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HomeMy WebLinkAbout18 - John Wayne Airport General Aviation Improvement Program Draft EIR - CorrespondenceReceived After Agenda Printed March 12, 2019 Item No. 18 Beverly Blais Moosmann 544 Vista Grande Newport Beach, CA 92660 bblaisesq@gmail.com March 8, 2019 Sent Via Email: ddixonPnewportbeachca.gov Ms. Diane Dixon, Major Newport Beach City Council 100 Civic Center Drive Newport Beach, CA 92660 Re: The Proposed General Aviation Improvement Plan Dear Mayor Dixon: On behalf of Citizens Against Airport Noise and Pollution ("CAANP"), I wish to advise you that CAANP, after careful consideration, has determined that Alternative 3 of the proposed General Aviation Improvement Plan ("GAIP"), WITH the following CONDITIONS, is the ONLY acceptable option for the residents of Newport Beach. Alternative 3 appears to be the most limited option that has been proposed by the Orange County Board of Supervisors. Although it is safe to assume that most Newport Beach residents would prefer the status quo, without any change, whatsoever, that does not appear to be an option. More specifically, based on comments made by Newport Beach Aviation Consultant Tom Edwards, Esq., during his November 5, 2018 presentation before the Newport Beach Aviation Committee, it appears that the FAA has mandated certain corrections of non-standard design features at JWA, and accordingly, the "No Project Alternative" is not a viable option. Based thereon, CAANP supports Alternative 3; however, ONLY, with the following CONDITIONS that reflect our concerns: 1. Limit The Number Of And The Noise Levels Of GA Corporate. Charter and On- Demand Jets (hereinafter "Biz Jets") Using IWA During Curfew Hours: One of the biggest concerns of CAANP and the residents of Newport Beach is GA Biz Jets over or near our homes during curfew hours. Since the implementation of the FAA's NextGen Metroplex program, residents in many Newport Beach communities have had to bear the burden of growing numbers of lower flying, loud and polluting commercial aircraft over or near their homes, starting at 7:00 a.m. and ending at 10:00 p.m. The only relief has been the curfew; however, under the proposed GAIP, the county acknowledges there will be an increase in GA jet traffic and it is unrealistic to believe that this will not include an increase in curfew- hour flights by GA Biz Jets. The question is how can such limitations be imposed? We respectfully submit the following: a. Enforce The Existing Curfew On GA Biz Jets: It is arguable that when the 1985 Settlement Agreement was negotiated, given the GA mix at JWA at the time (mostly Cessna, Beechcraft or other small prop type planes) that it was never anticipated that 33 years later there would be such a large influx of GA Biz Jets at JWA, many of which are as large and noisy as commercial aircraft. The current and increasing influx of GA Biz Jets, which can fly 24/7, is arguably diminishing the intended protections of the residents of Newport Beach under the 1985 Settlement Agreement. Accordingly, the curfew should be extended to include GA Biz Jets. b. Cap The Number Of GA Biz Jets To The Assumptions Made in the DEIR: Although this would not directly limit nighttime/curfew-hour flights, it would at least cap the number of daily flights, some of which would also encompass nighttime/curfew-hour flights. Without such a cap, there is great concern that the number of GA Biz Jets could grow to an unacceptable number of daily and nighttime flights, especially given the planned increases in the number of commercial jets under the Settlement Agreement and the amendments thereof. c. Lower The Noise Limitations On GA Biz Jets Flying During Curfew Hours: There is currently a noise limitation in place for nighttime GA Biz Jets of roughly 86 decibels at noise monitor 5S (Eastbluff), which is woefully inadequate and fails to consider the severe impact in noise caused by the difference in noise levels between an 86 decibel fly -over vs. the average nighttime ambient noise level of 35-40 decibels. The difference between 35 and 86 decibels in the middle of the night would be intolerable and should not be allowed. Although there may be ANCA limitations on any one of these suggestions, it would behoove the City to retain a nationally recognized law firm with proven expertise in aviation law, such as Kaplan, Kirsch & Rockwell, to render this opinion and other opinions relative to the GAIP and all significant JWA-related issues. 2. No Separate GA International Terminal: As mentioned by Mr. Edwards in the same November 5th presentation, the proposed GAIP includes an "opportunity" for a GA international terminal. CAANP and other members of the Newport Beach community are extremely concerned over security issues that would be created by such an international terminal that would be separate from the existing commercial aircraft terminal that is secured by the TSA. We are concerned that a privately operated international terminal would not provide the requisite level of TSA -provided security, especially given the growing threats of international terrorism, drug and human trafficking. We are further concerned that if such a terminal is built, it will encourage the influx of 2 more international flights to JWA, the potential for more large and noisy jets, more flights during the existing nighttime curfew hours and eventual JWA expansion. 3. No "Uber-Style" or "On -Demand" GA Charter Jets: A recent CNBC news program cited numerous abuses and the potential for serious security breaches through these types of services. There were reports of a total lack of security screening of passengers, verbally abusive and disorderly passengers, passengers under the influence of illicit drugs or excessive alcohol and the uncontrolled transportation of drugs and firearms on these types of flights. Not only does this pose a significant risk to those on such flights, but it furthermore would create a greater risk of harm to people on the ground. This should not be allowed at JWA. 4. Do Not Eliminate Or Significantly Restrict The Use Of JWA By The Very Small Prop Planes That Have Historically Utilized The Airport: As indicated on JWA's own website, "Orange County's aviation history is deeply rooted in general aviation (private, non—commercial) operations. Aviation pioneer Eddie Martin founded the airfield that ultimately became John Wayne Airport (JWA). From 1923 to 1939, the Airport operated as a privately owned general aviation facility." It would be wrong, if not discriminatory, to place severe limitations on this class of aircraft at JWA in favor of large corporate, on -demand charter or private jets that only the wealthiest of people are capable of owning or utilizing. Lastly, although the purpose of this letter is to express the alternative that CAANP favors as proposed by the County for the GAIP, we do this with great reservation given what we consider to be a seriously flawed DEIR. Most notably, the basis for the finding of "No Impact" relative to noise and pollution and the impact on neighborhoods and schools is based on pre-NextGen data. To truly measure the impact of the proposed GAIP on neighborhoods and schools, the data should have been post-NextGen given the dramatic increase in noise and pollution since the implementation of NextGen. Thank you for your consideration of CAANP's position on this very important issue that is of deepest concern to our members and to many Newport Beach residents. Sincerely, BeverCy BCais _%loosmann Beverly Blais Moosmann Citizens Against Airport Noise and Pollution cc: City Council Members Herdman, Brenner, Muldoon, Duffy, O'Neil and Avery 3 Received After Agenda Printed March 12, 2019 Item No. 18 AWG March 11, 2019 VIA E-MAIL (DDIXON@NEWPORTBEACHCA.GOV) Diane Dixon, Mayor - City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: Legal and Regulatory Barriers to Implementation of CAANP's Proposed Conditions for Adoption of Alternative 3 to the John Wayne Airport General Aviation Improvement Plan Dear Mayor Dixon: The following constitute the response of the Airport Working Group of Orange County, Inc. ("AWG") to the "conditions" adopted by Citizens Against Airport Noise and Pollution ("CAANP") as a predicate to CAANP's support of Alternative 3 to the environmental review for the proposed General Aviation Improvement Program ("GAIP" or "Project") at John Wayne Airport ("JWA" or "Airport"). As a threshold matter, it should be noted that, while CAANP's objections to the GAIP as originally proposed may be valid, although as yet unsupported by any technical analyses, all but two of its proposed "conditions" are conclusively foreclosed by both federal law and the John Wayne Airport Stipulated Settlement ("Settlement").' The inclusion of such invalid conditions could seriously weaken the City's credibility with respect to this and other airport development projects. More importantly, the conditions cannot be adopted by the County which would jeopardize its federal funding by doing so. "CONDITIONS" 1, La., l.b., l.c., AND 3 ARE LIMITATIONS ON "ACCESS" FORECLOSED BY THE AIRPORT NOISE AND CAPACITY ACT OF 1990,4 U.S.C. § 47521, ET SE0. ("ANCA") CAANP first proposes to "limit the number and noise of general aviation corporate, charter and on demand jets," or `BizJets;" "cap the number of GA BizJets to the assumptions in the EIR," and prohibit "'Uber style' or `on demand' GA charter jets." Those "conditions" run headlong into Congressional intent that aviation noise policy be "carried out at the national level." 49 U.S.C. § 47521(3). To effectuate that intent, Congress mandated that "... an airport noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation after an airport or aircraft operator's request for approval..." 49 U.S.C. § 47524(c)(1). The restrictions to which the paragraph applies include, among others, "(A) a restriction on noise levels generated on either a single'event or cumulative basis; (B) a restriction on the total number AWG is one of the four signators on the Settlement, along with the City of Newport Beach, Stop Polluting Our Newport ("SPON") and the County of Orange ("County"). 1048 Irvine Avenue • PMB 467 • Newport Beach, CA 92660 • www.awgoc.com 2 of stage 3 aircraft operations; (C) a noise budget or noise allocation program that would include stage 3 aircraft; (D) a restriction on hours of operations; and (E) any other restriction on stage 3 aircraft." Obviously, these restrictions on local prerogatives include the vast majority of CAANP's proposed "conditions." There are, of course, exceptions of which JWA's Settfement is one. See 49 U.S.C. § 47524(d)(4). All of such "exceptions," however, like the JWA Settlement, must have been entered into on or before November 5, 1990, the date of ANCA's adoption. Even the exemption for JWA prohibits any subsequent amendment, such as the "conditions" offered by CAANP, that reduce or limit certain types of aircraft operations. Id. Similarly, any attempt to distinguish between aircraft types for the purpose of imposing a limitation selectively on one and not the other, such as the distinction in proposed "condition" l.a. between GA aircraft in general and GA corporate, charter and on demand in particular, is not only a foreclosed limitation on access, but is directly discriminatory, as that term is defined by the FAA, and is similarly prohibited. For example, "conditions" 1.a.and l .c. run directly contrary to FAA Order 5190.613, § 9. l .a. which "requires the sponsor to make its aeronautical facilities available to the public and its tenants on terms that are reasonable and without unjust discrimination." To the extent that CAANP advocEttes differential treatment between BizJets and other GA aircraft, it flies in the face not only of federal regulations, but also of the JWA Settlement which currently makes no such distinction. In short, since the requisite approval of the proposed "conditions" by all aircraft operators and the airport proprietor, or FAA, is virtually certain to be withheld, CAANP's "conditions" are not only legally unsupported, but practicably impossible to implement as well. II. FEDERAL LAW INCLUDING ANCA PREEMPTS ALL LOCAL INITIATIVES ON NOISE AND ACCESS LIMITATION If there remains any doubt about the power of the federal government in the arena of aviation, note the overwhelming legislative authority that vests the federal government with "exclusive jurisdiction over the airspace of the United States." 49 U.S.C. § 40103(a). The courts have confirmed that this not only includes FAA preemption of "aviation safety," Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9t' Cir. 2007), but also "aircraft operations." Burbank - Glendale -Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338, 1340 (91' Cir. 1992). Consequently, the County has no independent legal authority to implement CAANP's proposed "conditions" which facially contravene ANCA's express terms. III. "CONDITIONS" 2 AND 4 ARE WITHIN THE COUNTY'S INDEPENDENT POWER TO IMPLEMENT CAANP's "condition" 2 requiring "no separate GA international terminal," and "condition" 4, its plea that the County refrain from eliminating, or contributing to the elimination of, small propeller planes, lie within the County's independent power to effectuate. The courts have consistently held that scope of federal preemption does not encompass laws regulating local land use, so long as that land use does not encroach "into the field of airspace management or safety." Goodspeed Airport v. East Haddam Inland Wetland, 681 F.Supp.2d 182, 202 (2010). 1048 Irvine Avenue - PMB 467 - Newport Beach. CA 92660 - www.awgoc.com 3 The County may, therefore, choose, however unlikely such a choice, to step away from the inclusion of a general aviation international terminal in the proposed Project, and, thus, reduce the potential for reduction in the number of small GA aircraft, a, result AWG believes is consistent with the views of both C'AANP and the City.' We therefore urge the City tQ pursue these avenues of local control over airport Iand use, and decline to endorse the other "conditions" espoused by CAANP as legally impermissible, and, thus, a distraction from the City's main purpose of relieving its citizens of the burdens of airport noise and pollution. Sincerely, Mel Beale President, AWG Barbara t.ichman Board Member, AWG It should be noted that Alternative 3 already lacks the international terminal so the "condition" changes nothing.