA Airport Manager, his designated representative, or some other person designated by the Board of Supervisors from exercising reasonable discretion in authorizing a regularly scheduled commercial departure or landing during the curfew hours where: (1) such arrival or departure was scheduled to occur outside of the curfew hours; and (2) the arrival or departure has been delayed because of mechanical problems, weather or air traffic control delays, or other reasons beyond the control of the commercial operator. In addition, this paragraph does not prohibit authorization of bona fide emergency or mercy flights during the curfew hours by aircraft which would otherwise be regulated by the curfew provisions and limitations. 13 1 2 3 4 5 6 7 8 9 10 11 12. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. In mitigation of the EIR 508/EIS Project, and for other reasons, the County has adopted a "General Aviation Noise Ordinance" ("GANO") (County Ordinance 3505). The principal policy objective of the GANO is to exclude from operations at JWA general aviation aircraft which generate noise levels greater than the noise levels permitted for aircraft used by Commercial Air Carriers. During the Project Period, the County shall maintain in effect an ordinance which meets this basic policy objective. Nothing in this stipulation precludes the County from amending the GANO to enhance or facilitate its reasonable achievement of its principal purpose, or the effective enforce- ment of its provisions. 39. During the Project Period, the City, SPON, AWG, their agents, attorneys, officers, elected officials and employ- ees agree that they will not challenge, impede or contest, by or in connection with litigation, or any adjudicatory administrative proceedings, or other action, the funding, implementation or operation of the EIR 508/EIS Project by the County and the United States; nor will they urge other persons to do so, or cooperate in any such efforts by other parties except as may be expressly required by law. Nothing in this paragraph prohibits the settling parties from submitting comments or presenting testimony upon any future environmental documentation which may be prepared by the County; or from challenging any project which is not part of the EIR 508/EIS Project. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40. The Board of Supervisors shall not arbitrarily withhold approval, endorsement or support of any application by a qualified entity or consortium of entities submitted pursuant to Board of Supervisor's Resolution 85-1231 which seeks a reasonable level of state or federal funding for a study or studies concern- ing a site for an additional airport to supplement JWA. 41. During the Project Period, the City agrees that it will, at its expense, actively join the County in defending, in any pending or future litigation, the EIR 508/EIS Project or the County's regulations or actions in implementation of, or enforc- ing limitations upon, the project. 42. It is specifically acknowledged by the parties that the County has received a request by PSA to operate exempt aircraft in regularly scheduled service at JWA, and may receive other such requests in the future. The County intents in the near future to develop amendments to its existing access plan or other airport regulations to provide for a means to allocate exempt aircraft operating opportunities within the MAP level agreed to in this stipulation. The development and implementa- tion of such regulatory mechanisms is expressly acknowledged to be an element of the implementation of the EIR 508/EIS Project, and no additional or further environmental documentation under CEQA orNEPA shall be necessary to allow the County to develop and process such regulations and applications. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43. Any notices given under this stipulation shall be addressed to the parties as follows: FOR THE COUNT`(: Adrian Kuyper, County Counsel Office of the County Counsel 10 Civic Center Plaza P.O. Box 1379 Santa Ana, California 92702 with a copy to: Michael Scott Gatzke Gatzke, Lodge & Mispagel 2890 Pio Pico P.O. Box 1636 Carlsbad, California, 92008 FOR THE CITY: City Manager City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, California 92658-8915 with a copy to: Pierce O'Donnell O'Donnell & Gordon 619 South Olive, Ste. 300 Los Angeles, California 90014 FOR SPON AND AWG: E. Clement Shute, Jr. Shute, Mihaly & Weinberger 396 Hayes Street San Francisco, California 94102 At any time, any party may change the person designated to receive notices under this stipulation by giving written notice of such change to the other parties. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 IV. ENFORCEMENT OF THE JUDGMENT 44. The stipulations in the other pending state and federal litigation matters pending among the settling parties shall not be filed until the entry of the Stipulated Judgment authorized by this stipulation. 45. If a dispute arises concerning interpretation of, or a settling party's compliance with, this Judgment, and if no exigent circumstances require immediate court proceedings, any settling party raising such issue of interpretation or compliance shall provide written notice of such dispute to the other settling parties. Within twenty-one (21) days of the sending of such notice, the parties shall meet in person (or by their authorized representatives) and attempt in good faith to resolve the dispute. 46. If any such dispute has not been resolved within thirty-five (35) days of the sending of written notice, or if exigent circumstances require immediate court proceedings, any action. A settling party seeking to compel another settling party to obey the Judgment must file a Motion to Enforce Judg- ment. The settling parties agree not to resort to, request, or initiate proceedings involving the contempt powers of the, Court in connection with a Motion to Enforce Judgment.. 47. If the Court determines that a party is not complying with the Judgment, the Court shall issue an order, in 17 1 2 3 4 5 6• 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the nature of specific performance of the Stipulated Judgment, requiring the defaulting party to comply with the Judgment within a reasonable period of time. If the defaulting party thereafter fails to comply with such an order, the other settling parties may then seek enforcement under any authorized processes of the Court. V. TERM OF AGREEMENT 48. This stipulation is contingent upon the Court's entry of the Judgment pursuant to this stipulation ("the Stipul- ated Judgment"). If the.. Stipulated Judgment is not entered, this stipulation shall be null and void, and shall not be admissible for any purpose. Unless terminated at an earlier date in the manner described in paragraphs 49-51 below, this stipulation and Stipulated Judgment shall be effective for the Project Period. 49. The City, SPON or the AWG may file a Motion to Vacate Judgement if, in any action which they have not initiated: (a) Any trial court enters a final judgment which determines that the limits on the number of Regulated ADDs, Class A ADDs, the distinction between Class A and Class AA aircraft, MAP levels or facilities improvem- ents contained in this stipulation, the curfew provi- sions of paragraph 37 of this stipulation, or the provisions of paragraph 38 of this stipulation are unenforceable for any reason, and the any of these 18 1 R A stipulated limitations are exceeded; 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Any trial court issues a preliminary injunc- tion which has the effect of precluding implementation or enforcement of the limits on the ADDs, Class A ADDs, the distinction Class AA aircraft, MAP levels or number of Regulated between Class A and facilities improve- ments contained in this stipulation, the curfew provisions of paragraph 37 of this stipulation or the provisions of paragraph 38 of this stipulation, based upon a finding of a probability of making at trial any of the determinations described in subparagraph (a) above, and such preliminary injunction remains in effect for a period of one (1) year or more, and any these stipulated limitations are exceeded; or (c)Any appellate order which makes any of in subparagraphs (a) or court ruling based upon of court issues a decision or the determinations described (b) above, or affirms a trial such a determination, and any of these stipulated limitations are exceeded. 50. The County may file a Motion to Vacate Judgment if the City fails to comply with the provisions of paragraph 41 of this stipulation, or either the City, SPON or the AWG file or participate in a lawsuit or adjudicatory administrative proceed- ing, or assist another person in any such lawsuit or proceeding, for the purpose, or to the effect of impeding implementation of 19 1 2 3 4 5 6 7 8 9 10 11 12 13. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the EIR 508/EIS Project or otherwise take action in violation of paragraph 39 of this stipulation. This provision shall not apply to activities expressly permitted by paragraph 39 of this stipulation. 51. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Court shall, after .consideration of a motion to vacate judgment, enter an order vacating the Stipulated Judgment if it determines that any of the conditions described in paragraphs 49.or 50 have occurred. Once vacated, the Judgment and this stipulation shall be null and void, unenforceable and inadmissiblefor any purpose, and the parties will be deemed to be in the same position that they occupied before the Stipulated Judgment and stipulation was executed and entered in respect of this litigation, and they shall have the full scope of their legislative and administrative prerogatives. 52. The limitations on Regulated ADDs, Class A ADDs, the distinction between Class A and Class AA aircraft, MAP levels and commercial passenger terminal facilities provided for in this stipulation, the provisions of paragraphs 37 and 38 of this stipulation, and the agreements of the City, SPON and AWG not to contest or impede implementation of the EIR 508/EIS Project (paragraph 39 of this stipulation), are fundamental and essential aspects of this settlement, and were agreed upon with full recognition of the possibility that economic, demographic, technological, operational or legal changes not currently contemplated could occur during the Project Period. It was in 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recognition of these essential aspects of the settlement, and the inability to predict with certainty certain future conditions that the settling parties have agreed to the specific and express provisions of paragraph 49 of this stipulation. The settling parties further acknowledge that this settlement provides for the settling parties to perform undertakings at different times, and that the performance of certain of the undertakings, once accomplished, could not be undone. Accordingly, except as provided herein, the settling parties expressly waive any potential right to seek to modify or vacate the terms of the settlement or the Stipulated Judgment, except by mutual agree- ment. J. Date: lri MICHAEL SCOTT GATZKE iii MARK J. DILLON Gatzke, Lodge,& Mispagel Attorneys for Plaintiff and Counterdefend- ants, the County of Orange and the Orange Coun v Board of Supervisors :ichael S ott Ga Date: NOteapA04 445. PIERCE O' DONNELL* STEVEN F. PFLAUM JOSEPHINE E. POWE O'Donnell & Gordon Jc *A Professional Corporation Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach By: j4kJLK 1 etadrn J Steven F. Pfla 96p 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (STIPULATION SIGNATURE PAGE CONTINUED) Date:.• E. CLEMENT SHUTE, JR. Shute, Mihaly & Weinberger Attorneys for Defendants, and Crossdefen.dants, Our Newport and the Group of Orange County, / By: E. Clement Shute, Jr. Counterclaimants Stop Polluting Airport Working Inc. 22 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 5o u u ,0 16 , 22 ,< 0o I' 18 19 20 21 22 23 24 rz 25 • 26 N N O 27 4 t 28 RESOLUTION OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, CALIFORNIA February 26, 1985 On motion of Supervisor Riley, duly seconded and carried, the following Resolution was adopted: WHEREAS, the County of Orange is the proprietor of John Wayne Airport, Orange County (JWA); and WHEREAS, JWA is the only commercial air carrier airport in the County of Orange; and WHEREAS, since 1972, the County, by lease or operating agreements with the commercial air carriers serving JWA, and other means, has limited the number of permissible average daily departures ("ADDs") by commercial jet aircraft to the equivalent of 41 ADDs; and WHEREAS, JWA presently serves only a portion of the short -haul and medium -haul demand generated in Orange County for commercial air carrier service, and none of the long -haul demand; and WHEREAS, the short and medium -haul demand for commercial air carrier service generated in and by Orange County is projected to continue to increase between the present time and the year 2005; and WHEREAS, the portion of this demand (and the long -haul demand) unmet by JWA necessarily results in diversion of portions of the air service demand to other commercial airports in the Southern California basin; and Resolution No. 85-255 Certification of Final EIR 508 DJD : hp = s 1. 1 2 3 4 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O 26 r N O 27 ® 28 WHEREAS, in a successful effort to reduce significantly noise generated by aircraft operations at JWA the County, through its Commercial Airline Access Plan of March 17, 1982 as amended (Board Resolution Nos. 82-392; 82-638; 82-1103; 82-1273; and 83- 1882) and associated regulatory policies and actions, has achieved a conversion of the commercial fleet using JWA to new and quieter aircraft, such as the McDonnell Douglas MD-80 and specially modified versions of the Boeing 737-200; and WHEREAS, in their current condition, the airport facilities at JWA are largely inadequate to serve existing commercial pas- senger levels, and passenger levels projected to result from future conversion of the commercial fleet at JWA to even larger commercial aircraft types which are projected to be introduced by the air carriers to meet market demand for service at JWA; and WHEREAS, the operation of John Wayne Airport has been a sub- stantial community controversy since at least 1968; and WHEREAS, the Board of Supervisors believed that a study and environmental analysis of the operation of JWA through the year 2005 (including defined maximum Class A ADD levels and any asso- ciated physical improvements) would permit the Board, the County and the public to responsibly and informatively address the future of JWA operations through the year 2005; and WHEREAS, at a public meeting, after receiving a staff report and evaluation, the Board adopted a resolution directing preparation of an Environmental Impact Report for a proposed project of 73 Class A ADDs, with an initial phased increase to 55 Class A ADDs, and the preparation of an associated Land Use Plan 1 2 3 4 5 6 8 9 10 11 12 y 13 \ 14 20 21 22 23 24 25 0 26 ; 27 and a Master Plan for facilities improvements at JWA necessary to reasonably meet the proposed project operations level (Board Resolution No. 83-547); and WHEREAS, Revised Draft Environmental Impact Report No. 508 (EIR), prepared in response to the Board directive in Resolution No. 83-547, provides an environmental impact assessment of a pro- posed project comprised of an increase in the permitted number of regulated Class A ADDs by commercial jet aircraft at JWA, the construction of related improvements to the physical facilities at JWA, and the implementation of a Land Use Compatibility Program (LUCP) in areas adjacent to JWA; and WHEREAS, the EIR was prepared in accordance with the California Environmental Quality Act (CEQA), the State Environmental Impact Report Guidelines, and County Environmental Analysis procedures; and WHEREAS, the EIR was circulated for public comment after the County received substantial public comments to the original Draft EIR, and made substantial additions and revisions to the original Draft EIR (including the inclusion as Volume 3 of the EIR the comments received from the public on the original Draft EIR, and the staff and consultant responses to those comments); and WHEREAS, written comments were received from the public and responsible agencies to the EIR during the public review period; and WHEREAS, the Planning Commission of the County of Orange conducted public hearings to receive all public testimony with respect to the EIR; and 28 1 2 3 4 5 6 7 9 10 11 13 14 18 19 20 21 22 23 24 25 2 26 N • 27 I 28 WHEREAS, such comments and testimony were responded to through a response to comments document and staff report sub- mitted to the Planning Commission; and WHEREAS, the Planning Commission of the County of Orange has received all environmental documentation comprising the Board of Supervisor's EIR, has found that the EIR considers all envi- ronmental impacts of the proposed project, and has found that the EIR is complete and adequate and fully complies with all requirements of CEQA, the CEQA Guidelines and the County of Orange Environmental Analysis Procedures; and WHEREAS, the Planning Commission of the County of Orange recommended to the Board of Supervisors that the EIR be certified as adequate and complete; and WHEREAS, both the Airport Commission and this Board have received and considered the Staff Report on Airline Access, ADD Allocation and Airport Use Restriction Issues to be Considered in Connection with EIR 508 (January 16, 1985 [3 volumes]) by Airport Staff; and WHEREAS, this Board has received and reviewed the Airport Manager's letter of January 21, 1985 regarding the noise results of recent tests by AirCal of the B-737-300 and by PSA of the BAe- 146; and WHEREAS, the Airport Commission of the County of Orange held public hearings on the EIR, the Airport Master Plan and various related airline and airport access and regulation issues, and made its recommendations that the Board of Supervisors certify ) 1 2 3 4 5 6 8 9 10 11 12 13 14 o"z2 15 Woo u u W 16 ol. oo i7 W 18 19 20 21 22 23 24 25 26 N 0 27 28 the EIR as adequate and complete by a letter dated January 24, 1985; and WHEREAS, the Board of Supervisors has reviewed and considered all of the environmental documentation prepared to evaluate the proposed project, including all elements of the EIR and the recommendations of the Planning and Airport Commissions; and WHEREAS, the implementation of this project (as mitigated by the decision effected in these findings) is essential to ade- quately serve the existing and future air traveling public at JWA, and to strike an appropriate, responsible and desirable balance between the community's need for reasonable air transportation services, and the consequences or potential consequences of related airport operations; and WHEREAS, the Board of Supervisors contemplates and directs continuing compliance with CEQA and the CEQA Guidelines as necessary in the implementation of the phases and elements of the project. NOW, THEREFORE, BE IT RESOLVED that: 1. The Board of Supervisors does hereby certify Final EIR 508 as complete and adequate in that it addresses all environ- mental effects of the proposed project and fully complies with the requirements of CEQA, the CEQA Guidelines, and the County of Orange Environmental Analysis Procedures. Final EIR 508 is com- posed of the following elements: a. Revised Draft EIR 508 (Volumes 1-3) b. All Appendices to Revised Draft EIR 508 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 • 26 N N 0 • 27 t 28 c. Environmental Management Agency staff reports of November 20, 1984; December 5, 1984; January 8, 1985; and January 22, 1985. d. Minutes of Planning Commission meetings e. Comments received on the Revised Draft EIR and responses to those comments (Volume 4) f. The Airport Commission Letter of January 24, 1985. g. All attachments, documents incorporated and refer- ences maded in the documents specified in a - g above. All of the above information has been and will be on file with the County of Orange, Environmental Management Agency, Environmental Analysis Division, 12 Civic Center Plaza, Room 236, Santa Ana, California. 2. The Board approves the project as herein modified by mitigation measures and the adoption of a mitigated LUCP alternative number 3. 3. The Board of Supervisors makes the findings set forth below with respect to significant impacts identified in the EIR, and finds that each fact supporting these findings is based upon substantial evidence in the record, including the final EIR and related documents referenced in these findings. Said findings and facts are as follows: t 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I 28 FINDINGS The Project The proposed project consists of two principal components: (1) a two -phased increase in the permitted number of operations by commercial jet aircraft which the County has historically regulated for noise -control purposes, as well as associated con- struction of certain facilities at JWA necessary to support the project's proposed increase in operations; and (2) an associated LUCP for the Santa Ana Heights area to the south of JWA. It should be noted that implementation of the project, and the impacts resulting from project implementation, will occur during two periods of time. The findings below refer to these two phases as follows: (1) "Phase I" of the project refers to the initial increase in authorized ADDs to 55 Class A ADD and continues until implementation of Phase II ADD increases, (2) "Phase II" refers to the increase in authorized Class A ADD to 73 occurring upon completion of the new facilities, approximately in the year 1990. During the period of public review, comments were made con- tending that the project description contained in the EIR is inadequate and misleading. The contention in this regard was that the EIR inappropriately defines the project in terms of a proposed level of average daily departures (ADDs), rather than an unlimited level of operations which might be supported by the planned physical improvements to JWA. These commentators argue that the only "true" project is the construction of the physical - facilities improvements, and that the environmental analysis must 1 1 2 3 4 5 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 0 27 28 therefore be of the "full" capacity of these physical -facilities improvements without regard to the fact that the principal deci- sion which the Board of Supervisors has stated it wishes to con- sider is the proposed increase in the authorized level of Class A ADDs. The subject of the appropriate definition of the "project" for the EIR was discussed principally in comments to the original EIR (RDEIR 508, Vol. 3) and comments to the Revised Draft EIR (Final EIR 508, Vol. 4), and in the responses to those com- ments. Much of the discussion in these comments and responses focuses on the size of the proposed terminal building to be con- structed in conjunction with an increase in the authorized level of ADDs. The Board has considered this issue; and finds that the description of the project in the EIR is adequate, constitutes an appropriate description of the project, and complies with the proposed project defined for evaluation by the Board in Resolution No. 83-547. Any project proposed for JWA must be evaluated in the context of the airport's unique regulatory character and history. JWA is, and has been for many years, a "controlled" airport facility where operations levels (particularly by commercial operators) are determined not by the available physical facilities, nor the level of "market demand" for air carrier service, but by the number of ADDs permitted by the County. Based not only on the EIR itself, but on the years of controversy, public hearings, staff reports and other information presented both to this Board and prior Boards on airport related issues, we find that any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 J- W .iz 15 ,,g 0 yOV 18 19 20 21 22 23 24 25 26 0 27 28 planning or policy evaluation of JWA which ignores its unique history and operational characteristics must invevitably be misleading. We have been advised by both our staff and the experts responsible for designing the terminal that the terminal struc- ture was designed for 73 ADD. Actually, the terminal is somewhat smaller in size than airport standards would dictate because the site size is so constrained. We believe (and find) that staff has followed our instructions, and presented this Board with a terminal design intended to reasonably accomodate the 73 Class A project. We are aware that the present terminal is used well in excess of its design capacity. The continuous growth of passenger levels beyond the design capacity of the current terminal ever since its construction leads us to conclude that there is no readily definable relationship -- or any definable cause/effect relationship -- between passenger levels and terminal size. Rather, the number of flights and the types of aircraft (measured by their seat capacity) appear to be the factors which determine (and limit) the level of passenger utilization of the airport. The question posed by the capacity of the terminal facilities does not seem to be how many people will use the airport, but how safely, comfortably and conveniently they will be able to do so. We do not believe it reasonable, nor in the public interest, to intentionally undersize the terminal. Aside from the question of how much undersized the terminal should be, we believe that public structures should be designed to serve the public in a E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 18 19 20 21 22 23 24 25 in • 26 N 0 • 27 I 28 safe, convenient and responsible fashion, and should not be intentionally built to be overcrowded, unsafe and inconvenient in an effort to control indirectly what is already controlled directly. A related concern articulated by some commentators is that approval of this project will "inevitably" lead to further future increases in authorized levels of ADDs because of "substantial pressure" on the Board - or future Boards - to increase opera- tions because of a continuing growth of unmet air-traffic demand in Orange County. In effect, the commentators contend that this Board does not have the discretion to authorize a specific level of ADDs but, rather, must consider its determination as a deci- sion simply to meet demand. This Board notes, however, that the County does, in fact, have authority to authorize specific levels of ADDS, and that the project description contained in the EIR reflects the fact that this Board directed that the project be evaluated in light of a possible increase to 73 Class A ADDs. We have chosen to increase the authorized level of ADDs to 73 based upon these findings and the adoption of mitigation measures designed to further enhance our regulatory control over JWA oper- ations. We cannot speculate on what future Boards of Supervisors may do if they consider future projects of JWA. Certainly, they will have to comply with CEQA as it then exists. It is, however, by no means clear to us that further increases in ADDS before or after 2005 will even be considered, let alone approved by future Boards. 10 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 00 U U ;,W 16 19 20 21 22 23 24 25 26 . ry '0 27 I 28 Although not strictly necessary it should also be noted that the EIR analyzed in substantial detail several alternatives to the project, including a 98-ADD alternative and a "meet -demand" alternative, which reflected a full range of unconstrained flight levels. Accordingly, the concerns articulated in this regard have been addressed, and we are fully aware of the potential consequences. Finally, we note that the expenditure of funds for a 73 ADD project at John Wayne Airport does not prevent the County of Orange from pursuing additional airport sites, in conjunction with other jurisdictions, or on our own, when the demand (and therefore the ability to charge) exceeds the supply of flights in this region. We have already noted that there is a projected excess of demand for short and medium -haul flights, and an unmet demand (in Orange County) for long -haul flights. The Board's resolve in this regard -- i.e., its position that the project which it is approving is appropriately described as a 73 Class A ADD project -- is clearly manifested by its adoption of (1) the 10.24 million annual passenger (MAP) ceiling mitigation measure (a projection based on 73 ADD), and (2) a resolution calling for immediate investigation of additional airport sites to accommodate JWA air -travel demand beyond a 73 ADD service level. As to the former, the project approved by the Board includes a measure which not only limits the maximum capacity of JWA to 10.24 MAP (the ultimate level of service projected by the Master Plan and EIR for the project), but also requires adopting a regulatory mechanism for enforcing this cap 11 1 2 3 4 5 6 8 9 10 11 12 13 ; 15 .0 W 16 1' 18 19 20 21 22 23 24 25 2 26 N N ; 0 2' IL I 28 once JWA actually reaches 8.0 MAP. As to the latter, the Airport Commission will be directed to review all past airport site studies in Orange County for the specific purpose of making rec- ommendations to the Board on possible additional sites which would merit further detailed study. This inquiry shall include public hearings, and a report to the Board that shall be submitted by November 30, 1985. Accordingly, we find that the project is properly defined. Adoption of LUCP Alternative It should further be noted that the Board has chosen to adopt an alternative LUCP scenario -- i.e., a land -use scenario other than Scenario 8, which was proposed as the project. The land use scenario adopted is a modified version of LUCP Scenario 3 (EIR, pp. 6.8-6 to 6.8-13; LUCP pp. VI-21 to VI-26). The modifications to Scenario 3 are as follows: 1. Medium High Density Residential in lieu of Medium Density Residential along Lange Drive (approximately 4 acres). 2. Employment in lieu of Medium Low Density Residential on approximately 8-10 acres fronting on South Birch Street. Under this alternative, the properties east of Acacia and on the north side of Mesa Drive (all of which are generally suitable for acoustical treatment) will be retained at current densities. These properties, along with those fronting on Cypress Street and the adjacent 12 1 2 3 4 5 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 rz 25 26 F C • 27 Bayfront Estates, will provide a "core" residential/equestrian enclave in East Santa Ana Heights. Most of the properties along Acacia and will be converted from residential to Birch Streets non- residential (Business Park) uses reflecting their proximity to adjacent arterial highways as well as the high percentage of property owners in the area desiring conversion. For purposes of these findings, the project's significant effects identified throughout Section "A" below are those resulting from the proposed project -- i.e., including LUCP Scenario 8. The adoption of the alternative scenario as discussed above is deemed a mitigation measure, since it clearly mitigates the adverse impacts associated with the proposed project. Indeed, in terms of its environmental effects, the land use alternative adopted may be characterized as an equivalent to LUCP Scenario 3. Granted, the additional 8-10 acres of employment uses would incrementally increase traffic generation, energy, and air pollution impacts. However, these incremental differences will not produce impacts that would render the adopted alterna- tive significantly different than LUCP Scenario 3. Moreover, the alternative introduces non-residential uses more compatible with a high noise environment. The medium high density mitigates the loss of housing associated with increased employment uses by locating additional housing nearby. 28 13 1 2 3 4 5 6 7 8 9 10 11 12 13 18 19 20 21 22 23 24 25 12 26 0 27 LL L 28 A. Mitigation Measures Adopted The Board of Supervisors, having reviewed and considered the information contained in the EIR and the record before this Board, finds that changes or alterations are being required in, or have been incorporated into, the project which mitigate or avoid the significant environmental effects thereof, as identi- fied in the EIR: 1. TOPOGRAPHY, GEOLOGY, SOILS AND SEISMICITY. Significant Effects. During Phase I, the project will result in np dverse impacts upon topography, geology, soils, and/or seismicity. (EIR, p. 4.1-4.) Neither would the topography of JWA property or the Santa Ana Heights area be sig- nificantly modified by construction and grading activities in site preparation since the terrain is relatively even and devel- oped and would mainly require stripping of compressive surface soils and minor leveling. (EIR, p. 4.1-4; 4.1-5.) With respect to seismicity, there are three faults, consid- ered by many geologists to be potentially active, located within close proximity to JWA. (EIR, p. 4.1-1.) It is estimated that the chance of a significant (Richter 7.0) earthquake occurring in any given year is only about one to two percent. Earthquakes would be expected to cause only minor damage to buildings, pipelines, and fuel tanks designed to the local standards. (EIR, p. 4.1-5.) With respect to soils, impacts during construction would be related to a temporarily increased hazard of erosion due to 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 ry . ry 27 I 28 exposed soil. (EIR, p. 4.1-5.) While erosion by wind or water during construction is expected to be slight (EIR, p. 4.1-5), the extent of erosion would depend upon a number of variables includ- ing the erosional characteristics of the soil, the season, the real extent of exposed soil, and the erosion control measures employed. In addition, soil samples taken at the airport indi- cate that unstable soils are found at the north end (EIR, P. 4.1-5), but since no facilities are planned to be constructed in this area these unstable soils are insignificant. Finding. Several mitigation measures outlined at pages 4.1-6 and 4.1-7 of the EIR have been incorporated into the project so as to mitigate or avoid significant environmental effects associ- ated with topography, seismicity, and soils. With respect to seismicity and the statistical probability of earthquakes occur- ring on the project site, local building codes require that structures be designed to withstand the expected accelerations for the area without collapsing or suffering severe structural damage. Compliance with these building codes will be required during construction. The potential for earthquake damage will also be sufficiently minimized through application of seismic design principles in the design of facilities to keep the airport operational after an earthquake -- a major goal recognized by the Orange County General Plan. These seismic design criteria include keeping the profile of tanks low, installing flexible connecters between pipes and tanks, allowing flexibility in utility lines and pipes, anchoring heavy equipment, strengthening structural members, 15 1 2 3 4 5 6 7 8 9 10 11 12 P 13 14 J, 4 r rz 15 o° "w 16 , D ,z= • oaD 17 18 19 20 21 22 23 24 rz 25 n 26 ° 27 ® 28 strengthening foundations and pavements, and minimizing building height. Future development in Santa Ana Heights would also have to meet these local seismic design criteria as well as the standards of the Orange County Grading Code and Grading Manual. Geological exploration will be conducted in the Santa Ana Heights area to determine the location and recency of faulting in the area due to the inferred trace of the Pelican Hill Fault Zone at the time of construction proposals. With respect to significant impacts upon the soils, all proj- ect applicants shall submit an erosion control plan to the Manager, EMA/Development Services, for approval which shall include a discussion of measures for dust pollution and mitiga- tion of erosion caused by wind and water. Such measures will include surface wetting and use of temporary detention basins to trap sediment. The plan shall also provide, in accordance with Subarticle 13 of the Grading and Excavation Code for Orange County, for effective planning, maintenance, irrigation, and seed germination by any applicant prior to the rain season in graded areas which would otherwise remain exposed. In addition, all applicants shall report soils engineering data to the Manager, EMA/Development Services for his approval prior to issuance of any grading permit. The report will provide assessment of potential soil -related constraints and hazards such as slope instability, settlement, liquefaction, or related secondary seismic impacts where determined to be appropriate by the Manager, EMA/Development Services. All reports shall 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ct 28 recommend appropriate mitigation measures and shall be completed in the manner specified in the Orange County Grading Manual and State/County Subdivision Ordinance. With regard to development activities in the Santa Ana Heights area, geological exploration will be conducted to address the potential effects of shallow ground water and peat deposit oxidation on proposed development. Should such exploration reveal that mitigation measures are necessary, applicable build- ing code and grading code restrictions will be imposed upon per- mit applications. The adoption of the LUCP alternative, by reducing the amount of redevelopment of Santa Ana Heights, serves to mitigate impacts from those associated with the project. These measures generally reduce effects upon topography, geology, soils and seismicity to a level of insignificance. However, there do remain soil loss during construction and limited earthquake damage potential impacts deemed to be significant and unavoidable. (See Finding "D" below.) 2. AIR QUALITY. Significant Effects Comparison of the Phase I (i.e., 1984) and 1982 emission inventories at JWA indicates that THC emissions would increase by 8%; CO by 9%; and NOx, and SOx, and particulate emissions by over 20%. Much of the increase in emissions is due to increased pas- senger automobile travel. Such impacts are somewhat overstated, however, since automobile emissions will be lower in 1985 when Phase I is actually implemented. (EIR, p. 4.2-29.) 17 • 1 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 26 2 7;7 t 28 During the construction phase of the project, land clearing, grading, ground excavation and the actual construction of build- ings may produce substantial amounts of pollutants (especially fugitive dust). (EIR, p. 4.2-31.) Under a worst case scenario -- assuming no dust control measures and construction activities taking 24 months with up to ten acres being exposed and actively worked on at any one time -- a daily dust emission rate of 300-600 pounds could result. (EIR, p. 4.2-31.) In addi- tion, emissions of CO, total hydrocarbons, SOx, NOx, and particulates from the exhaust of heavy duty construction equipment would impact the site. (EIR, p. 4.2-31.) Such emissions are widely dispersed, however, thus confining any observable air quality effects to within a few feet of the source. With respect to significant impacts upon air quality during Phase II, an emission inventory was calculated for all sources related to JWA. (EIR, p. 4.2-31; Table 4.2-12.) Comparison of the Phase II (i.e., 1990) and 1982 emission inventories indicates that emissions of all five pollutants would increase. The increases in NOx and THC would produce photochemical smog and, thus some adverse ozone impact. (EIR, p. 4.2-32.) However, this impact is tempered by the fact that the same level of aircraft emissions -- i.e., the principle source of the increases in NOx -- would result even if the additional 32 Class A ADDS proposed for JWA did not occur in Orange County, but instead were added to other basin airports. (EIR, p. 4.2-32.) 18 i 1 2 3 4 5 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 N 27 With regard to local air quality impacts, expansion of the airport may significantly affect traffic levels on area roadways and therefore result in significant air quality impacts. (EIR, p. 4.2-41.) With regard to air quality impacts associated with the LUCP, conversion of residential uses to more intensive commercial uses will entail substantial soil disturbance and resultant air emis- sions during the construction phase. (EIR, p. 4.2-37.) In addition, the proposed land use project would signifi- cantly reduce the number of single-family and multiple -family dwelling units in the LUCP area. These units would be replaced by business parks which will generate a much greater number of trips and thus a 33% increase in vehicle miles travelled between 1982 and 1990 in the area. (EIR, p.4.2-37.) Despite this increase in vehicle miles travelled, an emissions inventory was conducted which concluded that emissions of THC, CO, and NOx would actually decrease by 16, 20, and 25 percent respectively between 1982 and 1990. (EIR, p.4.2-38; Table 4.2-13.) With respect to air quality impacts in the year 2005, air - passenger -related -vehicle trips would be projected to increase by 50% between 1990 and 2005. Thus, it is predicted that emissions of CO, THC, and NOx would increase significantly between 1990 and 2005 if the additional commuter aircraft and larger air carrier aircraft are put into service as expected. (EIR, p. 4.2-41.) With regard to regional air quality impacts, air quality analyses indicate that the project actually results in a signifi- cant air quality benefit. (EIR, pp.4.2-32 through 4.2-37.) The 28 19 1 2 3 4 6 7 8 9 10 11 12 13 14 'JY Wf )it 15 Jo° W 16 jzz Or 17 18 19 20 21 22 23 24 E 25 26 0 27 reason for this is that the project meets existing and future demand for air travel service that would otherwise have to be met at non -county airports with longer aircraft activity delays and with increased passenger ground access emissions. Indeed, it is reasonable to expect that the total air travel demand will be satisfied by other airports in the Los Angeles basin -- LAX, Long Beach, or Ontario -- in the event that JWA cannot satisfy the demand. There would, therefore, be a significant increase in regional automobile emissions. By averting the need for such long distance driving, the project actually results in a regional air quality benefit. (EIR, p. 4.2-37.) Because of this net regional reduction, in conjunction with the adoption of all suggested tactics contained in the AQMP, as well as those additionally identified by SCAG, the SCAQMD and the State, we find that the airport component is consistent with air - quality plans. With regard to regional air -quality impacts resulting from implementation of the LUCP, the magnitude of the LUCP area emissions are less of a critical factor than whether such emissions have been properly anticipated by the basin air quality management plan. In this instance, the conversion of Santa Ana Heights acreage to more intense business park and high density residential uses is one part of a forecast conversion of 70,000+ acres of the County to urban uses. If the County demand for office space is not met in the airport area, including Santa Ana Heights, it will be met elsewhere in the County with similar, or worse, automobile -traffic generation. 28 20 1 1 2 3 4 5 6 7 8 9 10 11 12 13 r 14 18 19 20 21 22 23 • 24 r- 25 • 26 N 27 ® 28 The proposed traffic -intensive land -use alternative for the LUCP area is inconsistent with the present AQMP. Findings. As discussed in Finding "B", below, several mitigation measures for the project's significant impacts on air quality are principally within the responsibility and jurisdic- tion of another public agency. Aircraft emission levels are generally not subject to County mitigation measures since air- craft regulations and air quality legislation are promulgated and preempted by the federal and state governments. In addition, several mitigation measures have been incor- porated into -the project which are within this Board's authority. Initially, expansion to meet a greater portion of passenger demand at JWA, rather than diverting it to other basin airports, i7 in itself a mitigation measure since it reduces the total number of miles driven to airports (EIR, p. 4.2-45). In addi- tion, consistency with the AQMP requires that the adopted Airport Master Plan incorporate the airport activity mitigation measures from the AQMP, or that equally -effective measures be substi- tuted. These measures, to which the County is committed, include towing aircraft to and from runways, increasing passenger -load factors, improving ground access taxiways and decreasing queing at runways, centralizing ground -access power systems, idling and taxiing on one engine, and implementation of satellite termi- nals. (EIR, p.4.2-46.) In addition to this "mandatory mitigation" and mitigation required by AQMP Rules and Regulations (such as control of dust from construction activities and control of evaporative emissions 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 J . 0 15 o0 16 00 17 18 19 20 21 22 23 24 25 26 • 0 27 from fuel tanks) additional mitigation will be effected by traffic -management measures, which will reduce congestion and, therefore, localized emissions. Such measures will include (1) adding direct freeway -access ramps from SR-73, SR-55 and I-405, (2) improving surface street flows by adding through and turn lanes, (3) promoting public transportation services to JWA, (4) maintaining adequate internal circulation, and ventilating parking structures to minimize pollution stagnation, and (5) implementing ride -sharing, preferential parking and nonmotorized- trip programs for airport and airline employees (EIR, p. 4.2-48 and 4.2-49); With roadway mitigation measures (widening and direct freeway access into the terminal area), every receptor site except the five sites within the new terminal will have lower CO levels in the future than today for either the hourly or 8 hour CO exposure. (EIR, p. 4.2-41.) With regard to mitigation of air -quality impacts resulting from implementation of the LUCP, a long-range transportation system management (TSM) plan will be developed. The long-range TSM plan for the LUCP area will include components for ride - sharing, public transit, preferential parking, facilities for nonmotorized vehicles, mixed land uses and flex -schedules (for off-peak travel). In addition, measures that improve access to Santa Ana Heights (e.g., completing the Corona Del Mar freeway and upgrading access roadways) will reduce emissions from most pollutant species by shifting traffic into more -efficient modes. (EIR, p.4.2-49 and 4.2-50.) 28 22 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 N 0 27 1 t 28 Air quality impacts resulting from implementation of the LUCP will be mitigated further due to the Board's adoption of an alternative land -use scenario -- i.e., a land -use scenario other than Project Scenario 8 -- as a mitigation measure. Under the alternative adopted, significant air quality impacts resulting from the originally proposed project -- i.e., Scenario 8 -- will be significantly reduced. Indeed, the adopted alternative would result in less commercial and more residential uses than the original project, and as a result both VMT and trip -generation calculations would be reduced (EIR, p. 6.8-23, 24). This, in turn, would, result in a significant reduction in Santa -Ana - Heights -generated air emissions for all pollutant categories (EIR, p. 6.8-23; Table 6-33). In summary, we find that the localized air -quality impacts, while mitigated, remain significant (See Finding "D" below); that the regional air quality would improve; and that the LUCP remains inconsistent with adopted air -quality plans even with adoption of the mitigating land use alternative. 3. WATER. Significant Effect. Implementation of Phase I of the project will not result in any adverse impacts upon water qual- ity. (EIR, p. 4.3-4.) Concentrations of petroleum products in the runoff would increase due to increased levels of aircraft operations, but would be too small to be significant. (EIR, p.4.3-4.) During construction of airport improvements and Santa Ana Heights redevelopment, adverse impacts on water quality could 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 • 26 ry 0 • 27 28 occur as a result of runoff during site grading. (EIR, p. 4.3-4.) Airport improvements and alterations of land uses in Santa Ana Heights may result in an increase in the square footage of impervious surface and a subsequent increase in storm runoff quantities. The impact of the increased runoff activities, however, is not expected to be significant. (EIR, p. 4.3-4.) Indeed, the long term effect of the project upon sediment runoff will actually be beneficial, as overcovering of soil by pavement and structures practically eliminates erosion and the planned lining of the Santa Ana/Delhi channel with concrete further reduces sediment input into the bay from the project site. Conversion of land uses in Santa Ana Heights from predominantly residential to business/commercial would be expected to decrease concentrations of pesticides, herbicides, fertilizers, and bac- teria in the runoff. On the other hand, oily contaminants associated with increased vehicular activity may be expected to rise. (EIR, p. 4.3-5.) Findings. The mitigation measures outlined at pages 4.3-5 and 4.3-6 of the EIR are incorporated into the project so as to mitigate or avoid possible impacts upon water quality. All grading will be conducted pursuant to the provisions of the Orange County Grading Code and Grading Manual and an erosion control program indicating proper control of siltation, sedimen- tation and other pollutants will be submitted to the Manager, EMA Development Services, prior to issuance of any grading permit. JWA grading done between October 15 and April 15 will be pro- tected by an erosion control system and by construction methods 24 a f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ci; 15 �o 16 o7: 0 17 18 19 20 21 22 23 24 25 O 26 � N ' N 27 t 28 designed to minimize soil loss. (EIR, p. 4.3-5.) All future commercial washing operations at JWA will be required to dis- charge to the sanitary sewer system to eliminate the potential for waste flows to Newport Bay. (EIR, p. 4.3-6.) A detailed hydrologic analysis meeting the approval of the Manager, EMA/Development Services, will be conducted to determine the size, capacity, alignment and design needed in any flood control facility necessary to protect the site from design flood level. (EIR, p. 4. 3-6.) Where increased runoff could significantly impact downstream conditions currently experiencing flood problems, onsite measures shall ensure mitigation of offsite impacts. (EIR, p. 4.3-6.) With respect to future development projects in Santa Ana Heights, all excavation and grading shall be regulated by ordi- nances adapted from Chapter 70 of the Uniform Building Code; and all grading of land under County jurisdiction will be subject to the requirements of the Orange County Grading and Excavation Code. Moreover, drainage structure for any future development in Santa Ana Heights and within the County shall be designed and constructed in a manner meeting approval of the Manager, EMA Development Services. (EIR, p. 4.3-6.) Water quality impacts resulting from implementation of the LUCP will be further mitigated due to the Board's adoption of an alternative land -use scenario -- i.e., a land -use scenario other than Project Scenario 8 -- as a mitigation measure. Under the adopted alternative, the significant water -quality impacts resulting from the originally proposed project -- i.e., 25 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 '$1 28 Scenario 8 -- may be reduced, although, on balance, there will probably not be a significant difference. Because the adopted alternative would result in fewer commercial and more residential uses than the originally proposed project, both VMT and trip generation calculations would be reduced. (EIR, p. 6.8-23, 24.) This, in turn, would result in a decrease in oily contaminants associated with increased vehicular activity. (EIR, p. 4.3-5.) Wastewater generation would be virtually identical to the proposed project (EIR, p. 6.8-24). Land uses under the adopted alternative would, however, generate demand for approximately 30,000 gallons of water less per day than the project. In summary, we find that most significant effects are miti- gated to a level of insignificance; although there do remain certain unavoidable significant impacts upon short term erosion and sediment transport as outlined in Finding "D" below. 4. BIOLOGICAL RESOURCES AND WETLANDS. Significant Effect. Potential impacts of project imple- mentation upon biological resources relate to the following: (1) habitat alteration associated with airport construction and land use changes, (2) aircraft overflight disturbance of wildlife by noise, collision, and visual intrusion and (3) project -related water pollution. None of these areas is expected to be affected by the project. (EIR, p. 4.4-13.) With respect to habitat alteration, construction associated with the proposed airport development and Santa Ana Heights land use changes would occur in areas of relatively low habitat 26 • F0192-210 (5/771 1 2 3 4 a 6 8 9 10 11 12 13 14 15 18 19 20 21 22 23 24 25 26 27 28 value. (EIR, p. 4.4-8.) These areas are urban in nature and characterized by a high degree of human disturbance. No species of plant or animal occurring in these areas is considered rare, endangered or particularly unique to the region. With respect to overflight disturbance of wildlife by noise and visual intrusion, the conclusion reached by investigators is that sub -sonic flight noise has very little effect upon wildlife behavior or survival, and the behavioral effects manifested are almost always short term in nature, followed by rapid and com- plete recovery and resumption of normal behavior. (EIR, p. 4.4-11.) .This conclusion was verified by Environmental Impact Report 102, examining alternative futures for the Orange County Airport (Orange County, 1978). Given the long history of the airport, it is reasonable to conclude that area wildlife is by now well habituated to aircraft overflight, and that any unusu- ally sensitive species would have long since undergone population adjustments or extirpation. Impacts associated with noise or visual intrusion are thus deemed insignificant. Indeed, studies indicate that the rare or endangered birds in Upper Newport Bay would not experience significant impacts from project implementa- tion. (EIR, p. 4.4-11.) Although occasional bird strikes involving both private and commercial aircraft are reported at JWA, there is no evidence to indicate that these occurrences are of any signifcance to local bird populations or to migrating birds utilizing the Pacific Flyway. The potential for accumulation of certain pollutant emissions in project area soils, vegetation, surface wastes and eventually 27 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ry 26 P 27 4 28 wildlife, poses a theoretically significant adverse impact to biological resources. However, there presently exists no reported evidence of any such accumulation of airport -related pollutant impact upon area resources. Moreover, the amount of runoff from the airport entering Upper Newport Bay represents an insignificant contribution in comparison to the runoff derived from the remainder of the watershed. (EIR, p. 4.4-12.) With regard to implementation of the LUCP, there will be some impact of wildlife in the Upper Newport Bay Ecological Reserve due to light and glare from commercial uses, air emissions from automobile traffic, and temporary increases in sedimentation erosion, and'human presence. These impacts are not expected to be significant, however. (EIR, p.4.4-12.) Findings. As no significant impacts to biological resources are expected to result from project implementation, no mitigation measures beyond current airport operation practices are required. Air and noise impacts to biota are not expected to be significant. As to possible impacts from site runoff, mitiga- tion measures for increased runoff and sedimentation from devel- opment in Santa Ana Heights and from construction at JWA include development of an erosion control plan, provision of appropriate drainage control structures, and compliance with local ordinances. (See discussion of mitigation measures in Finding "A.3" above.) Moreover, adoption of the alternative land use scenario 3 described above will further mitigate potential impacts to wildlife and biology resulting from light and glare, air 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 J s ss :; 15 '=o O 18 19 20 21 22 23 24 ▪ 25 r. 26 e • 27 ® 28 emissions, and automobile traffic. By limiting the extent of conversion to commercial/business park use, the adopted alternative minimizes these impacts. (EIR, p. 4.4-12). These measures all serve to reduce any potentially significant impacts to a level of insignificance. 5. CULTURAL/SCIENTIFIC RESOURCES. Significant Effect. Orange County and/or the State of California have designated 18 historical landmarks within the general study area. None of these historical landmarks will be significantly impacted by the project, although increased project -generated traffic may impair visitation to the "Movieland of the Air" which is located at JWA. With respect to archeological resources, the area of airport property north of Bristol Street, including the existing runway and taxiways, bounded on the north by the San Diego Freeway has been extensively modified and badly disturbed with the construc- tion of the airport. Consequently, the existence of undiscovered archeological sites on the surface is highly unlikely. The area likewise holds little archeological potential for subsurface deposits. (EIR, p. 4.5-1 and 4.5-2.) By contrast, land in pri- vate ownership south of Bristol Street has moderate to high potential for archeological resources discovery. Implementation of the project could conceivably disrupt this archeological potential. Findings. Several mitigation measures will be incor- porated into the project so as to mitigate or avoid potential impacts upon cultural/scientific resources. In areas of Santa 29 Ana Heights where, unlike the airport, the surface has not 2 previously been highly disturbed, reconnaissance surveys shall be 3 conducted by a county -certified archeologist and paleontologist at the time a development p proposal is submitted. Any construc- 5 tion in this area would have to meet county archeological/ 6 paleontological historical P 9�ical policies requiring identification, evaluation and mitigation of cultural/scientific resources. A 6 project applicant shall provide written evidence to the Manager, 9 EMA/Environmental Analysis Division, that County -certified arche- ologists and paleontologists have been retained to observe grad- ing activities and to salvage, sample, identify and evaluate any 12i artifacts or fossils as necessary. Both the paleontologist and 13I archeologist shall be present at the pre -grading conference; 10 11 14 18 19 20 21 22 23 24 25 2 26 • N 27 t 28 shall establish procedures for archeological and paleontological resource surveillance; and shall establish, in cooperation with the project developer, procedures for temporarily halting or redirecting work to permit sampling, identification and evalua- tion of the fossils or artifacts. If significant fossils or artifacts are found, a follow-up report for approval by the Manager, EMA/Environmental Analysis Division, shall be filed. Accordingly, the Board finds that potential significant impacts have been mitigated to a level of insignificance. 6. NATURAL RESOURCES Significant Effect. No adverse impacts will occur. (EIR, p. 4.6-1.) Findings. No mitigation measures necessary. 30 1 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25 ry 26 N 'e 27 28 7. AESTHETICS. Significant Effect. The major project impact on the existing appearance of the airport will be the change in scale of the terminal. Rather than seeing a moderately sized building (relative to others in the vicinity) flanked by large parking lots, a viewer at the intersection of MacArthur Boulevard and Campus Drive would focus on a single structure covering more ground area than any building in the vicinity. Although it would be taller than the previous terminal, the new structure would still be lower than many of the surrounding buildings. The new terminal would be a 5-story building with an integrated parking facility (where the existing terminal is a two-story building). The terminal would predominate views from the east side of the site where views of parked automobiles would be virtually eli- minated. Also visible from the east side of the site would be a 5,000 square foot structure located south of the new terminal in the area of the existing terminal which will house a transient general aviation terminal. Businesses now located at the site for the new terminal would be relocated to the west side of the airport. Only limited views of the new west side buildings would be available from streets on the west side of the site. These businesses would not generally be visible from MacArthur Boulevard, Campus Drive or Airport Way. The project would have no impact on existing views of the airport from Newport Beach residential areas; but implementation of the LUCP would convert views of low -density residential areas to views of office/ commercial uses. This will lessen the view of the horizon, (EIR, P.4.7-5.) 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ` N er 27 ® 28 With regard to implementation of the Santa Ana Heights LUCP, the visual character of the residential area southwest of the airport would be radically altered. Certain residential neighborhoods would be replaced by one and two-story commercial and business park developments. The Anniversary Lane residential tract would be replaced by open space areas. A combination of open space and business park development would replace estates along Mesa Drive; and the general rural and suburban character of various existing neighborhoods would be transformed into a low density urban office center. High density residential develop- ments would be introduced on both the east and west sides of the study area. Findings. Several measures designed to mitigate the project's impact upon aesthetics will be incorporated into the project. (EIR, p. 4.7-9.) The terminal area will be landscaped in accordance with the plans certified by a licensed landscape architect as taking into account the EMA Standard Plans for land- scaped areas, adopted palette guides, applicable scenic and spe- cific plan requirements, Grading Code erosion control require- ments and any appropriate conditions of approval. The landscape plan will incorporate substantial planting of low fuel native vegetation on the slopes, other drought tolerant species, water conservation irrigation techniques, and sculptured effects to produce undulation on significant slopes. The landscaping improvements must be installed and certified prior to the issu- ance of final certificates of use and occupancy. 32 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 I 17 18 19 20 21 22 23 24 25 N 26 N � N 0 27 ® 28 With regard to the Santa Ana Heights land use implementation plan, a design element will be included in the plan which shall include the following: (1) a proposed design theme for Santa Ana Heights Business Park which will include proposed building design concepts and materials to be used, use of non -reflective mate- rials, and proposed landscaping concept plans; and (2) site plan review of individual projects to ensure consistency with the design element. Residential neighborhoods outside the 65 dB CNEL would be buffered from non-residential uses by greenbelts. Moreover, impacts upon aesthetics resulting from implementa- tion of the LUCP will be further mitigated due to the Board's adoption of an alternative land -use scenario -- i.e., a land -use scenario other than Project Scenario 8 -- as a mitigation measure. Under the alternaive adopted, the significant impacts upon aesthetics resulting from the originally proposed project -- i.e., Scenario 8 -- will be significantly reduced. The high density business/commercial emphasis of the project as originally proposed (i.e. Scenario 8) gives way to a much less dense, residential focus under the adopted alternative. Thus, views of low density residential areas will not be replaced by views of higher density commercial developments to the same extent. Moreover, the potential negative aesthetic impacts occurring where employment uses abut residential uses will be further mitigated by direction included in the Board's resolution adopting the LUCP alternative that the specific/redevelopment plan require a landscape buffer in such circumstances. 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 • 25 g 26 N e • 27 LL ® 28 Nevertheless, while mitigation measures reduce some of the project's impacts upon aesthetics, existing residential neighbor- hoods that would remain as part of the LUCP would not be com- pletely screened from new commercial and high density residential development as this remains significant. In addition, the size and scope of the terminal structure is deemed to be a significant aesthetic impact. (See Finding "D" below.) 8. ENERGY. Significant Effect. During Phase I, the increase to 55 ADD will result in the existing passenger terminal serving approximately..one million more passengers than in 1983. This increase in passenger use will necessarily result in increase in energy consumption at the existing passenger terminal. In addi- tion, both automobile and aircraft fuel consumption will increase during Phase I over existing conditions. Annual aircraft fuel consumption will increase due primarily to the 14 additional air carrier departures per day. Total automobile fuel consumption during Phase I will increase by approximately 7,000 gallons per day over current levels. (See Tables 4.8-2 and 4.8-5.) Energy consumption levels for residential, commercial, and office build- ings in the LUCP area would remain essentially unchanged by the increase from 41 to 55 ADD. (EIR, p. 4.8-6.) Projected 1990 energy consumption at the passenger terminal is estimated at 105.3 billion Btu/year or approximately 4.7 times the energy consumption of the existing terminal. (EIR, p. 4.8-6.) Future estimates of automobile fuel consumption indi- cate that by 1990 fuel consumption for airport -related vehicular 34 1 1 2 3 4 5 6 7 8 9 10 11 12 13 18 19 20 21 22 23 24 25 26 � N O 27 a 28 traffic would be approximately 1.66 times the existing level and by 2005, consumption would be approximately 2.43 times the exist- ing level. (EIR, P. 4.8-6.) The majority of the increase is attributable to increased air carrier passenger volumes. These increases would, however, be partially offset by passengers using JWA rather than travelling greater distances to use other air- ports in the Los Angeles Basin. With regard to aircraft fuel consumption, analyses indicate that aircraft fuel consumption figures in 1990 are expected to be approximately 1.84 times the existing levels. By 2005, this factor is expected to have risen to 2.63. (EIR, p. 4.8-10.) The increase in aircraft fuel consumption is due primarily to an increase in jet fuel consumption triggered by more air carrier operations; but is also attributable to the projected increase in the use of general aviation business jets and turbo props, both of which use jet fuel. With respect to the project's impact upon energy use in resi- dential, commercial, and office buildings in the Santa Ana Heights area, the proposed project would result in a decrease in the number of single family residences in the Santa Ana Heights vicinity; a decrease by 1990, and then an ultimate increase in the number of multi -family dwelling units; and an increase in both retail commercial and office space. Based on this scenario, energy consumption would be approximately 2.79 times present day levels by 1990 and 6.4 times existing levels by 2005. (EIR, p. 4.8-10.) 35 1 2 3 4 5 6 -7 8 9 10 11 12 13 14 n 15 0 16 'u 18 19 20 21 22 23 24 25 2 26 O 27 d 28 Findings. Several mitigation measures will be incor- porated into the project so as to mitigate or avoid the project's energy impacts. With respect to energy consumption at the pas- senger terminal, increased consumption of energy will be miti- gated by incorporating energy efficiency measures into the struc- ture of the terminal. Building design and construction features will contribute to energy conservation through insulation, reduced glass area, efficient heating and cooling systems, weather stripping, lighting, and non -mechanical ventilation. In addition, aggressive use of energy saving measures during the operational phase will minimize energy usage. With regard.to automobile fuel consumption, airport users will be aggressively encouraged to use the public transit sys- tem. In addition, adoption of the transportation/circulation mitigation measures and the air -quality mitigation measures discussed in these findings, will serve to mitigate energy impacts associated with automobile fuel consumption. With respect to aircraft fuel consumption, pilots already tend to operate aircraft as fuel -efficiently as possible so as to avoid high costs. Thus, normal fuel -conserving operations will be continued. In addition, the air -quality mitigation measures (such as the "tactics" under AQMP) discussed herein will con- tribute toward mitigation of these energy impacts. With regard to energy impacts associated with residential, commercial and office building uses, building design and con- struction features can contribute to energy -conservation through insulation, reduced glass area, efficient heating and cooling 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 e ▪ 27 28 systems, weatherstripping, lighting and nonmechanical ventila- tion. Applicants for projects proposed pursuant to the LUCP will be required to implement the features required by the State, as well as other measures which are not economically prohibitive. Energy impacts resulting from implementation of the LUCP will be further mitigated due to the Board's adoption of an alternative land -use scenario 3 -- i.e., a land -use scenario other than Project Scenario 8, -- as a mitigation measure. Under the alternative adopted, the significant energy impacts resulting from the originally proposed project -- i.e., Scenario 8 -- will be significantly reduced, as the adopted alternative would result in less commercial and more residential uses than the original project and, thus, VMT and trip -generation calculations would be reduced. (EIR, p. 6.8-23, 24). This, in turn, would result in a reduction in Santa Ana Heights generated consumption of automobile fuel. Projections of electricity and natural gas demand indicate that, due to the reduced level of commercial use in the area, energy demand would be approximately one-third less than the project as originally proposed. These measures will, for the most part, serve to mitigate any significant effects to a level of insignificance. There do remain, however, certain significant impacts that cannot be avoided. (See Finding "D" below.) 9. LAND USE. Significant Effect. During Phase I, no direct onsite land use impacts will be associated with the project since the change to 55 ADD involves no construction or change in the 37 J 1 2 3 4 5 8 9 12 13 14 18 19 20 21 22 23 24 r. 25 26 0 27 28 airport layout. (EIR, p. 4.9.-12.) The increases in ADD would, however, result in further overtaxing of existing facilities resulting in terminal area congestion, parking congestion, longer ticket lines and the concomitant impacts upon air quality, energy, traffic and noise. (EIR, p. 4.9.-12.) During the construction phase, the proposed airport improve- ments would cause temporary disruptions of existing general and commercial aviation operations and pedestrian and vehicular traffic patterns. (EIR, p. 4.9-12.) The primary long-term on -site land use impact would be the relocation of the existing general aviation facilities from the east side to the west side of the airport to allow for construction of the new terminal and parking structure. In addition, runway 1R/19L would be length- ened and existing taxiways would be modified to reflect the relo- cation of general aviation facilities to the west side of the airport. Minor improvements would be made to Paularino Avenue, Baker Street, and Airway Avenue in the City of Costa Mesa to facilitate access to the west side of the airport. (EIR, p. 4.9-12.) With regard to Phase I land -use impact in the areas surround- ing the airport, land uses would encounter air quality, traffic, noise and other impacts as identified in Findings "A.2", "A.10", and "A.15" and Sections 4.2, 4.10, and 4.15 of the EIR. During the construction phase of the project, similar short-term traffic, noise, and air quality impacts are expected, which will be annoying, but not significant. (EIR, p. 4.9-13.) 38 2 3 4 5 6 7 8 9 10 11 12 13 18 19 20 21 22 23 24 25 26 h 27 L 28 Long-term significant impacts on surrounding land uses would result from increased levels as identified in Findings "A of air pollution, traffic, and noise 2", "A.10", and "A.15". In addi- tion, adjacent land uses on the east and west sides of the air- port would be impacted by Finding "A.7" above. Pursuant to the LUCP, plans will be implemented: 1. Amendments to including amendments to the Element and amendments that view modifications, as identified in the following changes to local land use the County of Orange General Plan, Transportation Element and Land Use would change residential designations to employment and open space. 2. Amendments to the City of Newport Beach General Plan, including amendments to the Land Use and Circulation ele- ments that would change designations from residential to open space. 3. Amendment to the County of Orange Community Profile consistent with the amendments described above. 4. Zoning ordinance changes in the County of Orange and City of Newport Beach consistent with the respective amend- ments described above. (EIR, p. 4.9-14 and 4.9-15; LUCP, Section VI, Scenario 8.) In addition to general plan amendments and zoning changes required by the LUCP, certain implementation measures would be required to actually change the existing land uses. Details of the actual implementation package will not be prepared or adopted until after the LUCP is adopted by the Board of Supervisors. In 39 1 2 3 4 5 9 10 11 12 13 14 15 ' 16 1' 18 19 20 21 22 23 24 25 ° 26 27 LL 141 28 addition, separate adoption and implementation of the LUCP by the Newport Beach City Council would be required for the portion of the LUCP study area within the City of Newport Beach. The poten- tial impact of the LUCP on existing residential uses is described more particularly in the housing section of these findings Finding "A.12". In addition, other uses associated with residences on the Al -zoned lots in Santa Ana Heights would be eliminated, including all existing equestrian facilities. New land uses envisioned for the Santa Ana Heights area include business park/office uses to be located between Irvine and Santa Ana, Avenues and between Acacia and Cypress Streets; business park uses along Bristol Street; two clusters of high density residential developments south of Mesa Drive and North of the extension of University Drive; a second larger cluster of high density residential units east of Bay View Drive; planned street improvements including the extension of University Drive, a realignment of Mesa Drive, and development of access roads from Irvine Avenue and Santa Ana Avenue to serve the area between these two streets and the Santa Ana/Delhi Channel; and conversion of the residential areas in Newport Beach between the Santa Ana/ Delhi Channel, Irvine Avenue, and University Drive to recreation/ open space uses. (EIR, p. 4.9-17.) The direct land use impacts which would result from implemen- tation of the LUCP land use plan are geographically limited by the existing commercial uses and Bristol Street to the north; Jamboree Road to the east; and upper Newport Bay to the south. The surrounding residential areas west of Santa Ana Avenue and 40 • 2 3 4 5 6 8 9 10 11 12 13 14 16 19 20 21 22 23 24 • 25 O 26 0 2, 28 south of University Drive would be buffered from the new develop- ment by the remaining residential areas east of Santa Ana Avenue and north of University Drive. The extension of University Drive is consistent with the adopted County of Orange Master Plan of Arterial Highways which shows it as a primary arterial. The need for this facility has been established by previous transportation planning based on existing and proposed development in the area, not including the proposed project. (EIR, p. 4.9-18.) If the facility is not implemented, subregional traffic seeking east west routes will be forced to utilize Bristol Street and the extension of the Corona del Mar Freeway, thus overburdening these facilities. (EIR, p. 4.9-18; LUCP, Section IV.) The relocation of the existing general aviation facilities from the east to the west side of JWA would improve airport oper- ations and provide no land -use impact. Increased jet operations would widen and lengthen the 65 dB CNEL contour; thus affecting additional residences. This is addresed further in the findings regarding noise below. Findings. Several measures designed to mitigate or avoid the land use impacts associated with the project will be adopted and incorporated into the project. With respect to on - site land use impacts associated with the construction of new facilities and the relocation of existing facilities, the impacts may be minimized by following the guidelines for planning during construction as developed in the Airport Master Plan (CH2M Hill 1984). These guidelines include, but are not limited to, the 41 1 2 3 4 • 5 6 8 9 10 11 12 13 14 18 19 20 21 22 23 24 rt 25 O 26 O 27 4 28 following: (1) keeping the existing terminal fully operational during construction, (2) keeping the existing employee parking area open during construction, (3) keeping the access roadway open during construction, (4) implementing the north clear zone parking lot project to replace the overflow parking areas, (5) moving the Mission Beechcraft facility to the west side of the airport as quickly as possible, (6) developing new aircraft tie - down facilities on the west side of the airport as quickly as possible, (7) avoiding any change in the access intersections on MacArthur Boulevard or Campus Drive during construction, and (8) converting the North Clear Zone parking lot to a long-term park- ing lot upon completion of the terminal. With regard to impacts upon surrounding land uses due to implementation of the LUCP, several mitigation measures will be incorporated into the project. First, implementation of the LUCP is, in and of itself, a land use mitigation measure in that it will ultimately result in conversion of 32% (180 of 566) of the estimated existing and future residential units within the project contour 65 dB CNEL to compatible, non-residential uses. Moreover, it will ensure uses which are compatible with existing uses in, and the policies of, surrounding jurisdictions. Remaining residences within the 65 dB CNEL contour would undergo accoustical insulation through the LUCP implementation. The LUCP will result in land -use impacts of its own which will be mitigated by incorporation of the following measures: (1) Discussion of specific measures designed to miti- gate impacts of land use conversion on adjacent land uses may be 42 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 s o • 26 ° 27 LL 2B found in the geology, air quality, aesthetics, housing, public health and safety, noise, and light and glare findings -- "A.1", "A.2", "A.7", "A.12", "A.14", "A.15" and "A.16". (2) Special design requirements will be imposed upon business park development adjacent to existing residential areas requiring building setback, height limitations, and landscaping requirements so as to mitigate adverse impacts upon these sensi- tive edges. (EIR, p. 4.9-21.) (3) Site plan review will be required for all proposed multi -family and business park uses to ensure compatibility with adjacent single-family residence areas and to provide a vehicle for the implementation of proposed site specific mitigation measures. (EIR, p. 4.9-21.) (4) Early adoption of the implementation plan will be encouraged so as to minimize the impacts of conversion to sur- rounding areas. Land use impacts resulting from implementation of the LUCP will further be mitigated due to the Board's adoption of a mitigated alternative land -use scenario 3. While the project as originally proposed, Scenario 8, would necessitate displacement of over 1,000 dwelling units, the adopted alternative results in displacement of only around 189 units, a very significant difference. It is recognized that the adopted LUCP would result in a probable net reduction of 193 units within the area included in the Land Use Element amendment. 43 1 2 3 4 5 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 iz 25 2 26 LL 27 26 In addition, the adopted mitigated LUCP alternative 3 will permit several commercial equestrian facilities to remain as non- conforming uses. And, as a further mitigation for the loss of equestrian facilities, the adopting resolution directs staff in developing the specific/redevelopment plan to fully explore the acquisition of a property on Mesa Drive as a potential commercial stable site to offset the loss of such facilities elsewhere. While much of the project's land use impact is mitigated by the measures outlined above, significant impacts (e.g., loss of some equestrian facilities, loss of homes, etc.) do remain. (See Finding "D" below.) 10. TRANSPORTATION/CIRCULATION. Significant Effect. During Phase I of the project, an average peak month (August) day would see 13,028 passengers in the facility. (EIR, p. 4.10-23.) Traffic analyses indicate that this equates to 4,815 vehicles per day. (EIR, p. 4.10-23.) With the North Clear Zone parking facility included, the total avail- able parking supply will be 4,377 spaces. Thus, Phase I of the project will see a parking shortfall of approximatley 438 spaces. (EIR, p. 4.10-23.) Traffic analyses indicate that vehicle trip generation by JWA is expected to increase by approximately 124 percent (to 39,500) by 1990 and by approximately 236 percent (to 59,300) by the year 2005. (EIR, p. 4.10-29.) Projections of 1990 and 2005 vehicle trip generation within Santa Ana Heights indicate that vehicle trip generation will increase by approximately 33 percent by 1990 and approximately 141 percent by 2005. (EIR, Tables 4.10-3, 44 1 2 3 4 5 6 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 27 28 4.10-11, and 4.10-12.) This increased traffic generation will add to congestion levels at 17 key intersections analyzed by the EIR; although the traffic analyses further indicate that signifi- cant congestion will exist throughout the project area with or without the project. (EIR, p. 4.10-34.) In 1990, for example, several of the key intersections will be operating at level of service D, or worse, either with or without the project. By the year 2005, most peak hour levels of service will be at the "E" level or worse. (EIR, p. 4.10-34.) At some of these key inter- sections the project would contribute more than 1 percent of the total traffic. Implementation of the LUCP would significantly increase trip generation in Santa Ana Heights by 2005; with p.m. peak hour and daily trips being nearly double existing levels and a.m. peak hour trips being more than quadruple the estimated trips without the LUCP. The project's regional impacts upon traffic/circulation will actually be beneficial; since the total VMT by air travellers would be less with the project than with any alternatives. (EIR, p. 4.10-34.) This is because the other alternatives force air travellers (with origins or destinations in Orange County) to use more remote airports. Calculations were made to determine the project's impacts without the University Drive extension. While it was concluded that levels of service at several intersections would deteriorate, it was also noted that removal of the extension from the Master Plan of Arterial Highways would require full regional transporation analysis and environmental documentation. (EIR, p. 4.10-45.) 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25 26 27 D 28 Findings. Several mitigation measures discussed at pages 4.10-45 through 4.10-59 of the EIR will be incorporated into the project so as to mitigate or avoid potential adverse impacts upon traffic and circulation. For example, a peak hour limit of 12 scheduled departures per hour will be imposed. Free- way access ramps will be added based upon the John Wayne Airport Freeway Access Study prepared for the Orange County Environmental ,Management Agency by PRC Engineering in May, 1984. The PRC anal- ysis recommended five new access ramps to/from the airport site which are detailed at pages 4.10-47 and 4.10- 48 of the EIR. In addition, there are two options for providing direct air- port access from the Corona del Mar Freeway. (EIR, p. 4.10- 48.) The choice of options will be made at the next stage of airport site design. Other mitigation measures include improvement of study area surface streets, including the Main/MacArthur intersection; the MacArthur/I-405 NB intersection; the MacArthur/I405 SB intersec- tion; the MacArthur/Michelson intersection; the MacArthur/Campus intersection; the MacArthur/Birch intersection; the MacArthur/ Jamboree intersection; the Michelson/Jamboree intersection; the Campus/Jamboree intersection; and the Campus/Airport intersec- tion. The specific manner in which each of these intersections, and others, will be improved is detailed at pages 4.10-49 through 4.10-51 of the EIR. Since proposed freeway ramps E and F1, and Airport Way South, along with certain of the intersection improvements are proposed for implementation prior to or con- current with implementation of Phase II, the mitigation will 46 1 2 3 5 9 10 11 12 13 14 18 19 20 21 22 23 24 25 N 2 26 N O 27 � O 28 actually provide additional improvements to the level of service on area roa-ways during the interim period from 1984 to 1990. The remaining freeway ramps and intersection improvements will be implemented as traffic volumes warrant and subject to the findings of the annual traffic monitoring program described below. Further mitigation measures include upgrading Irvine Avenue from Bristol Street to Del Mar Avenue on the Master Plan of Arterial Highways primary from a primry to a major arterial high- way. While this mitigation measure will accommodate projected regional and area -generated traffic, it may have its own adverse effect on adjacent residential units, including increased noise levels (during construction and also from projected increased traffic), and locally increased levels of air pollution (during construction and from projected increased traffic). (EIR, p. 4.10-57 and 4.10-58.) Further mitigation of the project's impacts upon traffic/ circulation will be achieved by promoting improved public trans- portation services to JWA as an alternative to private vehicle access; by providing terminal area and frontage dedicated to buses, limousines and taxis as part of the project's airport layout plan; and by retaining the option of accommodating the Orange County Transportation Commission's proposed light rail spur to JWA. (EIR, Section 7.10 and 7.2.) The TSM, discussed above in relation to air quality impacts, will also mitigate traffic impacts. 47 2 3 4 5 6 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 E 25 2 26 27 4 28 Phased and coordinated implementation of the traffic mitiga- tion measures will be achieved via a monitoring program and interagency coordination as described at Page 4.10-57 of the EIR. Traffic impacts resulting from implementation of the LUCP will further be mitigated due to the Board's adoption of a mitigated alternative land -use scenario 3. Under the adopted alternative, the significant traffic impacts resulting from the originally proposed project -- Scenario 8 -- will be significantly reduced. Indeed, the adopted alternative would result in a reduction of 100 acres of employment uses as compared with the project scenario 8 and, therefore, a reduction in LUCP related trip- generation of approximately 42 percent. This, in turn, would reduce congestion to a level of insignificance if implemented with traffic measures for specific plans. In summary, traffic impacts will be substantially miti- gated. However, there do remain unavoidable significant traffic impacts during terminal construction. (See Finding "D" below.) 11. POPULATION. Significant Effect. The combined direct and indirect employment in the general study area resulting from the project during Phase I will create a population increase of about 9,910 people in 1984 (over 1983 levels) in Orange County. Phase I project -related population increases thus account for about 8% of county -wide growth during 1983-1985. (EIR, Table 4.11-2.) During the construction phase of the project there will be no significant direct or indirect population impacts. (EIR, p. 4.11-7.) 48 1 2 3 4 6 7 8 9 10 11 12 13 14 J. z 15 0 U W 16 > V -z • Et 17 18 19 20 21 22 23 24 25 26 N O 27 LL 28 During Phase II of the project (i.e., 1990) the combination of direct and indirect employment in the general study area results in an anticipated population increase of about 4,470 people in the five -city area. (EIR, p. 4.11-8; Table 4.11-4.) This represents about 3.4 percent of the total growth in the area from 1983 to 1990 and about 15 percent of total county growth over the same time period. It is believed that Costa Mesa and Santa Ana would be the most significantly impacted by these increases. (EIR, p. 4.11-8.) Implementation of the LUCP in the Santa Ana Heights area in 1990 would result in the removal of about 871 households within the 65-CNEL area and 144 households outside the 65-CNEL area -- a total population of about 2,335. Given the projected addition of about 200 dwelling units between 1984 and 1990, the net population impact in the Santa Ana Heights LUCP study area due to housing changes resulting from project implementation would be a population reduction of approximately 1,875. (EIR, p. 4.11-10.) With regard to employment -induced population impacts associ- ated with implementation of the LUCP, the population in the five - city area could increase by as much as 10,841 people by 1990 -- or 1.8% of the projected 1990 5-city area combined population. (EIR, p.4.11-10.) Findings. To the extent that there is any inconsistency between Orange County and SCAG growth projections resulting from project related development, these will be mitigated through future revisions in County population forecasts. Additional mitigation measures are discussed with regard to housing 49 0192-210 (5/17) 1 5 6 9 10 11 12 13 14 15 1611 17 18 19 20 21 22 23 24 25 26 27 28 impacts. The increase in population resulting from increased employment opportunities is found to be an unavoidable impact. Whether this impact is adverse or beneficial is a subjective matter of perspective. 12. HOUSING. Significant Effects. Approximately 3,768 additional dwelling units could be needed in the county as the result of Phase I implementation if anticipated employees, both direct and indirect, do not presently reside in the county. The project -related housing demand represents only about .5 percent of the projected 1983-1985 growth in housing units within the county as a whole (EIR, p. 4.12-7.) During the construction phase of the project, it is anticipated that there will be no need for additional housing as a result of the project. (EIR, p.4.12-8). During Phase II of the project, the combined direct and indi- rect employment impacts of the project could create a need for a total of 19,177 additional housing units in the county as a whole if employees are new to the county. (EIR, p. 4.12-9.) This represents only about 2 percent of the projected 1990 housing unit total for the county. (EIR, p. 4.12-9.) Implementation of the LUCP would result in additional demand for about 4,435 housing units in 1990 in the 5-city area if employees are new to the area. (EIR, p. 4.12-9.) This increase represents about 2% of the number of housing units projected for the 5-city area in 1990. 50 ( ) F0192-210 (5/7/) 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Implementation of the LUCP would result in displacement of about 1,015 housing units, most of them from within the 65 dB CNEL Contour, by 1990. (EIR, p. 4.12-12.) Since land -use com- patibility would be achieved by 1990, no additional removal of housing units as a result of the project would occur after that time. It is expected, however, that 449 additional housing units would be constructed in accordance with housing affordability standards between 1990 and 2005 outside the 65 dB CNEL. Thus, the net effect on the study area would be a loss of 366 housing units. (EIR, p. 4.12-12.) The effect of this dislocation upon residents would entail a wide range of social effects. Such effects could include stress; lessening of close social contacts; dislocation from friends, churches and other familiar facilities; and, depending upon the sites chosen for relocation, increases in distances travelled. Dislocation and associated social concerns are considered a sig- nificant impact. Findings. Several mitigation measures designed to miti- gate or avoid housing impacts will be incorporated into the proj- ect. Specifically, a LUCP Housing Plan will be developed which will provide assistance to displaced homeowners and tenants in their efforts to relocate. (EIR, p.4.12-16.) Private developers will be required to provide individual relocation assistance programs or participate in the LUCP Relocation Assistance Program. Details of this program are set forth at page 4.12-16 of the EIR. An Affordable Housing Program will also be imple- mented to preserve, replace, and construct affordable housing 51 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25 2 26 0 27 28 within the study area. Likewise, a program to encourage and expedite the development of multi -family and condominium units to partially offset the loss of other units due to conversion shall be developed. These measures reduce the demand for new housing to a level of insignificance. Any inconsistency between Orange County and SCAG growth projections will be mitigated through future revisions in county housing forecasts. Housing impacts resulting from implementation of the LUCP will be further mitigated due to the Board's adoption of a mitigated alternative land -use scenario 3. Under the adopted alternative, .the housing impacts resulting from the originally proposed project -- i.e., Scenario 8 -- will be significantly reduced as discussed above. Indeed, because the adopted alternative would result in fewer commercial and more residential uses than the original project, significantly fewer dwelling units will be displaced. Where project Scenario 8 contemplated displacement of over 1,000 dwelling units, the adopted alternative displaces approximately 200. It additionally increases localized housing opportunities through the inclusion of medium high density on Lange Drive and results in a net increase of housing. The loss of any housing units and the breakdown of existing neighborhoods remains a significant effect that cannot be miti- gated entirely. (See Finding "D" below.) 13. RECREATION. Significant Effect. No major impacts upon existing public park and recreation facilities in the study area are 52 J � 0 0 ;z 3o � 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 a 0 27 I 28 expected as a result of the project. (EIR, p. 4.13-6.) While implementation of the Santa Ana Heights LUCP would cause elimina- tion of commercial stables, riding clubs, and private stables, the planned increase of recreation/open space land in the LUCP would provide an opportunity for development of new equestrian facilities in the South Central area of Santa Ana Heights. (EIR, p. 4.13-8.) Indeed, the project results in a net gain of 36.5 acres of open space. (EIR, p. 4.13-8.) It is possible that some local residents would use outdoor facilities less in response to increased noise levels and, perhaps, reduced air quality caused by the project, although perceived loss of recreational experience quality is highly individualistic. The plan is, however, inconsistent with the City of Newport Beach General Plan. The project would preclude use of the Bay View Elementary School property and the Irvine Company -owned property to the south as a flora and fauna reserve and regional park as is indicated in the Recreation and Open Space Element of the Newport Beach General Plan. The LUCP does specify, however, that the portion of this site included in the coastal zone would be main- tained for conservation and recreation/ open space. All of the Upper Newport Bay Ecological Reserve, except for a small finger, is located outside the 65 dB CNEL. (EIR, p. 4.13-7.) Findings. The recreational impacts resulting from implementation of the LUCP will be largely mitigated due to the Board's adoption of a mitigated alternative land -use 53 1 2 3 4 5 6 7 8 9 10 1] 12 13 14 15 1611 17 18 19 20 21 22 23 24 25 O 26 O 27 A 28 scenario 3. Under this alternative, the significant impacts upon recreational facilities resulting from the originally proposed project -- i.e., Scenario 8 -- will be significantly reduced. Indeed, most of the properties on the north side of Mesa Drive and along Cypress Street will be retained in their present use designations. Accordingly, a core equestrian enclave will remain in East Santa Ana Heights compared to project scenario 8, which virtually eliminated equestrian uses, the impact upon equestrian facilities is significantly reduced. Moreover, the adopted alternative includes direction to explore the acquisition of a parcel along Mesa Drive to be developed as equestrian recrea- tional facilities. Nonetheless, loss of enjoyment could occur as a result of noise increases. This remains a significant effect. (See Finding "D" below.) 14. PUBLIC HEALTH AND SAFETY. Significant Effect. During the construction phase of the project, the potential exists, however minimally, for con- flicts between aircraft using the runway/taxiway system and con- struction equipment. Moreover, the risk of aircraft accidents would be expected to increase the project since more people aircraft accidents due, quite during the operational phases of would be exposed to the risk of simply, to the increase in numbers of flights. It should be noted, however, that even though the number of air carrier flights would increase, overall operational levels and load on the air traffic control system would not be significantly affected. Thus, accidents per 100,000 operations 54 1 2 3 4 5 6 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 N 0 2' U 28 would be expected to remain in the same range experienced in the past. (EIR, p. 4.14-4.) The project could potentially increase the number of auto- mobile accidents in the area since congestion and drive confusion could result in higher risk of vehicular accidents during the construction phase. During the operational phase of the project, additional air carrier passenger volumes would increase vehicular traffic on the surrounding roadway systems and, thus, increase the risk of vehicular accidents. (EIR, p. 4.14-6.) Given that the size of the fuel farm corner of the. airport would be increased and that underground fuel lines would be located at the southeast as part of the project constructed, there would be a slight increase in the risk of fire and explosion as a result of the project. (EIR, p. 4.14-6.) A small increased risk of fire or explosion would also occur during the construction phase since digging operations for new fuel storage tanks will occur near tanks already in place. (EIR, p. 4.14-7.) Findings. Measures will be incorporated into the proj- ect so as to mitigate or avoid public health and safety impacts. During the construction phase, standard airport con- struction practices would be adhered to in order to minimize conflicts between aircraft and construction equipment. Proper runway closure markings and/or temporary displaced threshold markings would be used as needed; radio communication construction personnel and the control tower would be instruction in airport operational procedures would b. between maintained; given to all construction personnel; construction equipment would be 55 1 2 3 4 5 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 • 25 o 26 0 27 28 properly removed; and proper use of Notices to Airmen to advise pilots of construction activities would be employed. (EIR, p. 4.14-7.) Through incorporation of the air quality and transportation mitigation measures outlined above, long term accident potential is mitigated. Construction phase accident potential will be mitigated through signage, signal person and other temporary measures which will eliminate confusion and conflict. Recognized industry fuel tank and pipeline design, construc- tion, and installation practices would be followed mitigating this impact. .Proper fire extinguishing agents would be provided at all hydrant refueling points. (EIR, p.4.14-7.) Because the mitigated alternative 3 allows existing residences to remain and nets more housing in the geographical area, the exposures of residents increases over the project LUCP. However, since businesses are reduced the number of persons is lower. Despite mitigation, however, the risk to the public asso- ciated with risk of accident from overflying aircraft is considered an unavoidable and significant impact. (See Finding "D" below.) 15. NOISE. Significant Effect. The improvements at JWA will involve extensive construction activities for the new terminal, parking garage, tie -down area, and taxiways as well as for demo- lition and removal of existing facilities. Construction noise of this nature and level is commonplace in a developing area like 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 • 26 N ri O ▪ • 27 LL 28 the Irvine Industrial Complex and, accordingly, such noise is exempt from the County's noise control ordinance as long as cer- tain conditions are met. (EIR, p. 4.15-69.) These conditions will be met. Moreover, terminal construction is planned for the northeast corner of the airport. There, the adjacent areas are in commercial and industrial use already. The construction areas are at the greatest distance from the residential communities to the south and southwest of the airport. This will tend to minimize the noise impact generated by the airport construction activities. (EIR, p. 4.15-69.) The project's primary noise impact is that associated with the substantial change in commercial airline operations asso- ciated with the new JWA Master Plan. In Phase I, the Draft Master Plan proposes an increase in Class A ADDs to 55. By 1990 and 2005, the Draft Master Plan proposes a Class A ADD increase from 55 to 73. These increases in the ADD numbers would normally tend to increase the CNEL values. However, the changes in mix of aircraft types operating out of JWA to higher bypass ratio models, which generate lower single event noise levels, will tend to offset the ADD increase and prevent CNEL increase. For example, by June 1, 1984, the older model.B737's and DC-9's were replaced by the MD-80 aircraft or B737-200 (MOD) with noise - reducing engine modifications. By 1990 (or significantly sooner), some of these aircraft, including the 737-200's (MOD), will likely be replaced by the Boeing 737-300 and/or BAe-146 aircraft which will be quieter than the current Class A aircraft using JWA. The B737-300 has a reduced runway length requirement 57 0 -o z= go 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 ^; 27 'I 28 and is capable of achieving higher altitudes over the Santa Ana Heights area. (EIR, p. 4.15-70; Figure 4.15-10.) The other airliner forecasted to be operating at JWA in 1990 is the Boeing 757-200 which will meet FAR 36 Stage 3 and County Class A noise requirements (EIR, p. 4.15-72, Figure 4.15-11.) By 2005, in order to accommodate an increase in passenger demand while the ADD's remain constant at 73, the aircraft mix is expected to shift to higher occupancy types. Boeing 757's and MD-80's will still be utilized, but smaller aircraft, such as the B737-300, would likely be phased out. In its place will be the Boeing 767-200 -- an aircraft with two engines which will meet FAR 36 Stage 3 requirements and the County's Class A noise requirements. (EIR, p. 4.15-72.) As indicated by Figure 4.15-13a, Boeing 737-300, the B757, the BAe 146, and the B767 offer substantial noise improvements over earlier "Class B" aircraft types. The Boeing 737-300 and BAe-146 may be even a substantial improvement over existing "Class A" aircraft at JWA. The introduction into service of each of these aircraft types is desirable and should be encouraged where feasible. The resulting impact of this projected fleet mix upon noise levels in the project area is delineated at pages 4.15-77 through 4.15-81 of the EIR. The CNEL contours for Phase I in 1984 are depicted in Figure 4.15-14. These contours are based on current fleet mix conditions and indicate that the result, in comparison to the 1983 contours, is beneficial. Indeed, there is a notice- able reduction in the departure sector of the contours (where 58 1 2 i 4 5 7 8 9 10 11 13 14 15 :o 16 19 20 21 22 23 24 25 26 27 LL 28 land use incompatibilities occur) and a slight elongation at the arrival end. Likewise, the projected CNEL contours for Phase II (beginning in 1990) are shown in Figure 4.15-15 of the EIR. Again, the projected introduction of new, quieter aircraft pro- duces a significant reduction in the 65dB CNEL contour on the departure end. This occurs despite the project increase to 73 Class A ADD. While the 65dB CNEL contour is further elongated on the arrival end, this does not create any new land use incompatibilities since the land uses in the extended area are already compatible. (EIR, p. 4.15-77.) With regard to single event noise, the higher -bypass -ratio engine aircraft will produce SEL, SENEL and dBA values substan- tially less at the departure end than earlier JWA aircraft. Notwithstanding the fact that individual departure events -;ay be quieter, however, the number of events will increase by 32, or 78 percent, over current levels. Based on the "cumulative -time - above" analysis summarized at page 4.15-91 of the EIR, the speech interference and annoyance effects of the project are deemed a significant adverse impact. With regard to the LUCP, the LUCP is intended as a mitigation measure for the impact of the project and aircraft noise but it may have some noise implications of its own. Since residential land uses generally have lower traffic generation rates per acre than business parks, the transition from existing residential uses to business parks and recreation/ open space would cause an increase in vehicle traffic volumes and a concomitant change in traffic noise levels. Analyses indicate that the general noise 59 • t 1 2 3 5 6 7 9 10 11 12 13 5' oD 17 18 19 20 21 22 23 24 rz 25 o 26 '0 27 LL 28 levels in the LUCP area would increase an average 2.0dB CNEL by 1990. By 2005 the traffic levels will imply a generalized increase in traffic noise levels of about 4.5 dB CNEL over the existing level. These increases may be considered significant, but the replacement land uses will also be less sensitive pal' se to traffic noise. Business park structures are better noise insulated and there is no problem with disruption of outdoor activities as there is with single-family residential uses. Findings. Several measures wil be incorporated into the project to mitigate or avoid noise impacts. With regard to con- struction site noise, loud operations will be scheduled at times when background levels are highest, the distance between noise sources and receivers will be maximized, enclosures and/or barriers will be utilized, quiet equipment will be utilized where reasonable, mufflers and other sound suppression equipment for construction vehicles will be utilize3, and, pursuant to the County's Noise Ordinance, construction activities will not take place between the hours of 8:00 p.m. and 7:00 a.m. on weekdays, including Saturday, or at any time on Sunday or a federal holiday. (EIR, p. 4.15-122.) Several measures to control aircraft noise at JWA are already employed by the County and will continue to be employed during the period of time in which the project is implemented. For example, the historically imposed ADD limitations have been adopted as Board policy by resolution and incorporated into the leases and operating agreements with the commercial airlines. The transition to an all Class A commercial fleet at JWA was 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 o 17 18 19 20 21 22 23 24 25 P. 26 O 27 28 completed by June 1, 1984, in accordance with the schedule origi- nally established by the May 17, 1982 Commercial Airline Access Plan. This significantly reduced noise levels around JWA. The County will also continue with its long-established curfew, both by regulation and by agreement with the air carriers through their operating agreements. As an additional mitigation measure, the Airport Manager and County Counsel shall be directed to work with air carriers to seek agreement on extending the curfew by one hour for arriving aircraft. These policies have dramatically reduced both single event (SENEL) and cumulative (CNEL) noise levels in the vicinity of JWA. Additional mitigation measures to be incorporated into the project are enumerated and referenced at pages 4.15-92 through 4.15-121 of the EIR. These mitigation measures include the following: 1. An ordinance (attached to the EIR as Appendix "L") for adoption by the Board of Supervisors which would have the princi- pal effect of restricting the types of general aviation aircraft which could use JWA is proposed. The noise limits of the pro- posed ordinance would correspond to the maximum noise limits presently used to define the limits of Class A commercial air- craft. This ordinance would make consistent regulation for noise purposes of both commercial and general aviation aircraft, and would result in significant mitigation of noise impacts. (Master Plan, Table II-7; EIR, p. 4.15-96.) 2. The FAA has encouraged the County to admit at least two additional carriers into service at JWA at the beginning of 61 2 3 4 5 6 7 8 9 10 11 12 13 14 _ o w 16 3a 17 18 19 20 21 22 23 24 25 2 26 a 27 ® 28 Phase I of the proposed project. Since FAA support for the County's Access Plan, with its accompanying mitigation of noise impacts, is important in implementation of the plan, the admission of new carriers in line with FAA requests is deemed a mitigation measure. Accordingly, the Board has incorporated into the project a proposal to admit three new carriers to be allo- cated 2 Class A ADDS each. As explained below, with regard to the Class AA Access Plan mitigation measure, the addition of these new carriers will neither increase the permitted ADDs over the levels proposed by the project, nor allow any aircraft types in service at.JWA not contemplated by the project. Any tendancy towards marginal increases in peak hour congestion in the passenger terminal and the circulation system which might result from admission of the new carriers would be mitigated by the peak hour and RON limit mitigation measures adopted below. 3. A peak hour limit of 12 scheduled departures per hour, and a maximum of 13 RON spaces, will be enforced during Phase I to ensure that further peak hour congestion will not occur as a result of the entry of three additional carriers, and will preclude excessive rescheduling of departures into peak hours by the existing airlines. (EIR, p. 4.15-98.) 4. The curfew -exempt and ADD regulation threshold criterion will be reduced from the present 89.5 dB SENEL, to 86.0 dB SENEL. This will ensure appropriate regulation of potential Class AA commercial aircraft, and is intended to preclude regularly scheduled commercial departures during the curfew hours. 62 1 2 3 4 5 6 7 8 9 10 11 12 13 18 29 20 21 22 23 24 25 o 26 O 27 28 5. A regulation fixing the maximum MAP capacity of the facilities at JWA at 10.24 MAP will be adopted to ensure that the facility is not used beyond its intended design capacity. At such time as the airport service level reaches 8.0 MAP, the Board of Supervisors will, within six (6) months, adopt a regulatory mechanism to enforce the 10.24 MAP ceiling. 6. The County will request the FAA to conduct a study to identify the optimum descent patterns on approach to JWA to ensure aircraft safety, while reducing residential noise impacts. 7. A Class AA Access Plan shall be implemented, designed to encourage airlines to introduce quieter Class AA aircraft while simultaneously regulating the total number of Class AA operations in order to maintain service opportunity levels and mitigate adverse noise, traffic and air -quality impacts associated with unregulated Class AA access. The use of the B737-300, and the BAe 146 will produce substantial noise benefits. This Access Plan, the term of which is to be April 1, 1985, through March 31, 1990, shall include: (a) admitting 3 new carriers, with each new entrant being allocated 2 Class A ADDs; (b) a trade -out procedure allowing 8 of the total allocated 47 Class A ADDs, to be eligible for a 2-to-1 trade - out for Class AA ADDs. During Phase I, this would result in 39 Class A ADDs and 16 Class AA ADDs, for a total of 55 ADDs, which then becomes the Phase I ADD cap; (c) The access plan shall provide that an initial tradeout procedure shall occur on or prior to April 1, 1985, 63 3 4 6 7 8 9 10 18 19 20 21 22 23 24 25 O 26 N N O • 27 ® 28 to be effective April 1, 1985 ("the Initial Trade -Out"). At the Initial Trade -Out, no air carrier will be permitted to trade -out more than three Class A ADD, and each air carrier with qualified Class AA equipment as of March 31, 1985, shall be permitted at least one Class A ADD trade -out opportunity. If applications for trade -out opportunities exceed the number of available trade -out opportunities, the trade -out opportunities shall be allocated in proportion to the percentage that each applying carrier's Class A ADDs bears to the total Class A ADDs allocated to all applying carriers (subject to the 1 ADD guarantee additional trade - out). If the full 8 Class A trade -out opportunities are not allocated at the Initial Trade -Out, then: (1) Until April 1, 1986, trade -out opportunities shall be allocated as requested on a first -come, first -served basis; and (2) on April 1, 1986, any carrier may apply for and receive any remaining unallocated trade -out opportunities regardless of the 3 Class A ADD limit on the Initial Trade -Out; and (3) any unallocated trade -out opportunities still remaining on April 2, 1986, shall be converted to Class A ADDs so that the total allocated ADDs do not exceed 55 ADD during Phase I. These reconverted Class A ADD shall be allocated equally to all requesting carriers then serving JWA. (d) The Board has directed preparation of the full text Access Plan which is to be adopted concurrently with these findings. The full text of the Access Plan, and all of its 64 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provisions, constitute an entire mitigation measure for the EIR, and the terms of the Access Plan are incorporated into these findings by this reference. 8. The Airport Commission will be directed to review all past airport site studies in Orange County to make recommenda- tions to the Board on possible additional sites which merit further study as an additional airport site to meet air-traffic demand above the 73 ADD and 10.24 MAP limits at JWA. 9. Mitigation of noise impacts upon existing land uses shall be obtained by adoption of the LUCP. This program, by proposing compatible land uses, insulation measures, and avigation easements as described in Finding A.9 above, will mitigate noise impacts. 10. Upon completion of construction of the Phase I terminal facilities and implementation of the Phase II flight increase of 18 ADDs, there shall not be more than a total of 55 Class A ADDs. Moreover, the noise impacts resulting from implementation of the LUCP will be further mitigated due to the Board's adoption of a mitigated alternative land -use scenario 3. Under this adopted alternative, the significant noise impacts resulting from the originally proposed project -- i.e., Scenario 8 -- will be sig- nificantly reduced. For example, because the adopted alternative would result in fewer commercial and more residential uses than the original project, both VMT and trip -generation calculations would be reduced. (EIR, p. 6.8-23, 24). This, in turn, would result in a significant reduction in traffic -related noise levels. 65 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 19 20 21 22 23 24 25 O 26 O • 27 LL 28 Conversely, it is recognized that the retention of residential uses in some areas within the 65 dB CNEL contour will expose these units to outdoor noise levels in excess of those normally considered compatible. This is an adverse environmental impact of the adopted land use alternative, which is otherwise deemed environmentally superior to Scenario 8. The adoption and implementation of these mitigation measures is consistent with the findings of the Board that the benefits of the project outweigh the unavoidable significant effects; and implementation of these mitigation measures is consistent with the basic objectives of the project. Despite all of these mitigation measures, however, a signifi- cant noise impact will nevertheless result from the project. (See Finding "D" below.) This significant noise effect, including exposure to noise resulting from more flights and the LUCP changes, is not mitigable. 16. LIGHT AND GLARE. Significant Effect. During the construction phase of the project, some glare from equipment and shiny construction materials will undoubtedly occur, but it is not expected to be either a nuisance or a hazard. (EIR, p. 4.16-1.) Indeed, imple- mentation of airport improvements would likely reduce the sources of light and glare within the airport complex. (EIR, p. 4.16- 1.) Most on -site parking would be located in a parking garage rather than exposed parking lots so that lighting would be less visible and more indirect than that of existing lighting. Glare 66 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ry 26 0 27 28 from car windows would be almost eliminated. Glare from the terminal building may result from lower stories. During implementation of the LUCP in Santa Ana Heights, it is possible that light yid glare produced by exterior lighting of the commercial/office developments could have adverse impacts on residents of adjacent homes. Once the redevelopment program is completed, however, this incompatibility would no longer exist. Findings. While the project's impacts resulting from light and glare are minimal, several mitigation measures are included at page 4.16-2 of the EIR. For example, landscaping at the airport site -would be designed to buffer low building elevations from reflective glare. The terminal building would be designed and constructed with materials to reduce glare. Mounting heights and reflector shapes of airport terminal and parking lot lighting fixtures would be selected to minimize glare and would be shielded from pilot view per FAA directive. With regard to the LUCP area, the design element includes a requirement that the buildings in the business park be designed with non -reflective materials. Light fixtures on private facilities and in public rights of way would direct light generally downward in order to avoid creating a possible hazard to air navigation. Moreover, light and glare impacts resulting from implementa- tion of the LUCP will be further mitigated due to the Board's adoption of a mitigated land -use scenario 3. Under the adopted alternative, the significant light and glare impacts resulting from the originally proposed project -- i.e., Scenario 8 -- will 67 z 0 0 u •CE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 N T O 27 28 be significantly reduced due to the alternative's significant reduction in the amount of commercial/office use. Where Project Scenario 8 proposed close to 200 acres of business park, the adopted alternative calls for approximately 50 acres. These mitigation measures will reduce light and glare impacts to a level of insignificance. 17. PUBLIC SERVICES AND FACILITIES. (a) Fire Protection Significant Effect. Once the larger aircraft become operational, additional fire protection equipment will be required at JWA. In general, however, existing personnel and equipment are expected to be sufficient to provide adequate fire protection services for the expanded airport facilities with the present aircraft mix. (EIR, p. 4.17-3.) It is likely that an increase in both equipment and personnel would be necessary to adequately serve the commercial and busi- ness park complexes envisioned in the LUCP for the Santa Ana Height area by the year 2005. This would probably be accomp- lished though expansion of an existing station in the area rather than construction of a new facility. In general, however, increases in population within the general study area caused by projection implementation are expected to be well within overall growth projections for the area. (See Finding "A.11" above.) Fire protection for these future residents would thus be handled as a part of the normal provision of city and county services. Since much of the existing residential land use in the LUCP area would be replaced by commercial development, the required water 68 • Jo 2 210 (5/77) 1 2 3 4 5 6 7 9 10 11 12 13 14 16 18 19 20 21 22 23 24 25 26 27 28 flow for fire protection would be greatly increased. This can be remedied through normal upgrading of the System. Findings. The projects possibile significant effects upon fire protection will be mitigated or avoided by the installation of automatic fire sprinkler systems in the new terminal and in new structures in the LUCP area to reduce the demand on fire protection services and also reduce fire flow requirements. (b) Police Protection. Significant Effect. The Orange County Sheriff Department estimates that at the 55 ADD level of operation, two additional officers would be required at JWA for increases in response and traffic control duties. At 73 ADD, 7 officers above current levels would be required to meet increased demands for service. In the Santa Ana Heights portion of the general study area, no significant effects should occur since new commercial and business park complexes would be expected to provide security guards as a service to tenants. An additional patrol unit may have to be deployed to the LUCP area after land use conversion, however. (EIR, p. 4.17-6.) Since population increases in the general study area should be well within overall growth projections, police protection for these future residents would be provided as a part of the expected increase in services required to meet requirements of planned community growth. Findings. While the project's impacts upon police protection services are insignificant, design of the terminal facility is nevertheless aimed at minimizing the need for 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 iz 00 17 18 19 20 21 22 23 24 25 2 26 P 27 28 security personnel. Moreover, requirements for provision of private security services in new commercial and business park complexes should eliminate the need for increases in Sheriff Department personnel in the LUCP area. Accordingly, any potential significant effects are deemed to be mitigated to a level of insignificnce. (c) Public Schools. Significant Effect. Since population increases anticipated as a result of the project are expected to be well within overall growth projections for the general study area, no significant impact on public school systems is anticipated. Findings. No mitigation measures are necessary. (d) Maintenance of Public Facilities Significant Effect. Cost of janitorial services at the JWA complex would increase from $97,000 in 1983-84 to $1,170,000 in 1989. Maintenance of the physical plant and landscaping would increase from $664,000 to $1,768,730. (EIR, p.4.17-8.) Increases in airport revenues would cover these increased costs. Existing and new roads would be maintained by the county. (EIR, p. 4.17-8.) Findings. The costs will more than be offset by increased revenues. Accordingly, there will be no significant effects or mitigation measures necessary. (e) Utilities. Significant Effect. With regard to eletricity, gas, and telephone services to the project, companies providing these utilities have indicated a general ability to accommodate 70 2 3 4 6 7 8 9 10 11 12 13 14 15 16 19 20 21 22 23 24 25 26 27 28 the levels and types of development projected. Impacts beyond normal system growth are not anticipated. (EIR, p. 4.17-11.) Sewer service expansion project sewage collection requirements for implementation of the airport cannot be accommodated by the existing local systems operated by the Orange County Sanitation District. However, the new interceptor planned by the districts to relieve the Airport Trunk Sewer is expected to create adequate excess capacity to serve the airport expansion project. Thus, no impact on sewage treatment facilities is expected. (EIR, p. 4.17-13.) The land use changes proposed in the Santa Ana Heights LUCP study area may pose serious capacity problems for both County Sanitation District No. 6 and County Sanitation District No. 7. County Sanitation District No 7 does not have facilities to transport flow northerly Funding sources have not across the proposed been identified for MacArthur Freeway. the necessary sewer construction, nor are there plans to construct the necessary facilities. (EIR, p. 4.17-13.) Implementation of the LUCP also have impacts on the Costa Mesa Sanitary District. The District estimates that design and construction of required would proj- ect related improvements would cost about $3 million. Short term disruption of traffic, and increased noise and dust during the construction of utility service and sanitary system expansion projects can be expected. (EIR, p. 4.17-13.) Findings. Several mitigation measures will be incorporated into the project so as to avoid or reduce impacts to a level of insignificance. For example, the project proponent 71 'w) F0192-210 (5/77) 2 3 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 will contribute the funds necessary for public -serving water facilities, and will continue to support cost effective efforts to assure the adequacy of Southern California's water supply including conservation and reclamation. (EIR, p. 4.17-14.) Private project developers' compliance with the requirements and fee schedules of the appropriate agencies will help offset the cost of needed facilities. The collection system operated by the Costa Mesa Sanitary District shall be expanded to serve the proposed land use changes expected to occur through the year 2000. The cost of this facil- ity-expansionwill be borne by private developers in the LUCP area. (EIR,`p. 4.17-14.) Moreover, potential sewer service system impacts resulting from implementation of the LUCP will be further mitigated due to the Board's adoption of an alternative land use scenario. Under this alternative, the sewer system requirements resulting from 200 acres of business park uses under Scenario 8 would be reduced by approximately 18% (EIR pp 6.8-10). Costa Mesa Sanitation District planned improvements would be adequate to serve the alternatives. The capacity of the sewer system serving the airport will be increased by the Orange County Sanitation District. The project proponent would contribute to the necessary waste water facility expansion in proportion to the capacity needed to serve public elements of the project. Private project developers shall comply with the requirements and fee schedules of the appropriate sewer- ing agency to help offset the cost of needed facilities. 72 1 6 7 8 9 10 11 12 13 14 J> :=J 15 J ou W 16 : u 17 18 19 20 21 22 23 24 25 • 26 O • 27 28 In order to reduce water consumption required by airport expansion several mitigation measures outlined at pages 4.17-14 and 4.17-15 of the EIR will be adopted. These include, but are not limited to, use of low water demand landscaping and use of water pressure regulators. The mitigation measures outlined above will reduce any impacts to a level 18. Cumulative Impacts. Significant Effect. Title of insignificance. 14 California Administrative Code 5 15130 states that cumulative impacts of a project shall be discussed where they are significant. In analyzing the. cumulative impacts of the Master Plan and LUCP, a • list of projects was developed to provide a statistical breakdown of committed/under construction projects and proposed/approved projects as of October, 1984. These projects are identified in Table 4.18-2, Table 4.18-3, Table 4.18-4 and Table 4.18-5. while the majority of this project's cumulative impacts are deemed insignificant (see discussion of topography, geology, soils and seismicity; biological resources; cultural/scientific resources; natural resources; aesthetics; population; housing; recreational facilities; light and glare; and public services and utilities at EIR pp. 4.18-26 through 4.18-28), the project's incremental effects -- when combined with the impacts of other projects in the area -- could be cumulatively significant in a number of impact categories, including: (a) Air quality. The proposed project will add to the cumu- lative basin -wide air quality impacts associated with existing and anticipated development in the study area. While the initial 73 1 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 • 19 20 21 22 23 24 C 25 2 26 • N 0. O 27 28 increase in flights to 55 ADD would not significantly increase air quality emissions in comparison to the regional total, mobile source emissions in the year 2000 vary from approximately 10 percent of cumulative totals to approximately 20 percent. (EIR, p. 4.18-28, 4.18-29, and Table 4.18-7.) If transportation improvements do not keep pace with cumulative study area growth, significant adverse regional air quality impacts could occur. (EIR, p. 4.18-29.) In addition, the proposed project would add cumulatively to local air quality impacts associated with anticipated development in the area along the major roads in the area. Additional traf- fic and congestion will negate automotive emissions improve- ments. Pollution "hot spots" will be confined to narrow corridors along major arterials and freeways, but the effect of cumulative growth may be to inhibit ultimate attainment of all clean air standards. (EIR, p. 4.18-30.) (b) Water quality. The project may result in short-term increases in erosion and sedimentation transport during construction of the airport improvements and redevelopment of Santa Ana Heights. (EIR, p.4.18-30.) Increases to 55 ADD would not result in significant short-term erosion impacts, but, ulti- mately, the project implementation will incrementally add to the peak cumulative runoff rate and total amount of runoff in the water shed and the introduction of urban pollutants into the drainage system. (EIR, p. 4.18-30.) Development of the listed cumulative impact projects would result in similar impacts. Thus, the additional urban pollutants added to the Upper Newport 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r 1 • 26 f• 27 LL 28 Bay Water Shed and Upper Newport Bay may be significant; but mitigable through implementation of appropriate technologies by the affected jurisdictions. (EIR, p. 4.18-30.) (c) Energy. Table 4.18-8 of the EIR indicates that this project will account for approximately 9.9 percent of the cumula- tive demand for energy created by the projects in the vicinity of JWA. This effect is partially offset by the actual reduction of trip length associated with the airport project in comparison with trip lengths necessitated by use of other airports. Because all of the projects combined result in greater energy usage, how- ever, a cumulative effect is identified. (d) Land Use. The airport project, when combined with the other projects listed in the EIR, will result in a significant cumulative impact upon land use as vacant land is developed and previously developed sites are redeveloped. The large geographic area over which these projects are distributed and the mixture of the proposed land uses (residential, office, commercial, indust- rial, and regional transportation facilities) indicate that this cumulative impact is part of an overall urbanization trend in Orange County. The long-term land use impact will include signi- ficant cumulative demand for office and commercial uses which are likely to impact all of the area, including established residen- tial areas, surrounding Santa Ana Heights. (e) Transportation/Circulation. As discussed in Section 4.10 of the EIR and in Finding A.10, by 1990 and 2005 traffic volumes in the airport vicinity will increase to a level that will result in significant traffic congestion even without the 75 1 2 3 6 7 8 9 10 11 12 13 14 15 ' 16 18 19 20 21 22 23 24 25 2 26 27 g 28 proposed project. While mitigation measures adopted for the project reduce this project's impacts to a level of insignifi- cance, the cumulative traffic impact is nonetheless identified as significant. (f) Noise. Cumulative traffic -related noise impacts are not anticipated to be significant. (EIR, p. 4.18-33.) In community noise assessment using CNEL methodology, changes in noise levels greater than 3 dB CNEL are identified as significant, while changes less than 1 dB CNEL will not normally be discernable to local receptors. The overall increase in local traffic noise was calculated for the roadways with the greatest projected future increase in traffic volume. Given the nature of the land uses in the airport area and the anticipated local increases in traffic noise, these calculations indicate an insignificant cumulative impact at 55 or 73 ADD flight levels. (EIR, p. 4.18-33.) The proposed project will, however, result in increased noise experiences associated with single event exposure. While the other projects do not cause single events to increase, they, in combination with the proposed airport project, increase the num- bers of people who will experience single event exposure. This is deemed a significant cumulative effect. (EIR, p. 4.18-33.) (g) Public Health and Safety. As discussed in Finding "A.13" above, implementation of the proposed project increases the potential for hazards to public health and safety. The dis- persed location and the nature of development (i.e., residential, commercial, and light industrial) associated with other projects in the vicinity of this project represents continued urban growth 76 2 3 4 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 N 27 28 in the vicinity of the airport and accordingly an increased potential for hazards relating to public health and safety. (h) Growth Inducing Impacts. Implementation of the project, combined with the other enumerated projects, will reinforce the trend to increased urbanization in the County. (EIR, p. 4.18- 34.) Findings. As recited in these findings, certain miti- gation measures have been incorporated into the project which mitigate the project's impact on air quality, water quality, energy, land use, transportation/ circulation, noise, and public health and safety. These measures are identified and discussed in Findings "A.2", "A.3", "A.7", "A.8", "A.9", "A.14", and "A.15", above. Thus, while certain of the other projects identified in the EIR may have significant impact on the environment, the fact that mitigation measures have been incor- porated into this project so as to reduce this project's impacts will serve to also mitigate the cumulative impacts identified in the EIR. In addition, several other measures designed to mitigate the cumulative impacts associated with the airport project and the other projects in the vicinity are enumerated at pages 4.18-34 through 4.18-37 and Section 7.18 of the EIR. These include mea- sures reducing the effects upon air quality, water quality, noise, traffic a-:d energy. Despite the adoption of mitigation measures, impacts upon air quality, continued urbanization, congestion of roadways, and the exposure of people to noise and accidents remain significant cumulative effects. (See Finding "D" below.) 77 1 2 3 4 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 N 27 28 19. Hazardous Waste Significant Effect. While the project will not routinely generate hazardous wastes, fuel spills may occur. Fuel -contaminated absorbent material is classified as a hazardous (ignitable) waste and thus presents a potentially significant effect. Findings. The significant effect will be mitigated to a level of insignificance as notice shall be given immediately to the National Response Center and the State of California Regional Quality Control Board, Santa Ana Region, in the event of a release of .a hazardous material into the environment or of an oil spill into the waters of the U.S. or tributaries. Immediate and appropriate actions would then be undertaken to eliminate any significant effect. B. Mitigations Within the Responsibility of Another Jurisdiction. The Board of Supervisors having reviewed and considered the information contained in the EIR and the record, finds that the following changes or alterations which mitigate or avoid the significant environmental effects of the project are within the responsibility and jurisdiction of another public agency. Specifically: 1. AIR QUALITY. Significant Effect. The project's significant effects upon air quality are discussed in detail in Finding "A.2" above, which discussion is incorporated herein by reference. 78 F 2 3 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LL 28 Findings. Potential for mitigation of the project's air quality impacts lies principally within the jurisdiction of other public agencies, including Federal, State and Regional agencies. At the Federal level, authority for the control of air pollution rests within the jurisdiction of the Environmental Protection Agency (EPA). Mitigation of air quality impacts within the South Coast Air Basin -- in which JWA is located -- is addressed at the state and regional levels by the Southern California Association of Governments (SCAG) and the South Coast Air Quality Management District (SCAQMD). The latter two organi- zations have jointly prepared a detailed plan -- the Air Quality Management Plan.(AQMP) -- designed to meet Federal air quality standards. The AQMP contains a number of pollution control measures, or "tactics," applicable to JWA activities, implementation of which falls within the jurisdiction of the FAA. These mitigation measures include towing aircraft to and from runways, improving taxiways to decrease queing at runways, and idling and taxiing on one engine. In addition, implementation of certain traffic mitigation measures designed to reduce congestion and, thus, air quality impacts (such as construction of freeway access ramps, addition of through and turn lanes to reduce V/C ratios, and completion of the Corona Del Mar freeway) ultimately fall within the purview of local jurisdictions and/or Cal Trans. Finally, the TSM program to be developed in conjunction with the LUCP area will require planning assistance and implementation by all local jurisdictions affected by the program. 79 F 1 2 3 4 5 6 9 12 13 P4 °- oo o u iz 15 LL�W 16 r 18 19 20 21 22 23 24 25 Ome y 26 ti 0 27 228 Implementation of this TSM program will be coordinated through ICLC as referenced in Finding A.10. The Board finds that identified agencies can and shold adopt these measures. The County will assist in any manner. 2. WATER Significant Effects. The project's significant effects upon water quality are discussed in detail in Finding "A.3" above, which discussion is incorporated herein by reference. Findings. Responsibility for certain measures designed to mitigate the project's impacts upon water quality lies princi- pally withinthejurisdiction of other public agencies. For example, any grading of development projects within the LUCP area will be regulated by the grading and excavation ordinances of the particular local jurisdiction in which the development is located. Likewise, plans for drainage structures and accomoda- tion of storm water quantities will be designed and approved in accordance with the requirements of each local jurisdiction. These measures can and should be adopted by other local jurisdictions. 3. ENERGY Significant Effects. The significant effects are iden- tified in Finding A.8 above. Findings. Implementation of mitigation measures designed to relieve traffic congestion and thus decrease energy consumption (e.g., freeway ramps, turn and through lanes, etc.,) will lie within the jurisdiction of Cal Trans, local jurisdic- tions within the LUCP area where the traffic management measure is located, or both. Such measures can and should be adopted. 80 • • Do 1 2 3 4 5 6 9 10 11 12 13 18 19 20 21 22 23 24 - 25 • 26 N eet O 27 C 28 In addition, building design and construction features aimed at conserving energy should be required by local jurisdictions within the LUCP area. State building requirements will further mitigate energy impacts. 4. TRANSPORTATION/CIRCULATION Significant Effects. The project's significant effects on transportation/circulation are discussed in detail in Finding "A.10" above, which discussion is incorporated herein by reference. Findings. Implementation of mitigation measures such as construction •of freeway access ramps, addition of through and turn lanes to reduce the V/C ratios, and completion of the Corona Del Mar freeway ultimately falls within the jurisdiction of Cal Trans and other local jurisdictions. These measures can and should be adopted. Implementation of these measures will be coordinated with ICLC as referenced in Finding A.10. 5. NOISE Significant Effects. The project's significant noise impacts are discussed in detail in Finding "A.15" above, which discussion is incorporated herein by reference. Findings. A study should be conducted to identify the optimum descent pattern on approach to JWA that would insure aircraft safety while reducing residential noise impacts. This study must be performed by the FAA, the agency responsible for regulating aircraft approach procedures. This measure can and should be adopted. 81 1 2 3 4 5 6 9 10 11 12 • 13 14 18 19 20 21 22 23 24 25 26 O 2' LL 28 6. CUMULATIVE IMPACTS. Significant Effect. While the majority of the project's cumulative impacts are deemed insignificant (EIR, p. 4.18-26 through 4.18-28), the project's incremental effects -- when com- bined with the impacts of other projects in the area -- could be cumulatively significant in the following impact categories dis- cussed in more detail in Finding "A.18" above: air quality, water quality, energy, land use, transportation/circulation, noise, public health and safety, and induced growth. Finding. Cumulative impacts can be mitigated by other jurisdictions. by requiring mitigation measures similar to those incorporated into this project which will reduce the impacts of each project to a level of insignificance. Accordingly, the Board of Supervisors finds that as to those impacts which are mitigable, the jurisdictions considering implementation of the projects identified in Tables 4.18-2, 4.18-3, 4.18-4, and 4.18-5 of the EIR (e.g., Santa Ana, Newport Beach, Tustin, Irvine, and Costa Mesa) should adopt mitigation measures comparable to those incorporated into this project. The adoption of such mitigation measures will significantly reduce or avoid the cumulative envi- ronmental effects of the airport project. For example, cumulative impacts upon air quality may be miti- gated by adopting measures such as those enumerated and refer- enced in Finding "A.2" above. Cumulative impacts upon water quality may be mitigated by adopting measures such as those enum- erated and referenced in Finding "A.3" above. Cumulative impacts upon energy may be mitigated by adopting measures such as those 82 1 2 3 4 5 6 7 8 9 10 11 12 131 14 15 16 ' 17 18 I 19 20 21 22 23 24 • 25 • 26 28 enumerated and referenced in Finding "A.8" above. Cumulative impacts upon land use may be mitigated by adopting measures such as those enumerated and referenced in Finding "A.9" above. Cumu- lative impacts upon transportation/circulation may be mitigated by adopting measures such as those enumerated and referenced in Finding "A.10" above. Cumulative impacts upon noise may be miti- gated by adopting measures such as those enumerated and referenced in Finding "A.15" above. And cumulative impacts upon public health and safety may be mitigated by adopting measures such as those enumerated and referenced in Finding "A.14" above. . Further, with regard to the project's cumulative impacts upon air quality, responsibility for mitigation of cumulative regional air quality impacts rests within the jurisdiction of other public agencies -- the CARE, SCAG, and the SCAQMD. To the degree that regional growth is consistent with the AQMP, the measures for controlling stationary and mobile source emissions identified within the AQMP should achieve the desired air quality improve- ment. Further mitigation measures would be primarily within the responsibility of these other public agencies. With regard to the project's cumulative impact upon energy, mitigation is addressed by the State of California and both affected utilities, Southern California Edison and Southern California Gas. Energy conservation in new structures is encour- aged by ongoing programs which both utilities conduct. Mitigation of regional cumulative transportation impacts is addressed by the Orange County Transportation Commission 83 t _z W 0 1 2 3 4 6 7 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 rz 25 • 26 O 27 u. 28 (OCTC). The OCTC has identified a series of transportation sys- tem improvements to relieve traffic congestion which should be adopted. (EIR, p. 4.18-36.) C. Rejection of Alternatives and Mitigation Measures. The Board of Supervisors, having reviewed and considered the information contained in the final, revised EIR and the record, finds that the EIR has described all reasonable alternatives to the project that could feasibly obtain the basic objectives of the project, even when these alternatives might impede the attainment of project objectives and might be more costly. Further, the Board finds that a good faith effort was made to incorporate alternatives in the preparation of the EIR and all reasonable alternatives were considered in the review process of the EIR and ultimate decisions on the project. The Board further finds that specific economic, social, or other considerations make unreasonable and/or infeasible the project alternatives or certain mitigation measures identified in the EIR and the record. Specifically: (a) No -Project Alternative. Under the No -project alternative, no physical changes would be made at the airport and ADDs would remain at 41. The aircraft fleet mix, however, is expected to change as airlines attempt to meet increasing air travel demand by using larger aircraft. Carriers would use 150-seat aircraft (such as the MD-80) with annually increasing passenger load factors. 84 .r 1 2 5 6 9 10 11 12 13 1; -= 15 0 17 18 19 20 21 22 23 24 25 26 l 0 27 Y i€ 28 A no -project LUCP alternative would be implemented with Title 21 compliance being achieved without significant land use changes. (LUCP, Scenario 1.) The extensive "General Agricultural" zoning in Santa Ana Heights would be retained as a distinguishing feature of this scenario. Existing zoning, with potential for future development of 127 new dwelling units would remain, except where changes are needed in the unincorporated area to make current zoning districts consistent with Land Use Element designations. With regard to this alternative's impact upon air quality, emission inventories were calculated for both JWA and the LUCP study area in 1990. The results indicate that the No -Project alternative would reduce JWA emissions of all five pollutants when compared with the proposed project. (EIR, p. 6.2-4.) On the other hand, it is projected that the No -Project alternative would result in about 2.79 million annual passengers unaccom- modated at JWA in 1990. (EIR, p. 6.2-4.) As a result, these passengers would add to the basin 420,100 VMT as they are forced to travel to LAX, Ontario Airport, or Long Beach Airport. (EIR, p. 6.2-4.) By 2005, the growing unmet passenger demand would produce an estimated 645,800 excess VMT to other airports. (EIR, p. 6.2-4.) In short, the no -project alternative would actually result in more total regional emissions than the proposed proj- ect, while accommodating less LUCP area growth. (EIR, p. 6.2-4.) With regard to energy impacts, consumption of energy would increase under the alternative from present levels, although not to the extent anticipated under the proposed project. Energy use 85 t 2 3 4 5 6 9 10 11 12 13 at the terminal would be similar to today's levels although some increase in energy consumption would result from increased pas- senger use necessitating increase in use of equipment such as automatic door openers, baggage conveyer belts, etc. Automobile fuel consumption would increase slightly because of the increased number of air carrier passengers attributable to growth in demand. In addition, passengers whose demand could not be met at JWA would be forced to drive greater distances to fly out of Los Angeles, Long Beach, or Ontario. The total annual fuel consumption for air carrier and commuter flights at JWA under the No -Project alternative is projected to be about half the projected consumption under the proposed project. Energy consumption related to residential, commercial, and office use in 1i. the Santa Ana Heights area would be less than what would occur 18 19 20 21 22 23 24 25 26 N P 27 LL 28 under the proposed project since the alternative includes no land use changes in the Santa Ana Heights area. By avoiding the con- version to commercial/office uses, this alternative would avoid the increase in energy consumption associated with commercial uses. With regard to land use impacts, the alternative would not involve any changes in the existing land use designations to achieve Title 21 compatibility. Rather, compatibility would be achieved through other voluntary or involuntary compatibility mechanisms. This means, however, that more persons will be exposed to exterior noise levels exceeding state standards. Under this alternative, fewer homes would be adversely affected by land use changes. (EIR, p. 6.2-10). 86 1 5 6 8 9 10 11 19 20 21 22 23 24 25 2 26 I 27 28 With regard to transportation/circulation, the No -Project Alternative would have higher total daily air traveller VMT than the project. This is because air travellers with origins or destinations in Orange County would be accommodated at remote airports. (EIR, p. 6.2-11.) The No -Project LUCP alternative, on the other hand, would result in lower trip generation than the project since residential rather than employment land use would predominate. (EIR, p. 6.2-10.) With regard to this alternative's noise impacts, commuter air traffic and general aviation flights will continue to increase in number as aresult of the failure to implement the proposed pro- ; ject. Increased general aviation and commuter flights will result in minor expansions of the CNEL contours to the west and a small elonga-ion of the arrival end of the contours. These changes would not be in the Santa Ana Heights/Back Bay Area since that sector of the contour is entirely dominated by the commer- cial jets. The single event noise levels for the MD-80 are the same as such discussed in relation to the proposed project. The single event benefits from the higher -bypass -ratio -engine aircraft -- i.e., a reduction in noise -- would likely be foreclosed under this alternative, however, since market forces would probably operate against using smaller aircraft. However, there would also be 32 fewer regulated commercial aircraft events. The regulation threshold, however, would be 89.5 dB SENEL. Title 21 compliance could be achieved through accoustical treatment, but, as mentioned above, a significant number of residential units 87 1 2 3 4 5 7 8 9 10 11 12 13 1a 18 19 20 21 22 23 24 25 N 26 27 ® 28 would nevertheless be exposed to exterior noise levels in excess of Noise Element standards in the General Plan. With regard to population, housing, and growth inducement, constrained flight levels would retard commercial/industrial growth that is airport dependent. Significant effects upon geology, water quality, aesthetics, recreation, public health and safety, public services and cumula- tive impacts would be eliminated. The noise levels of the no -project alternative may be higher than the project by discouraging the use of smaller but quieter aircraft. While fewer homes would be adversely affected by this alternative, a majority of the area located between Cypress Street and Redlands Drive in Santa Ana Heights, and a majority of the Anniversary Lane tract in Newport Beach, would still be classified under Title 21 as potentially incompatible with airport noise levels. Moreover, those individuals who continue to reside within the 65 db CNEL would continue to be subject to exterior noise levels exceeding the standards of the Noise Element. The No -Project LUCP alternative would result in lower trip generation than the project. But the alternative would simultaneously result in higher total daily air traveller VMT. Accordingly, the no -project alternative would result in more total vehicle emissions than the proposed project. These factors contribute to the infeasibility and unreasonableness of this alternative. Even more significant, however, the alternative simply fails to meet the objectives of the proposed project -- the 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 , 15 16 17 18 19 20 21 22 23 24 25 r 2 26 N 27 t 28 accommodation of a greater share of demand for air travel in Orange County, and reduction of overcrowding at JWA by the implementation of efficient and safe passenger facilities for this increased passenger level. The No Project LUCP fails to plan for increased or continued use of John Wayne. While accoustical treatment offers offset, the conversion of the noise intense areas to business park offers a more consistent pattern of land use and responds to the great demands for business which confront the area. This is a significant economic benefit associated with the introduction of business park. Additionally, the street system and direction of growth point to business park as a reasonable use, specifically if adopted in a planned and not piecemeal manner. As documented in the Master Plan and EIR, the demand for air travel services at JWA is increasing. The existing passenger terminal building at JWA is also deficient. It is serving a passenger level seven times greater than its designed capacity. (Master Plan, p. I -IV.) Only boarding passengers can use the facility at present, with temporary trailers being used as additional passenger handling space; the aircraft parking apron designed to handle six aircraft at the terminal must now handle twelve to thirteen each morning; and parking facilities are unable to handle adequately or reasonably existing demand, let alone any future increases in demand. In short, there is a compelling need for the project, rendering pursuit of the no - project alternative entirely unreasonable and infeasible. 89 t 1 2 3 5 6 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 1 2 26 0 27 t 26 Additional reasons are set forth in the Statement of Overriding Considerations (Finding "D" below) and are applicable here. (b) No Development Alternative This alternative assumes that nothing will be developed on the project site. No physical or operational changes would occur at the airport. The impacts would be similar to those of the No Project Alternative but reduced for air quality, transpor- tation, energy and others except for regional effects. For the same reasons that the airport component of the No Project Alternative is deemed infeasible, so too is the No Development Alternative. A No Development Alternative for the LUCP study area would be generally the same as the No Project Alternative, although sixty- two (62) acres of currently -vacant property would remain vacant under this alternative. One hundred twenty-seven (127) additional dwelling units that could be built under existing zoning would therefore not be built. This could result in approximately 1,500 less vehicle trips per day -- an amount rep- resenting only about three percent (3%) of the total daily trips projected for 1990 in the area. (EIR, p.6.2-17.) This incremental decrease in vehicle miles travelled and resulting decrease in air -quality impacts is not of such magnitude as to alter the analysis of the no -project alternative above. Accordingly, for these reasons, as well as those set forth in the Statement of Overriding Considerations (Finding "D" below), the no -development alternative is deemed unreasonable and infeasible. 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 0 27 5 t 2B (c) 22 ADD Alternative. Under this alternative ADDs at JWA would be limited to 22. Airlines would introduce larger aircraft in an attempt to meet increased demands for service at JWA. (EIR, p. 6.3-1.) The number of commuter flights would signifi- cantly increase due to the unsatisfied commercial demand. The alternative would result in unmet air travel demand of about 15.9 million annual passengers by the year 2005; most, if not all, of which would be directed to other airports in the area such as Ontario, Long Beach, and LAX. This alternative assumes airport facility changes such as terminal upgrading/expansion and strengthening of the main runway to accommodate larger aircraft such as the B-767. With regard to this alternative's impact upon air quality, emission inventories for both JWA and the LUCP study area show total JWA emissions decreasing significantly when compared with the project. (EIR, p. 6.3-2.) The principal reason for this reduction is the reduction in projected VMT around JWA. On the whole, however, this alternative would result in more total regional vehicle emissions than the proposed project. This is due to the fact that there would be 4.55 million annual passengers unaccommodated at JWA in 1990. Travel to LAX, Ontario, or Long Beach by these passengers would add 669,500 VMT to the air basin, thus increasing automobile emissions. (EIR, p. 6.3-2.) Energy consumed at the existing air carrier terminal would be less than at the new building proposed by the project; but future terminal energy consumption would climb somewhat from current 91 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O 26 y ry 27 O IL 28 levels due to the operation of larger airplanes boasting higher load factors. While automobile fuel consumption to and from JWA would be less under the alternative (since fewer passengers would be served), total automobile fuel consumption by passengers would be greater because passengers unaccommodated at JWA would most likely drive longer distances to reach other airports. Fuel consumption by aircraft would be about half that projected for the proposed project. With regard to land use impacts, there would be a significant reduction in the number of residential uses deemed incompatible with Title 21 requirements. (EIR, p. 6.3-4). Nevertheless, the majority of the area east of Redlands Drive, west of Birch Street, and north of Mesa Drive in Santa Ana Heights would still require mitigation or conversion to other uses to achieve compliance. With regard to transportation/ circulation impacts, the adop- tion of the 22 ADD Alternative would result in lower trip genera- tion than the proposed project (EIR, p. 6.3-6); but would simultaneously have higher total daily air traveller VMT due to accomodation of passengers at remote airports. (EIR, p. 6.3-6.) This alternative's major benefit is its reduced noise impact. The CNEL contours show a substantial reduction in area from those associated with the project. Additional benefits accrue over time in the Santa Ana Heights and Back Bay areas as the high -bypass -ratio -engine B-767 is phased into the fleet. (EIR, p. 6.3-6.) In addition, this alternative carries with it a 92 1 2 3 4 5 6 9 10 11 12 13 14 J . W. •Z z 15 ))J J o y 16 ::W 00 17 W 18 19 20 21 22 23 24 25 O ▪ 26 N a 27 O e 28 significant reduction in the frequency of regulated single aircraft noise events. (EIR, p. 6.3-6.). The noise benefits of the smaller, but quieter commercial aircraft, such as the Boeing 737-300 and BAe-146, however, would probably not be realized. With regard to population, housing, and growth -inducing impacts, the reduction in commercial air carrier operations below the current level would result in a decrease in current and future economic activity in the nearby area. Implementation of this alternative could result in a reduction in direct and indirect employment opportunities and wages associated with JWA operations.; Impacts upon geology, water quality, aesthetics, public health and safety and cumulative impacts would be reduced. Impacts upon water quality, recreation and public services would not be affected. In short, the 22 ADD alternative boasts as its major benefit a reduction in CNEL contours, single events and concomitant reduction in incompatible residential uses. It would also reduce traffic impacts due to a reduction in trip generation. The remaining impacts of the alternative are not significantly different from the proposed project or, as in the case of regional air quality, are actually worse than the proposed project. Most significantly, the 22 ADD alternative fails to address the basic objective behind the proposed project -- i.e., accommodation of greater demand for air travel service at JWA. On the contrary, this reduced scope alternative contracts air service at JWA even further than existing levels. The unmet air 93 • i• 2 3 4 6 7 8 9 10 11 12 13 14 _?z 15 'V 'W 16 ;,z z 00 17 18 19 20 21 22 23 24 25 26 a 2 O 7 LL 28 travel demand created by this alternative would be approximately 15.9 million annual passengers by the year 2005 -- most, if not all, of which would have to be directed to other airports in the area. The demand for air travel services at JWA is increasing. To cut back on the level of operations at JWA, while perhaps beneficial in terms of noise impacts, is not only unreasonable and infeasible in light of all the circumstances, but would exacerbate an already intolerable situation. Accordingly, for these reasons, as well as those set forth in the Statement of Overriding Considerations (Finding "D" below), this alternative is rejected;as being unreasonable and infeasible. (d) 55 ADD Alternative. The 55 ADD flight level has been identified as Phase I of the proposed project, which could be implemented without airport construction as early as 1985. It is also recognized that the flight level could stay at 55 ADD, with some airport improvement. By 1990 terminal and parking expansion and runway strengthening would be necessary. Both the aircraft size and the passenger loading factors would increase by the year 2005. Commuter flights would increase from 35 in 1985 to 96 in 2005. Nevertheless, a significant amount of air travel demand would, once again, go unmet at JWA under this alternative and would be diverted to Ontario, Long Beach, and Los Angeles Airports. With regard to this alternative's impact on air quality, the alternative would result in more total regional vehicle emissions than the proposed project due to the unaccommodated 2.16 million annual passengers that would be forced to travel to Los Angeles, 94 1 2 3 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 • 26 ry es 27 t 28 Ontario Airport, or Long Beach Airport. These passengers would add 236,300 VMT to the air basin. Energy consumption would be less at the terminal than at the building proposed by the project; but would nevertheless increase from today's levels due to the increased number of passengers using its facilities. Total automobile fuel consumption by air travellers would be greater than for the proposed project due to the diversion of passengers from JWA to more remote airports for service. Projected annual fuel consumption by air carrier and commuter aircraft would be about 9 million gallons less than that anticipated, With respect to the proposed project in 1990. With regard to land use impacts, implementation of this alternative would result in a reduction in the amount of Title 21-defined incompatible land uses. Nevertheless, the majority of the area between Cypress Street and Santa Ana Avenue in Santa Ana Heights and a majority of the Anniversary Lane - University Drive area of Newport Beach would still require mitigation to achieve Title 21 compliance. With regard to transportation/circulation, the adoption of the 55 ADD alternative would result in lower trip generation than the adoption of the proposed project; but, again, would result in higher total daily air traveller VMT due to the necessary accom- modation of unmet JWA demand at remote airports. With respect to noise impacts, the higher bypass -ratio -engine aircraft are phased in over time under this alternative, and as they are phased in, the departure sectors of the CNEL contours are shortened. On the other hand, due to continued growth in 95 • 1 2 3 5 9 10 11 12 13 commuters and to the higher approach thrust requirements of the B-757s and B-767s, the contours are enlarged in other areas. (EIR, p. 6.3-17; Figures 6-9 and 6-10.) The absolute number of commercial jet single noise events would be reduced by about 44 percent as compared to Phase II of the project. Again, the carriers would tend to use the larger aircraft types available, rather than the quieter and smaller aircraft which the mitigated project would encourage. With respect to population, housing and growth inducing impacts, this alternative would result in a 34 percent increase over the current JWA commercial jet operations. The direct and indirect employment positions would be expected to increase rela- tive to the expansion of airport operations, but the growth in 14 the local economy stimulated by the additional monies generated 15 , would be considerably less than that which would result from 161 implementation of the proposed project. (EIR, p. 6.3-18.) 17 Impacts upon geology, water quality, aesthetics, public 18 ii health and safety and cumulative impacts would be reduced. 19 20i 21 22 23 24 25 an • 26 N O 27 28 Impacts upon water quality, recreation and public services would not be affected. The most significant advantage of this alternative is its reduction in the amount of Title 21-defined incompatible land uses. This alternative would reduce housing unit incompatibility within the 65 dB CNEL contour by approximately 14 percent. Again, however, this advantage is tempered by the fact that the majority of the area between Cypress Street and Santa Ana Avenue in Santa Ana Heights and a majority of the Anniversary Lane - 96 1 1 4 5 6 7 9 10 11 12 University Drive area of Newport Beach would still require mitigation; and the higher total daily air traveller VMT would translate into greater automobile fuel consumption by air travellers and more total regional vehicle emissions than the proposed project. Of additional significance is the fact that the 55 ADD alter- native would sacrifice a significant amount of the economic growth associated with the proposed project. As discussed above, the additional monies generated by the increase in total direct and indirect wages would be considerably less than that which would result from the implementation of the proposed project. When these factors are analyzed in addition to the fact that 13 the alternative will leave 2.16 million annual passengers 14 unaccommodated at JWA in 1990, the alternative is deemed co15 infeasible. It fails to meet the project's basic objective W 16 'u Viz: 00 17 18 19 20 21 22 23 24 25 • 26 ry 0 27 28 i.e., safe and efficient accommodation of burgeoning demand for air travel service at JWA. The project's Phase II increase to 73 Class A ADD enables JWA to assume a greater share of the increasing demand for air travel services in Orange County. To "cap" JWA's ADD at 55 is to ignore the compelling reality that regional demand for air travel services is growing rapidly; and that carefully considered accom- modation of this demand is not only a necessity, but also a means to realize substantial social and economic benefits for Orange County as a whole. While the Board recognizes certain environ- mental advantages to the 55 ADD alternative, it simultaneously finds that these advantages are somewhat balanced by the negative 97 f J . L � 1 2 3 5 6 8 9 10 11 12 13 14 ir i3� 00 17 18 19 20 21 22 23 24 25 41 • 26 N G. • 2' 28 impacts identified above; and far outweighed by Orange County's compelling need for the project. Accordingly, for these reasons as well as those set forth in the Statement of Overriding Considerations (Finding "D" below), the alternative is deemed unreasonable and infeasible. (e) 98 ADD Alternative. Under this alternative, the total number of passengers served by JWA would increase from 3.9 mil- lion annual passengers in 1984 to 12.2 million annual passengers in 2005. The absorption of future demand projected in this alternative would relieve some of the pressure for service (and its related environmental impacts) at Ontario, Long Beach and LAX. Airport improvements, including extension of the aircraft apron, development of additional automobile parking and altera- tion of access and circulation patterns, would be under construc- tion by 1985. By 1990, the terminal and other airport improve- ments necessary to accommodate 98 ADD would be completed. With regard to this alternative's impacts upon air quality, total emissions of each pollutant at JWA would increase signifi- cantly above the levels associated with the proposed project, due primarily to the additional motor vehicle activity associated with the 98 ADD alternative. THC and CO would increase by approximately 20 percent, NOx by 30 percent, and SOx and particu- lates by 25 percent. It is projected that with the 98 ADD alternative there would be an additional two million annual passengers served at JWA in 1990 than would be accommodated by the project. Accordingly, fewer total regional vehicle emissions would be anticipated. (EIR, p. 6.3-23.) 98 1 2 3 4 5 6 7 6 9 10 11 12 13 19 20 21 22 23 24 25 O 26 P • 27 26 Because more flights and more passengers would use the term- inal and facilities, the energy consumption would be greater than that projected for the project's new terminal. This alternative would produce the largest annual fuel consumption by vehicles to and from JWA -- but would also offer the lowest total automobile fuel consumption of any alternative due to the fact that fewer air travellers would have to drive to more remote airports. This alternative would result in the highest annual fuel consumption for air carrier and commuter aircraft. With respect to land use impacts, implementation of this alternative:wouid require on -site land use changes, including the enlargement of the existing terminal and parking facilities, beyond the improvements envisioned by the project. In addition, modifications to the existing runway and apron would be required. A majority of the area located between Cypress Street and Santa Ana Avenue in Santa Ana Heights as well as a majority of the Anniversary Lane - University Drive area of Newport Beach would still require mitigation under this alternative. With respect to transportation/circulation, the 98 ADD alter- native would result in approximately a 30 percent higher trip generation figure in 1990 than the proposed project. The result of this would be a significant increase in the congestion of local roads. This alternative's most significant negative impact would be that associated with noise. The 98 ADD alternative would, by 1990, enlarge the CNEL contours from their present configuration (EIR, p. 6.3-26; Figure 6-11.); and increase the single event 99 1 2 3 4 5 6 7 9 10 11 12 13 14 " V • LL 16 u 18 19 20 21 22 23 24 25 2 26 27 LL t 28 impacts even more significantly. The distribution of the indi- vidual noise events over a day would be somewhat similar to the current situation, where the most intense activity would occur in the early morning. However, the peak period would likely be pro- tracted. And regardless of how the distribution of flights and noise events is ultimately shaped, the fact would remain that 57 more daily noise events would occur than at present (an increase of almost 140 percent), and 25 more than the proposed project (an increase of about 35 percent). The growth inducing impacts of this alternative would be significant. The additional expenditures generated by an increased number of visitor/business travellers would be expected to spur significant levels of growth in the retail and service industries surrounding JWA, precipitating land use intensifica- tion due to the limited vacant land in the JWA area. In sum, this alternative produces significantly more adverse impacts than the proposed project. It would result in greater energy consumption at the air carrier terminal (EIR, p. 6.3-23); the largest annual fuel consumption by vehicles to and from JWA of any alternative (EIR, p. 6-23); higher trip generation and. thus additional congestion of local roads; (EIR, p. 6.3-25); a majority of the area located between Cypress Street and Santa Ana Avenue in Santa Ana Heights as well as a majority of the Anniversary Lane - University Drive area of Newport Beach remain- ing in need of Title 21 mitigation; end, most importantly, would so significantly increase the number of daily noise events as to create an excessively annoying and burdensome situation for 100 t 1 2 3 4 5 6 8 9 10 11 12 13 i 14 , 1` 16 1- 18 19 20 21 22 23 24 25 26 ri 27 t 28 residential and commercial uses within the vicinity of JWA. While increasing air travel demand must be accommodated, a 140 percent increase in single events is deemed undesirable, and in the opinion of this Board, represents an undue burden upon area residents and an imbalance between the need for air transporta- tion services and environmental consequences. For the reasons cited above, the alternative is deemed unreasonable and infeasible by the Board. (f) MCAS El Toro Joint Use. Under this alternative, the proposed 73 ADDs for commercial jet aircraft would be moved from JWA to MCAS, El Toro without disturbing the current level of mili- tary activity. Both the Marines and the commercial air carriers would use the facility jointly. All general aviation would remain. at JWA. Since MCAS El Toro is not currently configured to serve the general public as a commercial airport, a number of changes would be required. At a minimum, a terminal large enough to house 14 aircraft gates and to accommodate an estimated 10.2 million annual passengers would need to be constructed; an air- craft apron area to accommodate 14 gates and the attendant air- line equipment would have to be provided; parking lots and/or structures to accommodate the requirements of 10.2 million annual passengers would be needed; and runway strengthening and taxiway construction to accommodate aircraft in the 250,000 to 300,000 pound range would be required. The need for these extensive facilities would render this alternative inoperative until at least 1990. (EIR, p. 6.4-5.) 101 0 0 1 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With respect to this alternative's impact upon air quality, no advantage over the proposed project has been demonstrated. Total emissions would be about the same. (EIR, p. 6.4-6.) The biological impacts of the project could be significant if nearby mountain tops must be excavated to allow air carriers to clear them, as studies indicate may be needed. (EIR, p. 6.4-6.) With regard to energy consumption, this alternative would be expected to result in consumption identical to the proposed pro- ject in all categories except automobile fuel. Fuel efficiency for cars in the arrival/departure segment of a trip could be higher at the alternative site than at JWA since the local road system would be less congested. (EIR, p. 6.4-8.) To the extent that land -form modifications are necessary to allow commercial aircraft to utilize Runway 7 departures -- as discussed below -- a significant alteration of land form could occur. Between 1 to 6 million cubic yards would be removed and slopes cut to provide normal glide paths. This would entail significant visual impacts as well. With respect to transportation/circulation, the I-5/S.R. 133 freeway interchange would be reconstructed and S.R. 133 would be extended northeasterly approximately one-half mile to connect with the airport circulation road system as a means of providing access to a new joint use El Toro Airport. Over 2400 peak day vehicle trips would access the airport in the evening peak hour. Approximately 2200 peak day vehicle trips would access the airport in the morning peak hour. (EIR, p. 6.4-12.) The addi- tion of this airport traffic to existing traffic volumes would 102 t 1 2 3 5 9 10 11 12 13 14 18 19 20 21 22 23 24 — 25 0 rd 0 27 u. 'v 28 26 reduce the level of service on, 1-5 south of S.R. 133, and on S.R. 133, between I-405 and I-5. The additional traffic would have its most serious impact on I-5, north of S.R. 133. The addi- tional traffic would reduce the existing level of Service from C to E resulting in a significant effect. With respect to safety impacts, the rising terrain to the east of Runway 7 forces a right turn -out approximately 4 miles after takeoff. Runway 7 departures are made uphill, toward rapidly rising terrain and often with a tailwind. While this poses no real threat to military jets, which use an 8:1 climb gradient far terrain clearance, these terrain problems indicate that commercial aircraft would likely be required to reduce their typical weight by about 20 percent if conditions are not altered. (EIR, p. 6.4-14.) An unpublished study prepared for the City of Newport Beach prc?oses excavation of mountain tops to eliminate this problem. Joint use of El Toro would further require potentially hazardous integration of commercial airline schedules with practicing fighter aircraft. (EIR, p. 6.4-14.) So, too, military aircraft using El Toro often carry live ammuni- tion. Any ground accident involving one of these aircraft has a greater potential for damage than one involving aircraft not carrying any ammunition or weapons. The presence of live ammuni- tion poses additional safety risks with regard to fuel storage and handling facilities that would be needed. An increase of 73 individual noise events per day would cause significant noise impacts on surrounding land uses. CNEL con- tours would remain essentially unchanged, however. 103 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 1- 18 19 20 21 22 23 24 PT 25 2 26 q „ O 27 t_ 28 Implementation of this alternative would result in evolution of industrial uses around the El Toro area, growth of profes- sional offices -- especially those which may presently be located on the peripheral arterial surrounding JWA -- and stimulation of the county's tourism and travel related service industries. This would result in pressure being exerted on the agricultural land to the west and northwest of El Toro to be converted to urban uses. This alternative would result in tremendous growth induc- tion for this area of Orange County. Since the commercial jets account for the vast majority of noise at JWA, removal of the commercial jets would virtually eliminate the noise problem at JWA. This, in turn, would elimin- ate the need for the LUCP. The problem with the alternative, however, is that the possi- bility of it ever being implemented is extremely low. Joint use of the military air base is frought with obstacles. Indeed, implementation of the alternative is not subject to unilateral County approval. Implementation would require approval from the Department of Defense, which has indicated not only its strong opposition to the alternative (EIR, p. 6.1-2; 6.4-2) both in correspondence and in prior public testimony before this Board, but recently stated again that no civilan use of El Toro would be concurred in by the Secretary of Defense during the hearings before the Board on this project. Since permission for civilian use from the United States is an essential prerequisite of this alternative, this opposition alone renders the alternative infeasible. Moreover, a Study of Joint Military and Civil Use of 104 1 2 3 4 5 6 8 9 10 11 12 13 14 J . W t 5;= 15 18 19 20 21 22 23 24 - 25 26 N 27 LL t 26 MCAS El Toro was prepared by HH Aero Space Design Company in August of 1983. The RH Report concludes the technical feasibility of joint use, but acknowledges the highly congested air space surrounding MCAS El Toro, the operational requirements of the military, the attitude of the surrounding communities, and the unfavorable military response. The problems addressed by the project are of an immediate and compelling nature. JWA is overcrowded, inefficient, and incap- able of handling existing demand effectively, not to mention anticipated increases in demand. The El Toro alternative is incapable of addressing the project's immediate objectives. Because of the extensive construction required for conversion to commercial use, El Toro would not be operative until 1990 at the very earliest. In the interim, the problems confronting JWA and Orange County would persist. These logistical problems, coupled with the environmental. impacts identified above and the concerns set forth in the Statement of Overriding Considerations (Finding "D" below), render the alternative unreasonable and infeasible. (g) Camp Pendleton Joint Use Alternative. Under this alter- native, no physical changes would occur at JWA, and an entirely new airport would be constructed at Camp Pendleton including runways, traffic control facilities, terminal, parking, access and circulation improvements, and a security fence separating military and non-military activities. With regard to air quality impacts, the estimated pollutant emissions from motor vehicle traffic generated by the air carrier 105 1 2 3 4 5 6 8 9 10 11 12 13' 14 I 0 V 16 V 0 0 17 .I 18 19 20 21 22 23 24 25 2. 26 O 27 C 28 operations at Camp Pendleton would be significantly worse than the project due to the significant increase in average trip length. Indeed, Camp Pendleton is the most remote of any alter- native site analyzed. With respect to biological impacts, Camp Pendleton is one of the few remaining sizable areas in coastal Southern California where indigenous vegetation and native wildlife exist under rela- tively natural and undisturbed conditions. A variety of sensitive habitats and plant and wildlife species have been identified within, or in the vicinity of, Camp Pendleton. (EIR, pp. 6.4-25,; 26.) Implementation of this alternative could be expected to have significant impacts upon these biological resources. (EIR, p. 6.4-23 through 6.4-27.) Energy consumption would be identical to the proposed project in all categories except automobile fuel, where the substantial increase in VMT associated with the alternative results in a significant increase in automobile fuel consumption. With respect to land use impacts, relocation of existing military facilities and training activities would be necessary. It is probable that the Edson Firing Range, the Marine Corp Tactical Systems Support Activity Facility, and the existing Marine Corp air field would have to be moved. With respect to transportation/circulation, the alternative is expected to generate twice the number of regional VMT per day by air passengers in 1990 than would the project. Substantial improvements in the adjacent freeways and local access roads (new 106 `ft F0192-210 (5/11) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25 26 27 28 interchanges, new access roads, and widening of existing roads) would therefore become necessary. With respect to the alternative's impacts upon noise, the impacts at JWA would be the same as those described for the MCAS El Toro alternative -- i.e., the noise problem at JWA would be virtually eliminated. Noise impacts would not be significant at Camp Pendleton. The alternative would result in a significant aesthetic and urbanization impacts (water quality, public sewers, etc.) to a currently pristine, non -developed area. With respect to the alternative's growth inducing impacts, given that the land surrounding the airport is military land, much of which is natural open space, the growth inducing impacts would be limited. San Clemente and Oceanside -- both within the vicinity of Camp Pendleton -- would experience growth as a result of the airport relocation. A significant increase in employment positions, both direct, and indirect would occur. In sum, the Board recognizes the major advantage of this alternative -- i.e., the fact that the noise problem is virtually eliminated at JWA, while noise impacts do not appear to be a significant problem at Camp Pendleton. However, this alternative is rendered infeasible for the same reasons cited above with reference to MCAS El Toro joint use. Specifically, it is not within the County's power to unilat- erally approve and implement the alternative. In testimony before this Board the Department of Defense indicated that joint use of Camp Pendleton would virtually eliminate its military 107 2 3 4 5 6 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 0 27 1 usefulness as the only base on, the west coast capable of training amphibious units. The Department of Defense's opposition to joint use at this time contributes to the infeasibility of this alternative. Additionally, a significant lead time would be necessary before Camp Pendleton could realistically be converted for com- mercial airport use. Given the immediate, compelling nature of the problems confronting JWA and Orange County, such a wait is unacceptable. These factors, coupled with the site's remote location (i.e., it may actually serve a different population or air travel demand market than served by JWA) and the adverse impacts identified above as well as those set forth in the Statement of Overriding Considerations (Finding "D" below), render the alternative unreasonable and infeasible. (h) Los Alamitos AFRC Joint Use Alternative. This alterna- tive envisions the 73 ADD being located at Los Alamitos, with general aviation remaining at JWA. The Armed Forces Reserve Center (AFRC) would maintain its current level of military flights. Runway improvements, construction of a terminal and facilities for parking, circulation and access would be needed at Los Alamitos. Construction of a security fence to separate military and non-military activities on the site would also be necessary. With respect to air quality impacts, the projected emission inventory for the Los Alamitos site would be identical to that calculated for the MCAS El Toro joint use alternative. Pollutant 28 108 0 N N P 0 1 2 3 5 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 levels immediately adjacent to, the AFRC air traffic as well as motor vehicles. would decrease by a similar amount. On would increase due to jet Local emissions at JWA a regional level, total emissions from commercial, commuter, and general aviation air- craft would not be affected significantly. Energy impacts would not be altered except that marginally lower VMT due to shorter trip length would result in slightly lower fuel consumption relative to the project. The present AFRC carrier operations. ways, and ramp areas airfield is not adequate for commercial air Consequently, the existing runways, taxi - would have to be lengthened and strengthened or reconstructed. Terminal parking would also have to be built. More importantly, implementation of this alternative would result in significant adverse noise impacts to adjacent residential areas in Los Alamitos, Cypress, and the year 2005, the projected 70 dB CNEL contour approximately 12 acres of residential land uses Garden Grove. would contain and the 65 dB CNEL contour would contain approximately 130 acres of uses. Directly east, 55 acres in Garden Grove and 57 Cypress would be within the 65 and 70 dB CNEL contour By residential acres in lines. With respect to transportation/circulation, location of com- mercial airline service at Los Alamitos instead of at JWA would reduce VMT in 1990. The addition of airport traffic to existing traffic volumes would, however, result in a existing level of service on I-405, between and the SR 22 east junction. The reduction reduction of the Seal Beach Boulevard would be from level of Service D to E. The additional traffic would also cause a 109 2 3 4 5 8 9 10 11 12 13 14 15 16 IT 18 19 20 21 22 23 24 25 , 2 26 27 28 reduction in the level of service for I-405 between Seal Beach Boulevard and I-605. That section would also be reduced from level of Service D to level of Service E. With respect to the noise impacts of the Los Alamitos alter- native, the 60 dB CNEL contour for 1990 encloses a substantial amount of residential acreage including the senior citizen com- plex at Leisure World. In sum, the Los Alamitos alternative merely transports the noise problem from the communities surrounding JWA to the com- munities of Los Alamitos, Cypress, and Garden Grove which sur- round the Los Alamitos Airport. While Los Alamitos might serve as a stop gap measure to provide for the increasing air travel demand in Orange County, its usefulness would probably be short- lived. Given the existing population distribution around Southern California, the gradual migration of people to Southern Orange County could make the average trip length for the air traveller longer, or, ultimately, render the Los Alamitos site too distant to serve the air travel needs of the residents of Orange County. More significantly, joint use of Los Alamitos raises all of the logistical problems cited above with reference to El Toro and Camp Pendleton. Department of Defense consent, which would be required, would be difficult, if not impossible, to obtain. This, coupled with the lead time that would be required prior to the facility being operational and the concerns set forth in the Statement of Overriding Considerations (Finding "D" below), 110 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 .9 26 O 27 e 28 renders the proposal an unreasonable and infeasible alternative to the project. (i) Ontario, Los Angeles International and Long Beach Airports (Combined Alternative) Under this alternative, 73 ADDs would be distributed among Ontario International Airport, Long Beach Municipal Airport, and Los Angeles International Airport. It is assumed that no physical changes would be required to implement the alternative at these airports and that these facilities would be able to accept the flights and passengers. It is projected that most of the:flights would be shifted to Long Beach because of its proximity to JWA and the JWA market area. With respect to air quality impacts, pollutant emissions in the vicinity of each airport would increase because of the addi- tional flights and associated motor vehicles. Local emissions at JWA, on the other hand, would be reduced. On a regional basis, total emissions from aircraft would increase slightly. (EIR, p. 6.4-42.) Of significance, however, is the fact that CO emissions at JWA would remain higher than at Ontario or LAX due to the large number of general aviation aircraft still using JWA. All other pollutants would be less at JWA than at the other air- ports. As indicated in Table 6-22 of the EIR, this alternative would result in significantly more total regional vehicle emissions than the proposed project. The reason for this is that 4.21 million annual passengers would be unaccommodated at JWA in 1990, thus forcing these passengers to increase trip lengths by travelling to LAX, Ontario Airport, or Long Beach Airport. 111 1 2 8 9 10 11 12 13 18 19! 20 21 22 23 24 25 2 26 N ; 0 27 t 28 These conclusions are based, however, on the assumption that the existing passenger limits at the relative airports would be lifted. If, in fact, the limits apply, there would be a signifi- cant shift of passengers away from Long Beach -- where strict limits are enforced -- to Ontario and LAX. Region -wide aircraft emissions would not change but simply be shifted to the more heavily polluted areas of Los Angeles and Ontario. Region -wide VMT would most likely increase because passengers would have to travel to either LAX or Ontario rather than their primary or secondary airports of JWA and Long Beach. Motor vehicle emissions would increase significantly and result in a major impact. Indeed, this alternative would produce the worst air quality impacts of any analyzed in the £IR. (EIR, p. 6.4-44.) With regard to energy impacts, VMT and associated energy use are vastly greater for this alternative than for the project or other alternatives. With respect to land use impacts, impacts to existing on -site land uses or facilities at Ontario Airport and LAX are not anticipated from the relatively few additional flights that would be allocated to these airports. Assuming that access to Long Beach Airport was unconstrained, however, this alternative would result in an increase of up to 52 ADD in the level of flight operations at the airport. This would likely require upgrading of terminal, parking and access facilities and possibly runways and apron areas. The relatively small increase in flight operations at Ontario and LAX associated with this alternative is not anticipated to 112 1 2 3 4 5 6 8 9 10 11 12 13 14 J LE; 15 �o u 19 20 21 22 23 24 25 n 26 e 27 28 significantly increase airport, related noise impact on surround- ing land uses. The implementation of the alternative could, however, significantly increase noise impact from Long Beach Airport on surrounding land uses. A worst case analysis -- assuming 52 additional ADD -- indicates that by the year 2005, there would be approximately thirty acres of incompatible land use within the 70 dB CNEL contour and approximately 230 acres of incompatible land uses within the 65 dB CNEL Contour. All of these incompatible land uses would be within the City of Long Beach. One public and one private school would be affected by the contour;. With respect to transportation/circulation, analyses indicate that increased airport traffic at the Ontario Airport would slightly reduce the level of service at the Vineyard Avenue interchange, and, by 1990, significantly impact the level of ser- vice on I-10. The impact could require improvement to the free- way. Major improvement in regional and local access will be needed to accommodate the addition of air passenger demand at the Long Beach Airport. The San Diego Freeway is already operating at level of service F. The additional 23,300 trips expected to be generated at this alternative would have severe impacts on the existing level of service of I-405 at the SR 19 interchange. The section of I-405 between SR 19 and Cherry Avenue is also expected to be severely impacted by the additional traffic. By 1990 at LAX, the additional airport traffic generated by this alternative would severly impact I-405 at the Century Boulevard interchange leading to the airport. The impact of the additional airport 113 1 2 3 4 5 6 9 10 11 12 13 14 o0 17 18 19 20 21 22 23 24 25 26 0 27 LL t 28 traffic generated would require major improvements on the freeway and arterial access system. Because each of these airports is so remote from the center of the JWA service area, passenger trips would be considerably longer than for the proposed project or for any of the alternatives examined in this EIR. This alternative would produce an average of 500,000 regional vehicle miles traveled per day by air travelers. With respect to noise impacts, if Long Beach Airport removes the current limit on ADD and accepts new flights, this alterna- tive would result in a 290% increase in flights at Long Beach Airport. Long Beach's current dB CNEL Contour would be dramatically enlarged under this alternative. (EIR, p. 6.4-50; figure 6-18.) If the current limit on flights at Long Beach is retained, however, significant noise impacts would not occur at Long Beach. Instead, the flights would be shifted almost entirely to LAX where the additional flights would constitute a negligible addition to LAX operations. Under this alternative industries that rely heavily on air transportation for the distribution of goods, professional offices dependent on convenient airport access, and support func- tions such as air cargo forwarders, aircraft repair services, etc. will suffer at JWA with the termination of commercial jet activity. Additionally, those land uses surrounding JWA that draw substantial support from the annual 2.53 million passengers and associated 166.4 million visitor and business traveler expenditures would experience business declines. 114 t 1 2 3 4 5 8 9 10 11 13 14 18 19 20 21 22 23 24 ,c 25 ° 26 '0 27 LL 28 Due in part to the extensive noise, air quality, traffic congestion, and energy consumption impacts associated with this alternative, it is deemed by the board to be an infeasible alternative. This alternative could produce the most significant air quality impacts of any analyzed. (EIR, p. 6.4-44.) But more importantly, the alternative fails to address any of the problems the proposed project is designed to address -- i.e., effectively and efficiently accommodating demand for air travel in Orange County with the least amount of environmental impact. On the contrary, the alternative represents the proverbial "ostrich" head -in -the -sand approach to problem solving. Rather than recognizing the inexorably increasing demand for air travel services and pursuing affirmative action to address it, this alternative assumes that JWA air travelers -- both existing and future -- may simply be absorbed into existing, albeit modified, facilities elsewhere. There is no effort made to reduce or min- imize the inconveniences presently confronting travelers at JWA. Rather, these inconveniences. are magnified by requiring the air traveler to access airports that are even greater distances away. This is all done in a setting that potentially poses the most significant adverse environmental impacts of any alternative considered. While recognizing that use of LAX, Ontario, and Long Beach airports may be necessitated at some time in the future, the Board deems this alternative unreasonable and infeasible at present due to the above reasons, as well as those concerns set forth in the Statement of Overriding Considerations (Finding "D" below). 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 20 21 22 23 24 r. ▪ 25 ry - 26 • e 27 1 ti 28 (j) Alternative Sites for Shared Use. Any of the alterna- tive sites addressed above could be developed to accommodate only a portion of the 73 ADD proposed by the project, with the remain- der staying at JWA. The EIR analyzes MCAS El Toro as a representative site to determine the impacts associated with 41 ADD at JWA and the remaining 32 ADD assigned to El Toro; and with 55 ADD at JWA and 55 ADD assigned to El Toro. The EIR also analyzes an alternative of 41 ADD at JWA and 32 ADD at Santiago Canyon. (a) 41 ADD JWA/32 ADD El Toro Under the alternative assigning 41 ADD to JWA and 32 to El Toro, commuter flights would be added at El Toro while general aviation would remain at JWA. Military flight activity at El Toro would remain at its present level. Improvements required to implement this alternative at El Toro include a terminal building, parking and circulation facilities, and a security fence separating military and non-military activities. With respect to air quality impacts, total combined emissions for JWA and El Toro would be slightly higher (in most cases three to five percent) than the emissions for the proposed project. This is due to additional vehicle traffic generated by the neces- sary duplication of services when two airports are used. (EIR, p. 6.5-2; Table 6-23.) With respect to biological resources, the Shared Use Alternative would result in slightly less impact upon induced growth and land use conversion of surrounding vacant land than 116 f • 1 2 3 4 5 7 9 10 11 12 13 14 16 18 19 20 21 22 23 24 25 26 P_ O LL 28 27 the El Toro or Joint Use Alternative. Consequently, fewer acres of wildlife habitat would be lost. With respect to energy consumption, the combined energy con- sumption would exceed that of the proposed project because it would not be as efficient as a single structure. Indeed, additional energy would be consumed at the new terminal to be built at El Toro; while energy consumption at the JWA terminal would be increased above current levels due to higher load factors and increased number of commuter flights. While it is assumed that automobile miles traveled per trip by airport users would be slightly less since JWA and El Toro would each attract the passengers and employees located closest to the particular airport; a shorter trip length would neverthe- less be balanced out by increased traffic because of duplication of functions at two airports. The total annual fuel consumed by automobiles as well as air carrier and commuter aircraft would not be significantly different than for the proposed project. The major difference between this alternative and the pro- posed project arises in the area of land use impacts. Imple- mentation of this alternative would result in a significant reduction in the amount of incompatible residential uses at JWA in comparison to the proposed project. (EIR, p. 6.5-5.) It should be noted, however, that the projected noise contours for this alternative presume an aircraft fleet mix which includes quieter aircraft. The proposed LUCP project noise countours are based on the exclusive use of the relatively noisy DC-9-80 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 D 27 28 Aircraft. If quieter aircraft.were assumed for the proposed LUCP project, the difference in the impacts would be reduced. With respect to transportation/circulation, the adoption of this alternative would result in higher trip generation than the proposed project due primarily to the slightly higher MAP served in 1990 and to duplication of airport functions (added employee and service vehicle trips). With respect to noise impacts, it was pointed out above that the addition of 73 ADD at El Toro would have a negligible effect on the airbase's CNEL contours. This is because of the extremely high noise energy emission characteristics of the high- performance military jet aircraft. Obviously, a 32 ADD addition would have even less effect. At JWA, this alternative would maintain the current 41 ADD limit. Noise regulations and market forces would still operate to prompt shifting aircraft types over time, in similar manner to the project. Under this alternative, no land use changes would be neces- sary in the Santa Ana Heights area except as described in the no project alternative. There would, however, be growth -inducing impacts on the lands surrounding E1 Toro. The addition of 32 commercial jet flights at El Toro would create a demand for those activities/land uses which are typically located at a commercial airport or within its immediate vicinity. Again, the major advantage of this alternative is that imple- mentation would result in a significant reduction in the amount of incompatible residential uses surrounding JWA. These benefits are balanced, however, by the impacts associated with duplicating 118 1 1 2 3 4 5 6 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 9 - 26 O • 27 4 e 28 services -- e.g., generation of additional vehicular traffic, pollutant emissions and energy consumption. But regardless of any environmental impacts associated with the alternative, the Board finds the proposal infeasible for the same reasons cited above with reference to joint use of MCAS El Toro, Camp Pendleton, and Los Alamitos. Specifically, the problems that the project is designed to address are immediate problems of a compelling nature. JWA is overcrowded and inefficient now. The implementation of this alternative would require a time-consuming conversion of El Toro for commercial use, during; which time the problems at JWA would not only per- sist, but would also magnify. And, again, there is no assurance at this time that the Department of Defense would grant its consent to the alternative as required. The Department's vehement opposition to joint use, documented in the EIR and discussed above, serves at least as a presently insurmountable obstacle, if not a death knell for this proposal. For these reasons, as well as those set forth in the Statement of Overriding Considerations (Finding "D" below), the Board deems this an unreasonable and infeasible alterantive. (b) 55 ADD JWA/55 ADD El Toro This alternative assumes that 55 ADD would operate from JWA, and 55 ADD from El Toro. The 55 ADD flight level has been identified as Phase I of the proposed project. Improvements needed at El Toro include a terminal building, parking and circulation facilities, and a security fence separating military 119 1 2 3 5 6 7 8 9 10 11 12 13 14 J . J � 19 20 21 22 23 24 25 • 26 r D • 27 t 26 and nonmilitary activities. For this reason, it is assumed that El Toro would not be operational until at least 1990. The environmental impacts upon the JWA area would be identi- cal to those described in relation to the 55 ADD alternative discussed above. The combined total emissions for JWA and El Toro would be significantly higher than the emissions for the proposed project, but it must be remembered that this alternative assumes 110 ADD while the project ultimately assumes only 73 ADD. With regard to impacts on biological resources in the El Toro area, impacts would be essentially the same as those identified above in the discussion of the El Toro Joint Use Alternative; although fewer acres of wildlife habitat would be lost since induced growth and land -use conversion of surrounding vacant lands would be slightly less. Additional energy would be consumed at the new terminal needed at El Toro. The combined energy consumption between JWA and El Toro would exceed that of the proposed project, since the two terminals would not be as efficient as a single structure. (EIR, p. 6.5-12). With regard to land use, transportation, noise and growth - inducing impacts at El Toro, the impacts are similar, if not identical, to the impacts identified in the discussion of the El Toro Joint Use Alternative. Of course, a 55 ADD addition at El Toro would have even less impact upon the air base's CNEL contour than the El Toro Joint Use Alternative, since the Joint Use 120 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 N N 0 27 t 28 Alternative assumes an addition of 73 ADD. In either case, the impact is negligible. The Board deems the alternative infeasible for reasons simi- lar to those cited above in rejecting joint use of El Toro. Initially, the Department of Defense's well -documented opposition to any joint use of El Toro at this time is a major obstacle to implementation. So, too, the delays necessarily associated with the conversion of El Toro to joint military/commercial use render the alternative an inadequate response to the immediate problems confronting JWA and Orange County. These factors, coupled with the environmental and safety hazards associated with joint use of El Toro discussed above and the concerns set forth in the Statement of Overriding Considerations (Finding "D" below) render the alternative unreasonable and infeasible. (c) Santiago Canyon Shared Use Under this alternative, 41 ADD would remain at JWA, while 32 ADD would be assigned to Santiago Canyon. This alterna- tive would involve construction of a new airport in the Santiago Canyon area designed specifically to accomodate these 32 ADD. As discussed below with regard to replacement of JWA operations at Santiago Canyon, the principle reason that the Board deems this alternative infeasible is the period of delay necessarily asso- ciated with the construction of a new airport. As envisioned by this alternative, JWA would continue to service only 41 ADD -- a situation that presently renders JWA overcrowded and ineffi- cient. It would be a number of years before the new Santiago 121 1 2 3 4 5 6 12 13 14 15 16; 17 18 19 20 21 22 23 24 25 2 26 27 LL '1 28 Canyon facility could be expected to be operational and thus assist in diverting demand from JWA. In addition, several other concerns have been weighed by the Board including the fact that Santiago Canyon approach traffic would conflict with Ontario departure and Chino approach; Santiago Canyon departure would conflict with various El Toro and Tustin flight paths; El Toro would lose its practice GCA pattern and would encounter significant departure delays during peak periods; extensive cutting and filling would be necessary; high landslide potential would exist; and impacts upon the habitat of rare and endangered species have been identified. In short, for these reasons as well as those set forth in the Statement of Overriding Considerations, use of a new Santiago Canyon airport is deemed an unreasonable and infeasible alternative. (k) Runway Directional Change Alternative ("Preferential Runway") Under this alternative air carrier departures would be made to the north for a period of time each day with intent to more evenly distribute the CNEL noise contour between southern and northern impact areas. There would be fewer total operations over the Santa Ana Heights residential area and fewer numbers of single noise events in Santa Ana Heights. Implementation of this alternative would result in a short-term reduction in the amount of incompatible residential uses in comparison to the proposed project. (EIR, p. 6.6-4.) By the year 2005, however, the number of incompatible residential units would be nearly identical to the existing condition and only slightly less than the project. 122 i 4 5 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 N 27 LL t 28 (EIR, p. 6.6-4.) Moreover, despite the initial reduction in the number of residential units affected, a majority of the area located between Cypress Street and Santa Ana Avenue in Santa Ana Heights, as well as a majority of the Anniversary Lane residen- tial tract in Newport Beach would still require mitigation. JWA's Noise Abatement Center concluded, in its analysis, that the resulting CNEL improvement to the south would be insignificant. (EIR, p. 6.6-2.) We concur. The alternative is deemed infeasible for several reasons. Frequent runway directional changes create both runway management and air safety problems. Air traffic from all airports in the region flows in a uniform direction under FAA control. Any one airport operating contrary to that standard flow constitutes a non-standard situation and can be considered a safety concern. In this instance, the alternative would have aircraft departing from JWA to the north during periods when all other airports are operating in the southerly or westerly direction. Moreover, aircraft operations are directed into the wind in all instances, with discretionary runway directions available only during periods of calm winds or very slight winds. To man- date a specific time period in which flight departures must be made to the north is accordingly infeasible. It is also noted that during the time departures are routed to the north, arrivals over Newport Beach and Santa Ana Heights could partially offset any noise benefits of this alternative. Further, implementation of any such "alternative" would require not only FAA concurrence, but FAA enforcement as well. 123 t 1 2 3 4 5 6 7 9 10 11 12 � 13I • 14 18 19 20 21 22 23 24 25 9 26 0 27 28 The FAA has never indicated that it would favorably consider formal implementation of any such program at JWA. Given the marginal environmental benefits associated with the alternative, the significant safety/logistical concerns it presents, and the additional concerns expressed in the Statement of Overriding Considerations below, the Board deems the alternative unreasonable and infeasible. (1) Close JWA Entirely This alternative would remove JWA and permit re -use or re -development of the site to a use more compatible with its existing surroundings. Despite its obvious potential for resolv- ing Title 21 land use compatibility problems this alternative is in total conflict with the project objective of improving com- mercial air transportation service in the near future. Moreover, its adoption and implementation would encounter legal and financial obstacles. As the owner of JWA, the County is legally obligated to continue its operation as a public -use airport. This obligation derives from the original title granted to Orange County by the Federal Government. Closing the airport would involve costly repayment of Federal Aviation Trust Fund Monies and "buying out" long-term leases of airport tenants. Moreover, if the County ceases to use the site as an airport, land owner- ship may revert to the Federal Government. Attempting to predict the government's use of the property and to evaluate the environmental effects of such use would be an exercise in futile speculation. For all of the reasons noted above, as well as 124 i 1 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ° 26 N N - ▪ 27 28 those set forth in the Statement of Overriding Considerations below, this alternative is deemed unreasonable and infeasible. (m) Restrict or Terminate General Aviation at JWA This alternative would involve the reduction or cessa- tion of general aviation operations at JWA with or without 73 ADD air carrier service. The alternative is not only subject to the same legal and financial obstacles cited above with respect to closing JWA entirely, but also produces relatively insignificant environmental tion accounts noise contour craft used by benefits. For for 90 percent example, even though general avia- of the flight operations at JWA, the is almost exclusively commercial air dictated by the large air - carriers. The commercial -air - carrier -passenger traffic is similarly responsible for most traf- fic and circulation system impacts. Accordingly, elimination of general aviation would reap minor rewards. In view of these relatively insignificant environmental benefits and the signifi- cant legal/financial obstacles involved in implementing the alternative, as well as those concerns expressed in the Statement of Overriding Considerations below, the Board deems it an unreasonable and infeasible approach. (n) Restrict or Terminate Private Jet Use at JWA The number of private jet aircraft operation is increas- ing at JWA. These jets tend to cause noise complaints because they do not follow the prescribed jet flight path nor climb as quickly as they might. Total number of private jet flights per day is quite small, however, and not enough to affect the noise contours at the airport. Thus, to penalize this type of aircraft 125 } 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 20 21 22 23 1 24 • 25 2 26 ▪ 27 t 28 is not only fruitless, but also unfair. Moreover, JWA has received a number of ADAP and FAA grants that require a guarantee that the airport will be operated as a public use airport open to all users in a nondiscriminatory manner. Closing the airport to private jet use would require repayment of these grant funds and would undoubtedly trigger costly legal proceedings challenging the action. The relatively minor impact of private jet use and the economic burden associated with prohibiting private jet use at JWA, in addition to those concerns expressed in the Statement of Overriding Considerations below, render this an unreasonable and infeasible alternative. (o) Zero ADD: General Aviation and Commuter Service Only at JWA This alternative assumes that commercial air service would be eliminated at JWA and that the airport would continue to serve only general aviation and commuters. Although eliminating the large commercial carrier aircraft would significantly reduce adverse environmental impacts at JWA, it would also reduce the service available and, accordingly, is contrary to the project objectives. Further, eliminating any of the six commercial air- lines now serving JWA would trigger lawsuits that might, in turn, prevent implementation of this alternative within a reasonable period of time. The legal barriers to implementation of this option further stem from requirements attached to prior FAA fund- ing of airport improvements. Accordingly, for these reasons, as well as those set forth in the Statement of Overriding 126 0, ,,t. O 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r ° 26 N C 17, 2' 28 Considerations below, this alternative is deemed unreasonable and infeasible. (P) Meet Ultimate Year 2005 Demand The ultimate demand for commercial airline service at JWA in 2005 is estimated at approximately 250 ADD. Implementation of a 250 ADD alternative would provide an optimum level of air transportation service well beyond those of the project objectives. Airport improvements far beyond those of the project would be necessary including a new terminal (or two new terminals), strengthened main runway, extension of the aircraft apron, development of additional parking, and alteration of cir- culation patterns. (EIR, p. 6.3-30.) The impacts to biological resources could be significant. The possibility of bird strikes would increase, as would pollutants (such as sulfur oxides and lead) from airport and aircraft operations. The latter would increase the possibility that accumulation would reach measurable levels in the Upper Newport Bay Ecological Reserve. Since the LUCP would necessarily have to be expanded, erosion, siltation and a decrease in water quality could result from LUCP construction activity. Wildlife could be impacted during conversion of open -space areas (EIR, p. 6.3-34-35). With regard to aesthetics, a significant increase in the level of flight operations would result in a decrease in the aesthetics associated with the area. Jet -aircraft operations and noise events, coupled with increases in traffic associated with this alternative, would further result in a reduction of the 127 3 6 8 9 10 11 12 13 1 22 23 24 25 u, D 26 • N o D 2 LL f' 28 "liveable" environment. Implementation of the LUCP designed for a 250-ADD alternative would result in significant alterations of the existing land uses and land forms. Since the alternative would require construction of a pas- senger terminal building much larger than the proposed project, energy consumption would be greater. This project would also result in the highest annual fuel consumption by vehicles to/from JWA, and by air -carrier and commuter aircraft (EIR, p. 6.3-35). With regard to land -use impacts, the physical constraints of JWA could necessitate condemnation of additional property to accomodate this alternative's necessary improvements. At least four times as many units would have to be demolished and resi- dents relocated in order to achieve compatibility under this alternative (EIR, p. 6.3-36). With regard to transporation/circulation, the adoption of this alternative would result in twice the trip generation of the proposed project. Traffic effects would entail significant con- gestion of local roads. Indeed, traffic would be nearly immobile during peak hours (EIR, p. 6.3-36). With regard to safety, the risk of accident would be greater since exposure to aircraft accident would be increased. With regard to noise impacts, the 65dB CNEL noise contour would be greatly expanded, correspondingly increasing the extent of land -use incompatibility. Adoption of this alternative might increase the stress, annoyance, irritation and difficulty with learning, which have been associated with high levels and 128 F r 0 N O 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 1- 18 19 20 21 22 23 24 25 26 27 28 frequencies of aircraft noise by a number of studies (EIR, p. 6.3-39). With regard to population, housing and growth -inducing impacts, adoption of the alternative is likely to result in sig- nificant pressures for greater urbanization of the area. While it is speculative to attempt to quantify the effects given the subjectivity of the development industry, it is probably safe to summarize that adoption of this alternative would dramatically induce alteration of the land and the uses around JWA. Given the significant adverse environmental impacts asso- ciated with this alternative, the need to condemn additional property to accommodate the improvements, and the resultant high capital costs and length of required implementation time, this alternative is deemed remote and speculative, at best. It also represents, in the opinion of this Board, a serious imbalance between the level of air service at JWA and the environmental consequences of that service. For these reasons, as well as those set forth in the Statement of Overriding Considerations below, the Board considers this an unreasonable and infeasible alternative. (q) Extend Primary Runway North Over the San Diego Freeway This alternative would extend the runway 2,500 feet northward over the San Diego Freeway to permit takeoff to begin further to the north (more distant from Santa Ana Heights residences). The freeway grade would be lowered and traffic lanes would be channelled beneath the runway. 129 E 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 N 26 27 28 With regard air quality impacts, the emissions associated with airport operations would be approximately the same as with the proposed project's. However, overall project emissions would be reduced since there would be an elimination of eighty (80) acres of business -park uses and associated emissions to provide a new clear -zone North of the airport. Discounting construction phase traffic impacts, the alterna- tive's overall traffic effects would be the same as the proj- ect's. However, net traffic impacts would be less due to the removal of eighty (80) acres of business -park uses for the new clear -zone. Traffic -related energy consumption would be propor- tionately reduced as well. With regard to land -use impacts, this alternative would require acquisition and demolition of eighty (80) acres of busi- ness -park uses North of the airport for a new clear -zone. This removal would trigger relocation -assistance programs under provi- sions of State law. With regard to noise impacts, the 65dB CNEL contour would be shifted northward, significantly decreasing the area of incompat- ible land uses South of JWA, and increasing the area of less noise -sensitive industrial/office/commercial land uses North of JWA. This alternative was considered in 1966 prior to adoption and construction of I-405. At that time the cost of grading, drains, and bridge construction were deemed too expensive. (EIR, pp. 6.6-14 through 6.6-18.) As compared with the 1966 condition, implementation of the alternative would be far more costly and 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 0 VV • 16 u i 00 1- 18 19 20 21 22 23 24 25 26 N O 27 4) 28 time consuming today: (1) the runway extension would require acquisition and clearing of over 80 acres in the heavily devel- oped Sky Park Circle Business Park which was vacant in 1966; and (2) reconstruction of the freeway grade and "bridging" I-405 would be far more costly and disruptive now that the freeway is built. Major construction cost items are identified in the EIR at page 6.6-19. These costs are estimated at $80 million. Addi- tional costs would be incurred in acquiring land and structures valued in excess of $50 million; in relocating business; and in the loss of tax and other revenues. Moreoverj.offsetting the significant noise/land use compat- ibility benefits of this alternative is the fact that the alter- native would involve significant construction phase impacts involving the interim rerouting or partial closure of 1-405 and the resultant severe traffic impact. Cal Trans and Federal Highway Administration approval of the alternative would be required and is far from assured. There is also a significant technical obstacle to implementation of this alternative in that the existing very high frequency omnirange (VOR) air navigation facility at the north end of the existing airport site would have to be relocated. There is very little flexibility in this regard. The VOR must be located within 30 degrees either side of the runway center line, and within a distance of 6 nautical miles of the runway threshold to achieve the lowest minimum. No new site meeting these requirements exists. Consequently, the alternative would require the acquisition of land and structures in at least a 1,000 foot 131 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 N 27 ( 28 radius from the new VOR, adding at least 20 acres with business structures to the 80 acres already required for the removal of the new clear zone. Thus, the VOR relocation technical obstacle has cost implications well beyond the already significant estimates discussed above. Accordingly, for these reasons, as well as those set forth in the Statement of Overriding Considerations below, the Board deems this an unreasonable and infeasible aternative. (r) Replacement of JWA Operations at Long Beach Harbor. This alternative calls for construction of a new airport on fill to be placed in San Pedro Bay to which all commercial flights from JWA (73 ADD) would be relocated. Only commuter and general aviation services would remain at JWA. Because the 65 dB CNEL contour would be entirely over water, the noise and land use impacts of this alternative would be less significant than those at most other sites evaluated. Although this alternative would reduce adverse impacts below their current levels at JWA, it faces all of the legal obstacles identified in the zero ADD alternative. Further, although it has lesser noise and land use impacts than the proposed project, it also has greater environmental and technical difficulties than the project. Impacts from dredging, interference with tidal flushing, and displacement of marine habitat; impacts on three endangered species; tsunami hazards; high liquifaction potential; and a cost estimated at 5.5 to 7 times more expensive than the El Toro joint use alternative all serve to render this alternative infeasible. 132 1 1 1 2 3 4 6 7 9 10 11 12 18 19 20 21 22 23 24 25 26 ry 0 27 LL C 28 Most significantly, however, the lead time required to imple- ment this alternative would be substantial. In the interim, the problems addressed by the project would persist and magnify. For these reasons, as well as those set forth in the Statement of Overriding Considerations below, the alternative is deemed unreasonable and infeasible at this time. (s) Replacement of JWA Operations at Santiago Canyon. This alternative would involve construction of a new airport in the Santiago Canyon area (northeast of the City of Orange). 73 ADD would operate from the new airport. Only com- muter and general aviation services would be available at JWA. While a 1982 Blue Ribbon Committee Report recommended development of a Santiago Canyon Airport as a regional airport with capacity of 18 to 20 million annual passengers, the SCAG Aviation System Study of the same year recommended elimination of the site for consideration because of severe air space, environmental and infrastructure problems. The following major environmental problems were identified: (1) extensive cutting and filling would be necessary; (2) high landslide potential; (3) impact on habitat of rare and endangered species; and (4) sig- nificant danger of erosion and deterioration of ground water quality. Internal circulation from runways on the ridge top to passenger facilities in the Canyon was also deemed infeasible. And, again, the lead time required before the facility would be operational would prevent this alternative from addressing the immediate, compelling problems addressed by the project. Accord- ingly, for these reasons, as well as those set forth in the 133 1 2 3 5 7 8 9 10 11 12 13 14 16 i 17 18 19 20 21 22 23 24 - 25 Y • 26 O • 27 Statement of Overriding Considerations below, the Board deems this an unreasonable and infeasible alternative. (t) Replacement of JWA Operations at Chino Hilis. This alternative would transfer 73 ADD from JWA to a new airport that would be built in the Chino Hills. Only commuter and general aviation activities would remain at JWA. While the site and surrounding areas are currently vacant, the alternative is nevertheless deemed infeasible for several reasons. The Blue Ribbon Regional Airport Advisory Committee concluded that Chino Hills should be eliminated from further consideration as a regional airport site because of air space conflicts with exist- ing and projected air traffic to Ontario and LAX, inadequate service capacity, noise impacts on existing and planned residen- tial communities, and the need for major highway improvements to provide adequate access. Moreover, estimated capital improvement cost for Chino Hilis would be on the order of $625 million -- substantially greater than that for expansion of the Orange County Airport. And, most importantly, the lead time associated with develop- ment of a new airport is conservatively estimated at 10 years. During this time period, the alternative would fail to meet the objective of improving air service for Orange County residents. For these reasons, as well as those set forth in the Statement of Overriding Considerations below, the alternative is deemed unreasonable and infeasible by the Board. 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 rz 25 o ▪ ▪ 26 O • 27 LL g 26 (u) Land Use Alternatives. Each of the LUCP alternatives is described as a "Scenario" below. As discussed above, the Board has adopted an alternative LUCP scenario rather than approving the Project LUCP Scenario 8. In terms of its environmental effects, the land -use alternative adopted is the equivalent of LUCP Scenario 3, and, as has been done in the "A" findings above, may be analyzed as such. The only significant difference between the two is that the alternative proposes approximately eight acres of employment uses in lieu of residential uses. This alternative land use may produce incremental numerical increases in traffic generation, energy consumption, and air pollution over those described in Scenario 3, but of similar scale and significance. The Board has decided to reject as unreasonable or infeasible each of the other LUCP Scenario's proposed in the EIR, including project Scenario 8. It is the finding of the Board that the adopted alternative is superior to each of these scenarios. In reaching our conclusion on adoption of the LUCP alterna- tive, and in considering the other LUCP Scenarios, we observe that, in general, and with the specific exception of Scenario 6, those Scenarios which minimize conversion of residential uses to more intensive employment uses are environmentally superior except from the standpoint of noise exposure to residents. However, noise/land use compatibility is a major objective in developing an LUCP for the areas south of John Wayne Airport. It is obvious that there is no LUCP Scenario which is superior as to all environmental categories. 135 1 2 3 5 6 7 9 10 11 12 13 19 20 21 22 23 24 25 2 26 27 t 28 LUCP Scenario 2. LUCP Scenario 2 would maintain the residential eques- trian area of east Santa Ana Heights. The existing land uses would not change within the LUCP study area but the current agricultural zoning would be changed to a more restrictive residential equestrian district. A small amount of office and higher density residential use would be introduced. Compliance with noise standards would occur predominantly through methods other than land use conversion (e.g., accoustical treatment and avigation easements). The two schools in the area would be retained as,would 862 dwelling units in the planned noise compatibility area. The scenario proposes more residential use and less employ- ment/commercial use than the adopted LUCP alternative, thus resulting in a reduction in air pollutant emissions. Energy consumption under this alternative would be roughly 70 percent of the total consumption anticipated for the adopted alternative. (EIR, p. 6.8-5.) Scenario 2 proposes only limited conversion of incompatible land uses: only 20 existing dwelling units would be replaced. Thus, the impacts of the land use conversion may be less with this scenario than they are under the adopted alternative. Since this alternative achieves compatibility largely by mitigation rather than land use conversion, however, it would ultimately expose more persons to exterior noise levels in excess of Noise Element standards. The land use plan itself would generate less traffic than the adopted alternative and therefore result in lower noise levels from surface vehicle sources. 136 i 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 r 23 24 rz 25 O 26 N 27 u. 28 With respect to transportation/circulation, this alternative is projected to generate roughly 90 percent of the average daily trips projected to be generated by the proposed alternative. With regard to public health and safety, Scenario 2 will result in fewer people being exposed to overflying aircraft than the project, since the alternative results in limited conversion of residential use to office and/or commercial uses. The secondary growth inducing impacts associated with the proposed project would be significantly reduced by implementation of this alterna- tive which is highly comparable to the No -Project alternative. The dynamic, economic growth would be sacrificed. LUCP Scenario 4. This alternative combines limited land use conversion and residential expansion within the projected noise compatability area. The predominantly half acre lot area of East Santa Ana Heights would split between business park and high density residential uses. Thus, most of the current residential/ equestrian uses in the area would be eliminated. The more heavily noise impacted section, along Cypress Street and Mesa Drive, is targeted for land use conversion. The other section is targeted for expanded residential uses. A limited amount of office, commercial and higher density residential uses would be introduced. Compliance with Title 21 would be through a combination of land use conversion, accoustical treatment, and avigation easements. The two schools within the planned noise compatibility area would be eliminated but 683 existing dwelling units within the noise compatibility area would be retained. 137 1 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 N • 26 � N O • 27 i 28 This alternative proposes less residential use and more employment and commercial use than does the adopted alternative. Consequently, it will produce more air pollutant emissions than the adopted alternative. Likewise, its energy consumption is projected to be higher, and its impacts upon land use are "greater" -- e.g., most of the residential/equestrian uses would be replaced by business park with some high density residential in the area alternative land use it of Cyprus Street and Mesa Drive. Since the results in limited conversion and intensification of will result in more persons being exposed to overflying aircraft than the adopted alternative but will expose fewer full time residents to the risk of aircraft accidents. LUCP Scenario 5 Scenario 5 combines limited land use conversion within the projected noise compatibility area and residential expansion outside it. The predominantly half -acre -lot area of East Santa Ana Heights would be converted to business park uses, resulting in the elimination of most residential/equestrain area. The currently undeveloped mesa adjacent to uses in the the Upper Newport Bay would be designated for high density residental business park uses. 332 existing dwelling units would be eliminated. Both schools within the noise compatibility area would be eliminated. Because Scenario 5 would have more commercial and less residential use than the adopted alternative, vehicle trip genration figures would be higher and would result in increased traffic, air quality, and energy consumption impacts. Demand for and 138 1 2 3 4j 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 iz 25 2 26 0 27 LL 28 water and generation of waste water would be significantly greater under Scenario 5 than under the adopted alternative. Impacts upon housing would be signficantly worse as 332 dwelling units would be displaced where the adopted alternative displaces only around 200. Fewer full-time residents would be exposed to risk of air accidents under this alternative, but there would be greater total exposure. LUCP Scenario 6. This alternative represents an almost complete conver- sion of residential uses and schools within the projected planned noise compatibility area to open space uses. Current uses out- side the planned noise compatibility area would be retained. Compliance with Title 21 would be achieved almost exclusively through land use conversion. Several large neighborhoods, including the residential/equestrian area of East Santa Ana Heights and the Pegasus and Anniversary tracts, would be eliminated. Only 12 existing dwelling units would be retained within the planned noise compatibility area. These are single family homes located on Galaxy Drive in Newport Beach. Since the alternative proposes all open space and is, there- fore, significantly less intense than the adopted alternative, vehicle miles travelled would be significantly less, resulting in a significant reduction in air pollutant emissions over the adopted alternative and a reduction compared to the no -project alternative. This scenario would result in just over 50% of the total energy consumption anticipated by the adopted alterna- tive. The proposed land use is significantly less intense than 139 1 2 3 5 6 9 10 11 12 13 14 18 19 20 21 22 23 24 25 10 3 26 N O 2? t• 28 the adopted alternative; although it would be fully consistent with Noise Element Policies where the adopted alternative might not be. This scenario would create significantly less noise impact than the proposed project itself since the lower density use would generate fewer vehicle trips. The public health and safety impact associated with this alternative is significantly less than that of the adopted alternative since the alternative envisions total conversion of land uses to open space. In sum, other than the no project alternative, this alternative constitutes the environmentally superior alternative. LUCP Scenario 7. This alternative envisions the almost complete con- version of residential uses and schools within the planned noise compatibility area to business park uses. Current use outside the noise compatibility area would remain unchanged, except that the undeveloped mesa adjacent to Upper Newport Bay would be designated for high density residential and business park uses. Compliance with Title 21 would be achieved almost exclusively through land use conversion. Two schools would be eliminated within the planned noise compatibility area and only 12 existing dwelling units would be retained within the area. All residential/equestrian uses would be eliminated. Since the alternative would have more intense development of the business park, emissions of all pollutants would be greater in 1990 and 2005 than they would be with the adopted alternative. Electricity and natural gas demand would be significantly greater than generated by the adopted alternative due to expanded 140 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 72 25 26 N ry 0 27 u. 28 business uses. Traffic analyses indicate that average daily trips would be over 200% of the adopted alternative in 1990. Land use conversion would result in elimination of over 1,000 dwelling units, while the adopted alternative would displace only around 200 units. Because the land conversion would result in a much more intense use of the land, this alternative would result in increased exposure of persons to the potential hazard caused by overflying aircraft. Finally, since this scenario maximizes business park uses and carries with it the highest forecast of vehicle trips, the general noise levels would be higher than those projected for the adopted alternative. Land use compatibility would be achieved by conversion of incompatible land uses. LUCP Scenario 8 This scenario was proposed as the project. As such, its impacts are discussed under the "A" findings above. In general, its proposal for much higher commercial density results in impacts similar, albeit somewhat reduced, to Scenario 7. It, too, would displace over 1,000 dwelling units. Feasibility Scenario 2 fails to recognize that growth -- both in terms of the economy and the population -- is inevitable in the areas surrounding JWA. Indeed this Scenario's minimal conversion to commercial/business park uses not only leaves a significant number of incompatible dwelling units, but also fails to accommodate, or capitalize upon, the growing commercialization 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 ry 26 -; 27 28 that will inevitably arise in conjunction with increased ADDs at JWA and pressures from the Irvine Center. While preservation of existing residential communities is an admirable goal, and one that this Board has attempted to achieve where possible, complete retention of residential neighborhhods as envisioned by Scenario 2 ignores the need for compatibility under Title 21, as well as the incompatibility with existing or planned airport uses. The adopted alternative, on the other hand, achieves -- with mitigated environmental impacts -- a desirable balance of accoustica4 y-treated residential uses and compatible commerical uses. For these reasons, as well as those set forth in the Statement of Overriding Considerations below, Scenario 2 is rejected as an unreasonable and infeasible alternative. Scenarios 4 and 5 each propose more intense employment/ business park use of the LUCP area than the adopted alterna- tive. As such, the resulting environmental impacts (air traffic, energy, noise, housing) are significantly worse -- particularly with regard to Scenario 5 which proposes to eliminate on additional 100 existing dwelling units beyound those that would be eliminated under the adopted alternative. It is this Board's desire to accommodate, to whatever reasonable extent possible in line with the goal of achieving Title 21 compatibility, the wishes of those residents desiring to retain their present uses. Given that the adopted alternative accommodates a greater number of these residents, while simultaneously mitigating the environmental impacts associated with both the Project Scenario 8 142 n 5 6 8 9 10 11 12 13 14 19 20 21 22 23 24 25 26 N 27 t 28 and Scenarios 4 and 5, the Board deems the adopted alternative a superior vehicle with which to implement the LUCP. Moreover, Scenarios 4 and 5 each propose elimination of most equestrain uses within the project area, while the adopted alternative retains a significant number of these equestrain establishments. For these reasons, as well as those set forth in the Statement of Overriding Considerations below, the Board deems Scenarious 4 and 5 unreasonable and infeasible. Scenario 6 is deemed infeasible for many of the same reasons cited immediately above. Most significantly, Scenario 6 -- even more so thanScenario 2 --fails to recognize the realities of future growth in Orange County. This scenario proposes to achieve compatibility almost entirely through conversion to open space. While admittedly an environmentally superior alternative, the elimination of existing uses -- both residential and equestrian -- and the accompanying proscription against future such uses is unrealistic and infeasible. The quest for compatibility need not be an all or nothing proposition. As is manifested by the adopted alternative, a balance between the demands of airport use and the demands of residents surrounding the airport may be achieved. Complete conversion to open space is an unnecessary and myopic "non -solution" to the problem. Scenarios 7 and 8 represent "non -solutions" at the other extreme from Scenario 6. Where Scenario 6 proposes conversion to open space, Scenarios 7 and 8 propose intense development of the Santa Ana Heights area, almost complete elimination of the residential/equestrian uses, and displacement of over 1,000 143 1 2 3 4 5 6 9 10 11 12 13 14 15 y 16 18 19 20 21 22 23 24 25 26 0 27 28 dwelling units. The air quality, energy, traffic, and housing impacts associated with these high density scenarios are significantly worse than those associated with the adopted alternative. As noted above, noise compatibility may be achieved in an environmentally sound fashion without resorting to "all or nothing" solutions such as complete conversion to commercial use. The adopted alternative accomplishes this; and, as such, Scenarios 7 and 8 are rejected as unreasonable, infeasible alternatives. (v) Mitigation Measures Proposed During Public Review. 1.. -.During the period of public review, the comment was made that a minimum of twelve months should be allowed before displaced residents within the project area have to vacate their homes. This was designed to enable these residents sufficient time to find desirable housing. To the extent that this suggestion may be deemed a proposed mitigation measure, it has not been incorporated into the project due to the fact that the amount of time required to vacate acquired properties is a policy decision of this Board, and will be addressed in the implementation phase of the LUCP. 2. During the period of public review, the comment was made that a system introducing four different take -off vectors from JWA would reduce the adverse impacts by a factor of four for those residents presently affected. While the County has explored the use of such multiple -varying departure courses as a potential mitigation measure, the FAA has consistently rejected such proposals due to the rising terrain elevations east of the 194 1 2 3 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 • 7; 27 t 28 Airport and due to severe air traffic conflicts with other area airports and airways. Accordingly, this mitigation measure is rejected as unreasonable and infeasible. 3. During the period of public review, the comment was made that any increase in air traffic should be limited to the BAe-146 type aircraft. This proposed mitigation measure is deemed infeasible for several reasons. First, this type of aircraft seats fewer passengers than the aircraft anticipated in the JWA fleet mix. Accordingly, the seating capacity of commercial air -carrier fleets serving JWA would be reduced, and would thus adversely affect the ability of the facility to serve the air transportation needs and demands of Orange County. A decision to single out a single aircraft type for service at JWA would be myopic, potentially anti -competitive and unfair. Further, adoption of such a mitigation measure would most probably motivate the initiation of litigation against the County by Federal authorities, the airlines or other persons challenging the authority of the County to so regulate airport use. For these reasons the Board considers this mitigation measure to be unreasonable and infeasible. 4. During the period of public review, alternatives designed to avoid impacts to the Upper Newport Bay Ecological Reserve were proposed by the United States Department of Interior. These alternatives included realigning proposed University Drive along existing Mesa Drive; increasing the environmental open -space area between the Upper Newport Bay Ecological Reserve and new developments; sunken roadways; and 145 oa 0 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 t$ 28 landscaped barriers of native sagescrub and riparian vegetation along the bluffs of Santa Ana Heights. These suggested mitigation measures are deemed infeasible at this time since a study is still to be conducted regarding the alignment of University Drive to determine its ultimate location. Only at such time as development and final alignment occurs will mitigation measures such as those offered by the Department of Interior be evaluated. 5. During the period of public review, the comment was made that the significant effects of the project could be mitigated by the Board of Supervisors by adopting a County General Plan that would decrease the projected population and encourage the incorporated cities to reduce the density of their General Plans. It must be noted in this regard, however, that even with the increased growth projected for the unincorporated area by the year 1990, fully eighty-three percent of the County's population would reside within incorporated cities, over which the County has no control. In the year 2000, seventy-nine percent of the County population will reside in incorporated cities. Even within areas of the Board's control it is doubtful that growth control could be implemented successfully over the considerable social and economic interests which are dependent on growth. As a policy matter it is socially undesirable to reduce growth. Accordingly, a mitigation measure calling for this Board of Supervisors to reduce population in the County is deemed infeasible. 146 F0192.210 (5/71) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 i 18 : 191 20 21 221 23 24 25 26 27 28 6. During the period of public review, the comment was made that the County should consider participating in the Comprehensive Storm Water Sedimentation Control Plan currently being implemented by the Cities of Newport Beach and Irvine. While the value of this program is recognized, the Board rejects County involvement in the program since the Revised DEIR identifies no significant contributions of sedimentation from the project into Upper Newport Bay; and since mitigation measures have already been incorporated into the project which reduce any potential significant impacts to a level of insignificance. 7.; -During the period of public review, it was proposed that MacArthur Boulevard be widened to eight lanes fronting JWA, and that a pedestrian bridge be constructed across MacArthur Boulevard sited midway between Michelson Drive and Campus Drive. With regard proposed mitigation mitigation measures to the widening of MacArthur Boulevard, this measure already is rejected due to the fact that incorporated into the project have reduced traffic congestion impacts to a level of insignificance. Similarly, with regard to the proposed pedestrian bridge mitigation proposal, the Board sees no need for such a measure, since nearby signalized intersections make a pedestrian bridge in this vicinity unnecessary. 8. During the period of public review, the City of Tustin proposed that the ILS approach be realigned easterly of the Newport Freeway over commercial and industrial areas, and that the VOR be moved from its present alignment. It was the City's contention in this regard that these actions would 147 • 1 3 4 5 6 9 10 18 19 20 21 22 23 24 25 2 26 N • - 27 28 substantially reduce noise impacts on residential areas. With regard to realignment of the ILS approach, the County sees no need for such action. The ILS approach is already east of the freeway and, given that it is a precision approach, must be aligned with the runway -- no deviations are possible. This means that the ILS approach must be on the 193° radial, and exactly in line with the primary runway of JWA. With regard to the VOR, higher buildings have been constructed around JWA since the time when the VOR radial was established six years ago. Altering the route, or radial heading, would be difficult if not impossible.; 'In any event, the assignment of flight paths and headings is an FAA responsibility. Accordingly, the proposed mitigation measures are deemed unreasonable and infeasible. The County has adopted as a mitigation measure for the project a proposed study of landing approach patterns to be conducted with the FAA. 9. During the period of public review, the comment was made that a purchase -assurance plan should be available for those residents who are to be rezoned or "become part of a road." While the merit of this proposed measure is recognized, such a program is not properly adopted as part of this project. A "purchase assurance" program of this nature must be developed as part of the implementation plan, since its scope cannot be determined until a final decision is made with regard to adoption and imple- mentation of the LUCP. 10. During the period of public review, the Irvine Company proposed that several street improvements be considered 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 LL 28 as mitigation measures. The proposal called for an extension of University Drive to Irvine Avenue; widening of the MacArthur/ I-405 bridge; signalization of the Campus/Airport(s) intersection; and other improvements to mitigate V/C ratios of as high as 1.6. The Board finds that these proposed mitigation measures are unnecessary, as mitigation measures have already been incorporated into the project which reduce the traffic impacts to a level of insignificance. 11. During the period of public review, the comment was made that the airport authority should consider a financial incentive for airlines to acquire Class AA aircraft. This proposal envisioned landing fees based on noise levels, with the noisiest aircraft being assessed the most. While the potential of such a proposal is recognized, this measure is deemed infeasible for several reasons. Initially, a landing fee structure in the type of market in which JWA operates would lead to increases in the cost of air transportation service to the public. Where demand is high, it is relatively easy for opera- tors to pass the extra costs onto the passengers in the form of higher ticket charges, rather than providing an "incentive" to purchase new aircraft. Moreover, the most direct "financial incentive" which can be given to an airline at JWA is the allocation of an average daily departure. This form of regulation is far more direct, clear and effective than an inevitably complex and uncertain "landing -fee structure." Accordingly, this proposed mitigation measure is rejected as unreasonable. 149 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20' 21 22 23 24 25 D 26 27 28 12. During the period of public review, it was suggested by the Stop Polluting Our Newport (SPON) organization, that mitigation measures identified in the EIR should be expanded to impose conditions which would reduce the risk of accidents associated with noise -abatement procedures, increased passenger loads, increased congestion of airspace, etc. The Board finds that further mitigation as suggested by SPON is unnecessary. There is no indication that noise -abatement procedures, increased passenger loads, increased congestion of airspace, increased use of the shorter runway, etc., impose a significant safety risk which is not already addressed by mitigation measures incorpo- rated into the project. The comment left undefined what such measures would be. Several project alternatives reduce the number of flights and could serve to reduce risk as identified in the EIR. Aircraft safety and operations measures are within the regulatory control of the FAA, and while this Board will suggest and promote safety measures to the FAA whenever such measures can be identified, it is impossible for the Board to assure adoption or implementation, or to make a recommendation when no substance is suggested as to the proposed procedures. 13. During the period of public review it was suggested by AIR CAL that the mechanical rooms for the terminal building should be designed as a central system to maximize usage of the terminal building for airlines and passengers; and that baggage claim systems and car rental counters would be better located in the parking structure. To the extent that these measures may be 150 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ` 28 deemed proposed mitigation measures they are deemed infeasible for several reasons. With regard to the proposed single, centralized mechanical room, while it is acknowledged that such a structure would save space, it would simultaneously increase the total length and size of ducts installed and correspondingly increase energy loss. Moreover, the 2-room layout was preferred over the centralized facility since it better serves two independent parts of the passenger terminal. This, in turn, reduces the risk that the entire heating/cooling and air handling system would be inoperative at once due to malfunction. With regard to the baggage claim system and car rental counters, the terminal has ten designed as a single -level passenger terminal not a multi -level facility. Since all arriving and departing passengers can be processed on the same level, moving the baggage claim system and the car rental counters to another level would create confusion and would complicate the vertical movement of passengers. With the exception of those passengers who have parked a vehicle in one of the other levels, all passengers have direct access to the roadway for loading and unloading. Accordingly, the movement of passengers becomes more efficient. 14. During the period of public review, it was suggested that an absolute curfew for all aircraft regardless of SENEL value be imposed. Such a measure is deemed infeasible, however, due principally to the serious legal concerns regarding its enforceability. The regulation of airport use must withstand a threshold test of being reasonable. If there are aircraft which can operate without generating any significant risk of 151 • 2 3 4 6 7 8 9 10 11 12 13 14 15 16 , 17 disturbance to surrounding residential areas during curfew hours, an "absolute curfew" may arguably be both arbitrary and capricious since it would restrict operations far more than necessary to accomplish the intended purpose of the regulation. There is no apparent valid reason or evidence to presently conclude that all aircraft should be banned from operations during the curfew hours. (w) Study of Preferential Runway. A mitigation measure was included in the EIR which proposed that the FAA conduct a study to consider approving the Runway Directional Change Alternative discussed in Section 6.6.1 of the EIR as a departure -noise mitigation measure. This mitigation measure is deemed infeasible by the Board for the same reasons that the Preferential Runway Alternative is deemed infeasible. Indeed, regular departures to the north from JWA for even a short period of time each day would constitute a "non- standard" situation, creating a considerable safety concern. Air 18i traffic from all airports in the reg ion gion flows in a uniform 19i direction under FAA control. In this instance, the mitigation 20 measure would have aircraft departing from JWA to the north, 21 1 22 23 24 25 26 0 27 LL I t 26 during periods when all other airports are operating in a southerly or westerly direction, thus creating a significant risk of accident. Moreover, it would be virtually impossible to determine a definite time -period during which such departures could occur. Departures to the north are dependent upon certain wind conditions which cannot always be predicted with complete accuracy. Since, for safety reasons, there would have to be 152 1 1 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 coordination between JWA and other airports in the area, the difficulty in predicting implementation times for this mitigation measure render it difficult, if not impossible, to pursue. The logistical and safety problems inherent in the proposal, coupled with the fact that the preferential runway would initially result in a reduction in the number of residential units affected but, by 2005 would be nearly identical to the existing condition, and boast only slightly fewer incompatible uses than the project, combine to render further consideration of this mitigation measure infeasible. Any study conducted would result in an unproductive'and costly waste of resources. (x) Access Plans. Several variations of the proposed Class AA Access Plan were presented in the EIR as potential noise mitigation measures. Ultimately, these proposed mitigation measures were rejected as being inferior to the Access Plan adopted by the Board (and described more particularly in Finding "A.15" above). The proposed Access Plans set forth at pages 4.15-107 through 4.15-120 of the EIR included the following: (1) It was proposed to continue the 1982 reallocation system, whereby two new entrant airlines would be admitted and allocated three Class A ADDs each. Each quarter, the Class A allocations would be reduced by ten percent for each carrier, and placed into a pool for equal reallocation, with preference being given to those carriers seeking to operate Class AA aircraft. At such time as the maximum -seat -capacity constraint was reached (8,500 daily departure seats), reallocation would occur only 153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 N a. 27 under circumstances where an air carrier forfeited its ADD allocations. (2) A controlled trade out scenario was proposed whereby two new entrants would be admitted and allocated three Class A ADDs each. Fifteen of the forty-seven Class A ADDS would be declared eligible for trade out at a ratio of two -to -one for Class AA aircraft. Trade out would be allowed at any time during the period of the Access Plan on a first -come, first -served basis, up to a maximum of six tradeouts for any single carrier. (3) A separate Class AA pool scenario was proposed whereby Class A ADDs would be permanently frozen at 41, and any authorized increase in ADDs above the forty-one level would be allocated solely to Class AA aircraft. (4) Finally, a single -class ADD regulation scheme was proposed whereby the minimum ADD regulatory threshhold would be permanently lowered from 89.5 dB SENEL to 86.0 dB SENEL, and all commercial aircraft operating above the minimum regulatory threshhold would be regulated as a single class. Each of the proposed Access Plans identified above has been rejected by the Board, in favor of the Access Plan identified in Finding "A.15" above. The Board deems the adopted version of the Access Plan to be a superior means of achieving the Access Plan's dual objectives. First, the Board seeks to encourage air carriers to convert their fleets to the quieter Class AA -type aircraft. At the same time, however, the Board does not want to abandon all regulation of the Class AA aircraft, as such a move might result in the project's environmental effects being 28 154 E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 osg r o V ' 16 6'z oz. 00 1- fr 18 19 20 21 22 23 24 25 26 P 0 27 28 seriously exacerbated, particularly traffic, air quality, and noise impacts. The unregulated Class AA scenario would also adversely impact the existing facility constraints during Phase I. It is the decision of the Board that the Access Plan ultimately incorporated into the project effectively mitigates noise impacts, while taking into account the realities of the air -carrier fleet mix and, to the extent possible, factors which will motivate the air carriers to behave in a manner which would meet the County's goals. It also recognizes the substantial investment made by the air carriers using JWA in quieter "Class A" equipment in recent years, and the practical need to allow the carriers a reasonable period of time to use such equipment, which might be precluded by an immediate implementa- tion of a plan such as Scenario (1), above. Scenario (1) is rejected because, although it would reduce departure noise, it would also reduce overall seat capacity due to the smaller size of the new aircraft types. Further, it would effectively limit the operational "life" of the MD-80 at JWA to approximately 4 years, which is an unreasonably short period of time given the size of the investment made by the carriers which purchased this aircraft or leased it on a long term (i.e., 20 year) basis. (It would not impact carriers with shorter term leases, however.) Finally, it would effectively preclude later introduction of other "Class A" type equipment such as the B757 and B767, already found by the Board to be consistent with the goals and objectives of the project. 155 1 3 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 r. 25 26 ^; 27 t 26 Scenario (2) above, is essentially the plan adopted by the Board, except that only 8 Class A ADDs would be eligible for "trade -out" under the adopted plan rather than 15. This results in an overall "cap" during Phase I of 55 ADD rather than 62 ADD, and is thus a superior mitigation measure. Scenario (3), above, is rejected because it might restrict new carrier entry during Phase I, and because it would be less competitive and would result in a larger number of Class A ADDs than Scenario (2). Again, the plan selected by the Board is environmentally superior. Scenario-(4) was rejected because it would discourage the use of quieter potential "Class AA" aircraft types, such as the B737-300 and BAe-146 aircraft during Phase I of the project. The plan chosen by the Board would result in substantial noise reduction if there are qualified Class AA aircraft, and thus the plan chosen by the Board is environmentally superior. Overall, it is the desire of this Board, as the proprietor of JWA, to remain at the "cutting edge" of airport noise control and reduction regulation, while allowing a reasonable level of service to the community by a reasonable range of aircraft types. The Board finds that, on balance, its plan best meets these objectives. (y) Reduction of Noise Threshold Via Penalties. A mitigation measure was included in the EIR which would reduce by 1.0 dB SENEL the maximum permitted noise levels for Class A aircraft (EIR, p.4.15-100) by means of an "incentive" penalty scheme in the access plan. The Board finds that this 156 1 2 3 1 4 5 6 r 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 2' measure is unnecessary, unlikely to produce any significant environmental benefits, and represents a complication in the County's airport regulatory scheme unjustified by any realistic realizable benefit. D. Statement of Overriding Considerations. The County of Orange proposes to approve the project despite certain unavoidable adverse impacts identified in the EIR. Therefore, the Board of Supervisors, having reviewed and considered the information contained in the EIR and the record, makes the following statement of overriding considerations which have been balanced against the unavoidable adverse impacts in reaching a decision on this project: 1. Unavoidable Adverse Impacts. Although potential project impacts have been substan- tially avoided or mitigated as described in the preceding findings, there is no complete mitigation available for several adverse impacts identified by the EIR. Specifically: (a) Geology/Topography/Seismicity/Soils. Implementation of the project will produce some soil loss due to wind and/or water erosion during the construction phase. In addition, some damage of structures and facilities (glass breakage, cracking, deformation, etc.) would be unavoidable during an earthquake. 28 157 4 5 6 9 10 11 12 13 14 ;IZ 0 0 17 V 18 19 20 21 22 23 24 25 26 0 27 (b) Air Quality. Despite the improvement in motor vehicle emissions through the Federal Motor Vehicle Control Program, implementation of the project will result in increased emissions of CO, THC, NOx, SOx, and particulates. There is, however, a net regional reduction in emissions producing a better long term air quality. (c) Water Quality. During the construction phase of airport improve- ments and Santa Ana Heights redevelopment, implementation of the project will result in unavoidable short-term increases in erosion and sediment transport. With regard to the project's long-term effects upon water quality, however, while there will be a long-term increased runoff volume, there will also be a reduced sediment load resulting in a combined positive impact upon the Upper Newport Bay. (d) Aesthetics. Although buffer strips would be placed to protect the suburban visual character of existing residential neighbor- hoods that would remain as part of the LUCP implementation, these buffers would be unable to completely screen out the new com- merical and high -density residential developments associated with the LUCP. (e) Energy. Implementation of the project would result in unavoidable consumption of energy during the construction phase. In addition, the expanded terminal, with its capacity to handle increasing numbers of air carrier passengers, will 28 158 1 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 0 26 N - 77 O g 28 necessarily result in greater energy consumption. The project will also result in unavoidable increases in energy consumption attributable to (1) increased automobile use stemming from the increased passenger traffic; (2) increased aircraft use resulting from more air carrier flights out of JWA; and (3) increased commercial and office space which tends to consume more energy than the residential space it would be replacing. (f) Land Use. Implementation of the LUCP will result in elimina- tion of some residential land suitable for raising horses. Intensified land use would result in secondary adverse effects on air quality, traffic, and noise. And, most importantly, area residents, many of whom are unwilling to leave their homes, would be displaced by implementation of the project. (g) Traffic/Transportation. Project area roadways are forecasted to be severely congested even without project implementation. nevertheless, the project will produce unavoidable adverse impacts on traffic during Phase I prior to completion of proposed mitigation measures; and on a long-term cumulative basis as a result of its growth inducing effects. (h) Population. Implementation of the project will result in an unavoidable increase in population growth attributable to increased employment in the project's vicinity. This increase in population is identified as a significant unavoidable impact, although whether this growth is adverse or beneficial is a matter of perspective. 159 1 2 3 4 5 6 12 13 14 J . Z T 15 'Do 0 19 20 21 22 23 24 25 2 26 P.,N 0 27 t 28 (i) Housing. Implementation of the project would displace around 200 housing units that could otherwise be expected to remain in the area for several decades. Moreover, certain social impacts (EIR, p. 4.12-14) resulting from dislocation -- while to a certain extent mitigable -- are a significant impact which cannot be entirely avoided. (j) Recreation. As noted above, implementation of the LUCP will result in elimination of some equestrian facilities in the area of the project, thus diminishing the recreational enjoyment associated with these facilities. Moreover, implementation of the project could result in an unavoidable adverse impact upon the use and enjoyment of park and recreational facilities within the general study area due to increased noise. (k) Public Health and Safety. Although the number of aircraft accidents cannot be predicted to increase as a result of the project's implementa- tion, the fact that a greater number of people will be exposed to the risk of an accident is, in itself, an unavoidable adverse impact. (1) Noise. Implementation of the project will result in an increase in the CNEL contour areas of about 20 to 24 residential acres. This enlarging of the CNEL contours could result in increased annoyance and other adverse effects related to increased noise exposures. Moreover, the LUCP -- while aimed at 160 10 11 12 13 14 19 20 21 22 23 24 25 2 26 N O 27 C 28 1 2 3residential use) in the Santa Ana Heights area. While this does 41I not create an unavoidable problem in the Santa Ana Heights area 5I since that specific area will be converted to compatible uses, there may be some traffic spillover into nearby residential areas", increasing their noise levels to an unavoidable extent. The 32 ADD increase will increase the cumulative time during 9' which there may be speech interference as well as the single event "effects" of airport operations. (m) Public Services. Implementation of the project will result in a certain degree of disruption of traffic and increased noise and dust during the construction of utility extension/expansion. (n) Cumulative Impacts. Project implementation will result in cumulative increases in air emissions associated with increased traffic and congestion, continued urbanization, increasing traffic conges- tion, exposure of people to increased number of single noise events and increased traffic noise, and increasing exposure of persons in the airport area to public health and safety hazard from overflying aircraft. 2. Overriding Considerations. This is an extremely difficult decision. For years this Board or predecessor Boards have been confronted with the issue of John Wayne Airport. Many studies have explored whether to expand John Wayne or develop some other airport. Too often, the eliminating incompatible land uses -- would induce more automobile traffic (i.e., office use generates more traffic than 161 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 211 22 23 24 25 26 27 course of decision -making has led to a nondecision. Too often, this has meant that the County of Orange has failed to address the difficult issues confronting this Board today. Too often, this has lead to frustration by all parties interested in, or affected by the operation of the airport. A reasoned decision on the operational future of JWA is needed, and that decision has now been made. As the County has grown, so too has the demand and need for an airport. Many businesses and residents depend upon air transportation for their very livelihoods. The City of Anaheim has continually reminded this Board of its great dependency upon the tourism industry and the need for better service to facilitate that tourism industry. Our economies cry out for more flights. At the same time we have been continuously confronted by those residing in the flight path of John Wayne Airport and their expressed desires to move, shut down, or severely limit the airport. adjacent We understand municipalities the City of Newport Beach representing the views of or other their citizens that they would prefer some other site for an airport. We understand also the views of citizens and members of other jurisdictions arguing effectively against adoption of an alternative which places an airport in their jurisdiction. An airport is a facility which no one wants in their backyard. Other jurisdictions have repeatedly urged us not to "export" our airport "problems" to them. The economies of this County are too dependent upon airport transportation to refuse to meet their reasonable needs. The 162 t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 " 21 22 23 24 25 ry 26 .44 27 e 28 airports of our sister counties are too burdened and too remote to resolve our dilemma. No one can reasonably force more traffic upon the freeways adjacent to Los Angeles International Airport. No one can reasonably expect some other jurisdiction to incur the detriments of our need for transportation. For too long the counties and cities of this region have ventilated about pie -in -the -sky solutions simply because there is no easy solution to the siting of the additionally needed airport facilities. Today we attempt to meet these many competing interests. We believe, on balance, that we have reasonably addressed these concerns. The impracticalities of establishing an entirely new airport dictate a decision for continued use of John Wayne. The concerns of the citizens residing in the flight path of John Wayne Airport argue for ignoring the immense financial, environmental and practical difficulties posed by the creation of some other major urban airport facility. We must strike the balance on both concerns. We must expand John Wayne Airport to meet a reasonable level of service through 2005. We will also do what we can to identify other possible airport sites to meet the demand which will not be served by this project. John Wayne exists, and with minor runway alterations can accommodate increased service levels. While the new terminal constitutes a major commitment of resources, it is still less capitally intensive than establishing some other site, whether joint or exclusive. Yet regulation constraints, as we have adopted them, are still necessary to achieve an appropriate control of airport use in this delicate balancing process in which we are necessarily engaged. 163 1 1 2 3 4 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We know that we have not satisfied all of the people by our decision. Indeed, we have probably not totally satisfied anyone, any group, or any interest. Because of conflicting views we believe total satisfaction is impossible. In the following pages we address in greater detail the underpinnings of our decision. JWA is incapable of reasonably handling even existing demand, let alone any future demand. Indeed, the existing passenger terminal building at JWA is severely overcrowded, and is serving a passenger level 7 times greater than its designed capacity. (Master Plan, p. I -IV). In 1983, the airport served more than 2.79 million air passengers (Master Plan, p. I -I.) An increase in authorized ADD levels is necessary to meet a reasonable level of this demand to the year 2005. While the passenger terminal has undergone a few additions, such as the increase in the size of the waiting rooms and the addition of a new baggage reclaim area, it is still grossly overcrowded: only boarding passengers can use the facility at the present time, and two temporary trailers are currently being utilized as additional passenger handling space by PSA and American Airlines. The aircraft parking apron, designed to accommodate 6 aircraft at the terminal, now must handle 12 to 13 aircraft each morning. The growth of general aviation has met pressure from all directions. Not only has the number of aircraft in the region been increasing, but the number of airports has been decreasing. In 1975, there were 4 airports in Orange County serving general aviation; today there are only 2 publicly -owned 169 1 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 facilities. One airport, the privately owned Meadowlark, will soon be closed. There are over 2900 general aviation aircraft registered to Orange County owners. Of these, less than 1000 can be accommodated at JWA. (Master Plan, P. I-1, II05.) The remainder must seek space at airports outside the county. In addition to the problems posed by the terminal itself, the parking facilities at JWA have historically been inadequate to handle existing demand. Limited on -site parking and increasing congestion problems have in the past rendered the airport so inefficient at current operation levels that there were several instances when vacant parking spaces were simply not available, and traffic was forced to continually recirculate until vacancies appeared. While the North Clear Zone Parking Lot will restore parking capacity to reasonable levels at 41 ADD, it would not be sufficient for long term service at higher passenger service levels. Moreover, the airport is currently operating under an access plan which has resulted in the conversion of the JWA fleet to quieter aircraft meeting the County's more restrictive Class A noise limits. While these (and future Class A) aircraft will continue to provide significant noise reduction benefits to surrounding communities they will, at the same time, boast larger passenger capacities. With existing parking lots operating at capacity, additional passenger levels arising as a result of the fleet conversion and project implementation cannot reasonably be accommodated without the additional capacity provided by the parking facility proposed in the project. 28 165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O 26 N 27 28 In short, there is a compelling need for the project. An increased level of regulated scheduled service is essential. Passengers need to be accommodated with a more reasonable level of comfort, convenience, and safety than is currently provided by the existing limited facilities. The useful life of some structures needs to be preserved as is intended by the project (e.g., in the case of runway strengthening), and aircraft ground operations need to be made more efficient and safe (e.g., in the case of taxiway development). Ultimately the airport development will provide some level of increased air travel service without causing extraordinary environmental effects (e.g., greatly expanded noise contours, deteriorated air quality, or traffic congestion). This will be accomplished by means of the mitigation measures adopted with the project and implementation of the LUCP. The principal purpose of the LUCP is to plan for land use conversions or modifications within the 65 decible CNEL contour and to develop a land use plan for the Santa Ana Heights area. Accordingly, it is a critical and integral element of the project. It should be noted, moreover, that the importance of the project must be defined in regional as well as local terms. With a growing population base, plus the increasing tendency of people to use commercial air transportation as basic transportation, the limited number of local airports available to the air carriers poses serious regional problems. Without an improved JWA, Orange County residents will be forced into travelling longer distances to other airports, thus negatively impacting air quality and 166 ° 0 1 2 3 4 5 6 7 8 9 10 11 12 13 noise levels. The airport improvements envisioned in this project are a means of addressing this regional demand. Not only are there compelling needs for implementation of the project, there are also many identifiable long-term benefits associated with the project. Not the least of these is the economic benefit associated with the project. The significant economic benefits accruing to the County of Orange as a result of the project are documented in the Economic Impact Study prepared for the County by Economic Research Associates (ERA). For example, the importance of any airport to a given community is that it creates the opportunity for local firms to export their goods and services to other locations. The proposed expansion of JWA would extend the magnitude of this opportunity, allowing new -1). 14, firms to enter the marketplace and existing firms to grow. 00 15 Similarly, the office park development envisioned as part of the UU 16 LUCP would allow additional businesses to locate in Santa Ana 0 1- Heights. Many of the businesses that could utilize the expanded V 18 19 20 21 22 23 24 rt 25 O 26 O 27 ti 2B JWA airport are already located in this area, but are utilizing the services of other airports. These existing uses would merely transfer their businesses to JWA. As a result, much of the service capability provided by the expanded airport would provide increased service potential to existing area businesses. Further, it should be noted that the economic benefits of the project are by no means highly localized, but rather impact a large area. Airports are vital to a dynamic regional economic environment and particularly the marketing, service and light industry sectors. The project will produce revenues to the 167 1 2 3 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 • 24 25 26 O 27 LL County of Orange estimated from $35 million in 1984 to over $148 million a year in the years after 2000. The selection of a land use plan has also been immensely difficult. Santa Ana Heights, ignoring the planes, is a pleasant place. It is home to many. Our decision to accommodate additional air transportation at John Wayne dictates the need for action. The No Project Alternative and LUCP Scenario 2 are simply too inconsistent with the existing airport, let alone an expanded one. How then do we plan? Do you move people, eliminate neighborhoods, build commercial, industrial or have open space? There are many options. No option solves all of the issues or eliminates all of the significant effects. Scenario 3, as mitigated, represents a reasonable balance of the competing issues. Major neighborhoods are preserved. Yet the areas most directly subject to aircraft noise are to be converted to employment uses subject to the preparation of Specific Plans which will address site specific issues. The alternative also increases housing opportunities where compatible. It does cause change. However, by reasonable conversion and accoustical treatment compatibility with the airport is achieved. The plan also accommodates and recognizes the continuing demand for employment uses in a planned manner along major transportation corridors. It achieves this with a minimal displacement and disruption of Santa Ana Heights. It improves housir.g and employment opportunities without overwhelming the 28 168 1 2 3 5 6 7 9 10 11 12 13 14 ,iz 15 00 17 u 18 19 20 21 22 23 24 25 ry 26 N 27 28 residential area with such uses. Scenarios 4, 5, 7 and 8, we find, cause too much employment and have too many impacts associated with them. While Scenario 6 and the added open space would to some seem ideal, the elimination of neighborhoods is too great a loss. On balance, the adopted alternative best mitigates the effects of the project without inducing severe impacts in turn. It seeks needed but planned employment where well located and preserves existing residential where best suited. In summary, JWA represents an essential element of a dynamic economy. The project designed to expand JWA and to bring the surrounding land uses into conformity will result in benefits that are pervasive and broadly based. Given the compelling need for the project, as well as the project's identifiable long-term benefits, the Board of Supervisors finds that the need for the project overrides the project's unavoidable impacts. With regard to topography, geology, soils and seismicity, for example, the identified unavoidable impacts associated with the project are rendered insignificant when balanced against the overriding considerations outlined above. While certain amounts of soil would be lost during construction through erosion by wind, water, or both, when balanced against the project's compelling needs and identifiable benefits this unavoidable, albeit relatively insignificant, impact is necessarily overriden. With regard to seismicity the EIR concludes that some damage to structures and facilities would be unavoidable during an 169 E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 ry 27 LL ti 28 earthquake. (EIR, p. 4.1-7.) It should be noted, however, that it is neither practical nor necessary to avoid all damage during an earthquake. The goal of seismic design is to avoid loss of life, avoid major structural damage, and keep critical facilities operational during the maximum probable earthquake. Even if some structural damage is unavoidable, the airport facilities would nevertheless be expected to remain operational during the maximum probable earthquake. (EIR, p. 4.1-7.) This, coupled with the low statistical probability of a significant earthquake in the vicinity of JWA, render this unavoidable impact necessarily over- riden by the project's compelling need and long-term benefits. Likewise, the compelling need for the project and its bene- fits override any unavoidable air quality impacts identified by the EIR. First, it should be noted that from a regional perspec- tive, air quality would actually improve as a result of the project. This is due to the fact that by enabling Orange County residents to use JWA, the project obviates the need for air pas- sengers to travel longer distances. within the region to such airports as LAX, Long Beach and Ontario. The impacts of local increases in CO, THC, NOx, SOx and particulates pale in compari- son to the compelling need for the project and the net long-term benefit the project has upon air quality in the region. With regard to the unavoidable effects associated with water quality, it must again be noted that the project actually mani- fests a long-term benefit upon water quality that tends to outweigh the unavoidable short-term impacts. As identified in the EIR, long-term increases in volume of runoff would be 170 1 2 3 4 5 6 8 9 12 13 19 20 21 22 23 24 25 26 27 I 28 substantially offset by long-term decreases in the sediment load being transported to Upper Newport Bay. This fact, coupled with the compelling need for the project, overrides any short-term unavoidable increases in erosion and sediment transport during construction of airport improvements and Santa Ana Heights redevelopment. With regard to the project's unavoidable impacts upon aesthetics, the infringement on the existing visual character of residential neighborhoods by commercial development and the new terminal is deemed to be an unavoidable adverse impact. This partially mitigated, albeit unavoidable, adverse impact affects a limited number of people and is rendered insignificant when balanced against the overriding compelling need for the project and the project's long-term economic, air quality, water quality, noise, etc. benefits. With regard to the project's unavoidable impacts upon energy consumption, there is no doubt that energy consumption will increase in all categories considered -- terminal, residential, commercial/office, automobile, and aircraft -- as a result of the project. It must again be noted, however, that the project will produce certain long-term energy benefits. Indeed, once imple- mented, the project will enable many air passengers to use JWA rather than travelling greater distances to use other airports in the Los Angeles basin and thus consuming additional energy. This benefit, coupled with the project's compelling need and additional long-term benefits, serves to override any non- mitigable impact the project may have upon energy consumption. 171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1_ 18 19 20 21 22 23 24 25 t 28 With regard to the project's unavoidable impacts upon land use, it is clear that the implementation of the LUCP would result in the elimination of certain equestrian uses within the study area. Pursuant to the adopted LUCP alternative, more equestrian facilities will, however, be retained than under Project Scenario 8 and additional sites will be sought. To weigh the need for equestrian uses more heavily than the need for accommodation of inexorably increasing air travel demands would be myopic. Likewise, with respect to the secondary adverse effects on air quality and levels of traffic and noise brought about by the LUCP, this Board has balanced the project's compelling need and long-term benefits (e.g., economic, air quality, noise, etc.) in order to conclude that these unavoidable impacts are overridden by the concerns outlined above. Implementation of the project will generate more vehicle trips on project area roadways and thus increase congestion on project area streets. Given that traffic analyses indicate that congestion on surface streets in the terminal area and intersections of arterial streets is expected to develop whether the project is implemented or not, the incremental and mitigated addition to traffic caused by the project is found to be inconsequential when weighed against the compelling need for the project and the identifiable benefits associated with the project. With regard to the project's impacts upon population and housing, it is clear that population will grow in connection with increased employment opportunities resulting from the project. 172 1 2 3 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 N g 26 • 27 LL e 28 It is the conclusion of the EIR, however, that this population increase will be insignificant, albeit unavoidable, in relation to the projected "no -project" growth in the area. It is a matter of interpretation, however, whether increased population is an adverse or beneficial impact. The increased economic activity associated with this growth in population -- as documented in the Economic Impact Study prepared by ERA -- presents Orange County with an opportunity to stabilize economically and progress dynamically. The project's most significant impact upon housing, of course, is the displacement of approximately 200 housing units that would otherwise be expected to remain for several decades. This is a significant unavoidable adverse impact that must be monitored closely. This Board finds, however, that the actual number of individuals who will be displaced and dislocated is small relative to the number of individuals who will benefit from the project and the magnitude of the benefits that will accrue, not only to those within the immediate vicinity of JWA but also to the region as a whole. Moreover, the displaced housing units are ultimately being displaced in order to bring the land surrounding JWA into conformity with state noise standards. Provided that close attention is paid to the development of programs designed to aid the displaced homeowners in adjusting to the identified social impacts associated with this displacement, the unavoidable displacement of these individuals, while lamentable, is overriden by the project's compelling need and the 173 1 2 3 4 5 6 7 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 n 26 0 27 long-term benefits that will accrue to an individuals in the JWA vicinity and the region as a whole. With regard to the project's unavoidable impacts upon recrea- tion, the only identified impact is the possibility that increased noise may reduce use and enjoyment of park and recrea- tional facilities within the general study area. This is a some- what speculative adverse impact in that the degree to which increased noise levels may decrease enjoyment of recreational facilities is subject to highly individualistic interpretation. The project's noise related impact upon recreational facilities is overriden 'by the project's compelling need identified above and the lcng-term benefits that will accrue to individuals in the JWA vicinity and the region. With regard to public health and safety, the EZR concludes that the number of aircraft accidents cannot be predicted to increase, although the risk of accident would increase solely because a greater number of people would be exposed to the inherent risk of aircraft accidents associated with JWA. Given the inherent, already existent, risk that an accident will occur, but the low statistical probability of such an aircraft accident occurring, the project's compelling need and the identified benefits associated with the project lead to the Board's conclusion that there are significant considerations overriding the unavoidable public health and safety impacts of the project. With regard to the project's unavoidable noise impacts, it should first be noted that through 1990, the mix of aircraft in 28 174 1 o - ▪ W 16 • 1 2 3 4 5 6 7 9 10 11 12 13 14 D▪ Zig 00 17 18 19 20 21 22 23 24 • 25 • 26 � N D 27 use at JWA would actually be quieter than at present as average noise would, indeed, decrease along with the CNEL contour. By 2005, some larger and somewhat noisier aircraft would be in use and the SEL at Noise Monitor M1 would increase by about 1.8 dB. The only identified unavoidable adverse noise impacts asssociated with the project are (1) the resultant spillover of traffic noise into areas surrounding Santa Ana Heights, where change to office type land use would generate more traffic, and (2) the ultimate increase in the CNEL contour areas. With regard to the latter impact, it should be noted that even though the number of average daily aircraft noise events does increase from 41 to 73, the operation of new turbofan aircraft using high -bypass ratio engines which generate relatively less noise will actually tend to reduce CNEL despite the fact that ADD's are projected to increase. In fact, for 1990 and 2005, the 65 dB CNEL contour areas are smaller on the departure end where the present incom- patibilites exist. It must also be remembered that the LUCP -- while perhaps creating an unavoidable spillover of noise into nearby residential areas -- is, on the whole, eliminating incom- patibilities in the Santa Ana Heights area such that traffic noise in that specific area will not be a problem. To the extent that these two identified noise impacts associated with the project are unavoidable, the Board concludes that there are significant considerations identified above overriding the unavoidable nature of the impacts. With regard to the project's impacts upon public services, the only identified unavoidable impact is the disruption of 28 175 2 3 4 5 8 9 10 11 12 13 •14 J s V' r a z z 15 00 u. W 16 „Et 17 18 19 20 21 22 23 24 25 2 26 traffic and increased noise and dust that will result during the construction of utility extension/expansion. These are secondary impacts resulting from mitigation measures that will reduce serious capacity problems for Orange County Sanitation Districts 6 and 7; and, accordingly, the Board concludes that they are overriden in light of the project's compelling need and the overall benefits accruing to the region. Finally, with regard to the project's cumulative impacts, most of the identified impacts may be mitigated either through adoption of measures identified in the specific findings herein, or by other, jurisdictions contemplating the development projects within the vicinity of JWA. As to the unavoidable adverse cumulative impacts identified by the EIR, the compelling need and long-term benefits associated with the project clearly outweigh the unavoidable nature of these impacts. With regard to the unavoidable cumulative increases in air emissions associated with increased traffic and congestion, for example, the EIR makes it clear that despite these unavoidable increases, the long-term regional impact of the project is to actually improve the air quality. Likewise, the unavoidable continued urbanization of the airport area which is contributed to on a cumulative basis by the project, must be analyzed along with its concomitant contribution to expansion of the Orange County economy. Indeed, whether economic growth and continued urbanization are adverse impacts are subject to individual interpretation. Accordingly, the compelling need and 28 176 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 26 27 t 28 long-term benefits associated with the project far outweigh this unavoidable cumulative impact. With regard to the cumulative impact associated with increasing congestion on project -area roadways, it must be noted that studies indicate that such congestion will occur with or without this project. Thus, to deny the project because it will contribute to an impact that will occur anyway, would be foolhardy given the compelling need for the project and its long- term benefits. These same compelling needs and long-term benefits serve to override the'cumulative impacts associated with exposure of people to an increased number of single noise events and increased traffic noise, as well as exposure of persons in the airport area to public health and safety hazards from overflying aircraft. With regard to the latter, such risks to public health and safety are inherent in the operation of any airport, and this project does not increase the statistical occurrences of acci- dents in any manner. The project's unavoidable cumulative impact stems solely from the fact that more persons will be exposed to the probability of accidents as a result of this project, when combined with other projects in the area. Given the unavoidable risks associated with aircraft flight, the Board concludes that the project's compelling need and identified benefits override any such unavoidable cumulative impacts. In conclusion, the Board of Supervisors finds that the need to serve a greater portion of the Orange County generated air traffic demand by authorizing an increase in regulated ADDs; the 177 y en 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 need to reduce overcrowding at JWA; the need to accommodate increasing passenger loads projected to result from the continuing conversion of the commercial fleet at JWA; the need to convert surrounding land uses so as to be compatible with increased operations at JWA; and the long-term economic, air quality, water quality, noise and energy benefits resulting from the project serve to override the unavoidable impacts identified herein which result from the project. ROIRBCO25 178 2 AYES: SUPERVISORS THOMAS F. RILEY, BRUCE NESTANDE, ROGER R. STANTON,,HARRIETT M. WIEDER, AND RALPH B. CLARK NOES: SUPERVISORS NONE 4 ABSENT: SUPERVISORS NONE STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE6 7 I, LINDA D. ROBERTS, Clerk of the Board of Supervisors of Orange 8 County, California, hereby certify that the above and foregoing Reso- 9 lution was duly and regularly adopted by the said Board at a regular 10 meeting thereof held on the 26th day of February 1985 11 and passed by a unanimous vote of said Board. , 12 IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of February , 1985 5 13 14 15 16 17 18 19 20 21 22 23 24 25 B 26 N 27 ® 28 LINDA D. ROB S Clerk of the Board of Supervisors of Orange County, California THE FOREGOING INSTRUMENT IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE. ATTEST: LINDA D. „O RTS, clerk of the Board of Supervir County of Orange By, , DEPUTY 179 1 3 4 5 6 7 8 9 10 11 12 13 1-1 15 16 17 1S 19 20 21 22 23 24 c 25 2 26 N 2 D � LL . 28 TABLE OF CONTENTS Recitals FINDINGS The Project Adoption A. B. C. Page 1 7 7 of LUCP Alternative 12 Mitigation Measures Adopted 14 1. TOPOGRAPHY, GEOLOGY, SOILS AND SEISMICITY 14 2. AIR QUALITY 17 3. WATER 23 4. BIOLOGICAL RESOURCES AND WETLANDS 26 5. CULTURAL/SCIENTIFIC RESOURCES 29 6. NATURAL RESOURCES 30 7. AESTHETICS 31 8. ENERGY 34 9. LAND USE 37 10. TRANSPORTATION/CIRCULATION 44 11. POPULATION 48 12'., HOUSING 50 13. RECREATION 52 14. PUBLIC HEALTH AND SAFETY 54 15. NOISE 56 16. LIGHT AND GLARE 66 17. PUBLIC SERVICES AND FACILITIES 68 (a) Fire Protection 68 (b) Police Protection 69 (c) Public Schools 70 (d). Maintenance of Public Facilities (e) Utilities 18. Cumulative Impacts 19. Hazardous Waste 70 70 73 78 Mitigation Within the Responsibility of Another Jurisdiction 78 1. AIR QUALITY 78 2. WATER 79 3. ENERGY 80 4. TRANSPORTATION/CIRCULATION 81 5. NOISE 81 6. CUMULATIVE IMPACTS 82 Rejection of Alternatives and Mitigation Measures 84 • t 1 2 3 6 7 9 10 11 12 13 14 15 16 BF,!, 00 17 18 19 20 21 22 23 24 25 • 26 O • 27 (a) No Project Alternative 84 (b) No Development Alternative 90 (c) 22 ADD Alternative 91 (d) 55 ADD Alternative 94 (e) 98 ADD Alternative 98 (f) MCAS El Toro Joint Use 101 (g) Camp Pendleton Joint Use Alternative 105 (h) Los Alamitos AFRC Joint Use Alternative 108 (i) Ontario, Los Angeles International and Long Beach Airports (Combined Alternative) 111 (j) Alternative Sites for Shared Use116 (1) 41 ADD JWA/32 ADD El Toro 116 (2) 55 ADD JWA/55 ADD El Toro 119 (3) Santiago Canyon Shared Use 121 (k) Runway Directional Change Alternative ("Preferential Runway") 122 (1) Close JWA Entirely 124 (m) Restrict or Terminate General Aviation at JWA 125 (n) Restrict or Terminate Private Jet Use at JWA 125 (o) Zero ADD: General Aviation and Commuter Service Only at JWA126 (p) Meet Ultimate Year 2005 Demand 127 (q) Extend Primary Runway North Over the San Diego Freeway (r) Replacement of JWA Operations at Long Beach Harbor 132 (s) Replacement of JWA Operations at Santiago Canyon 133 (t) Replacement of JWA Operations at Chino Hills 134 (u) Land Use Alternatives 135 129 LUCP Scenario 2 136 LUCP Scenario 4 137 LUCP Scenario 5 138 LUCP Scenario 6 139 LUCP Scenaric 8 141 (v) Mitigation Measures Proposed During Public Review 144 28 4 2 3 4 5 6 7 8 9 10 11 12 13 14 J y U ;z 15 z i` 00 17 18 19 20 21 22 23 24 25 2 26 ry 0 27 ® 28 (w) Study of Preferential Runway 152 (x) Access Plans 153 (y) Reduction of Noise Threshold Via Penalties 156 D. Statement of Overriding Considerations 157 1. Unavoidable Adverse Impacts 157 (a) Geology/Topography/ Seismicity/Soils 157 (b) Air Quality 158 (c) Water Quality 158 (d) Aesthetics 158 (e) Energy 158 (f) Land Use 159 (g) Traffic/Transportation 159 (h) Population 159 (i) Housing 160 (j) Recreation 160 (k) Public Health and Safety 160 (1) Noise 160 (m) Public Services 161 (n)- Cumulative Impacts 161 2. Overriding Considerations 161 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA COUNTY OF ORANGE, ) No. CV 8S-1542 TJH (MCx) ) Plaintiff, ) ) v. ) s... ... .. r.__ ei ni AIR CALIFORNIA, et al:, ) Defendants. r DEO 131985 CITY OF NEWPORT BEACH, ) J C,�RK, U.S. DISTRICT CO::- CE i ) 5t*: DISTRICT OF C t.!-2r..;tn Counterclaimant, ) DaPi"' • ) ) v. ) ) COUNTY OF`ORANGE; ORANGE COUNTY ) BOARD OF SUPERVISORS; and DOES ) 1 through'1,000; Inclusive, ) ) Counterdefendants ) 1 AND RELATED COUNTERCLAIMS ) FINAL JUDGMENT ENTERED ON STIPULATION FOR ENTRY OF JUDGMENT BY CERTAIN SETTLING PARTIES O'DONNELL & GORDON 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the stipulation of the parties, and there being no just reason for delaying entry of this Judgment, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Judgment is hereby entered in favor of the. County of Orange and the Orange County Board of Supervisors ("the County"), and against the City of Newport Beach ("the City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") on the Fourth, Fifth and Sixth Causes of Action of the County's First Amended Complaint for Declaratory and Injunctive Relief on file in this action, and on: the Counterclaims of the City, SPON and AWG against the County as follows: (a) Orange County Environmental Impact Report 508 and the related Environmental Impact Statement processed by the Federal Aviation Administration are hereby adjudged and decreed to be fully and legally adequate and complete under all provisions of the -California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000 et seq:), the State CEQA - Guidelines (14 Ca1:Admin:Code Section 15000. O'DONNELL it CORDON 2H 152F/040-11/F/lmm • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 :) 20 21 22. 23 24 et seq.), the National Environmental Policy Act (42 U.S.C. Section 4321 et seq.), and all relevant or applicable federal implementing regulations for NEPA, for the project described in the EIS and EIR 508, as mitigated by the Board of Supervisors by their Resolutions 85-255, 85-1232, 85-1233, and as further mitigated by the terms and provisions of the parties' stipulation; and (b) to the extent that the Fourth, Fifth or Sixth Causes of Action of the County's First Amended Complaint; or the counterclaims against the County in this action by the City,,SPON and AMG raise any controversies other.,_ than the adequacy of EIR 508/EIS under the provisions of CEQA, NEPA and all relevant implementing regulations, such claims and controversies are hereby dismissed without prejudice. 2. The prov.isions of paragraphs 7 through 23, and 26 25 through 52 of the stipulation of the parties consenting to entry 26 of this Judgment are hereby incorporated • 27 //// 28 //// O'DONNELL & GORDON as as part of this Judgment. 152F/040-11/F/lmm • i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The County of Orange, the Orange County Board of Supervisors, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group shall each bear its own costs and attorneys' fees in connection with this litigation and the entry of this Judgment. DATED: Honorai*f1 Terry J. Hattef, Jr. United States District Judge O'DONNELL Ic CORDON 4 1SZF/040-11/F/lmm 26 Civil No. G000160 (Old No. 4th Civ. 30384) IN THE COURT OF APPEAL FOURTH APPELLATE DISTRICT State of California CITY OF NEWPORT BEACH, ) ) Plaintiff and Respondent, ) ) and ) ) STOP POLLUTING OUR NEWPORT, ) ) Plaintiff -in -Intervention ) and Respondent, ) ) v. ) ) COUNTY OF ORANGE, et al. ) ) Defendants and Appellants, ) ) Appeal From Superior Court of Orange County (Hon. Bruce J. Sumner [retired]) (Orange County Superior Court No. 35-31-01) STIPULATION TO DISMISS APPEAL 21 1 so i The City of Newport Beach ("the City") and Stop Polluting Our Newport ("SPON"), plaintiffs and respondents, by their respective counsel of record, and the County of Orange, the Orange County Board of Supervisors and the Orange County Planning Commission ("the County"), defendants and appellants, by their counsel of record, hereby stipulate as follows: 1. The appeal in this matter from the Judgment of the trial court of June 1, 1982 (the Honorable Bruce J. Sumner, retired) and the trial court's related Statement of Decision may be immediately dismissed. 2. Upon dismissal of the appeal, the patties to thia stipulation agree that they will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of us iudicatd, collateral estoppel, or any other form of preclusion with respect to the judgment, related orders or the statement of decision of the trial court in this action. 3. Within 15 days after entry of the order of dismissal agreed to by this stipulation, the County of Orange shall pay to SPON and its counsel of record the sum of Eighty Thousand Dollars ($80,000.00) in full settlement and satisfaction of the order of the trial court awarding attorneys' fees and costs to SPON in connection with the trial of this action, and in full and complete satisfaction of any and all other claims SPON or its counsel may have in respect of the proceedings in this action, 28 S� i including proceedings before this Court of Appeal and subsequent proceedings in this action in the Superior Court. Date: ccer i MICHAEL SCOTT GATZKE Gatzke, Lodge & Mispagel Attorney for Defendants and Respon- dents, the County of Orange, the Orange County Board of Supervisors, and the Orange County Planning Commission CHAEL SCOTT GATZ Date: ..Seinvoites 3 /t PIERCE O' DONNELL* STEVEN F. PFLAUM O'Donnell & Gordon Date: Sinlin T,,,.,i.l-, *A Professional Corporation Attorneys Plaintiff and Appel- lant, the of Newport Beach By: -. PIE CE O'DONNELL* 's' E. CLEMENT SHUTE, JR. Shute, Mihaly & Weinberger Attorney for Plaintiff and Appel- lant, Stop Polluting Our,iNewport 7L E. CLEMENT SHUTE; JR. • -2g- ORDER By stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED: 1. This appeal is hereby dismissed. 2. Within 15 days after entry of this order, the County of Orange shall pay to SPON and its counsel of record the sum of Eighty Thousand Dollars ($80,000.00) in full settlement and satisfaction of the order of the trial court awarding attorneys' fees and costs to SPON in connection with the trial of this action, and in full and complete satisfaction of any and all other claims SPON or its counsel may have in respect of the proceedings in this action, including proceedings before this Court of Appeal and subsequent proceedings in this action in the Superior Court. In all other respects, each party shall bear its own attorneys' fees and costs on appeal. 3. The parties to this appeal will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of Les judicata, collateral estop- pel, or any other form of preclusion with respect to the judg- ment, related orders, or the statement of decision of the trial court in this action. Date: JUSTICE -30- RECEIVED !.1_G 19 1985 -.j0 COURT • APPEAL STATE OF CAL•RNIA FOURTH APPELLATE DISTRICT DIVISION THREE CITY OF NEWPORT BEACH, et al. ) Respondent ) ) ) VS. ) ) ) G000160 COUNTY OF ORANGE ) Orange County No. 353101 Appellant ) THE COURT: By stipulation of the parties, and for good cause shown, the above entitled cause is DISMISSED. Within 15 days after entry of this order, the County of Orange shall pay to SPON and its counsel of record the sum of Eighty Thousand Dollars ($80,000.00) in full settlement and satisfaction of the order of the trial court awarding attorneys' fees and costs to SPON in connection with the trial of this action, and in full and complete satisfaction of any and all other claims SPON or its counsel may have in respect of the proceedings in this action, including proceedings before this Court of Appeal and subsequent proceedings in this action in the Superior Court. In all other respects, each party shall bear its own attorneys' fees and costs on appeal. The parties to this appeal will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of res judicata, collateral estoppel, or any other form of preclusion with respect to the judgment, related orders, or the statementof decision of the trial court in this action. WALLIN, I cc: see attached sheet Acting. Presiding Justice 31 THE ENCLOSE SNFCRMATION REGARDING CAS•DMSER G000160 HAS BEEN SENT TC THE FCLLCWING: 9urham, Robert H. 3300 Newport 91vd. Newport Beach, CA 92663 l.,// t Gordon 619 South Olive Street Suite 200 Los Angeles, CA 90014 Shute Mihaly L Weinberger 369 Hayes Street Suite 1 San Francisco, CA 94102 Eckmann Lodge & Gatzke 2890 Pio Pico Drive Suite E, P.o. Box 1636 Carlsbad, CA 92003 Goeoel E Monaghan 1200 Thirc Ave. Suite 1700 San Diego, CA 92101 County Counsel Nuttman, Robert F. 10 Civic Center Plaza P.o. Box 1379 Santa Ana, CA 92702 Office of the County Clerk Orange County 700 Civic Cntr Cr. Nest Santa Ana, CA. 92701 If applicable:. 3Z Appellate Defencer, Inc., San Diego i RECEIVED DEC 19 1985 O'DO,NNELL & GORDON r • COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE L L G 13 1935 is ena7 C. Ca:_auy, Cirk Deputy Cerf . CITY OF NEWPORT BEACH AND ) STOP POLLUTING OUR NEWPORT ) Appellant ) ) ) VS. ) ) ) COUNTY OF ORANGE, et al. ) Respondent THE COURT: G002228 Orange County No. 425394 By stipulation of the parties, and for good cause shown, the above entitled cause is DISMISSED. All parties to this action shall not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of res iudicata, collateral estoppel, or any other form of preclusion with respect to the judgment and statement of decision of the trial court in this action; except that the county may, if necessary, assert and raise as a defense the judgment and statement of decision of the trial court, and the stipulated dismissal of appeal, as a bar to any future actions by the city or SPON which assert that County Environmental Impact Report 512 does not comply with the requirements of the California Environmental Quality Act (Public Resources Code, section 21000 et seq.) or the implementing regulations ("the Guidelines") 14 Ca1.Admin.Code section 5000 et seq., with respect to the project described in said EIR. Each party shall bear their own attorneys' fees and costs in respect of the appeal and the underlying action. cc: see attached sheet WALLIN, J. Acting Presiding Justice 3,2 Civil No. G002228 IN THE COURT OF APPEAL FOURTH APPELLATE DISTRICT State of California CITY OF NEWPORT BEACH AND STOP POLLUTING OUR ) NEWPORT, ) ) Plaintiffs and Appellants, ) ) v. ) ) COUNTY OF ORANGE, et al., ) ) Defendants and Respondents. ) ) Appeal From Superior Court of Orange County (Hon. Philip E. Schwab) (Orange County Superior Court No. 42-53-94) STIPULATION TO DISMISS APPEAL 34 •� •) The City of Newport Beach ("the City") and Stop Polluting Our Newport ('SPON'), plaintiffs and appellants, by their respective counsel of record, and the County of Orange and the Orange County Board of Supervisors ("the County"), defendants and respondents, by their counsel of record, hereby stipulate as follows: 1. The appeal in this matter may be immediately dismissed. 2. Upon dismissal of appeal, the parties to this stipula- tion agree that they will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of csp,jm►+ratr, collateral estoppel, or any other form of preclusion with respect to the judgment and statement of decision of the trial court in this action; except that the County may, if necessary, assert and raise as a defense the judgment and statement of decision of the trial court, and this stipulated dismisal of appeal, as a bar to any future actions by the City or SPON which assert that County Environmental Impact Report 512 does not comply with the requirements of the California Environ- mental Quality Act ( Public Resources Code SS21000 gt, am.) or the implementing regulations ("the Guidelines') 14 Ca1.Admin.Code S5000 aga., with respect to the project described in said EIR. - 3S- • F. !� 3. Each party will bear its own attorneys' fees and costs in respect of the appeal and the underlying action. Date: ti. ICBAEL SCOTT `' ""� Gatzke, Lodge Attorneys for the County of Date: -Irak yit,( Date: B • GATZRE & Mispagel Defendant and Respondent, Orange ichael Scott Gatzk PIERCE O'DONNELL* STEVEN F. PFLADM O'Donnell & Gordon *A Professional Corporation Attorneys for Plaintiff and Appellant, the City of Newport Beach By: St ven F. Pfla j r E. CLEMENT SHDT', JR. Shute, Mihaly & Weinberger Attorneys for Plaintiff and Appellant, Stop Polluting Our Newport 7 E. Clement Shute, Jr. -2- 36 ORDER By stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED; 1. This appeal is hereby dismissed, and each party shall bear its own attorneys' fees and costs on appeal. 2. The parties to this appeal will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of mg judiata, collateral estoppel, or any other form of preclusion with respect to the judgment and statement of decision of the trial court in this action; except that the County may, if necessary, assert and raise as a defense the judgment and statement of decision of the trial court, and this stipulated dismissal of appeal as a bar to any future actions against the County by the City or SPON asserting that County Environmental Impact Report 512 does not comply with the requirements of the California Environmental Quality Act (Public Resources Code SS21000 et gm.) or the implementing regulations ("the. Guidelines') 14 Ca1.Admin.Code S5000 Et, Egg. with respect to the project described in the EIR. Date: Justice -3} • Civil No. G002880 IN THE COURT OF APPEAL FOURTH APPELLATE DISTRICT State of California COUNTY OF ORANGE and the ORANGE COUNTY BOARD ) OF SUPERVISORS, ) ) Petitioners, ) ) v. ) ) 'SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR ) THE COUNTY OF ORANGE, ) ) Respondent. ) ) ) CITY OF NEWPORT BEACH AND ) STOP POLLUTING OUR NEWPORT, ) ) Real Parties in Interest. ) ) The Honorable Philip E. Schwab, Judge of the Orange County Superior Court (Orange County Superior Court No. 35-31-01) STIPULATION RE PETITION FOR WRIT OF CERTIORARI BY THE COUNTY OF ORANGE 3E The County of Orange and the Orange County Board of Super- visors ("the County"), petitioners, and the City of Newport Beach ("the City') and Stop Polluting Our Newport ("SPON"), real parties in interest, having entered into an understanding and agreement to settle disputes among them regarding John Wayne Airport, Orange County ("JWA"), and to terminate all existing litigation between or among them regarding JWA, hereby stipulate as follows with respect to the pending petition by the County of Orange for a writ of certiorari requesting an order of this Court vacating the judgment and related orders of the Respondent Superior Court of May-21, 1985, wherein the Superior Court deter- mined that the County was in contempt of the Respondent Court, and made related orders in respect of the implementation of a project considered by the County, and approved by resolutions of the Orange County Board of Supervisors, on February 26, 1985, in respect of County Environmental Impact Report 508. The stipula- tion of the parties is as follows: 1. This Court may immediately enter its order vacating the order of the Respondent Court of May 21, 1985, including, without limitation, the determination of contempt by the Respondent Court and each and every order contained in the "Judgment of Contempt and Order" of May 21, 1985 restraining in any respect the activities of petitioners. 2. This Court may enter its order remanding this matter to the Respondent Court with directions that it immediately accept, 39 execute, and cause to be filed an original of the stipulation between the parties, a copy of which is attached to this stipula- tion as "Exhibit A'. 3. Each party will bear its own attorneys' fees and costs in respect of this petition and any further proceedings in respect of the underlying action. Date: to ji r, ( Fr Date: --Cet'tatier 3, %t( Date: 4 •./ �•f MICHAEL SCOTT GATZKE Gatzke, Lodge a Mispagel Attorneys for Petitioners, the the County of Orange, and the Orange County Board of Supervisors CHAEL SCOTT GATZKE PIERCE O'DONNELL* STEVEN F. PFLAUM O'Donnell & Gordon *A Professional Corporation Attorneys /or eal Party in Interest,:t) Ci of Newport Beach By: PIERCE O'DONNELL* • E. CLEMENT SHUTE, JR. Shute, Mihaly S Weinberger Attorneys for Real Party in Interest, Stop Polluting Our Newport . - 1� By: . E. CLEMENT SHUTE, JR. 2 4u ORDER By stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED: 1. The petition of the County of Orange for a writ of certiorari is hereby granted and the "Judgment of Contempt and Order" by the Respondent Court of May 21, 1985, and each of its provisions, is hereby vacated and set aside. 2. This matter is hereby remanded to the Respondent Court for the purpose of accepting, executing and causing to be filed with the Clerk of the Superior Court the stipulation, a copy of which is attached to this stipulation and order as "Exhibit A", and for no other purpose. 3. Each party to this proceeding will bear its own attorneys' fees and costs in respect ofthe proceedings before this Court in connection with the petition for writ of certi- orari, and any further proceedings before the Respondent Court in the underlying action. Date: JUSTICE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "EXHIBIT A" STIPULATION PROVIDING FOR FINAL TERMINATION OF EIR 232 LITIGATION IN THE SUPERIOR COURT Liz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael Scott Gatzke* Mark J. Dillon Gatzke, Lodge & Mispagel 2890 Pio Pico Drive, Suite E P. O. Box 1636 Carlsbad, California 92008 (619) 729-2304 •Professional Corporation Adrian Kuyper, County Counsel Daniel J. Didier, Deputy County Counsel 10 Civic Center Plaza, P. O. Box 1379 Santa Ana, California -92702 (714) 834-3300 Attorneys for Respondents/Defendants SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR.: THE COUNTY OF ORANGE CITY OF NEWPORT BEACH, et al., ) Nos. 35-31-01 and 35-97-63 Petitioners/Plaintiffs, ) (CONSOLIDATED CASES) ) STOP POLLUTING OUR NEWPORT, ) ) Plaintiff -in -Intervention, ) ) v. ) ) COUNTY OF ORANGE, et al., ) ) Respondents/Defendants. ) ) STIPULATION PROVIDING FOR FINAL TERMINATION OF THIS ACTION 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1? 18 19 20 21 22 23 24 25 26 27 28 The City of Newport Beach Our Newport ("SPON"), plaintiffs of Orange, the Orange County County Planning Commission J • ( "the City") and Stop Polluting and petitioners, and the County Board of Supervisors and the Orange ("the County"), defendants and respondents, having entered into an understanding and agreement to settle disputes among them regarding John Wayne Airport, Orange County ("JWA"), and to terminate all existing litigation between or among them regarding JWA, hereby stipulate to an order of the Court finally terminating this litigation in its entirety as follows: 1. The "Judgment Granting Injunction and Peremptory Writ of Mandates and the "Peremptory Writ of Mandate and ("the Final Judgments) entered by this Court on June June 7, 1982 respectively, shall be deemed to have Injunction" 1, 1982 and been fully complied with, and this litigation shall be terminated in respect of any further proceedings as follows: a) The portions of the Final Judgment containing, explicitly or implicitly, any writs of mandate to the defendants and respondents by the Court shall be deemed to be fully complied with and discharged; and b) All provisions of the Final Judgment which explicitly or implicitly restrain or enjoin the defendants.and respondents in any respect are hereby dissolved immediately: 2. The parties to th'e stipulation agree that they will not, in any future litigation which may occur between or among them, cite, assert as precedent, or allege claims of £U iga 'i4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an collateral estoppel, or any other form of preclusion in respect of the Final Judgment, the Statement of Decision, or any other ruling or order of the. Court in this action. Date: Date:' itikr iJ1 MICHAEL SCOTT GAME Gatzke, Lodge i Niapagel Attorney for Defendants and Respon- dents, the County of Orange, the Orange County Board of Supervisors, and the Orange County Planning Commission By CHAEL SCOT? GATZM PIERCE O'DONNELL* STEVEN F. PFLAUM O'Donnell i Gordon •A Professional Corporation Attorneys fo Plainti Beach By: PI : O'DONNELL Petitioner and e City of Newport E. CLEMENT SHUTE, JR. Shute, Mihaly i Weinberger Attorney for Plaintiff -in -Intervene tion, Stop Polluting Our Newport By; y E. CLEMENT S 2 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER By stipulation of the parties, for good cause shown, and as directed by order of the Court of Appeal, IT IS HEREBY ORDERED: 1. The 'Judgment Granting Injunction and Peremptory Writ of Mandate' and the 'Peremptory Writ of Mandate and Injunction' ('the Final Judgment") entered by this Court on June 1, 1982 and June 7, 1982 respectively, are deemed to have been fully complied with, and this litigation is terminated in respect of any further proceedings as follows: a) The portions of the Final Judgment containing, explicitly or implicitly, any writs of mandate to the defendants and respondents by the Court are deemed to be fully complied with and discharged; and b) All provisions of the Final Judgment which explicitly or implicitly restrain or enjoin the defendants and respondents in any respect are hereby dissolved immediately. 2. The parties to the stipulation will not, in any future litigation which may occur between or among them, cite, assert as precedent or allege claims of cm indicator collateral estoppel, or any other form of preclusion with respect of the •Final Judgment, the Statement of Decision, or any other order of the Superior Court in this action. Dates y The Honorable Philip E. Schwab Judge of the Superior Court''" 3 Lib COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE • COUNTY OF ORANGE, et al. ) Petitioner ) ) VS ) ) SUPERIOR COURT OF THE STATE OF ) CALIFORNIA, ORANGE COUNTY ) Orange County No. 353101 =1335 Respondent ) ) CITY OF NEWPORT BEACH ) Real Party in Interest ) THE COURT: G-002880 Cep y k By stipulation of the parties, and for good cause shown, The petition of the County of Orange for a Writ of Certiorari is hereby GRANTED and the "Judgment of Contempt and Order" by the Respondent Court of May 21, 1985, and each of its provisions, is vacated and set aside. This matter is remanded to the Respondent Court for the purpose of accepting, executing and causing to be filed with the Clerk of the Superior Court the stipulation, a copy of which is attached to this order as "exhibit A", and for no other purpose. Each party to this proceeding will bear its own attorneys' fees and costs in respect of the proceedings before this court in conection with the Petition for Writ or Certiorari, and any further proceedings before the respondent court in the underlying action. cc: attachment see attached sheet w WAWN, J. Acting Presiding Justice 47 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25 N • 26 • 27 28 RESOLUTION OF THE BOARD OF SDPERVISO ORANGE COUNTY, CALIFORNIA August 27, 1985 On motion of Supervisor Clark duly secon the following Resolution was adopted: WHEREAS, John Wayne Airport ("JWA") is the only federally certificated commercial air carrier airport in Orange County, California; and WHEREAS, the County of Orange, the City of Newport Beach, Stop Polluting Our Newport ("SPON") and the Airport Working Group ("AWG") have been engaged in substantial litigation in both state and federal courts since at least 1981, including litiga- tion regarding a previous master plan for JWA (EIR 232; 1981) as well as the current JWA airport project (EIR 508; 1985); and WHEREAS, the County has also been a defendant in numerous civil damage actions in the Orange County Superior Court since 1968, and continues to be such a defendant at the present time, where individuals residing to the south of JWA have claimed damage and injury to their persons and property alleged to be caused by the noise and other environmental effects of aircraft operations at JWA; and WHEREAS, settlement discussions have recently occurred between the County, the City, SPON and the AWG which would, among other things, result in a complete termination of litigation between them arising under, or relating to, the provisions of the California Environmental Quality Act ("CEQA") in respect of various JWA related projects and would prevent future CEQA litigation related to, or other litigation or actions which might Resolution No. 85-1231 1 5-3 Rescinding Resolution Nos. 80-215 and 1542 1 2 3 4 5 6 7 8 9 10 11 12 13 14 f f og 17 18 19 j 20 21 22 23 24 25 26 N N 27 28 impede or obstruct implementation of the "EIR 508/EIS Project" ("the Project") (as defined in that certain 'Stipulation for Entry of Final Judgment By Certain Settling Parties' to be filed in United States District Court (Central District of California) Civil Action No. CV 85-1542 TJH (Mcx), a copy of which is attached as Exhibit "A' to Board of Supervisors' Resolution 85-1233); and WHEREAS, the termination of this litigation would provide a substantial benefit to the County, its citizens, the residents of Santa Ana Heights who would benefit from implementation of the land use plan element of the EIR 508/EIS Project, and the air traveling public and other users of JWA, by ensuring prompt implementation of the Project; and WHEREAS, during the settlement negotiations the City, SPON and AWG expressed the view that the existence of certain resolu- tions of this Board (Board of Supervisors' Resolutions 80-215 and 82-1542), which stated Board policy that there are no alternative commercial air carrier airport sites in Orange County, might act as substantial impediments to any possible future airport site review or selection efforts by interested third party private or public groups in Orange County; and WHEREAS, there may be third party private or public groups interested in pursuing the possibility of additional or alter- native airport sites at the present time, and the City, SPON and AWG have insisted as part of the proposed settlement that the efforts of such parties not be impaired by the existence of Resolutions 80-215 and 82-1542; and WHEREAS, the Board of Supervisors recognized in its review Resolution No. 85-1231 2 5 N Rescinding Resolution Nos. 80-215 and....1542 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 ir 25 2 26 G 27 LL 8 28 and certification of EIR 508 that JWA is incapable of meeting the full level of air travel demand in Orange County and, in Resol- utions 85-255 and 85-256, directed the Orange County Airport Commission to study prior reports of possible airport sites in Orange County to determine whether there are sites in Orange County which could act as pdditivnaj, airport sites in supplement to JWA to help meet a greater portion of the Orange County air travel demand, and to report the results of their efforts to the Board not later than November 31, 1985; and WHEREAS, the County wishes to complete the proposed settle- ment with the City, SPON and AWG, and also wishes to facilitate the possible identification of an additional airport site, even if that effort is initially undertaken by third parties; and WHEREAS, the County is willing to utilize its status as proprietor of JWA to cooperate in any legitimate third party site selection efforts by seeking to assist any such group in obtaining any state or federal funds which might be available for such additional site study efforts; and WHEREAS, nothing in this resolution, or in the agreement of settlement with the City, SPON and AWG, requires the Board of Supervisors to relinquish in any way its future discretion with respect to its review, or any statement of its position regarding any additional or alternative airport site which might be selected by any such third party efforts undertaken in the future; and WHEREAS, this Board, having been advised of the nature and status of possible future third party airport site selection efforts, finds them to be a fully adequate action and effort in Resolution No. 85-1231 3 5 5 Rescinding Resolution Nos. 80-215 and 1542 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 cz 25 r. in 2 26 ® 28 substitution for the mitigation effort contemplated in Resol- utions 85-255 and 85-256 in the form of the Airport Commission Study referred to and directed in those resolutions; and WHEREAS, the City, SPON and AWG have authorized their counsel to execute and file with the respective courts the stipulations and proposed orders attached as Exhibits A through E to Board of Supervisors' Resolution 85-1233; and WHEREAS, this Resolution is contingent upon the full execution, completion and acceptance by the respective Courts of the entire documentation of the settlement understanding of the parties as reflected in their respective resolutions and related documents. NOW, THEREFORE, BE IT RESOLVED: 1. Board of Supervisors' Resolutions 80-215 and 82-1542 are hereby rescinded; 2. In the event any group or entity wishes to conduct a site selection or related study concerning an additional commercial airport to supplement the Project capacity of JWA, as such capacity has been determined by the terms of the relevant Board of Supervisors' resolutions, then: (a) that group or entity shall present to the Airport Manager the study proposal; (b) the Airport Manager shall promptly review and present the proposal, with his recommendation, to the Airport Commission; (c) the Airport Commission shall then review the Resolution No. 85-1231 4 56 Reacintinn Racnintinn Linn 2n-97C mw.A IcAn 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 0 16 g 17 18 19 20 21 22 23 24 25 N i� 26 J 28 proposal and make its recommendation to the Board of Supervisors, with particular emphasis on whether the County, as proprietor of JWA, should seek to assist the proposed study effort by requesting the Federal Aviation Administra- tion to make available AIP or equivalent federal funds available for such a study; and (d) the proposal shall then be presented to the Board of Supervisors for its determination. 3. In the event such a proposal is approved, nothing in this resolution commits or requires the County to provide any local matching funds which might be required as a condition to a state or federal grant. 4. The Airport Commission study of additional sites, as specifically directed in Board of Supervisor's Resolutions 85-255 and 85-256, is discontinued immediately, and all related instructions to the Airport Commission are hereby rescinded. 5. Except for the action directed in the immediately preceding paragraph, nothing in this resolution amends in any way any provision of Board of Supervisor's Resolution 85-255 regard- ing the reasonableness or feasibility for CEQA purposes of any alternatives to the project evaluated in, or in connection with, EIR 508. Resolution No. 85-1231 5 5 7 Rescindina Resolution Nos_ Rn-215 and 1Rd9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 .J, Wf ;2 15 19 20 21 22 23 24 25 • 26 O • 27 LL ® 28 AYES: SUPERVISORS RALPH B. CLARK, THOMAS F. RILEY, ROGER R. STANTON, AND HARRIETT M. WIEDER NOES: SUPERVISORS BRUCE NESTANDE ABSENT: SUPERVISORS NONE STATE OF CALIFORNIA ) COUNTY OF ORANGE ss. I, LINDA D. ROBERTS, Clerk of the Board of Supervisors of Orange County, California, hereby certify that the above and foregoing Resolution was duly and regularly adopted by the said Board at a regular meeting thereof held on the 27th day of August, 1985, and passed by a four -fifths vote of said Board. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 27th day of August, 1985. r r FOREGOING 1!' STRUMENT IS A TRUE hNn . i COPY OF THE ORIGINAL •-w, c: -: c tho Thar3 c„lw c; Ulan LI A D. ROBERT Clerk of the Board of Supervisors of Orange County, California DEPUTY Resolution No. 85-1231 6 54 Rescindina Resolutinn lung_ An-915 anA 1CA) RESOLUTION OF THE BOARD OF SUPERVISORS OF b RECEIVED 2 ORANGE COUNTY, CALIFORNIA 3 August 27, 1985 q On motion of Supervisor pe Clark--' , duly seconde 5 carried, the following Resolution was adopted: 6 WHEREAS, John Wayne Airport ('JWA') is the only federally 7 certificated commercial air carrier airport in Orange County, gI California; and 9 WHEREAS, the County of Orange, the City of Newport Beach, 10 Stop Polluting Our Newport ('SPON') and the Airport Working 11 Group ('AWG') have been engaged in substantial litigation in both 12 state and federal courts since at least 1981, including litiga- 13tion regarding a previous master plan for JWA (EIR 232; 1981) as 14 well as the current JWA airport project (EIR 508; 1985); and APR 281986r City Manager City of Newport Bnch J> Z; 15 WHEREAS, the County has also been a defendant in numerous 0 Ou > 16` civil damage actions in the Orange County Superior Court since o; 17 1968, and continues to be such a defendant to the present time, i8 where individuals residing to the south of JWA have claimed 19 damage and injury to their persons and property alleged to be 20 caused by the noise and other environmental effects of aircraft 21 operations at JWA; and 22 WHEREAS, settlement discussions have recently occurred 23 between the County, the City, SPON and the AWG which would, among 24 other things, result in a complete termination of litigation 25 between them arising under, or relating to, the provisions of the 2 26 California Environmental Quality Act ('CEQA') in respect of N 27 various JWA related projects and would prevent future CEQA ® 28 litigation related to, or other litigation or actions which might Resolution No. 85-1232 1 59 Amendments to Resolution No. 85-255 2 3 5 6 9 10 11 12 13 14 18 19 20 21 22 23 24 25 P. 26 N O 27 2B impede or obstruct implementation of the "EIR 508/EIS" Project ('the Project") (as defined in that certain "Stipulation for Entry of Final Judgment by Certain Settling Parties" to be filed in United States District Court (Central District of California) Civil Action No. CV 85-1542 TJH (Mcx), a copy of which is attached as Exhibit 'A" to Board of Supervisor's Resolution 85-1233); and WHEREAS, the termination of this litigation would provide a substantial benefit to the County, its citizens, the residents of Santa Ana Heights who would benefit from implementation of the land use plan element of the EIR 508/EIS Project, and the air traveling public and other users of JWA, by ensuring prompt implementation of the Project; and WHEREAS, on February 26, 1985, after completion of the environmental process under CEQA, this Board certified EIR/EIS 508 as adequate and complete (Board of Supervisor's Resolution 85-255) for, and approved and selected a Master Plan for the development of, JWA through the year 2005, including the mitiga- tion of the project (as defined in Resolution 85-255); and WHEREAS, after adoption of the above resolutions, specific litigation was initiated in the United States District Court for the Central District of California, which involved, among other issues, controversies between the County, the City, SPON and the AWG regarding the adequacy and completeness of EIR/EIS 508 under CEQA (County::of.'Or=,.r., . . -. %..nia et al t USDC (C.D. Cal.) No. CV-85-1542 TJH (Mcx); and WHEREAS, certain specific prior disputes between the County, the City and SPON were litigated in the Superior Court of Resolution No. 85-1232 2 60 Amendments to Resolution No. 85-255 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 .> �> �:"; '43 15 �'o > Y 16 18 • • 19 20 21 22 t 9 26 23 24 25 ® 28 the State of California for the County of Orange which involved a former (but subsequently abandoned) master plan project for JWA ("The 1981 Master Plan') which was analyzed for CEQA purposes by County EIR 232 (City: -of: Ntwoort aclr-vr_Conuty-of-orancle, OCSC No. 35-31-01), and the Superior Court judgment in such action is currently on appeal (Court of Appeal. Dist. 4, Div. 3, No. G000- 160; and WHEREAS, the County has initiated a petition for a writ of certiorari in the District Court of Appeal (County.•-of-:Oranuew: -at a_anSnner$ar cant, (Fourth District, Div. 3, No. G0002880) challenging an order of the Superior Court in the EIR 232 litigation that the County was in contempt of the Superior Court judgment in that action by initiating the EIR 508 project without first obtaining a determination by a court of competent jurisdic- tion that EIR 508 complied with CEQA; and WHEREAS, Public Resources Code Section 21167.8 contemplates and encourages settlement negotiations involving CEQA issues; and WHEREAS, as a result of such negotiations, the parties have agreed to a settlement, involving further mitigation of the EIR 508/EIS Project by the County; and WHEREAS, the County, the City, SPON and AWG have agreed to terminate and/or dismiss all litigation between them concerning JWA, including the entry of a stipulated judgment in the pending United States District Court action that EIR 508/EIS as certified by the Board of Supervisors for the EIR 508/EIS Project is fully adequate and complete under CEQA and its implementing regulations ("the Guidelines"), and the National Environmental Policy Act ("NEPA") and all relevant implementing regulations; -and Resolution No. 85-1232 3 61 Amendments to Resolution No. 85-255 6 9 10 11 12 13 WHEREAS, the terms of this settlement will not change the basic goals, objectives and purposes of the Project as previously approved, but will act as further mitigation of the Project's environmental impacts, most importantly those identified impacts of the Project related to aircraft noise, traffic congestion in the vicinity of the Project, air quality impacts and aesthetic impacts of the Project in respect of the proposed commercial passenger terminal building; and WHEREAS, the actions taken by this Resolution are intended and will act to further mitigate the County's potential legal exposure to damage claims, ifany, in its capacity as proprietor of JWA: and WHEREAS, this Resolution is contingent upon the full 14 execution, completion and acceptance by the respective Courts of JF :; 15 the entire documentation of the settlement understanding of the G ou 16 parties as reflected in their respective resolutions and related Of 17 documents. 18 19 NOW, THEREFORE, BE IT RESOLVED that Board of Supervisors 20 Resolution 85-255 is hereby amended as follows: 21 22 In respect of the findings already contained in Resolution 23 85-255, and in respect of the additional findings previously 24 stated in this resolution, and in Resolutions 85-1231 and 1233, 25 the following mitigation measures are adopted for the project n 26 in addition to, or, where indicated, in substitution for, the 27 mitigation measures previously adopted for the project: 1 28 Resolution No. 85-1232 4 6Z Amendments to Resolution No. 85-255 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 I' 26 N ; 27 LL 28 1. In lieu of paragraph 5, beginning at page 63, line 1, of Resolution 85-255, the following language is substituted: 'The maximum number of annual passengers served by regularly scheduled commercial operators at JWA (including 'air carrier' and 'commuter operators, and including all classes of operations under the County's commercial airline access plan or any amended or successor plan, and including 'exempt' flights as that term is defined in the access plan effective on the date of this resolution) shall not exceed 4.75 million annual passengers ('MAP') during Phase I of the project, and shall not exceed 8.4 MAP during Phase II of the project. The Airport Manager is hereby directed to initiate appropriate staff and Airport Commission proceedings in order to present to the Board of Supervisors recommended amendments to the County's commercial airline access plan designed to implement and enforce this restriction, includ- ing such procedures as may be necessary to determine an accurate MAP count for JWA, and the maintenance of appro- priate reports as public records.' 2. For reasons set forth in Resolution 85-1231, paragraph 8, beginning at page 65, line 4 of Resolution 85-255 is deleted, and the actions and findings of Resolution 85-1231 are hereby adopted in substitution therefor as a mitigation measure for the approved project. 3. In lieu of the language of paragraph 10 of Resolution Resolution No. 85-1232 5 63 Amendments to Resolution No. 85-255 • 85-255, page 65, lines 14 through 16, the following language is substituted as part of Resolution 85-255: 'At no time during Phase (through December 31, 2005) than 39 Class A ADDs (as restrictions).' I or Phase II of the project shall the County allocate more that class is limited by noise 4. The following language is added to the end of paragraph 4, beginning at page 62, line 28 of Resolution 85-255: 'Notwithstanding any other provision of this resolution or related airport regulations at JWA, during the term of this project, the County will use its best efforts to obtain voluntary compliance with the JWA curfew by all regularly scheduled operators operating 'exempt' aircraft, or other aircraft which might otherwise be exempt from the curfew restrictions.' 5. The findings and recitals of Resolution 85-1233, and the provisions of Section '3' of that resolution restricting the size of the Project's proposed commercial passenger terminal facilities, loading bridges, and the number of parking spaces to be constructed as part of the Project are hereby adopted and incorporated in full text as an additional mitigation measure of Resolution 85-255. This additional mitigation measure shall be deemed to be numbered "11" and inserted in Resolution 85-255, beginning at page 65, line 17. Resolution No. 85-1232 6 ('y Amendments to Resolution No. 85-255 AYES: NOES: ABSENT: V SUPERVISORS SUPERVISORS SUPERVISORS STATE OF CALIFORNIA ) .) COUNTY OF ORANGE RALPH B. CLARK, THOMAS F. RILEY, ROGER R. STANTON, HARRIETT M. WIEDER, AND BRUCE NESTAND NONE NONE SS. I, LINDA D. ROBERTS, Clerk of the Board of Supervisors of Orange County, California, hereby certify that the above and foregoing Resolution was duly and regularly adopted by the said Board at a regular meeting thereof held on the 27th day of August, 1985, and passed by a -unanimousvote of said Board. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 27th day of August, 1985. LINDA D. ROBERT Clerk of the Board of Supervisors of Orange County, California THE FOREGOING INSTRUMENT IS A TRUE AND CORRECT Copy OF THE ORIGINAL ON FILE IN THIS OFFICE. ATTEST: LINDA D. ROB S Clerk p the 6�� 19 F oard of Supervisors, County of Orange BY Resolution No. 85-1232 7 65 Amendments to Resolution No. 85-255 .f' , DEPUTY 2 3 4 5 6 7 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 C UNITED STATES DITRICT COURT CENTRAL DISTRICT OF CALIFORNIA COUNTY OF ORANGE, ) No. CV 65-1542 TJH (MCx) ) Plaintiff, ) ) v. ) ) AIR CALIFORNIA, et al. ) ) Defendants. ) ) ) 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. ) ) STIPULATIOtN FOR ENTRY OF FINAL JUDGMENT BY CEP.TAIN SETTLING PARTIES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BASIS FOR STIPULATION 1. The County of Orange ("County"), the City of Newport Beach ("City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") (herein- after collective referred to as "the settling parties"), by their respective counsel of record, enter into this stipulation to implement the settlement of the longstanding dispute between the settling parties concerning the development and operation of John Wayne Airport ("JWA"). The Judgment to be entered pursuant to this stipulation would (1) adjudicate that EIR 508/EIS is legally adequate for the "EIR 508/EIS Project" (as that term is hereafter defined) under the California Environmental Quality Act, the National Environmental Policy Act, and all relevant state and federal implementing regulations; and (2) provide for enforcement of certain specific aspects of the settlement agreement of the parties in respect of, or related to the controversies among them regarding the development and operation of JWA (and agreed upon limitations regarding such development and operation) through the year 2005. 2. The compromise settlement reached by the settling parties reflects, under all of the circumstances, the individual judgments of the settling parties regarding an appropriate or acceptable balance between demand for air travel services in Orange County and any adverse environmental effects associated with the operation of JWA. Recognizing that JWA is incapable of satisfying the demand for air travel in Orange County, this settlement is also designed to permit studies regarding the 1 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 possible future development of an additional airport to serve Orange County. The settling parties acknowledge that, without this settlement and Judgment, protracted litigation would continue and create a..:.inuing risk both of impeding or preventing the County's development of JWA, and its ability to create additional access opportunities for commercial operators desiring to use JWA. 3. Other provisions of the settling parties' agree- ment will not be embodied in the Judgment. Those provisions include the actions undertaken by the County in connection with the adoption of Resolution Nos. 85-1231, 85-1232 and 85-1233 concerning mitigation certification of EIR 508, adoption of additional measures, and additional airport site studies in Orange County, and the parties' dismissal of other litigation concerning JWA. These provisions also include a resolution of the City of Newport Beach (Resolution 85-67). The parties acknowledge that each of the undertakings in the referenced resolutions represent a material part of the consideration pertaining to this settlement. 4. In reaching this settlement, the settling parties have considered operational and other factors applicable to John Wayne Airport which may not be applicable to any other airport. This stipulation is site specific to JWA, premised upon its unique history, operational characteristics and limitations, and shall not be deemed applicable to any other airport. 2 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Not all of the parties to this litigation have agreed to the terms of this settlement. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the judgment to be entered pursuant to this Stipulation is a final judgment only as to the claims between the settling parties. 6. This stipulation and judgment is not intended to, and shall not, create any rights in favor of any persons other than the settling parties. II. DEFINITIONS For purposes of this Stipulation and Judgment, the terms below are defined as follows: 7. "ADD" means "average daily departure," which is computed on an annual basis, from April 1 of each year to March 31 of the following year ("the Plan Year"). One ADD is equal to 365 departures by Class A or Class AA aircraft during each Plan Year (or 366 departures in any "leap year"), subject to any adjustments which may result from the implementation or enforce- ment of any County regulation for JWA or this Judgment (except that no ADD shall consist of more departures in a Plan Year than there are days in that year). "ADD" includes all Gass A or Class AA departures, except emergency or mercy flights, depar- tures resulting from mechanical failures, emergency or weather diversions to JWA necessary to reposition an aircraft into its normal scheduling rotation, the repositioning of aircraft to another airport in connection with a published change in the 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 previous schedule of operations of the airline, test or demon- stration flights authorized in advance by the airport manager, or charter flights by persons not engaged in regularly scheduled commercial service at JWA. 8. "Class A Aircraft" means aircraft which: (a) are used in regularly scheduled commercial service at JWA; and (b) generate actual energy average SENEL levels, averaged during each Noise Compliance Period, as measured at the Criterion Monitoring Stations, which are not greater than the following values: M1: 98.5 dB SENEL M6: 100.0 dB SENEL M7: 100.0 dB SENEL In determining whether an aircraft is a Class A aircraft, its noise performance at the Criterion Noise Monitoring Stations shall be determined at each individual station. An aircraft must meet each of the monitoring station criteria, without "trade-offs," in order to qualify as a Class A aircraft. The existing Departure Noise Monitoring Stations will be kept in operation and in good repair during the Project Period, and test procedures for determination of Class A, Class AA, and Exempt Aircraft shall be no less stringent than those provided for in the County's commercial airline access plan in effect on August 1, 1985. During the Project Period, quarterly noise 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reports and all test data concerning aircraft classification qualification tests at JWA shall be prepared and maintained as public records. 9. "Class AA Aircraft" means aircraft, other than Exempt Aircraft, which: (a) are used in regularly scheduled commercial service at JWA; and (b) generate actual energy averaged SENEL levels, averaged during each Noise Compliance Period, which are not greater than 89.5 dB SENEL at anv Departure Noise Monitoring Station. In determining whether an aircraft is a Class AA aircraft, its noise performance at the Departure Noise Monitoring Stations shall be determined at each individual station. An aircraft must meet each of the Departure Noise Monitoring Station criteria, without "trade-offs," in order to qualify as a Class AA aircraft. 10. "Commercial Air Carrier" means any person which operates regularly scheduled commercial service into and out of JWA for the purpose of carrying passengers or freight, or for any other regularly scheduled commercial purpose. 11. "Commuter Air Carrier" means any person which operates regularly scheduled commercial service into and out of JWA for the purpose of carrying passengers or freight, or for any other regularly scheduled commercial purpose, with aircraft 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which, under the definitions and limitations of this stipulation and Judgment, do not require an allocation of ADDS for their operation at JWA (i.e., "Exempt Aircraft"). 12. "Criterion Noise Monitoring Stations" means those noise monitoring stations of the JWA noise monitoring system at the location of monitoring stations M6, M7 and M1 as of August 1, 1985. 13. "Departure Lounge Holding Area" means interior square footage adjacent to an air carrier or commuter gate within a "secure holding area" that is designed to be used as a seating lounge or waiting area in connection with arriving and departing flights. "Departure Lounge Holding Area" does not mean, for purposes of this stipulation and Judgment, any common passage areas in a secure holding area intended to allow the public to achieve access to a Departure Lounge Holding Area, or any other public space in a secure holding area which is devoted to public purposes other than a seating lounge or waiting area. 14. "Departure Noise Monitoring Stations" means those noise monitoring stations of the JWA noise monitoring system at the location of JWA monitoring stations M6, M7, M1, M2, M3 and M8 as of August 1, 1985. 15. "EIR 508/EIS Project" means that certain "project" including related plans for development, activities and other related elements and approvals which are collectively defined and 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mitigated by County EIR 508, Board of Supervisors' Resolutions 85-255 through 85-258 and the related resolutions 85-259 and 85-260, all adopted on February 26, 1985, Board of Supervisors' Resolution 85-387 (March 20, 1985), and Board of Supervisors' Resolutions 85-1231 through 85-1233. It also includes all processing and approvals, and contemplated activities considered by the Federal Aviation Administration in its consideration and approval of the EIR 508 documentation as an Environmental Impact Statement prepared, circulated, considered and approved under the National Environmental Policy Act. The term also includes the terms of this stipulation and the Stipulated Judgment. 16. "Exempt Aircraft" means any aircraft used in regularly scheduled commercial service at JWA which, when measured by actual energy averaged SENEL levels during any Noise Compliance Period, does not exceed 86.0 dB SENEL on departure at any of the Departure Monitoring Stations. 17. "MAP" means million annual passengers, consisting • of the sum of actual deplaning and enplaning passengers served by all Commercial and Commuter Air Carriers at JWA during each Plan Year. 18. "Noise Compliance Period" means each calendar quarter during the Project Period. 19. "Phase I" means the period from February 26, 1985, to the date on which Phase II begins. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. "Phase II" means the period that begins on April 1, 1990, or the date on which the County records a notice of completion an the new commercial passenger terminal, whichever is later, and ends on December 31, 2005, 21. "Plan Year" means each period during the Project Period, from April 1 of one year to March 31 of the following year. 22. "Project Period" means the period from February 26,'1985 to December 31, 2005. 23. "Regulated ADDs" means average daily departures during a Plan Year by Class A and Class AA aircraft operated by Commercial Air Carriers. III. STIPULATION FOR ENTRY OF JUDGMENT In recognition and consideration of the foregoing recitals and 'definitions, the settling parties stipulate to the entry of Judgment that contains the terms stated below. A. Adequacy of EIR 508/EIS 24. Judgment may be entered by the Court on the County's First Amended Complaint for Declaratory and Injunctive Relief, and the Counterclaims of the City, SPON, and AWG, adjudicating that EIR 508/EIS is legally adequate and complete under the California Environmental Quality Act ("CEQA") (Cali- 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fornia Public Resources Code Section 21000 gt sec.), the State CEQA Guidelines (14 Ca1.Admin.Code Section 15000 et sag.), the National Environmental Policy Act ("NEPA") (42 U.S.C. Section 4321 It sec.) and all relevant federal implementing regulations with respect to the EIR 508/EIS Project, including, but not limited to, implementation of the physical facilities improve- ments, airport layout plan, land use plans, and aircraft operat- ions and MAP levels permitted by the project. To the extent that the County's First Amended Complaint, or the counterclaims in this action by the City, SPON and the AWG, raise any controver- sies other than the adequacy of EIR 508/EIS under the provisions of CEQA, NEPA and all relevant implementing regulations, such claims and controversies shall be dismissed without prejudice. 25. Each settling party shall bear its own costs and attorneys' fees in connection with this litigation. B. Flight and MAP Limits 26. During Phase I, there shall be a maximum of 55 ADDs by Class A and Class AA aircraft (regardless of whether or not the County has specifically allocated any such ADDS to any Commercial Air Carrier). No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permit- ted to engage in regularly scheduled commercial service at JWA. Of the 55 ADDs permitted during Phase I, no more than 39 ADDs may be by Class A aircraft. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. During Phase I, JWA shall serve no more than 4.75 MAP during any Plan Year. 28. During Phase II, there shall be a maximum of 73 ADDs by Class A and Class AA aircraft (regardless of whether or not the County has specifically allocated any such ADDs to any Commercial Air Carrier). No aircraft generating noise levels greater than that permitted for Class A aircraft shall be permit- ted to engage in regularly scheduled commercial service at JWA. Of the 73 ADDs permitted during Phase II, no more than 39 ADDs may be by Class A aircraft. 29. During Phase II, JWA shall serve no more than 8.4 MAP during any Plan Year. C. Facilities Constraints 30. Paragraphs 31 though 35, below, contain agree- ments of the County on the maximum permissible size of certain facilities improvements related to the proposed commercial passenger terminal to be developed as part of the EIR 508/EIS Project (and reducing the capacity of certain other related facilities) that can be made at JWA through the end of Phase II. 31. During the Project Period, John Wayne Airport shall have a commercial passenger terminal with a maximum interior floor space consisting of areas which are leaseable to 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tenants, or common areas available for public use and access, of not more than 271,000 square feet. This interior floor space restriction does not include, and does not apply to space utilized for airport administration areas, "mechanical/electrical areas," "structural areas," or "terminal curb areas." The total terminal size, including the "mechanical/electrical areas" and "structural areas", but excluding any "terminal curb area," may not exceed 337,900 square feet. 32. During Phase II, no building at JWA, other than the commercial passenger terminal, or buildings leased to Fixed Based Operators with limited commuter operations, shall be used by Commercial or Commuter Air Carriers for passenger or cargo handling activities. 33. Any Departure Lounge Holding Area designed to serve a loading bridge in the terminal shall be designed for use in connection with only one loading bridge. Each such Departure Lounge Holding Area shall have a physical separation from any other such Departure Lounge Holding Area with a perman- ent fixture barrier not less than 36 inches high. The commercial passenger terminal shall contain a maximum of 37,000 interior square feet for all Departure Lounge Holding Areas. 34. There may be a maximum of fourteen (14) loading bridges, of which no more than nine (9) may be sized for aircraft as large as the Boeing-767. The remaining five (5) loading bridges shall be designed for aircraft no larger than the Boeing 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 757 aircraft. Each loading bridge may serve no more than one flight at a time. 35. There may be a maximum of 8,400 parking spaces, not including spaces contained in the existing North Clear Zone Parking Facility. The terminal parking structure may have no more than four levels. Space devoted to parking may not be converted to other terminal uses. D. Other Stipulated Provisions 36. Consistent with its existing or to be assumed obligations under contractual agreements with the United States of America under provisions of the Airport and Airway Develop- ment Act of 1970 (as amended) (former 49 U.S.C. Section 1701 et sea.) or the Airport and Airway Improvement Act of 1982 (49 U.S.C. Section 2201 et sea.), the County shall establish and maintain a rate and fee structure which will ensure that the operation of JWA will be self-supporting during the Project Period. Except for short-term borrowing in order to alleviate temporary cash flow problems, or other emergency needs, the County will not use its general funds to subsidize directly the construction or routine operation of JWA. (This limitation recognizes that in the ordinary course of the County's business, certain County staff and personnel engage in activities supported by general funds which may indirectly relate to the operation of JWA. It is not the purpose or effect of this stipulation to preclude the County from continuing such general fund supported 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 activities which are incidental to the routine operation of the airport.) Nothing in this paragraph, or this stipulation, is intended to, nor shall 'it be construed as, making the settling parties (other than the County), or any other person, parties to, or third party beneficiaries of, any contractual agreements between the County, as airport proprietor of JWA, and the United States of America (or any of its agencies). 37. The existing curfew regulations and hours for JWA, contained in County Ordinance 3505, and the provisions of paragraph 4 at page 62 of Board of Supervisor's Resolution 85-255 (February 26, 1985), reducing the curfew exemption threshold to 86.0 dB SENEL, shall remain in effect during the Project Period; except that the County shall retain its full discretion to extend the curfew hours. Nothing in this paragraph precludes or prevents the JWA Airport Manager, his designated representative, or some other person designated by the Board of Supervisors from exercising reasonable discretion in authorizing a regularly scheduled commercial departure or landing during the curfew hours where: (1) such arrival or departure was scheduled to occur outside of the curfew hours; and (2) the arrival or departure has been delayed because of mechanical problems, weather or air traffic control delays, or other reasons beyond the control of the commercial operator. In addition, this paragraph does not prohibit authorization of bona fide emergency or mercy flights during the curfew hours by aircraft which would otherwise be regulated by the curfew provisions and limitations. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. In mitigation of the EIR 508/EIS Project, and for other reasons, the County has adopted a "General Aviation Noise Ordinance" ("GANO") (County Ordinance 3505). The principal policy objective of the GANO is to exclude from operations at JWA general aviation aircraft which generate noise levels greater than the noise levels permitted for aircraft used by Commercial Air Carriers. During the Project Period, the County shall maintain in effect an ordinance which meets this basic policy objective. Nothing in this stipulation precludes the County from amending the GANO to enhance or facilitate its reasonable achievement of its principal purpose, or the effective enforce- ment of its provisions. 39. During the Project Period, the City, SPON, AWG, their agents, attorneys, officers, elected officials and employ- ees agree that they will not challenge, impede or contest, by or in connection with litigation, or any adjudicatory administrative proceedings, or other action, the funding, implementation or operation of the EIR 508/EIS Project by the County and the United States; nor will they urge other persons to do so, or cooperate in any such efforts by other parties except as may be expressly required by law. Nothing in this paragraph prohibits the settling parties from submitting comments or presenting testimony upon any future environmental documentation which may be prepared by the County; or from challenging any project which is not part of the EIR 508/EIS Project. 14 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40. The Board of Supervisors shall not arbitrarily withhold approval, endorsement or support of any application by a qualified entity or consortium of entities submitted pursuant to Board of Supervisor's Resolution 85-1231 which seeks a reasonable level of state or federal funding for a study or studies concern- ing a site for an additional airport to supplement JWA. 41. During the Project Period, the City agrees that it will, at its expense, actively join the County in defending, in any pending or future litigation, the EIR 508/EIS Project or the County's regulations or actions in implementation of, or enforc- ing limitations upon, the project. 42. It is specifically acknowledged by the parties that the County has received a request by PSA to operate exempt aircraft in regularly scheduled service at JWA, and may receive other such r=_cuests in the future. The County intends in the near future to develop amendments to its existing access plan or other airport regulations to provide for a means to allocate exempt aircraft operating opportunities within the MAP level agreed to in this stipulation. The development and implementa- tion of such regulatory mechanisms is expressly acknowledged to be an element of the implementation of the EIR 508/EIS Project, and no additional or further environmental documentation under CEQA or NEPA shall be necessary to allow the County to develop and process such regulations and applications. 15 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43. Any notices given under this stipulation shall be addressed to the parties as follows: FOR THE COUNTY: Adrian Xuyper, County Counsel Office of the County Counsel 10 Civic Center Plaza P.O. Box 1379 Santa Ana, California 92702 with a copy to: Michael Scott Gatzke Gatzke, Lodge & Mispagel 2890 Pio Pico P.O. Box 1636 Carlsbad, California, 92008 FOR THE CITY: City Manager City of Newport Beach 3300 Newport Beach Blvd. P.O. Box 1768 Newport Beach, California 92658-8915 with a copy to: Pierce O'Donnell O'Donnell & Gordon 619 South Olive, Ste. 300 Los Angeles, California 90014 FOR SPON AND AWG: E. Clement Shute, Jr. Shute, Mihaly & Weinberger 396 Hayes Street San Francisco, California 94102 At any time, any party may change the person designated to receive notices under this stipulation by giving written notice of such change to the other parties. vv 16 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 IV. ENFORCEMENT OF THE JUDGMENT 44. The stipulations in the other pending state and federal litigation matters pending among the settling parties shall not be filed until the entry of the Stipulated Judgment authorized by this stipulation. 45. If a dispute arises concerning interpretation of, or a settling party's compliance with, this Judgment, and if no exigent circumstances require immediate court proceedings, any settling party raising such issue of interpretation or compliance shall provide written notice of such dispute to the other settling parties. Within twenty-one (21) days of the sending of such notice, the parties shall meet in person (or by their authorized representatives) and attempt in good faith to resolve the dispute. 46. If any such dispute has not been resolved within thirty-five (35) days of the sending of written notice, or if exigent circumstances require immediate court proceedings, any • action. A settling party seeking to compel another settling party to obey the Judgment must file a Motion to Enforce Judg- ment. The settling parties agree not to resort to, request, or initiate proceedings involving the contempt powers of the, Court in connection with a Motion to Enforce Judgment. 47. If the Court determines that a party is not complying with the Judgment, the Court shall issue an order, in 17 )• r• 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the nature of specific performance of the Stipulated Judgment, requiring the defaulting party to comply with the Judgment within a reasonable period of time. If the defaulting party thereafter fails to comply with such an order, the other settling parties may then seek enforcement under any authorized processes of the Court. V. TERM OF AGREEMENT 48. This stipulation is contingent upon the Court's entry of the Judgment pursuant to this stipulation ("the Stipul- ated Judgment"). If the Stipulated Judgment is not entered, this stipulation shall be null and void, and shall not be admissible for any purpose. Unless terminated at an earlier date in the manner described in paragraphs 49-51 below, this stipulation and Stipulated Judgment shall be effective for the Project Period. 49. The City, SPON or the AWG may file a Motion to Vacate Judgement if, in any action which they have not initiated: (a) Any trial court enters a final judgment which determines that the limits on the number of Regulated ADDS, Class A ADDs, the distinction between Class A and Class AA aircraft, MAP levels or facilities improvem- ents contained in this stipulation, the curfew provi- sions of paragraph 37 of this stipulation, or the provisions of paragraph 38 of this stipulation are unenforceable for any reason, and the any of these Y 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stipulated limitations are exceeded; (b) Any trial court issues a preliminary injunc- tion which has the effect of precluding implementation or enforcement of the limits on the number of Regulated ADDs, Class A ADDs, the distinction between Class A and Class AA aircraft, MAP levels or facilities improve- ments contained in this stipulation, the curfew provisions of paragraph 37 of this stipulation or the provisions of paragraph 38 of this stipulation, based upon a finding of a probability of making at trial any of the determinations described in subparagraph (a) above, and such preliminary injunction remains in effect for a period of one (1) year or more, and any of these stipulated limitations are exceeded; or (c) Any appellate court issues a decision or order which makes any of the determinations described in subparagraphs (a) or (b) above, or affirms a trial court ruling based upon such a determination, and any of these stipulated limitations are exceeded. 50. The County may file a Motion to Vacate Judgment if the City fails to comply with the provisions of paragraph 41 of this stipulation, or either the City, SPON or the AWG file or participate in a lawsuit or adjudicatory administrative proceed- ing, or assist another person in any such lawsuit or proceeding, for the purpose, or to the effect of impeding implementation of 19 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 411) o the EIR 508/EIS Project or otherwise take action in violation of paragraph 39 of this stipulation. This provision shall not apply to activities expressly permitted by paragraph 39 of this stipulation. 51. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Court shall, after consideration of a motion to vacate judgment, enter an order vacating the Stipulated Judgment if it determines that any of the conditions described in paragraphs 49 or 50 have occurred. Once vacated, the Judgment and this stipulation shall be null and void, unenforceable and inadmissible for any purpose, and the parties will be deemed to be in the same position that they occupied before the Stipulated Judgment and stipulation was executed and entered in respect of this litigation, and they shall have the full scope of their legislative and administrative prerogatives. 52. The limitations on Regulated ADDs, Class A ADDs, the distinction between Class A and Class AA aircraft, MAP levels and commercial passenger terminal facilities provided for in this stipulation, the provisions of paragraphs 37 and 38 of this stipulation, and the agreements of the City, SPON and AWG not to Contest or impede implementation of the EIR 508/EIS Project (paragraph 39 of this stipulation), are fundamental and essential aspects of this settlement, and were agreed upon with full recognition of the possibility that economic, demographic, technological, operational or legal changes not currently contemplated could occur during the Project Period. It was in 20 s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recognition of these essential aspects of the settlement, and the inability to predict with certainty certain future conditions that the settling parties have agreed to the specific and express provisions of paragraph 49 of this stipulation. The settling parties further acknowledge that this settlement provides for the settling parties to perform undertakings at different times, and that the performance of certain of the undertakings, once accomplished, could not be undone. Accordingly, except as provided herein, the settling parties expressly waive any potential right to seek to modify or vacate the terms of the settlement or the Stipulated Judgment, except by mutual agree- ment. Date: 1 4-1 Date: MICHAEL SCOTT GATZKE MARK J. DILLON Gatzke, Lodge & Mispagel Attorneys for Plaintiff and Counterdefend- ants, the County of Orange and the Orange Coun s� Board of Supervisors ichael S ott Ga k AIr,M110al i4 i7 PIERCE 0' DONNELL* STEVEN F. PFLAUM JOSEPHINE E. POWE O'Donnell & Gordon *A Professional Corporation Attorneys for Defendant, Counterclaimant and Crossdefendant, the City of Newport Beach BY. 1,4/(4, IP Steven F. Pfla W6P) 21 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [STIPULATION SIGNATURE PAGE CONTINUED] Date: • E. CLEMENT SHUTE, JR. Shute, Mihaly & Weinberger Attorneys for Defendants, and Crossdefendants, Our Newport and the Group of Orange County, 1 • By; !� .'tea.• .=-�Y :�. ;c` E. Clement Shute, Jr. Counterclaimants Stop Polluting Airport Working Inc. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA COUNTY OF ORANGE, ) No. CV 85-1542 TJH (MCx) ) Plaintiff, ) v. ) AIR CALIFORNIA, et al., ) t ) Defendants. ) t CITY OF NEWPORT BEACH, ) f ) Counterclaimant, ) 1 v. ) ) COUNTY OF'ORANGE; ORANGE COUNTY ) BOARD OF SUPERVISORS; and DOES ) 1 through 1;000, Inclusive, ) ) Counterdefendants ) AND RELATED COUNTERCLAIMS ) Li -_ LEA DEC .., 85 u.s. DISTRICa C3u t ^.r iTf AL DISTRICT OF IL _' V FINAL JUDGMENT ENTERED ON STIPULATION FOR ENTRY OF JUDGMENT BY CERTAIN SETTLING PARTIES O'DONNELL & CORDON 54, RErintsr, '.:.. t,. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the stipulation of the parties, and there being no just reason for delaying entry of this Judgment, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Judgment is hereby entered in favor of the. County of Orange and the Orange County Board of Supervisors ("the County"), and against the City of Newport Beach ("the City"), Stop Polluting Our Newport ("SPON"), and the Airport Working Group of Orange County, Inc. ("AWG") on the Fourth, Fifth and Sixth Causes of Action of the County's First Amended Complaint for Declaratory and Injunctive Relief on file in this action, and on the Counterclaims of the City, SPON and AWG against the'County as follows: (a) Orange County Environmental Impact Report 508 and the related Environmental Impact Statement processed by the Federal Aviation Administration are hereby adjudged and decreed to be fully and legally adequate and complete under all provisions of the,California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000 et seq.), the State CEQA - Guidelines (14 Ca1:Admin:Code Section 15000'. O'DONNELL & CORDON 2 1S2F/040-11/F/lmm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 0 21 22 23 24 25 et seq.), the National Environmental Policy Act (42 U.S.C. Section 4321 et seq.), and all relevant or applicable federal implementing regulations for NEPA, for the project described in the EIS and EIR 508, as mitigated by the Board of Supervisors by their Resolutions 85-255, 85-1232, 85-1233, and as further mitigated by the terms and provisions of the parties' stipulation; and • (b) to the extent that the Fourth, Fifth or Sixth Causes of Action of the County's First Amended Complaint, or the counterclaims against the County in this action by the City; SPON and ANG raise any controversies other than the adequacy of EIR 508/EIS under the provisions of CEQA, NEPA and all relevant implementing regulations, such claims and controversies are hereby dismissed without prejudice: 2. The provisions of paragraphs 7 through 23, and 26 through 52 of the stipulation of the parties consenting to entry 26 of this Judgment are hereby incorporated as Judgment. g y p part of this 27 //// ri 28 //// O•DONNELL & CORDON 3 152F/040-11/F/lmm . . • 1 2 3 4 5 6 7 8 9 10 11 12 13 • 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The County of Orange, the Orange County Board of Supervisors, the City of Newport Beach, Stop Polluting Our Newport, and the Airport Working Group shall each bear its own costs and attorneys' fees in connection with this litigation and the entry of this Judgment. DATED: AVAVfir Honor Terry J. I1attet, Jr. United States District Judge z• O'DONNELL & CORDON 4 152F/040-11/F/1mm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 0 27 ® 28 • C-2,r31- RESOLUTION OF THE BOARD OF SUPERVISORS (aztiyWnt) ORANGE COUNTY, CALIFORNIA August 27, 1985 On motion of Supervisor Clark , duly carried, the following Resolution was adopted: WHEREAS, John Wayne Airport ("JWA") is the only federally certificated commercial air carrier airport in Orange County, California; and WHEREAS, the County of Orange, the City of Newport Beach, Stop Polluting Our Newport ("SPUN") and the Airport Working Group ("AWG") have been engaged in substantial litigation in both state and federal courts since at least 1981, including litiga- tion regarding a previous master plan for JWA (EIR 232; 1981) as well as the current JWA airport project (EIR 508; 1985); and WHEREAS, the County has also been a defendant in numerous civil damage actions in the Orange County Superior Court since 1968, and continues to be.such a defendant at the present time, where individuals residing to the south of JWA have claimed damage and injury to their persons and property alleged to be caused by the noise and other environmental effects of aircraft operations at JWA; and WHEREAS, settlement discussions have recently occurred between the County, the City, SPON and the AWG which would, among other things, result in a complete termination of litigation between them arising under, or relating to, the provisions of the California Environmental Quality Act ("CEQA") in respect of various JWA related projects and would prevent future CEQA litigation related to, or other litigation or actions which might Resolution No. 85-1233 1 Amendments to Resolution No. 85-256 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 • 25 O 26 • • 27 LL ® 28 impede or obstruct implementation of the 'EIR 508/EIS Project" ("the Project') (as defined in that certain "Stipulation for Entry of Final Judgment By Certain Settling Parties" to be filed in United States District Court (Central District of California) Civil Action No. CV 85-1542 TJH (Mcx), a copy of which is attached as Exhibit A to this resolution); and WHEREAS, the termination of this litigation would provide a substantial benefit to the County, its citizens, the residents of Santa Ana Heights who would benefit from implementation of the land use plan element of the EIR 508/EIS Project, and the air traveling public and other users of JWA by ensuring prompt implementation of the Project; and WHEREAS, on February 26, 1985, after completion of the environmental process under CEQA, this Board certified EIR/EIS 508 as adequate and complete (Board of Supervisor's Resolut- ion 85-255) for, and approved and selected a Master Plan for the development of, JWA through the year 2005, including the mitiga- tion of the project as defined in Resolution 85-255; and WHEREAS, after adoption of the above resolutions, specific litigation was initiated in the United States District Court for the Central District of California, which involved, among other issues, controversies between the County, the City, SPON and the AWG regarding the adequacy and completeness of EIR/EIS 508 under CEQA (County: of Orange v.--Air California et al.; USDC (C.D. Cal.) No. CV-85-1542 TJH (Mcx); and WHEREAS, certain specific prior disputes between the County, the City and SPON were litigated in the Superior Court of the State of California for the County of Orange which involved a Resolution No. 85-1233 2 Amendments to Resolution No. 85-256 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 1 26 N O • 27 LL ® 28 former (but subsequently abandoned) master plan project for JWA ("The 1981 Master Plan") which was analyzed for CEQA purposes by County EIR 232 (City --of- Newvort •Beach--vz-Canaty tfrtranve, OCSC No. 35-31-01), and the Superior Court judgment in such action is currently on appeal (Court of Appeal, Dist. 4, Div. 3, No. G000- 160); and WHEREAS, the County has initiated a petition for a writ of certiorari in the District Court of Appeal (County- of Orange, -et tiny; Suve.riar.Canrt, (Fourth District, Div. 3, No. G0002880) challenging an order of the Superior Court in the EIR 232 litigation that the County was in contempt of the Superior Court judgment in that action by initiating the EIR 508 project without first obtaining a determination by a court of competent jurisdic- tion that EIR 508 complied with CEQA; and WHEREAS, Public Resources Code Section 21167.8 contemplates and encourages settlement negotiations involving CEQA issues; and WHEREAS, as a result of such negotiations, the parties have agreed to a settlement, involving further mitigation of the EIR 508/EIS Project by the County; and WHEREAS, this additional mitigation reflects the considered judgment of the Board on the appropriate and reasonable balance of air travel service for Orange County at JWA, and any adverse environmental effects of such service in light of the infor- mation, recitals and findings in EIR 508, Board of Supervisors' Resolutions 85-255 and 85-1232, the concerns of the communities affected by the operation of JWA, and the needs of the County as a whole for a reasonable level of commercial air transportation services; and Resolution No. 85-1233 3 Amendments to Resolution No. 85-256 2 3 6 9 10 11 12 13 14 .,, wI- :; 15 20 21 22 23 24 25 N 26 d 0 27 28 WHEREAS, in the exercise of this considered judgment, this Board has determined that a million annual passenger ('MAP") level for regular commercial services of 4.75 MAP is the maximum acceptable level of service for JWA during Phase I in light of existing facilities constraints, limitations and related circum- stances; and WHEREAS, the County, the City SPON and AWG have agreed to terminate and/or dismiss all litigation between them concerning JWA, including the entry of a stipulated judgment in the pending United States District Court action that EIR/EIS 508, as certi- fied by the Orange County Board of Supervisors for the EIR 508/EIS Project, is fully adequate and complete under CEQA and its implementing regulations ('the Guidelines'), and the National Environmental Policy Act ('NEPA") and all relevant implementing regulations; and WHEREAS, the terms of this settlement will not change the basic goals, objectives and purposes of the project as previously approved, but will act as further mitigation of the project's environmental impacts as found in Resolution 85-1232, adopted concurrently with this resolution; and WHEREAS, the actions taken by this resolution are intended and will act to further mitigate the County's potential legal exposure to damage claims (if any) in its capacity as proprietor of JWA; WHEREAS, the "trade -out' provisions of Section 5.1 of the County's current Commercial Airline Access Plan (as adopted by Board of Supervisor's Resolution 85-259 and amended by Board of Supervisor's Resolution 85-387, and as implemented by supplemen- Resolution No. 85-1233 4 Amendments to Resolution No. 85-256 2 3 6 9 10 11 12 13 14 16 18 19 20 21 22 23 24 25 2 26 I" P 2 28 • tal special action taken concurrently with the adoption of this resolution) have been fully implemented resulting in a total of 39 Class A ADDs to authorized carriers operating at JWA to the end of the period of the plan (March 31, 1990)s and WHEREAS, as a result of the determination of this Board to reduce the million annual passenger ('MAP') service levels of the EIR 508/EIS Project to 8.4 MAP in Phase II of the project; and the determination of this Board to reduce the maximum number of permitted 'noisier commercial jet aircraft operations (*Class A') during the period of the project, reductions and adjustments to the size of the proposed commercial passenger terminal and related facilities are appropriate and economically prudent to create a facility designed to serve the ultimate maximum project service level of 8.4 MAP, and no more; and WHEREAS, this Resolution is contingent upon the full execution, completion and acceptance by the respective Courts of the entire documentation of the settlement understanding of the parties as reflected in their respective resolutions and related documents. NOW, THEREFORE, BE IT RESOLVED that Board of Supervisors Resolution 85-256 is hereby amended as follows: 1. phasina pf3ncreases:in.iveraue Dailv::Devar.tures fADDs9 The portion of Resolution 85-256 beginning at page 5, line 24, and continuing to page 6, line 9, is hereby amended by substitution of the following language: Resolution No. 85-1233 5 Amendments to Resolution No. 85-256 2 3 5 6 9 10 11 12 13 14 17 18 19 20 21 22 23 24 25 26 lV e 27 LL 28 "Phase -I. Phase I shall commence on the date of Resolution 85-256 and shall continue to the date on which Phase II begins. During Phase I, there will be a maximum of 55 regulated ADDs allocated to regularly scheduled airlines operating at JWA. Regulated ADDs shall consist of Class "A" and Class "AA" aircraft as those terms are defined in terms of noise restrictions in Board of Supervisors' Resolution 85-259 and the attached commercial airline access plan. For purposes of this resolution only (and not in amendment of any current provisions of the JWA Commercial Airline Access Plan), the gross take -off weight restrictions which are part of the Class "A" and Class "AA" definitions in the commercial airline access plan are not included in the restrictions imposed by this paragraph or the following paragraph restricting Phase II of the EIR 508 project. During Phase I, no more than 39 ADDs will be allocated for use by Class A aircraft. Phase -II, Phase II shall commence on April 1, 1990, or on the date the County records a notice of completion on the new commercial passenger terminal contemplated by the Project, whichever is later, and shall end on December 31, 2005. During Phase II, no more than 73 regulated ADDs shall be allocated to regularly scheduled operators at JWA for use by Class "A" and "AA" aircraft, as defined above. No more than 39 ADDs shall be allocated for use by Class "A" aircraft." Resolution No. 85-1233 6 Amendments to Resolution No. 85-256 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 Ot 27 0 ® 28 2. jcimnm- Pemitted fevers of -Annual -Passengers A further resolution of the Board of Supervisors is added by this amendment, which may be deemed inserted beginning at page 6, line 10 of Resolution 85-256 as follows: 'BE IT FURTHER RESOLVED that during Phase I of the project, no more than 4.75 million annual passengers ("MAP'), as served by regularly scheduled commercial operators (including "air carr- iers" and 'commuters') shall be permitted service at JWA during any year of the term of the commercial airline access plan (April 1 to March 31). During Phase II of the project, no more than 8.4 million annual passengers, as served by regularly scheduled commercial operators (including "air carriers" and 'commuters"), shall be permitted service at JWA. The Airport Manager is hereby directed to initiate appropriate staff and Airport Commission proceedings in order to present to this Board recom- mended amendments to the County's commercial airline access plan designed to enforce this restriction, together with any other amendments to the access plan necessary to implement the provi- sions of this and the related resolutions regarding JWA adopted concurrently with this amending resolution, including such procedures as may be necessary to determine an accurate MAP count for JWA, and the maintenance of appropriate reports as public records'. 3. Reduction_DE:TerminalSize Resolution 85-256, beginning at page 6, line 16 and continu- ing to page 6, line 24, is hereby amended by substitution Resolution No. 85-1233 7 Amendments to Resolution No. 85-256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 oc 17 18 19 20 21 22 23 24 rz 25 2 26 27 28 of the following resolution: "Construction of a new airport commercial passenger terminal ("the terminal') is approved for JWA as proposed, subject to the following limitations: (1) During the period through December 31, 2005, the terminal will have a maximum interior floor space consisting of areas which are leaseable to tenants, or common areas available for public use and access, of not more than 271,000 square feet. This space restriction does not include, and does not apply to space utilized for airport administration areas, "mechanical/electrical areas,' 'structural" areas, or 'terminal curb areas." The total terminal size, including the 'mechanical/electrical areas" and 'structural areas," but excluding any "terminal curb area,' shall not exceed 337,900 square feet. (2) Any Departure Lounge Holding Area designed to serve a loading bridge in the terminal shall be designed for use in connection with only one loading bridge. Each Departure Lounge Holding Area serving a loading bridge shall be separated from adjacent loading bridge Departure Lounge Holding Areas by a permanent fixture divider which is at least 36 inches high. The commercial passenger terminal will contain a maximum of 37,000 interior square feet for all Departure Lounge Holding Areas. (3) There will be a maximum of fourteen (14) loading bridges, of which no more than nine (9) may be designed for aircraft as large as the Boeing-767. The remaining five (5) Resolution No. 85-1233 8 Amendments to Resolution No. 85-256 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 28 loading bridges shall be designed for aircraft no larger than the Boeing-757 aircraft. Each loading bridge will serve no more than one flight at a time. (4) There shall be a maximum of 8400 on -site parking spaces, not including spaces contained in the existing North Clear Zone Parking Facility. The terminal parking structure shall have no more than 4 levels. Space devoted to parking will not be converted to other terminal uses. BE IT FURTHER RESOLVED that County Counsel and Special Airport Counsel are authorized and directed to execute the stipulations and proposed orders which are attached as Exhibits A through E to this resolution. BE IT FURTHER RESOLVED that this Board is further miti- gating the EIR 508/EIS Project, as set forth in this and related resolutions adopted concurrently, with the understanding that the City has agreed to actively join in defending in any pending or future litigation regarding the EIR 508/EIS Project, the County's regulations of JWA as adopted in connection with the Project, this resolution, the concurrently adopted resolutions and the stipulations and judgments to be entered into in connection with the pending litigation referred to in this resolution. This resolution, and all related resolutions now or hereafter adopted in implementation of the settlement are also adopted in consider- ation of the agreement and continuing action of the City, SPON and AWG not to oppose, hinder or delay, by litigation or other- wise, implementation of the EIR 508/EIS Project, and the effec- Resolution No. 85-1233 9 Amendments to Resolution No. 85-256 J. 2 3 5 6 9 10 11 12 13 14 15 0 17 u 18 19 20 21 22 23 24 25 2 26 O 27 ® 28 tiveness of the restrictions and amendments to the forth in this resolution are contingent upon the compliance by the City, SPON and AWG with these Effectiveness of the County's actions taken by this rently adopted resolutions are also contingent upon the anticipated stipulated judgment to be entered by District Court in the pending action insofar as Project set continuing agreements. and concur - approval of the Federal that action affects or relates to the legal adequacy of EIR/EIS 508, and acceptance by confirming order of the respective courts of other stipulations attached as Exhibits to this resolution. AYES: NOES: ABSENT: SUPERVISORS SUPERVISORS SUPERVISORS NONE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) the the RALPH B. CLARR, THOMAS F. RILEY, ROGER R. STANTON, HARRIETT M. WIEDER, AND BRUCE NESTAND3' NONE BS. I, LINDA D. ROBERTS, Clerk of the Board of Supervisors of Orange County, California, hereby certify that the above and foregoing Resolution was duly and regularly adopted by the said Board at a regular meeting thereof held on the 27th day of August, 1985, and passed by a unanimous vote of said Board. IN WITNESS WBEREOF, I have hereunto set my hand and seal this 27th day of August, 1985. LINDA D. ROBERTS Clerk of the Board of Supervisors of Orange County, California THE FOREGOING INSTRUMENT IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE. Resolution No. 85-1233 10 Amendments to Resolution No. 85-256 ATTEST: LINDA D. ROtERTS, Clerk Clerk o f the Board of Supervisoys,_.gounty of Orange BY • , DEPUTY 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 2 26 I N 27 LL ® 28 RESOLUTION OF THE BOARD OF SUPERVISORS ORANGE COUNTY, CALIFORNIA February 26, 1985 On motion of Supervisor Riley, duly seconded and carried, the following Resolution was adopted: WHEREAS, on December 15, 1982, this Board directed the Environ- mental Management Agency ("EMA") and the staff of John Wayne Airport ("JWA") to study alternatives and environmental impacts for future development.of John Wayne Airport and areas adjacent to the Airport, includingSanta Ana Heights. This "90-day study" examined air trans- portation impacts, noise, and land use impacts and other environmental impacts for 13 alternative potential "projects"; and WHEREAS, in order to gather further input and information, a public meeting jointly conducted by the Planning Commission, the Airport Commission, and the Airport Land Use Commission was held in Costa Mesa on February 22, 1983; and WHEREAS, on April 13, 1983, by Resolution No. 83-547, this Board selected a "proposed project" for the JWA Master Plan and directed staff to report back to the Board with a coordinated program for completion of the Master Plan and land use studies. This plan was submitted to the Board of Supervisors on May 17, 1983; and WHEREAS, on May 31, 1983, by Resolution No. 83-841, this Board selected the consulting firm of CH2M Hill, Inc. as the prime contractor for preparation of the Airport Master Plan and the Environmental Impact Report (EIR/EIS 508). At this time, the Board also approved Resolution No. 85-256 Approval of Master Plan Project DJD:hp H100/19 11. •(. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 - 25 N_ • 26 s 27 28 formation of the JWA/Santa Ana Heights (JWA/SAH) project team to include the Director, EMA; the Manager, JWA; the Director, GSA and the County Counsel; and WHEREAS, as defined in EIR/EIS 508 (p. 3-4), the proposed project consists of a two -phased increase in the permitted number of operations by commercial jet aircraft which the County has historically regulated for noise control purposes, together with: (1) associated construction of certain facilities at the Airport necessary to support the project's proposed increase in operations; and (2) an associated land use compatibility program for the Santa Ana Heights area to the south of JWA; and WHEREAB,-as further noted at page 3-4, Phase I of the proposed project would commence upon approval by the Board of the proposed master plan for physical improvements to JWA, and certification by the Board of Supervisors of the adequacy and completeness of EIR 508 in accordance with requirements of the California Environmental Quality Act (CEQA). At that time, the Board would authorize: (1) An immediate increase in the permitted level of regulated average daily departures (ADDs) by regularly scheduled commercial aircraft from the present limit of 41 Class A ADD to a level of 55 Class A ADD. (2) Commencement of the processes necessary to complete construction of the proposed facilities improvements to the Airport site. Phase II of the proposed project would begin upon completion of the Airport facilities improvements to be constructed during Phase I. Completion of these facilities is anticipated to occur during 1990. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 J ;z 15 0 80 u • 16 F u zz oc 17 18 19 20 21 22 23 24 • 25 C 2 26 N P • 27 28 At that time, the permitted level of Class A ADDs would increase from 55 ADD to 73 ADD; and WHEREAS, a draft Environmental Impact Report/Environmental Impact Statement ("EIR/EIS") was prepared by the consultant in July, 1984 pursuant to the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA) to address the environmental impacts of and potential mitigation measures to be applied to the proposed project, including the John Wayne Airport Master Plan and Land Use Compatibility Program ("Draft EIR/EIS 508"); and WHEREAS, the Draft EIR/EIS was circulated for 45-day public review beginning on July 13, 1984. Subsequently, at the request of the City of Newport Beach, the review period was extended 15 days to September 11, 1984. Approximately 120 letters containing 413 comments were received during the 60-day period. Because of the number of comments received, and the complexity of the project, and its associated environmental issues, it was decided to prepare and recirculate a Revised Draft EIR/EIS 508 incorporating certain additions and changes to Draft EIR/EIS 508, and reflecting the County's responses to comments received. The Revised Draft EIR/EIS 508 (including Volume 3, responses to comments) was circulated for public review on November 13, 1984, to terminate on December 27, 1984. Responses to comments made during this circulation period were incorporated into Volume 4 of the EIR/EIS; and WHEREAS, the Orange County Airport Commission (Cod. Ords. Co. Or. Sec. 2-1-1 et seq.) conducted public hearings on December 5, 1984, December 12, 1984, January 16, 1985, and January 23, 1985 with regard to the proposed project and the proposed Airport Master Plan, and recommended its approval by formal action on January 23, 1985; and 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 N P g 27 ® 28 WHEREAS, the Planning Commission of the County of Orange has received all environmental documentation comprising the Board of Supervisors' EIR and has found that the EIR considers all environmental impacts of the proposed project and is complete and adequate and fully complies with all requirements of CEQA, and the CEQA Guidelines and the County of Orange environmental analysis procedures; and WHEREAS, the Planning Commission of the County of Orange recom- mended to the Board of Supervisors that the EIR be certified as adequate and complete; and WHEREAS,, the Board of Supervisors has reviewed all of the environmental documentation prepared to evaluate the proposed project, including all elements of the EIR and Master Plan; and WHEREAS, by Agenda Item Transmittal dated January 18, 1985, for the meeting of January 30, 1985, a staff report on the John Wayne Airport Master Plan, Commercial Airline Access Plan, and Land Use Compatibility Program, and EIR 508/EIS was prepared by the Director of EMA and the Airport Manager and filed with the Clerk of this Board, which this Board has considered; and WHEREAS, this Board has considered EIR 508 which it has certified as adequate and complete on this date pursuant to Resolution No. 85-255. Resolution No. 85-255 explains in detail the considerations and findings of the Board concerning the project and the Master Plan, as modified and mitigated; and WHEREAS, pursuant to Public Utilities Code Section 21676(c), the project, including the Airport Master Plan was submitted to the Airport Land Commission for review. While the Airport Land Use Commission of Orange County found the Master Plan to be consistent 14. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 O 27 LL 28 with the Airport Environs Land Use Plan (AELUP), due to a lack of clarity in the ALUC's findings, this Board has chosen to overrule the Airport Land Use Commission, which it has done pursuant to Resolution No. 85-260, this date; and WHEREAS, this Board has approved the Land Use Compatibility Plan and Land Use Element Amendment pursuant to Resolution Nos. 85-257 and 85-258, this date; and WHEREAS, this Board conducted a public hearing with regard to EIR 508, the Airport Master Plan and the Land Use Compatibility Plan on January 30, 1985, and directed staff to prepare appropriate findings.. and resolutions consistent with the Board's action of said date, and return with -said documents for approval. NOW, THEREFORE, BE IT RESOLVED that the proposed Master Plan for John Wayne Airport is hereby approved; BE IT FURTHER RESOLVED that the project analyzed in EIR 508 as defined and mitigated in Resolution No. 85-255 is hereby selected and approved, to wit: A two -phased increase in the permitted number of opera- tions by commercial jet aircraft which the County has historically regulated for noise control purposes, as well as associated construction of certain facilities at John Wayne Airport necessary to support the project proposed increase in operations; and BE IT FURTHER RESOLVED that the implementation of an increase in average daily departures (ADD) shall occur in two phases: Phase I. Phase I will commence by approval of this Resolution which authorizes commencement of the processes necessary for construction of physical improvements to John Wayne 15. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 l 00 17 u 18 19 20 21 22 23 24 25 26 27 ® 28 Airport, and upon certification of the adequacy and completeness of EIR 508 in accordance with the requirements of the California Environmental Quality Act, subject to, and in accordance with, the provisions of Resolution No. 85-259; Phase II. Phase II will begin upon completion of the Airport facilities improvements to be constructed during Phase I. Completion of these facilities is anticipated to occur during 1990. At that time, the permitted level of Class A ADDs will increase by 18 ADD. BE IT FURTHER RESOLVED that pursuant to Resolution No. 85-259, approved this date, (Airline Access Plan) an increase in the permitted level of regulated Class A average daily departures by regularly scheduled commercial aircraft from the present level of 41 Class A ADD is increased to a level of 47 Class A ADD, with an implementation date of April 1, 1985; BE IT FURTHER RESOLVED that construction of a new airport terminal is approved and sized, during Phase I and Phase II of the project in accordance with the Airport Master Plan, specifically: Phase I Phase II Terminal Sq. Footage 255,000 390,000 Parking Spaces 6,200 10,000 Parking Levels 3 5 Aircraft Parking Gates 11 14 BE IT FURTHER RESOLVED that the recommendations for facility improvements for John Wayne Airport, as set forth in Attachment A hereto, are hereby approved; 16. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Wh ;z 15 Do ou W 16 ,u zz oc 17 18 19 20 21 22 23 24 • 25 N_ • 26 N O • 27 LL 28 BE IT FURTHER RESOLVED that the Airport Manager and County Counsel are directed to work with theaircarriers to seek agreement on extending the curfew.a total of one hour for arriving aircraft, with the Airport Manager to report back to the Board within 120 days; BE IT FURTHER RESOLVED that the Airport Manager and the General Services Agency are directed to report back within six months on the task added by the Airport Commission to analyze the Mission Beach Craft request to be temporarily located on the west side of the airfield during construction of the new terminal and then being relocated to east side of the airfield after the new terminal is constructed;. BE IT FURTHER RESOLVED that the Airport Manager is directed to solicit, with the assistance of County Counsel and the Auditor - Controller, a professional services agreement for the performance of a financial feasibility study and a review of current airport rates and fees, and report back to the Board as soon as possible with said agreement for execution by the Board; BE IT FURTHER RESOLVED that the Airport Manager is directed to solicit, with assistance from GSA/Architect and Engineering Division, statements of qualifications (RFQ) from project management and engineering firms for project management for the proposed capital improvements program for the proposed Airport project, and report back to this Board as soon as possible with a slate of qualified candidate firms; BE IT FURTHER RESOLVED that Supervisors Nestande and Riley are authorized to evaluate the advisability of joining the Inter County Airport Authority and negotiate an agreement with the Inter County 17; (40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 .,W 16 Y f O D 7 j of 17 W 18 19 20 21 22 23 24 25 26 N 0 27 28 Airport Authority regarding the County's participation and to return to the Board in 90 days; BE IT FURTHER RESOLVED that the Airport Commission is directed to review all past airport site studies in Orange County for the specific purpose of making recommendations to the Board on possible sites which could be explored further as an additional airport to meet any air traffic demand in future years above the 73 Class A ADD and 10.24 MAP project case addressed in Final EIR 508. This inquiry shall include public hearings and a report to the Board to be submitted to the Board by November 30, 1985. AYES: SUPERVISORS THOMAS F. RILEY, BRUCE NESTANDE, ROGER R. STANTON, HARRIETT M. WIEDER, RALPH B. CLARK NOES: SUPERVISORS NONE ABSENT: SUPERVISORS NONE STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE I, LINDA D. ROBERTS, Clerk of the Board of Supervisors of Orange County, California, hereby certify that the above and foregoing Resolution was duly and regularly adopted by the said Board at a regular meeting thereof held on the 26th day of February, 1985, and passed by a unanimous vote of said Board. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 26th day of February, 1985. LINDA D. ROBERT Clerk of the Board of Supervisors of Orange County, California THE FOREGOING INSTRUMENT IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE. p ATTEST: "2h G tU=b LINDA D. ROBERTS,Clerk of the Board of Supervisors, County of Orange BY ,cr —` )c// � DEPUTY 18. Airport Master Plan Recommendations 1. That seven 60 x 60 foot size hangars be located on the 2.5 acre west side Kellogg parcel (II-17).* 2. That a 2,000 square foot GA terminal be constructed for the consolidated GA area on the east side (II-17). 3. That the Mission Beechcraft FB0 facility be relocated to a 500 x 700 foot west side parcel (II-20). ** 4. That three new GA tiedown areas be developed on the west side (II-20). 5. That a larger 350 x 750 foot west side parcel be provided for the Tower Aviation FB0 (II-21). 6. That the old terminal and apron space area be developed into a consolidated GA tiedown area (II-21). 7. That space be provided for an air cargo building of up to 10,000 square feet on the eafl side (II-23). 8. That the present entrance at the south end of the airport be realigned to correspond with the Quail Street/Campus Boulevard intersection (III-5). 9. That the present entrance at the north end of the airport (MacArthur/I405) be converted to an entrance -only point (III-5). 10. That the main local street entrance to the terminal complex be aligned with the Michelson Drive/MacArthur Boulevard intersection (III-6). 11. That an overpass to constructed for Airport Way South on the airport, to separate terminal traffic from GA traffic at the Campus Drive entrance to the airport (III-6). 12. That the main runway and taxiways be strengthened to accommodate new technology aircraft up to 300,000 lbs., dual tandem gear (IV-3). 13. That new exit taxiways be constructed to allow aircraft to depart the runway system sooner (IV-4 and IV-9). 14. That a parallel set of entrance taxiways be constructed at the north end to permit easier access to the runway system (IV-4 and IV-9). 15. That the GA runway (R 1R/19L) be lengthened to 3,950 feet so that it will serve more of the GA fleet (IV-5). 16. That all taxiways be renumbered. East side main parallel taxiway would be called "A". West side main parallel taxiway would be called "B" (IV-7). * Note: Numbers in parentheses indicate Master Plan page references. ATTACHMENT A 19 17. That the fillets of the existing mid -field taxiway be widened to permit aircraft to exit Runway 19R when they decelerate to taxi speed (IV-9). 18. That the throat of the south entrance taxiway be widened to permit greater clearances for aircraft (IV-9). 19. That the taxiways presently connecting the North Tiedown Area would be removed to permit construction of the new terminal apron area (IV-9). 20. That upon completion of the new passenger terminal building, the existing structure should be removed (IV-20). 21. That the terminal apron be designed to accommodate up to 14 Boeing 767 size aircraft (IV-20). 22. That the terminal apron pavement be designed to accommodate aircraft weighing up to 300,000 lbs. (IV-20). 23. That the 0.44 acre site of Fire Station #27 be made available to an FB0 for general;a'viation use (IV-20). 24. That 400,000 gallons additional fuel capacity should be added to the fuel farm to serve the air carrier fleet (IV-23). 25. That a hydrant fueling system should be installed so that air carrier aircraft can be refueled at the terminal without multiple fuel trucks (IV-24). 26. That the Remote Transmitter and Receiver (RTR) be relocated to a new site about 900 feet north of the new ATC Tower (IV-24). ** THE FOREGOING INSTRUMENT IS A TRUE AND CORRECT COPY OF !HE ORIGINAL ON FILE IN THIS OFFICE. ATTEST may/ LINDA D. ROBERTS, Cierk of the Board of Supervisors, County of Orange BY 19,P6 DEPUTY. At their meeting of January 16, 1985, the Airport Commission unanimously voted to amend this recommendation to direct the Airport Managerto analyze the following proposal presented that evening to the Commission by Mission Beechcraft. Mission Beechcraft proposed that they would be willing to temporarily relocate to the west side of the airfield during the construction period for the new terminal complex, but that as part of ultimate Airport Master Plan implementation, they are desirous of having the Mission Beechcraft FB0 permanently located somewhere on the east side of the airfield. 7,0 August 26, 1985 Reply to : 1507 Antigua Way O'Donnell & Gordon Newport Beach, CA 92660 MEMO TO: Persons Listed Below FROM Clarence J. Turner, President Airport Working Group RECEIVED AUG 2 31985 SUBJECT: Resolution of the "Soloman Committee" Regarding Settlement of John Wayne Airport Litigation. The following individuals have been mailed and/or hand delivered xerox copies of the original "resolution", signed by the "Soloman Committee" approving the settlement agreement between the Airport Working Group, et al and the County of Orange regarding John Wayne Airport litigations. The persons with an asterik have also been sent copies of the agreement. All original copies remain in the possession of the sender. (List attached) Allen Beek * 1945 Sherington Apt. G-109 Newport Beach, CA 92663 Peter Drummond* 1706 Antigua Way Newport Beach, CA 92660 Thomas Edwards * 1533 Anita Lane Newport Beach, CA 92660 Fred Forster * 1601 Lincoln Lane Newport Beach, CA 92660 Leonard Hall * 1724 Antigua Way Newport Beach, CA 92660 Atty. E. Clement Shute Shute, Mihaly, & Weinberger 396 Hayes Street San Francisco, CA 94102 John Leveck * 1514 Dover Drive Newport Beach, CA 92660 BarbaraLictmaru * 1320 Mariners Drive Newport Beach, CA 92660 Jean Watt * 4 Harbor Island Newport Beach, CA 92662 Susan Doering * 2627 Blackthorn Newport Beach, CA 92662 Atty. Robert Burnham City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Atty. Pierce O'Donnell 619 South Olive St. Suite 300 Los Angeles, CA 90014 & 200 Newport Center Drive, Suite 204, Newport Beach, California 92660 (714) 645.8136 • 7-tl •/ 4 RESOLUTION OF THE "SOLOMON COMMITTEE" REGARDING SETTLEMENT OF JOHN WAYNE AIRPORT LITIGATION WHEREAS Stop Polluting Our Newport (SPON) and the Airport Working Group (AWG) firmly believe that the Master Plan and level of operations for the John Wayne Airport (JWA) approved by the Orange County Board of Supervisors on February 26, 1985 would have caused serious and substantial adverse effects upon the citizens and environment of Newport Beach; and WHEREAS SPON and AWG are parties to several lawsuits in which they contend that the County has not revealed the adverse environmental impacts of expansion of the John Wayne Airport as required by law; specifically SPON or AWG or both have challenged the legal adequacy of Orange County EIRs 232, 508, and 512 (City of Newport Beach v. County of Orange, Orange County Superior Court No. 35-31-01, and Fourth District Court of Appeal No. G000160; County of Orange v. Superior Court, Fourth District Court of Appeal No. G002880; City of Newport Beach v. County of Orange, Orange County Superior Court No. 42-53-94, and Fourth District Court of Appeal No. G002228; County of Orange v. Air California, Federal District Court for the Central District of California No. CV 85-1542 TJH(Mcx); and 027 WHEREAS SPON and AWG have formed an alliance to represent themselves and the interests of citizens concerned over unbridled expansion of JWA; and WHEREAS SPON and AWG have caused to be formed a coordinating committee referred to as the "Solomon Commit- tee" (Committee) for the purpose of coordinating, managing and making decisions concerning the JWA litigation; and WHEREAS SPON and AWG have empowered and authorized the Committee to make all decisions regarding the JWA litigation including termination or settlement; and WHEREAS the Committee has been kept fully apprised of developments in the JWA litigation, and specifically, has authorized its counsel to participate in the negotiations attempting to resolve the JWA litigation; and WHEREAS the Committee has reviewed and considered the settlement documents in great detail; NOW THEREFORE BE IT RESOLVED: 1. The provisions of the proposed settlement specifying limits on the numbers of Class A and Class AA flights, limits on the annual number of passengers at JWA, reductions in the size of the proposed terminal and related facilities, the provisions requiring retention of the present curfew (at a minimum) and the provisions requiring reduction in general aviation aircraft noise will lessen the 2. .2$ • • adverse environmental effects caused by the operation of JWA. 2. The proposed settlement would provide cer- tainty and enforceability regarding the maximum size and level of operations of JWA for the term of the agreement (20 years). 3. The proposed settlement provides some reason for hope that persons of differing interests can work together to identify a site for and cause to come into existence an additional airport. 4. The Committee hereby authorizes and directs counsel for SPON and AWG to execute the necessary documents for settlement of the JWA litigation. 5. This resolution will be of no force and effect unless: a. The Orange County Board of Supervisors adopts the necessary resolutions as required by the settlement which provide for additional mitigation of the JWA project and the Board of Supervisors rescinds its previous resolutions opposing the study or development of additional airport sites; and b. The stipulation among the settling parties and related judgment are entered and approved by the Federal District Court for the Central District of California. 3. a9 APPROVED: ri' August I." , 1985 T— August -- , 1985 August , 1985 August , 1985 August , 1985 SP2/O1O SIGNATURE PAGE Affirmed Aug. 25, 1985, Clarence 4",-;'Iltrner Fred Forster i 4. John Leveck 30 •SUMMARY OF AIRPORT AGREErOT Form of Agreement Stipulated judgment in Federal Court signed by County, City AWG, SPON, FAA, and various airlines Term Phase I - from February 26, 1985 to approximately March 31, 1990. Phase II - from approximately April 1, 1990 Passenger Limits (MAP Cap) Phase I - 4.75 Million Annual Passengers Phase II - 8.4 Million Annual Passengers to December 31, 2005. Terminal Size Limitations No more than 271,000 square feet of public or rentable interior space of which no more than 37,000 square feet to be devoted to departure lounges. Total not to exceed 337,900 square feet. 8,400 auto parking spaces on four levels (does not include North Clear Zone Parking Area). Flight Limits Maximum Average Daily Departures (ADD) II B I,A O „Art U (over 100 dB, (less than 100 dB, e.g. B737-200) e.g. MD-80) (less than 89.5 dB, e.g. B737-300) Exempt (less than 86 dB, e.g. BAE-146) Phase I 0 39 16 Up to MAP Cap Phase II 0 39 34 Up to MAP Cap Additional Airport Search County rescinds official opposition to a new airport. County to promote FAA funding of legitimate groups seeking to develop an additional airport. Miscellaneous Curfew to remain. General Aviation (Business Jet) Noise Ordinance to be enforced. 3/