HomeMy WebLinkAbout1998-11-23 City CouncilCity of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM: CITY MANAGER ~ DEPARTMENT: PLANNING
DATE:November 23, 1998 CMR:436:98
SUBJECT:SAN FRANCISCO INTERNATIONAL AIRPORT-GENERATED
AIRCRAFT NOISE
RECOMMENDATION
The Policy and Services Committee recommends that the City Council direct staff to: 1) initiate
communications with John Martin, Director, San Francisco International Airport (SFIA) to relay
Palo Alto’s concerns regarding airport noise and develop strategies for resolving issues; 2)
explore establishment of a telephone hotline and the possibility of a subsidy from SFIA for Palo
Altans to register single-incident and ongoing noise complaints which could then be forwarded
to the airport; 3) support Council’s efforts to develop a coalition with other city officials,
including members of the Airport/Community Roundtable (Roundtable) and those excluded
from the Roundtable, to solicit support from Federal and State legislators; and 4) submit a
request to Caltrans to regulate single-event aircraft noise.
BACKGROUND
Noise from aircraft flying over Palo Alto on the way to SFIA has become an increasingly
serious issue for Palo Alto residents and surrounding communities. On September 21, 1998,
in response to a memo from Council members Eakins and Mossar, Council referred this issue
to the Policy and Services Committee for discussions and possible recommendations back to
Council.
DISCUSSION
The Policy and Services Committee discussed this itemon September 23, 1998 (CMR:359:98,
Attachment A). Several members of the public, including a representative of UPROAR, an
organization working towards eliminating commercial aircraft noise over Peninsula
communities, spoke at the meeting.
Staff had invited Mr. Roger Chinn, SFIA Community Liaison, to the Policy and Services
Committee meeting to respond to questions. Mr. Chin indicated that while CMR:359:98 was
very comprehensive, there was a need to clarify some points. A letter from Mr. Chin is attached
(Attachment B). Based on the public testimony and committee discussions, the Committee
made a set of recommendations to the Council as stated in the "Recommendations" section of
this report.
CMR:436:98 Page 1 of 3
Subsequent to the Policy and Services Committee meeting, staff received additional
information on the issue of airport noise. This information may be of interest to Council, as
it considers the above recommendations. Foster City recently hired the law firm of
Chevalier, Allen and Lichman to review the maze of Federal regulations and counsel Foster
City as to who is responsible for regulating aircraft noise. Foster City has received a legal
report (Attachment C) from the firm which appears to imply that it is the airport proprietor
who possesses the authority, at the local level, to enter into mandatory enforceable negotiated
agreements to implement abatement take-off and approach procedures. The report concludes
that there are a number of noise abatement measures which could be pursued by SFIA.
However, detailed review of such measures is beyond the scope of the legal opinion
presented in the paper. Two letters responding to this paper, one from John Martin, the
airport director, and one from Morrison & Foerster, the law firm representing SFIA on noise
issues, are included as Attachments D and E, respectively.
In general, both the SFIA Director and the law firm representing SFIA are substantially in
agreement with the legal opinion presented in the paper. However, the airport director must
obtain the consent of the airlines and the express approval of the FAA in order to regulate
aircraft noise or to otherwise affect aircraft flights. The airport director does not have
unilateral authority to establish noise abatement regulations. On the other hand, if the
airlines agree to implement any noise mitigation procedure, they have the power to instruct
their pilots to put it into effect. The law firm representing SFIA states that the law does
provide for the enforcement of agreements to which the airport, the FAA, and the airlines
have all agreed. However, they are not aware that any such agreement has ever been
¯ negotiated by the airport.
RESOURCE IMPACT
Formation of a coalition with other cities will require additional resources. At this stage, the
composition of the coalition, or the willingness of other cities to join such a coalition, has
not been determined. However, any such coalition would require staff support and o.ther
resources, if it is to be effective in pursuing its objectives. Coalition activities may include
maintaining communication with airport staff; engaging consultants to coordinate specific
studies; preparing reports; monitoring airport operations and compliance with noise
abatement regulations; processing correspondence; scheduling meetings; developing agendas
and preparing minutes; and maintaining flies and records. These activities would require
funding for staff, supplies, consultants, etc.
The Roundtable, for example, has an annual budget of $147,000. The budget includes
funding from the San Francisco Airport Commission, each of the 17 member agencies, and
the County of San Mateo. The fund is-administered by the County of San Mateo.
Expenditures include funding for a staff coordinator and haft-time administrative assistant,
a consultant contract to provide technical assistance related to Roundtable work program
items, a consultant contract for a Roundtable media program (press releases, newsletters, a
web-site), and an annual awards and recognition program.
CMR:436:98 -Page 2 of 3
Aircrdt noise is not a traditional area of City responsibility, and the issues are outside of the
experience and expertise of staff. Therefore, at this stage, it is unclear what role, ff any, City
staff would have in supporting the coalition. A local Palo Alto hot line for aircraft noise
would also require resources to cover telecommunication expenses, community outreach,
message retrieval and analysis, maintenance of records, and periodic preparation of reports
to the Director of SFIA. A hotline was set up for complaints about Shoreline Amphitheater
noise. It is estimated that staff has spent approximately two to four hours following each
concert, to retrieve messages and maintain records.
Depending upon Council direction, staff will further analyze the need for additional
resources and return with.a report on resource impacts as part of the 1999-2001 budget
process.
POLICY IMPLICATIONS
Airport noise issues are not within the purview of existing City policy.
ATTACHMENTS
A. CMR:359:98, San Francisco International Airport Aircraft-Generated Noise
B. Letter from Roger Chinn clarifying aircraft noise issues
C. Legal opinion to Foster City regarding SFIA’s ability to abate noise
D. Letter from Airport Director John Martin in.response to legal opinion
E. Letter from law fn’m representing SFIA in response to legal opinion
PREPARED BY: Ashok.Aggarwal, Acting Chief Transportation Official
DEPARTMENT HEAD:
G. EDWARD G~A
Director of Planning and
Community Environment
EMILtY HARRISON
Assistant City Manager
Patrick Kelly, Chair, Airport/Communit~ Roundtable
John Martin, Director, San Francisco International Airport
Mary & Robert Carlstead
Peter & Cynthia Hibbard
Diane Close
Nancy Stern
James Juraeisch
Bette Kiernan
Roger Chinn
Elizabeth & Bo Boudart
Bruce Jaffe & Zhenhua Wong
Inge Crozier
Jane Sideris
Ruth Carlton
Warren KaHenbach
J’Lm Lewis
Keith Yocam
Mary Robinson
Ric Steinberger
Jay Kuo
Jack Gottsman
CMR:436:98 Page 3 of 3
TO:
FROM:
A~ACHME~A
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
Attention: Policy and Services Committee
CITY MANAGER DEPARTMENT: PLANNING
DATE:
SUBJECT:
September 23, 1998 CMR:359:98
SAN FRANCISCO INTERNATIONAL AIRPORT-GENERATED
AIRCRAFT NOISE
RECOMMENDATION
The purpose of this staff report is to provide information that will help facilitate discussion
of the issue of noise generated by aircraft flying over Palo Alto on its way.to San Francisco
International Airport (SFO). Staff recommends that the Policy and .Services Committee
review and discuss this issue and make an appropriate recommendation to the Council for
its consideration. ~.
BACKGROUND
Noise from aircraft flying over Palo Alto on the way to SFO has become an increasingly
serious issue for Palo Alto residents and surrounding communities. While residents are
concerned about aircraft noise throughout the day, complaints have been heaviest regarding
early morning and late night flights arriving, primarily, fi’om the Pacific Northwest, South
Pacific, Europe, Asia, and the Big Sur approach from Southern California.
Several Palo Alto residents and members of a Peninsula-based organization, UPROAR, have
repeatedly approached the City regarding their concerns about aircraft noise. In response to
a memo from Council Members Eakins and Mossar (Attachment A), Council referred this
issue to the Policy and Services Committee for discussion and possible recommendation(s)
back to Council. ~
It is staff’s understanding that the authority to control and regulate aircraft in flight and on
the ground is vested exclusively in the Federal Aviation Administration (FAA). Federal law
pre-empts any local government from implementing any action intended to determine the
routes of aircraft in flight.
However, the California Code of Regulations, Title 21, Section5012, establishes a standard
for acceptable level of aircraft noise for persons living in the vicinity of airports as a
Community Noise Equivalent Level (CNEL) of 65 decibels (db). The CNEL is a
measurement that takes into account the noise emitted by al!..air.~aft d ~.uiTing a 24 hour period.
The standard is not applied to single-event aircraft noise levels. Single-event noise "is the
CMR:359:98 ...............................................Page 1 of 6
type of noise to which most people are sensitive. However, as per the variance issued by
Caltrans to SFO, based on the outcome "of a court case in the early 1970’s, the State of
California earmot regulate single-event aircraft noise. Furthermore, Palo Alto is outside of
the 65db CNEL contour area, which means that the noise level in Palo Alto is below 65db,
and State standards do not identify noise levels below 65db as problematic. Nonetheless,
many residents continue to experience single-event aircraft noise impacts.
Title 21, Section 5053 of the California Code of Regulations permits Caltrans to grant a
variance to an airport operator exceeding the 65db CNEL, if it is in the public interest to do
so. SFO is the second largest airport in California and the fifth largest in the U.S., with
regard to the number of passengers served. Consequently, the airport is a major part of the
national and international transportation system. SFO does exceed the 65db CNEL in some
areas dose to the airport. However, due to its economic, social, and political.importance,
Caltrans continues to renew SFO’s request for a variance to Caltrans noise standards. The.
latest variance was issued August 21, 1998. The conditions of approval for the variance
were set by the State. Most of the conditions of approval make reference to the Roundtable
working with the airport to enforce and manage noise programs, provide information
¯ regarding airport noise, discuss new concepts for reduction of aircraft noise, and to developa work program for noise abatement. Since the City of Palo Alto is not a member of the
Roundtable, it directly requested Caltrans to include in the conditions of approval certain
conditions to help mitigate noise problems within Palo Alto (Attachment B).
Additional Runway at SFO
A project to add an additional runway is~ under consideration at SFO. The intent of this
project is to reduce delays to aircraft landing during inclement weather by providing
sufficient separation between runways, so that aircraft can land simultaneously-on different
runways. City staff has discussed the concern regarding the possibility of an additional
runway with a SFO representative. It is staff’s understanding that the airport is in the process
of conducting a feasibility study to realign or reeonfigure existing runway(s) to reduce delays
to aircraft landing during inclement weather conditions and not necessarily add a runway.
In clear weather conditions, visual landing techniques are used and up to 100 aircraft can
land per hour. However, under inclement weather conditions, which require use of
insmmaent landing techniques, only 50 aircraft can land per hour. As a result, aircraft traffic
backs up and causes substantial delays.
DISCUSSION
The Airport/Community Roundtable is the only existing mechanism for local communities
to address SFO-generated aircraft noise in a coordinated manner. The Roundtable was
created in 1981 through a Memorandum of Understanding (MOU) between the Counties of
San Mateo and San Francisco, the San Francisco Airports Commission, and eleven cities
within nortlaem San Mateo County. The.purpose of the MOU was to create a forum for
discussion and implementation of the noise reduction and mitigation measures identified in
the San Francisco/San Mateo County Joint Land Use Study for SFO completed earlier.
Objectives set forth in the MOU are included as Attachment C.
CMR:359:98 ........." "Page. 2 of 6
In 1997,-the MOU was amended ("MOU Amendment") to open up the membership in the
Airport Roundtable to all cities within San Mateo County. Since that date, Atherton, Menlo
Park, Redwood City, and others have become members.. In response to community concerns,
the City has on two occasions expressed its interest in becoming a member of the
Roundtable. However, both of the City’s requests were denied. Instead, the Roundtable
Chair, Patrick Kelly, referred Palo .Alto to the Regional Airport Planning Committee
(RAPC). The RAPC includes representatives from the Metropolitan Transportation
Commission (MTC) and the Association of Bay Area Governments (ABAG). It is an
advisory body to MTC and A.BAG regarding all airport-related issues in the nine Bay Area
counties.
Palo Alto made two written requests to become a voting member of the Airport!Community
Roundtable. Both requests were denied. The Menlo Park City Council, in its regular
meeting of May 19, 1998, unanimously adopted a resolution requesting Roundtable Member
Agencies to amend the MOU to admit the City of Palo Alto as a voting member. In June
1998, the City of Palo Alto sent a letter to all of the Roundtable Member Agencies requesting
that they take appropriate action to amend the MOU and admit the City of Palo Alto as a
voting member (Attachment D). The Roundtable considered this matter on June 3, 1998, and
denied Menlo Park’s request to amend the MOU to admit Palo Alto by a vote of eight to five..
City staff continues to attend Ro .u~_dtable Board meetings, workshops, and public information
meetings. This provides an oppo.rtunity to learn about the aircraft noise issue and the
effectiveness, albeit limited, of local government to influence airport operations and FAA
regulations.
In addition to Palo Alto’s attempts to join the Roundtable, the City responded positively to
a letter from Atherton Mayor Dudley (January 1997) supporting his offer to spearhead an
effort to establish a coalition of elected officials from affected communities to address
aircraft noise issues.
The City sent a letter to the Federal Aviation Admhistration expressing concerns and
requesting that it establish effective measures for reducing the negative impact caused by
aircraft noise. Letters from the Mayor were sent to State Senators Kopp and Sher and State
Assembly Members Lempert and Papan, expressing concern.about aircraft noise issues and
sohciting their support to see that the noise variance, which SFO was seeking from Caltrans,
not be reissued and that only a temporary extension be approved. The City has supported
legislation (SB 1853 - Kopp) to address the aircraft noise issue, and Council Members and
staff have met with State and Federal representatives and to suggest possible regulatory
and/or legislative options to address the aircraft noise issue.
CIVIR:359:98 Page 3 of 6
possible Options for Other Local. State. oi" Federal Action
Local Action
1. Palo Alt0 could disseminate the telephone numbers of the SFO noise automated
hotline and .the SFO Noise Monitoring Center, which would provide residents
concerned with aircraft noise a means to register their complaint directly .with SFO.
o Palo Alto could take an active role in the RP.AC meetings, including working.with the
RPAC to have Palo Alto concerns addressed in the RPAC Work Plan. An MTC staff
member indicated, however, that participation in the meetings may not bring about any
changes or relief from aircraft noise in Palo Alto, because the RAPC is an advisory
body which has no legal authority over any of the airports.
Palo Alto could participate in efforts to develop a coalition that collectively could be
more effective than an individual community in dealing with representatives of the
airport and the FAA. Should such a coalition be. developed, it would require additional
expertise on City staff. The level of expertise required to address the aircraft noise
issue in a meaningful manner exceeds staff’s teclmieal ~nd legal experience..
Federal Action
1. Request the Federal Aviation Administration (FAA) to require SFO to conduct a
regional study of air tra~c control requirements, constraints, and opporttmities, with
the goal of ~g noise impacts. The study would include identification of the
flight patterns and routes region-wide that are most environmentally desirable and
determination of how to establish and coordinate use of routes while maintaining.
aircraft safety, including implementing changes to flight patterns or procedures.
Request the FAA to notify the City of Palo Alto prior to: (a) approving any additional
flights over Palo Alto between 11:00 p.m. and 6:00 a,m., Co) significantly increasing
the number of flights over Palo Alto, or (c) implementing changes in flight patterns.
Request .the FAA- to test increasing the altitude of aircraft flying over Palo Alto,
including requiring rigorous enforcement of the minimum height of planes flying over
Palo Alto,
State
1.
Action
The current noise standard uses a cumulative noise measure (65db CNEL). It does not
adequately address the negative impactof single aircraft noise and vibration impacts.
Due to the considerable increasein late night and early morning flights, a noise
measure that places more weight on the impact of single-aircraft noise and vibration
should be considered to address the noise issue.
2.Require airports, including SFO, to test noise monitoring equipment which may be
outdated and install noise monitors in communities impaeted by overflight noise,
~MR:359:98 ......................Page 4 of 6
including Palo Alto and surrounding communities, to .assess noise levels, and
implement steps to address noise issues.
3.Provide Caltrans the authority to impose penalties if State noise regulations
(cumulative or single aircraft noise) are not being met.
The City could request State legislators to consider introducing legislation that would place
more weight on the impact of single-aircraft noise, as well as work with State and Federal
legislators towards achieving some .or all of the above-suggested actions at the State and
Federal level.
POLICY IMPLICATIONS
This report does not represent a change to existing City policy.
RESOURCE IMPLICATIONS
Currently, $10,000 is available in the operating budget of the Police Department to gather
a limited amount of dam regarding the ~requency of occurrence as well as the level of aircraft
noise at ground level in Palo Alto. Staff is currently spending approximately an average of
four person hours per week on this issue. Additional staff resources, including legal and
technical assistance, maY be required depending upon the Policy and Services Committee’s
recommendations to the Council. If appropriate, staff will return to Council when the
Committee’s recommendations are agendized with an estimate of additional resources
required to implement the recommendations.
ATTACHMENTS
A.Council Memo referring aircraft noise issue to Policy and Services Committee
B.Letter to Caltrans requesting conditions be included in SFO variance
C.Menlo Parkl.etter identifying the objectives of the Airport/Community Koundtable
Memorandum of Understanding
D.Letter to Roundtable member agencies requesting that the .City of Palo Alto be
admitted as a voting member.
C~1359:98 ............Page 5 of 6
PREPARED BY: Ashok Aggarwal, City Traffic Engineer
DEPARTMENT HEAD:~
ANNE CRONIN MOORE
Interim Director of Planning and
Cogent
¯ CO:Patrick Kelly, Chair, Airport/Community Koundtable
John Martin, Director, San Francisco International Airport
Mary & Robert Carlstead
Peter & Cynthi.a Hibbard
Diane Close
Nancy Stern
James Juracisch
Bette Kiernan
Jim Lewis
Mary Robinson
Jay Kuo
Elizabeth & Bo Boudart
Bruce Jaffe & Zhenhua W0ng
Inge Crozier
Jane Sideds
Ruth Carlton
Warren Kallenbach
Keith Yocam
Ric Steinberger
Jack Gottsman. ..
Page 6 of 6
City of Palo Alto 11
MEMORANDUM .
DATE:
TO:
FROM:
July 27, 1998
Our Colleagues
Council Members Eakins and Mossar
SUBJECT:City Policy on San Francisco International Airport Noise
Airport noise is a generally increasing problem for a number of residents of Palo Alto.
Several Palo Alto residents and members of a Peninsula-based organization, UPROAR, have.
repeatedly approached members of the City Council for assistance in relief from the noise
generated by aircraft flying over Palo Alto on an approach-path to San Francisco
International Airport (SFO).
In response to community .concerns, City Council has made two attempts to gain admittance
to the Airport R.oundtab!e. On both occasions, Council’s request was refused by R.oundtable
member cities.
We believe that C6uncil must now assess the issues related to concerns and complaints about
airport-generated noise. Additionally, proposals now on the table for the addition of a third
runway at SFO are creating increasing concern about potential future impacts.
We ask our colleagues to support our request to refer these issues to the Policy and Services
Committee for discussion and possible recommendation for action.
Ci of Palo Alto,
May28, 1998
Richard O. Dyer
Airport Environmental Specialist
Caltrans - Aeronautics.Program, M.S. 40
P.O. Box 942874
Sacramento, CA 94274-0001
Dear Mr. Dyer:
Thank you for providing us with an .opportunity to provide comments on the proposed
decision regarding the application by San Francisco International Airport (SFO).for a
variance to the State Noise Standards.
On December 22, 1997, then Palo Alto Mayor, Joe Huber, requested that the variance be
granted subject to several conditions. It is noted that none of the conditions Palo Alto
requested are included in the variance, except that SFO must inform the Airport/Community "
Koundtable and cities within 20 miles of the airport about flight path changes. Since Palo
Alto is not a member of the Koundtable and is more than 20 miles from the airport, Palo Alto
requests that this condition.be changed to inform cities within 30 mile’s of the airport.
Most of the conditions of approval for the noise variance make a reference to the P~oundtable
for continued cooperation in enforcing and managing noise programs, providing information
regarding airport noise, discussing new concepts for reduction in aircraft noise, and
developing a work program for noise abatement efforts, etc. Palo Alto supports the
coordinated efforts oft he Roundtable to develop.a common understanding regarding aircraft
noise issues and ~o minimize noise impacts. However, as.you know, Paio Alto has not been
allowed to become a member of the Roundtable. Therefore, it has been forced to make
comments separate from the R.oundtable negotiations.
Since the conditions of approval heavily rely on the cooperation of the Koundtable, and Palo
Alto is not a member of the R.oundtable, Pa~9 Alto requests that the conditions of approval
of the variance also include the following conditions to help mitigate noise problems in
communities like Palo Alto.
1)Require SFO to document the number of complaints, (a) by city jurisdiction,
including Palo Alto, and (b) by each individual call per flight. For instance, if five
calls are received regarding flight A, and three calls regarding flight B, then eight
complaints should be documented. In addition, calls from one individual regarding
separate flights should be documented as separate complaints.
P.O.I~l~50
1~chard G. I~!er
May 2~, 19"9~
Page 2
3)
P,.equire SFO to provid~ several noise monitors in Palo Alto, to provide the necessary
data .to address the aircraft noise issue. It is requested that a minimum of four
monitors be provided for the following reasons:
Planes that follow" the Big Sur approach cross the city on a diagonal. To
accurately assess the impact of noise across such a vast swath of geography
requires more than a single monitor. We note that there are numerous
monitors in San Francisco.
b)The Big Sur approach is one of the most heavily used approaches. As the
airport’sexpansion project is completed, or as arrivals shift into eveninghours,
the impact of airport operation.s will be even greater. It is in the interest of the
airport, as well as Palo Alto, to have numerous monitors so that a more
accurate assessment of noise can be made than would-be the ease if a sh3gle
¯ monitor were installed.
Require SFO to request the FA.A to test increasing the altitude of aircraft flying over
Palo Alto, especially via the Big Sur approach. In the alternative, require SFO to
request that the FAA- rigorously enforce the minimum height of planes flying over
Palo Alto. As documented, the height of planes over Atherton varied significantly
during the early morning hours. It was apparent ha fine data from theWoodside Very
High Frequency Omnidirectional .P,~_n. ge Station (VOP,.) test that a few low planes are
the source of many of the complaints about problems involving Athe .rton. It is Palo
Alto’s belief that a similar variation is one source of the complaints from our
residents, and that this variation may unreasonably deny our residents the quiet use
and enjoyment of their property. It can also be reasonably assumed that a constant
descent approach with rigorous adherence to the established altitude along the
approach will result in noise mitigation along the entire path of descent, including
within the 65 CNEL contour. Caltrans should require that the airport send a letter to
the FAA requesting better enforcement.
Palo Alto believes that the 65 CNEL standard is outdated. In addition, the 65 CNEL-
standard does not adequately take into account the negative impact of single-event
aircraft noise occurrences. Single event occurrences that are clearly excessive shouId
not simply be blended into an average. The average does not reflect the actual
negative impact of the event. As a condition of the noise variance, Caltrans should
require that the airport produce a report on different standards and measurement
techniques used at airports around the globe. It is beyond the research capability of
Palo Alto to produce such a report. However, the SFO has this ability. The report
should be produced within 90 days of the granting of the variance. Palo Alto and
other communities can then begin to effectively eonsider-opti0ns including possible
changes in State and federal law.
Richard G. Dyer
May 28, 1998
Page 3
As a condition of the variance, Caltrans should require SFO to document all noise
impacts on Palo Alto when modeling current and future approaches to the airport.
The current work plan agreed to by the Roundtable may or .may not result in this
evidence being produced. We want to ensure that any noise impact modeling carried
out as a condition of the variance take into consideration the City of Palo Alto and its
residents.
Sincerely,
DICK ROSENBAUM
Mayor
ec: City Council
Patrick Kelly, Airport/Community t~oundtable
John Martin, Director, San Francisco International Airport
Senator Byron Sher
Senator Quentin Kopp
Assembly Member Ted Lempert
Assembly Member Anna Eshoo
MAYOR PRO TEM
ROBERt" N. ~URMEIS’~ERC~MEMBF.R
BERN1E VALENCIA
COUNCILMEMBER
STEPHEN SCHMIDT
COUNCILMEMGER
MENLOPARK
701 LAUREL STREET I MENLO PARK, CA 94025-34831650.858.:33801 FAX 650.328.7935
May 20, 1998 RECEIVED
Patrick Kelly, Chair
Airport/Community Roundtable
c/o Planning & Development Division
Department of Environmental Management
County of San Marco
590 Hamilton Street
Redwood City, CA 94063
-l v 2 8 1998
DIVISION OF
TRANSPORTATION
Request to Admit the City of Pale Alto as a Voting Member of the Airport Roundtable
At their regular meeting of May 19, 1998, the Menlo Park City Council unanimously adopted
Resolution No. 4992 requesting that the Member Agencies of the Airport Roundtable amend the
Memorandum of Understanding Regarding Acceptance of the Joint Action Plan and Establishing an
Airport/Community Roundtable to admit the City of Palo ’Alto as a voting member. The City Council
requests that you agendize this matter for consideration at the June meeting Of the Roundtable.
In 1981 the Counties of San Mateo and San Francisco, the San Francisco Airports Commission, and
eleven cities within San Marco County entered into a Memorandum of~Understanding Regarding
Acceptance of the Joint Action Plan and Establishing an Airport/Community goundtable ("MOU")
creating what is referred to as the "Airport Roundtable". The purpose of the MOU was to create the
Airport Roundtable and to set forth the following six objectives: .
Obiective 1. Achieve compatibility between the Airport and its Environs in the shortest amount
of time and with the least possible cost or disruption to the Airport and affected jurisdictions.
Objective 2. Attain a consensus between the Airports Commission and local governing bodies on
the individual Plan Elements and achieve a balance between the costs, and benefits of the
proposed actions and their economic, environmental, social and institutional impacts.
Objective 3. Provide a mechanism that provides for cooperation between the Airport and local
communities in reaching decisions on planning, zoning, and building matters in local
communities, while recognizing local governments’ autonomy over those decisions.
Objective 4. Protect and enhance existing residential neighborhoods in the vicinity of the Airport
Obiective 5. Provide affected Environs jurisdictions with specific assistance to effectively deal
with Airport/Environs compatibility problems.
Objective 6. Provide a mechanism that ensures cooperation between the. Airport and local
communities in reaching decisions on Airport land use and management, while recognizing
the Airport’s authority over those decisions.
P~lled On ~ecycted I~Nr
Airport/Community Roundlable
Page Two
In 1997, the MOU was amended ("MOU Amendment") to open up the membership in th.e Airport
Roundtable to all cities within San Marco County. Since that date, Atherton, Menlo Park, Redwood
City, and others have become members.
According to the staff of the Airport Roundtable, the City of Palo Alto has approached the Airport
Roundtable on at least one previous occasion requesting that it be admitted as a member. Apparently,
Palo Alto has not been admitted previously due to concerns that if membership is expanded to include
the City of Paio Alto, which is outside of San Marco County, that other cities will similarly insigt on
becoming members, thereby diluting the original objectives of the Airport Roundtable,
It is the City Council’s contention that Menlo Park and Palo Alto residents are similarly negatively
impacted by noise generated from incoming flights to SFO. Therefore, the simple fact that Palo Alto
is in another county should not prohibit it from representing its residents on the body created to
protect existing residential neighborhoods in the vicinity of the Airport.
The Menlo Park City Council respectively requests that the Airp.ort Roundtable amend the MOU to
admit the City of Paio Alto as a voting member of the Airport Roundtable.
For the City Council,
City Manager
JMD/pc
c:Richard Rosenbaum, Palo Alto Mayor
San Mateo County Cities
County of San Mateo.
2-3
City of Palo Alto
Office of the Mayor and City Council
June 1, 1998
~AContact-~,
gency~
~~epar~nen~
~~Ci~
Subject:Kequest to Amend the Memorandum of Understanding Acceptance of the Joint
Action.Plan and Establishing an Airport/Community Roundtable
Dear ~~Salutattot~.
The purpose of this letter is to request that the ~~Agency~ as a member of the
Airport/Community Roundtable, take appropriate action to amend the Memorandum of
Understanding Regarding AcceptanCe of the Joint Action Plan and Establishing an
Airport/Community Roundtable (MOLl), to admit the City of Palo Alto as a voting member
of the Roundtabl~.
As you are aware from past correspondence and discussions at the Roundtable meetings,
Palo Alto has approached the Koundtable on two occasions requesting to be admitted as a
member. Palo Alto has not been admitted due to concerns that if membership is expanded
to include the City of Palo Alto; which is outside San Marco County, that other cities will,
similarly, insist on becoming members, thereby diluting the original objectives of the
Airport/Community. Roundtable. However, aircraft noise does not recognize county lines
and Palo Alto is faced with many of the same issues that impact the southern San Mateo
County cities, which are outside ofthe existing 65 CNEL Contour Line of aircraft noiseand
were.recently admitted to the Koundtable. As traffic continues to grow at San Francisco
International Airport-(SF .IA), noise issues will continue to be a concern to Peninsula cities.
Palo Alto believes the simple fact that it is in another county should not prohibit it from
representing its residents as a member of the organization that was created to protect existing
residential neighborhoods in the vicinity of the San Francisco airport.
Palo Alto strongly supports a. coordinated effort to develop a common understanding
regarding aircraft noise issues and work toward practical solutions for impacted
communities. The Rouudtable is the only existing mechanism for local authorities to address
these issues in a coordinated manner. Palo Alto believes that SFIA is a regional asset of
incomparable value and looks forward to joining the Airport/Community Roundtable to work
toward increasing the beneficial impact of SFIA upon the region.
P.O. Box 10250
Palo Alto, CA 94303
650.3292477
650.328.,3631 fax
June 1, 1998
Page 2
Again, we respectRtlly request that the ~(Agency~ take appropriate action to-amend the
MOU, to admit the City of Palo Alto as a voting member of the Roundtable. This letter is
being sent to all of the Member Agencies of the Roundtable. Thank you for your support in
this matter and any other actions that help address concerns regarding the impagt of aircraft
noise on affected communities.
Sin~erely,
DICK ROSENBAUM
Mayor
City Council
Patrick Kelly, Airport!Community Roundtable
John Martin, Director, San Francisco International Airport
Senator Byron Sher
Senator Quentin Kopp
Assembly Member Ted.Lempert
Congresswoman Anna Eshoo
Distribution list of~Iune 1, 1998 letter to Member Agencies of
the Airport/Community Roundtable requesting amendment of
MOU - Transmitted via fax
-Timothy Treacy (mailed via Fed Ex)
San Francisco Airport Noise Committee
City and County of San Francisco
20 Linares Avenue
San Francisco, CA 94116
Mafia Ayerdi
Office of the Mayor
City and County of San Francisco
City Hall, Room 200
San Francisco, CA 94102
Jolm Martin
Airport Dire .ctor
San Francisco International Airport
Box 8097
San Franciso, CA 94128
Mary Griffin
County of San Mateo Board of Supervisors:
County Government Center
401 Marshall Street, FirstFloor "~
¯ Redwood City, CA 94063
Herbert Foreman (mailed-via Fed F_,x)
C/CAG Airport Land Use Committee
C/CAG of San Mateo County
360 Loyola Drive
Millbrae, CA 94030
William Conwell
Council Member
Town of Atherton
541 ~lefferson Avenue, No. 205 "
Redwood City, CA 94063
Coralin Feierbach
Council Member.
City of Belmont
1070 Sixth Avenue
Belmont, CA 94002
Sepi Richardson
Council Member
City of Brisbane
P.O. Box AR
Brisbane, CA 94005
lVfike Spinelli
Council Member
City of Burlingame
1301 Mills Avenue
Burlingame, CA 94010
Carol Klatt
Council Member
City of Daly City
333 Ninetieth Street
Daly City, CA 94015
Marland Townsend
Council Member
City of Foster City
610 Foster City Boulevard
Foster City, CA 94404
Betty Stone
Council Member
City of Half Moon Bay
501 Main Street
Half Moon Bay, CA 94019
Patrick Kelly
Council Member
Town of Hillsborough
1415 San Raymundo Road
Hillsborough, CA 94010
Charles Kinney
Council Member
CityofMenlo Park
701 Laurel Street
Menlo Park, CA 94025
Mark Church
Council Member
City of MiIlbrae
208 South Ashton Avenue
IVfillbrae, CA 94030
Barbara Carr
Council Member
City of Pacifica
120 Manor Ddve
Pacific, a, CA 94044
Nancy Vian
Council Member
Town of Portola Valley
765 Portola Road
Portola Valley, CA 94028
Matt Leipzig
Council Member
City of Redwood City "
P.O. Box 28
Redwood City, CA 94064
Chris Pallas
Council Member
City of San Bruno
1905 Donner Avenue
San Bruno, CA 94066
Sue Lempert
Council Member.
City of San Mateo
330 West Twentieth Avenue
San Mated, CA94403
Karyl Matsumoto
Council Member
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
Sally Mitchell
Council Member
City of San Carlos ¯
3358 La Mesa Drive, No. 11
San Carlos, CA 94070
October 1, 1998
"Ms. June Fleming, :ity Manager
City ol Palo Allo
250 Hamilton Avenue, Sixth Floor
Palo AIto,CA 94303-0862
re:San Francisco International Airport
A ACHME B
.CHIN’1
ARCI--IITECTAIA
Dear Ms. Fleming:
A1 the request of Mr. Aggarwal, I attended the meeting of the Policy and Services Commitlee on
September 23, 1998. I wish to thank the Committee lor thal courtesy and invitation to speak on a number
of issues relating to San Francisco Internalional Airport.
As I indicated at the meeting, I have read the City Manager’s Report dated September 23, 1998, tilled
"San Francisco Inlernalional Airport-Generated Aircraft Noise". The staff oral report indicaled that many.
ilems in the Report were based on newspaper accounts; as you are aware, newspaper articles are usually
condensed and do not contain all information due to space allocations. The Repod is very
comprehensive, although we believe a number of points need clarification. Please consider lhe following
comments:
Page 1, firsl paragraph: In addition to SFO, we wish to indicate that aircraft ovedlights of the south
Peninsula operate into and out ol San Jose and Oakland Airports and, from complaints and site
observations, we have found that general aviation and helicopter operalions from airports such as
Palo Alto, San Carlos, and regional Coast Guard stations and hospitals also have an impact on the
south Peninsula communities.
At the request of the Chair of the Policy and Services Committee, attached are diagrams and
descriptions of aircraft patterns lor the.three major airports in our region.
Page 2, first paragraph: The lirsl sentence should be clarified and modified to read: "Howe’ver, as
ta.e<-described in the variance issued by Caltrans to SFO, based on the outcome of a court case in .
the early 1970’s, the State of California cannot regulate single-event aircraft noise."
Page 2, second paragraph: We wish to add that another major basis for the latest State variance
approval is SFO’s progress in the reduclion of house count for homes no longer impacted, as
defined by Caltrans standards, and homes insulated to meet those standards.
Page 2, third paragraph: We suggest the firsl sentence (as others) be modified to "A project to ~
~,~ cdd!t~on~ reconfigure runways is under consideration at SFO." At the present time, the
reconliguration study is not complete nor is there any proposal to build an additional runway or
deline the guidelines for a new runway. However, since Runways 28L and 28R are only 750’ apart,
these runways will not accommodate the new generation aircraft being designed. Any new runway
or reconfiguration of runways will have to consider eliminating one ol these runways and locate a
replacement runway wilh a horizontal separation to meet FAA safety standards.
Page 2, third paragraph: The second sentence may wish to include the last point (above) as the
major issue for runway reconfiguration.
ROGER CHINN ASSOCIATES 1485 BAYSHORE BOLILEVARD #131 SAN FRANCISCO CA 94124-3002 (415) 46B-0787 FAX (415) 468-4969
o Page 2, third paragraph, fifth and sixth sentences: Under visual conditions, 60 landings per hour
can be accommodated, and under instrumenl conditions, 30 landings per hour can be
accommodaled. ¯.
Page 2, fourlh paragraph: The Airport/Community Roundtable was created to implement the Joint
Action Plan completed in 1980.
Page 3, first paragraph: The RAPC includes representatives from MTC, ABAG, the Airporl
Managers, Caltrans, BCDC the three major airports, and FAA. This is one of 1he reasons that Palo
Alto may wish to be in attendance at RAPC meetings, as suggested by others.
Page 4, paragraph numbered 2: RAPC, as the Roundtable, are both advisory bodies and have no
legal authority over any of the airports..
10.Page 4, we wish to suggest a f(~uflh and fifth item to "Local Action":
The Airport Director, John Martin, has consistently and publicly indicated that SFIA will work
with all communities. Palo Alto may wish 1o meet and discuss a method of dialogue with him
and his staff to accommodate a level of communication.
o Palo Alto may wish to attend all Roundtable meetings and speak from the floor on issues
affecting Palo Alto. In addition, Palo Alto may wish to petition issues to be agendized for
discussion and voting by the Roundtable.
11.Page 4, we wish to commenl and add to "Federal Action":
o
4o
Mr. Martin has requesled the Roundtable agendize the continued ATAC study and
FAA/BayTracon analysis of increasing aircraft altitude while on the Big Sur arrivals.
Palo Alto may wish to join or suppod Mr. Martin’s position to meet and discuss with the FAA
Director, the need to include noise abatement as a high priority of the FAA.
In addition, the staff oral report indicated that the airport expansion will result in a projected increase of 11
million passengers and an "increase" in the number of flights. Please be aware that the same projections
indicates that flight operations will increase by 1%; this is due to the anticipated use of new larger aircraft
types, and greater efliciencies of passenger load per flight.
As discussed with your Committee, I will advise Mr. Martin that Palo Alto has need for a local "hot line" to
register noise complaints, in order lor Palo Alto residents 1.o not have to make long distance calls to SFIA.
Thank.you again lor allowing me to meet and discuss issues with your City. I will be pleased to continue a
dialogue with you and the City Council.
Ve~.~l"y yours, ~
SF~’/~’ Community Liaison
Attachments
John Martin
John Coslas
Wanda Williams
I III ~IIIIIII I
Section 2 - Existing Site Conditions
II |
Pilots of aircraft departing SFO will contact controllers in the tower
for authorization to taxi on a particular runway and for clearance to
take-off. Once the aircraft is airborne, the controller will instruct the
pilot to contact Bay TRACON on another radio frequency for further
instructions.
Bay TRACON is located at OAK. Unlike the controllers in the tower
cab, controllers at Bay TRACON sit in a darkened room that
contains radar displays¯ These displays provide controllers with
information necessary to guide aircraft to and from Bay Area
airports. Controllers in Bay TRACON are responsible for separating
and sequ.encing arrivals and departures to all three Bay Area air
can-let airports as ,,veil as secondary facilities. The limits of airspace
controlled by Bay TRACON change depending upon the traffic flow
pattern in use. Howev.er, the general limits of Bay TRACON
airspace are depicted in Figure 2. 1.5-1.
Bay TF~,CON Alrspac~
;ource: ATAC, Inc.,
Controllers at Bay TRACON will provide instruction to pilots
concerning headings and altitudes to ensure that all aircraft maintain "
proper separations. Once aircraft are established on theix assigned
heading and are leaving the limits o~ TRACON airspace, the
controller wilt have the pilot contact Oakland Center for further
instructions.
Oakland Center is located in Fre~nont, CA. Controllers at this
facifity are responsible for a large area of airspace extending
northward to northern California, eastward to the middle of Nevada,
and southward approximately half-way to Los Angeles. Controllers
at the center also sit at radar displays in a darkened room similar to
Bay TRACON and provide separation services for aircraft as well as
traffic advisories and weather advisories. Pilots will ~nalntain
corrununication with conLrollers at O,",.kland Center until the fright is
leaving the limits of the Center’s airspace. The flight is theu handed
off to a controller at the next center whose airspace the flight is
entering. This process is reversed for aircraft flying to SFO.
2.1.6 Air Traffic Flows
Air traffic operations in the San Francisco Bay Area are carefully
choreographed to accommodate Hows tbr three major airports into
,and out of a relative small gdographic area. The following
paragraphs describe major traffic flows for SFO, OAK. and SJC for a
West Plan runway configuration. The West Plan conliguration is
used over 80 percent of the time. A West Plan [’low consist of
arrivals landing on the Runway 28 system at SI’:O, Runway 29 at
OAK, and the Runway 30 system at SJC. Interactions of Lraffic
flows that occur between the airports are identified.
The following discussion makes several reference to "intersections."
Intersections are points in space where the headings or bearings from
two different navigational aids meet. Intersections are co~nmonly.
used in air navigation to define points where changes to course
headings or altitudes are initiated.
2.1.6.1 San Francisco International Airport
SFO is the predominant air can~er airport in the Bay ,ad’ea. Jet
arrival and departure Hows are shown in Figure 2.1.6-l. Jet ,arrivals
are sequenced frmn four cardinal directions: north, east, south, and
west, with major llows from the north, east, and south. Arrivals from
the north are routed via the Point R..eyes (PYE) VORTAC then
directly ovdr SFO befl~re being sequenced onto the li}ml approach.
An option to this procedure allows fliglits to be turned and descended
southeast bound from a point approximately 7 naudcal miles
northwest of SFO as trMfic conditions pem~it.
This flow contains traffic from the Pacific Rim area, Europe via great
circle routings, and from U.S. and Canadian cities located north of
SFO. Arrivals from the east are routed via the Modesto (MOD)
VOR/DME and CEDES intersection. Traffic assigned this flow
includes flights originating from East Coast, Midwest and Southern
U. S. cities. Jet arrivals from the south are routed via the Big Sur
(BSR) VORTAC and AN.FEE intersection. Traffic assigned to this
flow typically originate from cities in the southwest pa_rt of the U.S.,
with the majority from Southern California cities and can include
traffic from Mexico and South Amedca. Jet aircraft arriving from
Lhe west via PH1AT intersection ~e primarily operations from
Hawaii.
Figure 2.1.6-1 - Air Carrier Arrival atut De ,arture Flows r SFO
Source: ATAC, Inc.
Jet departures from SFO (Figure 2.1.6-1) are assigned departure
procedures that align departure routes with destination airport
locations. Flights destined for Cities in the northwest U.S. and.
western Canada are routed north via the Red Bluff (RBL) V13RTAC,
flights for cities in" the northeastern portion of ihe U.S. and most
.Great Circle routes for European cities are routed northeast via the
Sacramento (SAC) VORTAC, llights for cities in the eastern part of
the U.S. are routed east via the I_inden (LIN) VORTAC, and flights
SFO - Runway Heconfiguration Study
?-2-4
[
L
[
[
[
II I I
for cities in southern California are routed south over PORTE
intersection. Flights with destinations in the southern part of the
O.S. can be assigned to flows over either LIN VORTAC or PORTE
intersection. Flights desdned for HawAi are routed west over
BEBOP intersection, and Pacific Rim traffic is routed northwest over
MOLEN intersection. An optional southbound departure flow was
established offshore via SEGUL intersection to reduce traffic muted
via the PORTE intersection.
Non-jet aircraft flows for SFO are shown in Figure 2.1.6-2. Arrival
flows primarily use the same NAV.-MDS or fixes as the air carrier
traffic and are procedurally separated laterally and/or vertically undl
established on the final approach segment of the flight. Departures
are also routed through the same departure gates as the air carrier
aircraft and procedural separations are applied to segregate aircraft.
Some exceptions exist for aircrafr that arrive and/or depart VFR and
require routing in SFO airspace.
Fi_~ure 2.1.6-2 Commuter Arrival and Departure F!ows for SFO
atria = grdv~ lr~:k~
~----’1,;,
Source: ATAC. Inc.
2.1,6.2 Metropolitan Oakland International Airport
Air carrier arrivals to OAK are assigned to three major arrival flows
corresponding to the same not-th, east. and south cardinal dia-ections
that applied to SFO and are procedurally separated from SFO arrival
traffic. Aircraft from the norah arrive via Sausalito (SAU) VORTAC~
SFO - Runway Reconfiguration ~tudy
from the east via Manteca (ECA) VORTAC, and from the south via
Panoch6 (PXN) VORTAC (see Figure 2.1.6-3). The OAK flow from
PXN crosses the SFO traffic flow from MOD and are required to
descend below the SFO arrivals approximately 30 miles southeast of
OAK. Cities served by these flows are the same as for SFO with the
exception that OAK has very few international operations.
Jet departures from OAK are assigned to the same departure flo~vs as
SFO, thus producing a high level of interaction between the two
facilities. Departures from OAK are metered by air traffic control
providing controlled access to the departure routes. Nights destined
for cities in the north~vest U.S. and western Canada are routed via the
RBL VORTAC, flights for cities in the northeastern portion of the
U.S. are routed via SAC VORTAC, flights for cities in the eastern
part of the U.S. are routed via LIN VORTAC, and flights for cities in
southern California are routed via the PORTE intersection. As with
SFO, an optional southbound offshore flow over SEGUL intersection
is available to reduce traffic routinely routed via PORTE intersection.
Figure 2,1.6-3 - Air Carr~o.r Arrival and Departure Flows for
Oakland International Airport
Source: ATAC. Inc.
2.1.6.3 - San Jose International Airport
SJC is also served by three reajor arrival flow feeds corresponding to
the north, east, and south directions as is OAK and SFO. Aircraft
I ~Se£~ion 2 - Existing Site Conditions_
from the north arrive via the PYE VORTAC (same as SFO), from the
east via E1 Nido (HYF) VOR-DME and TORCH intersection, and
from the south via Priest (ROM) VORTAC (see Figure 2.1.6-4). AIi
three arrival flows are then merged into a single stream for landing at
SJC. The cities served on these flows are primarily the same as for
OAK and SFO.
Jet departures from SIC are somewhat restricted because of traffic
descending to SFO and OAK. The major departure flows are initially
muted either north or south. For jet aircraft routed south, traffic is
routed via MOONY intersection and is restricted to 5,000 feet until
clear of the SFO arrival flow. Aircraft assigned this flow have
destination cides in the southwest part of the U.S. and Mexico. For
those jet flights routed north, aircraft initially fly the same route as
the southbound departures, msuicted to 5,000 feet until clear of the
SFO arrival flow, and then are allowed to climb via a circling
procedure to cross over the SJC airport at 12,000 feet before
proceeding north over DYBLO intersection. From DYBLO ¯
intersection, flights proceeding to destinations in the north, northeast,
and east are merged onto the same flows as axe established for OAK
and SFO. S/C has limited international flights requiting routes west
towards the Pacific Rim area. These flights are muted either over
OSI VORTAC or the SFO VOR!DME and restricted be!ow SFO
arrival and departure flows.
Figure 2.1.6-4 - Jet Arrival and Departure Flows for San Jose
[nternatio hal
LEGEND
Grin ¯ An’h~
Source: ATAC, Inc.
CHEVALIER, ALLEN & LICHMAN rzv
Attorneys at Law
Commercial Litigation ¯ Avlatton Lass- & Lmgatmn ° Environmental La~* & Lttman,~,:
August 18, 1998
ATTACHMENT C
Gata M. Allen. Ph.
John Chevaher. Jr."
Roger P. Freeman
Berne C. Hart
Barbara E. Ltchma:
Frederick C.
Mr. Kerme~ Dickerson
Office of the city Attorney
City of Foster City
939 Laurel Street, Suite D
P.O. Box 1065
San Carlos, CA 94070
Legal Opinion Regarding the Authority of the Director of San
Francisco International Airport to Negotiate and Enforce
Agreements with Airlines and Other Airport Tenants, or Otherwise
Implement the Requirement for Exclusive Use of a Sidestep
Instrument Landing System on Runway 28-R for Night Operations,
and to Require the Operation of Flights Into and Out of San
Francisco International Airport So As to Reduce the Noise Impacts
of’Such Flights on Surrounding Communities
" 5 Park Pla:a. State
ha’ine, Caluornta o:
Telephone (7141 474
Facsimile 17141 474.~
E-mail C.A&L(a cou
2343~ Hawthorne
Skvpark 3. Suite
"fi~rrance. Caliform,,
Telephone t31~’~ 37-
Facsimile ~Id~
E-mail Aer,qaw&.t a,
Dear Ken:
Pursuant ~o our contract with the City of Foster City ("City") to provide legal selwices, "
we hereby Submit the following opinion letter concerning the. authority of the Director
("Proprietor") of San Francisco International Airport ("Airport") to negotiate and enforce
agreements with airlines and other airport tenants where necessary, or otherwise to implement
the.requirement for exclusive use of 8 sidestep (also,. offset) Instrument Landing System ("ILS")
on Runway 28-R for night operations, as well as to require the operation of flights into and out of
the Airport so as to reduce the noise impact of such flights on surrounding communities.
INTRODUCTION.
This opinion approaches the issue from two perspectives. First, it discusses from a
theoretical perspective: (1) the Proprietor’s general power to implement reasonable, non-
discriminatory noise mitigation measures, and the origin of that power in the Proprietor’s
authority over airport operation and theliability for safety and noise impacts resulting from that
authority; and (2) the constraints on the Proprietor’s power arising out of the Doe~ine of Federal
21
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 2
Preemption of the use of navigable airspace and the operation of a’~reraft over the United States,
as articulated in ease and statutory law including the Federal Aviatie-,. Act, 49 U.S.C. 40101, et.
~.e.e~.; Airline Deregulation Act (,ADA"), Public Law 95-504, October 24, 1978, 92 Stat. 1705;
Noise Control Act, 49 U.S.C. 44715, et. ff~t.; and Airport Noise and Capacity Act ("A.NCA"), 49
U.S.C. App. 2151, et. e~_q. (subtitle D of the Omnibus Budget Reconciliation Act of 1990, §§
9301-9309).
Second; it analyzes from a practical perspective: (1) the distribution of power between the
Proprietor and the Federal Aviation Administration ("FA.A") to implement and enforce the type
of mitigation measures at issue here, i.e., operational procedures (specifically the offset ILS
procedure) given the constraints set forth above; and (2) available mechanisms, including
agreements with airport tenants, by which such operational procedures may be implemented and
survive challenge.
The opinion concludes that:
(1) the Proprietor has the power generally to implement noise abatement procedures
under widely recognized exceptions to the preemption doctrine, subject to the procedural
requirements ofANCf...he ":s implementing roTulations, _lz) (7.F.R Pan 1.61 ;~
(2) the offset ILS procedure which is the subject of this letter falls into the category of
¯ "operational procedure", which includes preferential runway use, noise abatement approach and
departure procedures and profiles, and.flight tracks. This Category of noise abatement procedure
is not subject to Part 161, but must be submitted to the FAA for approval before implementation;
(3) the Proprietor indisputably possesses the specific authority outside Part 161 tO
negotiate with airport tenants to obtain enforceable agreements to operational mitigation
measures through a "formal runway use program" pursuant to FAA Order 8400.9, which, when
agreed to by the FA.A and aircraft operators, is mandatory for those aircraft operators;
(z)) even if, for argument’s sake, the ILS procedure were governed by Part. 161, Part
161 also provides for enforceable negotiated agreem,onts between the Airport Proprietor~ aircraft
operators and the FAA; and
Title 14 of the Code of Federal Regulations will hereafter be referred to as Federal
Aviation Regulations ("FAR"). 22.
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 3
(5) the Proprietor’s role is pivotal, whether under or outside Part 161, because the
Proprietor is the only party which may propose, apply to the FA.A for, or negotiate noise and
access restrictions. Absent Proprietor initiative at the outset, no mitigation measure can be
implemented, or enforced.
DEVELOPMENT OF THE DOC~ QF FED~gRAL PP,,EEMPTION OF AVIATION
ACTIVITIES AND ITS EXCEPTIQN~q,
It is indisputable that Federal statutes have mandated, and courts have consistently heid,
that state and local law is preempted in the areas of airspace utilization and aircraft operation.
However, a major issue remains as to the scope of the preemption and the degree to which it
deprives the proprietor of the power to control operations at his (or her) own airport.
A.The Scope of Federal preemption of,Aviation.
The Doctrine ofF-~lera] preemption is derived from the supremacy clause of the U.S.
Constitution (Article VI, C~ause 2) which invalidates state and local laws that i~,.,fere with or
are contrary to the laws of Congress. Sehneidewind v. AN’R Pipeline Company, 485 U.S. 293,
108 S.Ct. 1145, 99 L.Ed.2d 316 (1988); Florida Lime and Avocado Grower~, me. v. Paul, 373
U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). Determination as to whether state or local laws
are federally preempted is a matter, of Congressional intent. Federal preemption can be
accomplished by Congress in three ways. First, Congress can explicitly preempt state and local
regulation. Secondly, Congress can implicitly preempt state and local laws by regulating the area
in a comprehensive and pervasive fashion. Thirdly, even where Congress has not expressly or
impliedly displaced state action, state or local law is preempted if it actually conflicts with
Federal law. Alaska Airlines, Inc. v. Ci_ty of Long Beacla, 951 F.2d 977, 981 (9th Cir. 1991);
Skydiving Center v. St. Mary’s (~ _t’y: Airport Com’n., 823 F.Supp..1273, 1282 (D. Md. 1993).
Congress has enacted a number of statutes which regulate aviation activities. Court
decisions have reviewed and cited the following Federal statutes in the context of determining.
wh~ther Federal preemption exists as a result of the statute:
23
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 4
(1) The Federal Aviation Act contains comprehensive provisions authorizing the
federal regulation of aviation for safety purposes. Particularly significant are those provisions of
the Act governing the use of navigable airnpaee and the operation of aircraft over the United
States. Section 40103 provides that the U.S. has exclusive sovereignty over U.S. airspace and
the FA.A is authorized to and has promulgated extensive policies and regulation:, over such use.
(2) The ADA emends somewhat the scope of Federal preemption. Section
41713(b)(1)2 provides that state and local authorities "may not exact or enforce a law, regulation
or other provision having the force or effect of law relating to a price, route or service of an air
carrier." The Supreme Court has ruled that the purpose of this preemption provision is to prevent
the states from undoing Federal deregulation by regulating prices, routes or services. Morales V.
Trans World Airlines, ~[ne., 504 U.S. 374, 378-379, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); ~
Transport v. Ci_ry and County of San Francisco, 992 F.Supp. 1149, 1181 (’N.D. Cal. 1998).
(3) The Noise Control Act authorizes the FAA in conjunction with the Environmental
Protection Agency to promulgate regulations to control and abate aircraft noise and sonic boom.
B. Th,..";oprietor’s Authori _ty to Regulate.
Despite what appears to be the increasing reach of Federal statutory preemption, court
¯ decisions have carved out an exception to the preemption doctrine as it applies to the operation of
airports. They have established the rule that the airport proprietor has authority as a result of its
ownership of the airport to adopt airport noise and other regulations based on the governmental
entity’s legitimate interest in avoiding liability for excessive noise generated by airports owned
by them, Alaska Airline~,...hac., ut.~p.~, 951 F.2d at 982, in that it is the airport proprietor rather
than the Federal government or the airlines who is liable for noise damages. Griggs v. Allegheny
The ADA’s preemption provision (49 U.S.C. § 1305) was recodified in 1994 as
49 U.S~C. 41713(b)(1). 24
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 5
.C¢..O._.~, 369 U.S. 84, 88-90, 82 S.Ct. 531,533,534 and 7 L.Ed.2d 585 (1962)5 ("Proprietor
Exception").
The proprietor’s authority has been recognized and eonfwmed by Congress in several
statutes including the Aviation Safety and Noise Abatement Act of 1979 and the ADA which
specifically exempts from its preemption provisions state and local governments that own or
operate airports when they are "carrying out [their] proprietary powers and rights". ADA §
41713(b)(3). The legislative history of the ADA also indicates that its preemption provision
"should not be construed to affect or limit existing proprietary rights of airport operators to
manage, operate or regulate airports." S. Rep. No. 631, 95th Congress, 2d Sess. 39, 99 (1978).
Comments and the legislative history further referred to "normal proprietary functions.., such
as the establishment of curfews and landing fees which are consistent with other requirements of
Federal law". 123 Cong. Ree. 30, 595-96 (September 23, 1977).
Moreover, "federal courts have recognized federal preemption over the regulation ~,f
aircraft and airspace, subject to the complementary~ though more limited, role for local airport
proprietors in regulating noise levels at their airports.". National Helicopter Corp. of America v.
Ci_ty of New York, 137 F.3d 81, 88 (2rid Cir. 1988), quoting Ci_ry and CourlW of.San Francisco v.
FAA, 942 F.2a 1391, 1394 (9th Cir. 1991). "Under this plan of divided authority, ,; u,,¢e held
that the Proprietor Exee,,do, allows municipalities to promt’lgate ’reasonable, non~rbitrmy, and
nondiscriminatory regulations of noise and other environmental e6neems at the local level.’" Id.
The majority of cases in this area deal with a state or municipality that is not a
proprietor attempting to regulate aviation in its vieirdty by exercising its police power. American
Airlines v. 17i _ty of Audubon Park, 407 F.2d 1306 (6th Cir. 1969); American Airline~, Inc. v.
Town of Hemstead, 398 F.2d 369 (2nd Cir. 1968); Allegheny Airlines v. Village..of Cedarhurst, "
238 F.2d 812 (2nd Cir. 1956); Gustafsola v. Ci_ty of Los Angeles, 856 F.Supp. 320 (E.D. Mich.
1993); Command Helicopters, hae. v. City_ of Chicago, 691F.Supp. 1148 (’N.D.Ill. 1988). See
also Burbank v. Lockheed ~dr Terminal, 411 U.S. 624, 36 LEd. 547, 93 S.Ct. 1854 (1973), in
which the court distingui’shed between the exercise of such police power and the exercise of
proprietary power by a government body which owned and operated the airport in quest.ion. In
that ease, the airport was owned by a private corporation and the City of Burbank was attempting
to utilize its police power to impose the regulation. The City of San Francisco, however,
possesses all the requisite authority under the Proprietor Exception, even though the airport lies
outside the City’s boundaries. Air Cal. Inc. v. City_ a~d County_ of San Francisco,.865 F.2d 1112,
1117 (9th Cir. 1989); AiI_T3;tgl~p_~, £t!p.l~ 992 F.Supp. at 1159.
Mr. Kenneth Dickerson
Office of the City Attorney
City of Poster City
August 18, 1998
Page 6
Thus the scope of the Proprietor Exception itself is potentially broader than liability and
derivative financial concerns. "The [proprietor] should be allowed t~’ define the threshold of its
liability, and to enact noise ordinances under the municipal-Proprietor Exception if it has a
rational belief that the ordinance will reduce the possibility of liability or enhance the quali _ty of
the Ci _ty’s human environment." Alaska Airlines. Inc. v. Ci_ty of Long Beach, fgp..L.a, 951 F.2d at
982, quoting Santa Moniea Airport As~oeliatiOla v. City_ of Santa Moniea, 659 F.2d 100, 104, n. 5
(9th Cir. 1981) [emphasis added]. "Under this cooperative scheme, Congress has conscientiously
delegated to state and municipal proprietors the authority to adopt rational regulations with
respect to the permissible levels of noise created by aircraft using their airports in order to protect
the local population." National Helicopter Corp_. of America, ffl~p_.~, 137 F.3d at 88.
Current case law demonstrates that airport proprietors have properly exereisrd their
proprietary powers when they have issued noise regulations, restricted access based on airport
capacity and have imposed perimeter rules that redirect long-,haul carriers to other airports.
Western Airlines v, Port Authori _t3, ofN.Y: an....d N.J,, 658 F.Supp. 952, 956-57 (S,D. N.Y. 1986),
affanned 817 F.2d 222 (2rid Cir. 1987); Santa Moniea Airport Association v. Ci_ty of Santa
Moniea, u~..~p..~; Alaska Airlines. Inc. v. Ci_ry of Loqg Beach, ~ (court approved of
proprietor’s limitation of the daily number of air carrier flights at the airport). In a recent Second
Circuit decision, the ec ... t ~:;" held the airport (b*liport) proprietor’s imposition of a curfew a
,"haseout pit- for weekend fligitts and a 47% reduction of the total number of flights from tile
heliport. National Helicopter Corp. of America, ~ 137 F.3d at 89-90. The courts have also
¯ ruled that the airport Proprietor Exception covers the construction and placement ofnmways.
City of Cleveland. Ohio v. Ciw of Brook Park. Ohio, 893 F.Supp. 742, 750 (N.D. Ohio 1995).
Finally, a very recent decision held that a San Francisco ordinance which prohibited the City
from contracting with companies whose employee benefit plans diserirninated between
employees with spouses and employees with domestic partners was only preempted by the ADA
insofar as that ordinance, as applied, created coercive economic incentives for air carriers to alter
their routes. Airport Transport v. City and Cour~ _ty of San Francisco, t!!P.La, 992 F.Supp. 1149.
Thus, it is clear that the airport proprietor does have.the authority to take a wide variety of
actions for noise abatement or other legitimate purposes, subject to the limitations set forth
below.
C. Limitations on the Soothe of the Proprietor’s Authori~ tO Regulate.
Notwithstanding its apparent broad.scope, the Proprietor Exception itself is subject to
limitations. The first category of limitations contains those arising principally out of case law.
26
Mr. Kenneth Dickerson
Office of the City Attome.v
City of Foster City
August 18, 1998
Page 7
The second category contains those arising principally from statutes, notably A.NCA, which
imposed additional procedural limitations, as well as extending the existing substantive
limitations.
1.Traditional Limitatiorls.
The courts have consistently upheld five limitations on the Proprietor’s right to regulate:
a.The airport proprietor may not regulate aircraft noise in an
arbitrary or unreasonable manner. British Airways Board g.....P0rt Authori~ 0fNew York, 558
F.2d 75 (2nd Cir. 1977) ("Concorde I"); British Airways Board v. Port of Au~h0rity, 564 F.2d
1002 (2nd Cir. 1977) ("Concorde II’).
b.The airport proprietoi may not unfairly discriminate between types
and classes of aircraft in formulating noise or other regulations. Ci_ty and Coun _ty of San
Francisco v. FAA, uLc.p_rg, 942 F.2d at 1397-98 (in which the court held that the City of San
Francisco’s refusal to allow a retrofitted Q707 aircraft into its airportconstituted unjust
discrimination as other noisier aircraft were being allowed to" fly to the airport).
c.The airport proprietor may not operate in such a~,,~ as to impose
an undue burden on interstate commerce. Alaska Airlines. Inc. v. Ci~ of Long Beach, su_.c.p_~,
951 F.2d at 983; National Helicopter Corp. of America, u~ 137 F.3d at 92.
d.The airport proprietor may not regulate in a way that would
conflict with or interfere with Federal regulations regarding aircraft safety and airspace use and
efficiency. National Helicopter Corp_. of America, ~ 137 F.3d at 92.
e.An airport proprietor who is the recipient of Federal Airport
Improvement Grants under the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et.
ef~l., may not create an exclusive right for the use of the airport and must make the airport
available for public use on fair and reasonable terms and without unjust discrimination. This
statute has been held as not to constitute a general preemption against the airport proprietor since
the statute merely governs ~he process by which the proprietor of the airport can obtain Federal
funding. City of Cleveland, Ohio v. ~:i _ty of Brook Park. Ohio, ~ 893 F.Supp. at 748.
However, the airport proprietor is required to enter into assurances in order to obtain the Federal
grants and cannot regulate contrary to those assurances. City and County of San Francisco v.
FAA, uf.qp,~ 942 F.2d at 1395-96.27
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 8
2.Recent Statutory_ LiMitations.
ANCA and its implementing regulation, FAR Part 16i, imposed new restrictions on the
airport proprietor’s authority to take noise abatement actions. ANCA’s restricticns are largely
procedural. No specific mitigation measure is prohibited as long as proper procedures are
followed, including, in some instances, submission to the FAA for final discretionary approval.
Subpart D of Part 1614 imposes specific notice and FAA review and approval
requirements on an airport proprietor who is imposing noise or access restrictions on Stage 3
aircraft.5 First, the airport proprietor must provide public notice and an oppormni. "ty to comment
on the noise or access measure. Pans 161.30~-~07. Further, detalledeeonomic and
environmental analysis of the noise or access restriction must be submitted to the FA.A for its
review. Part 161.305. The FA_A will approve or disapprove the measure dependent upon
whether the airport proprietor can show compliance with the above statutory requirements. Part
161.307. Finally, AN’CA provides that the Federal government shall assume liability for noise
damages upon disapproval of a proposed aircraft aoise or access restriction but "only to the
extent that a taking has occurred as a direct result of such disapproval". A.NCA § 9306.
Subpart C covers the imposition by an airport proprietor of a noise or access
restriction on Stage 2 aircraft. It requires the airport proprietor to comply with notice
requirements similar to those contained in Subpart D except that FAA approval of noise or
access restrictions for Stage 2 aircraft is not required.
ANCA’s implementing regulations also include FAR Parts 91.851-875, which
regulate the phase-out of Stage 2 aircraft. The two categories of aircraft are the only ones
governed by ANCA and are defined in FAR Part 161 as aircraft that have’ been shown "to
comply with the Stage 2 [or Stage 3] requirements under 14 C.F.R. Part 36." ~]~P_.~IL,I_~]~. In
practical terms, Stage 2 aircraft are generally older and usually noisier than Stage 3 aircraft. It is
for that reason that ~ provides for a gradual phase-out of Stage 2 aircraft to be generally
completed by the end of 1999. FAR p~rt 91.853. Part 161 is the more relevant regulation for the
purposes of this Opinion. 28
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 9
THE PROPRIETOR’S AUTHOKITY TO IMPLEMENT AND ENFORCE NOISE
ABATEMENT PROCEDURB. S NOT SUBJECTTO ANCA.
Part 161.7(a) provides that "operationalprocedures that must be submitted for adoption
by the FAA, such as preferential rtmway use, noise abatement approach and departure procedures
and profiles, and flight tracks are not subject to this Part." "Noise abatement approach and
¯ departure procedures’"are defined as including "runway selection, takeoff and landing profiles
and power settings, and approach or departure paths." FAA Adviso~ Circular ("A¢") 150/5020-
1. ¶ 322. Based on that definition, both the sidestep ILS approach procedure and the selective
use of Runway 28-R for night operations fall within the definition of"noise abatement approach
procedures" or profiles. More specifically,, the use of Runway 28-Ris a ’’Noise Abatement
Runway Selection Plan" ("Preferential Runway Use"), FAA Order 8400.9, National ~afeW and
Operational criteria for Runway Use Pro_re’am, § 5 [defn’dng a runway use program as "a noise
abatement runway selection plan designed to enhance noise abatement efforts with regard to
airport communities for arriving and departing aircraft"] ("Order 8400.9"). Part 161.301(b)
provides that Subpart D [regulating noise and access of Stage 3 aircraft] does not apply to an
airport imposing a Stage 3 aircraft restriction specifically exempted in Section 161.7(a)?
Therefore, Par~ ]61 does m,, apply to the ILS and selective use of Runway 28 at iss.. h,.,,:.
Nevertheless, the FAA must approve the specified operational procedures. A¢ 150/5020-
¯ 1. ¶ 322. However, the FAA has already gone on record that under certain circumstances the
selection of a specific nmway for arrivals and departures is an appropriate noise abatement
measure. With respect to selection of Runway 28-R, the criteria and procedures for adopting a
preferential runway use are contained in Order 8400.9. What is important here is that FA.A
regulations provide for implementation and enforcement of a Preferential Runway Use on a
mandatory_ as well as voluntary basis. Order 8400.9. ¶
A. The Airport Proprietor’s Aut-hofi _tY to Negotiate and Enforce Mandatory
A~eements to preferential Runway U~e.
Mandatory implementation and enforcement occurs under a "Formal Runway Use
Program", Order 8400.9, ¶ 51’b). A Formal Runway Use Program is defined as "an approved
Nor does Section 161.7(a) apply to an agreement adopted pursuant to Subpart B.
29
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 10
noise abatement program which is defined and acknowledged in a letter of understanding
between Flight Standards, Air Traffic Service, and the airport propfie*or and the users". ~
8400.9. ¶ 5..0~. Paragraph 5(b) further provides that "once established, participation in the
program is mandato _ry for aircraft operators and pilots as provided for in FAR Part 91.87".7 FAR
Part 91.1290a) states, in pertinent part: "Where a formal nmway use program has been
established by the FA.A, each pilot 0fa large or turbine-powered airplane assigned a noise
abatement runway by ATC must use that nmway." [Emphasis added.]8
B. The Airport ProDrietor’.~ Authority. to Negotiate and Enforce Non~Mandato _ry
A_m’eements to Preferential Ruoway. Use.
Order 8400.9 also provides for the memorialization of preferential runway use in
"Informal Runway Use Programs." An Informal Runway Use Program does not require a letter
of understanding and participation by the aircraft operators and pilots and is on avoltmtary basis.
Order 8400.9. ¶ 5(C). It is our understanding that most, if not all, of the preferential nmway use
programs adopted in the FAA Western Pacific Region are informal programs. Because they are
not mandatory, they provide a lesser degree of protection. They are also, obviously, less difficult
to negotiate and implen..at.
Finally, while the FAA must approve noise abatement takeoff and approach procedures
¯ before they can be implemented by the airport proprietor, the FA.A has gone on record as
acknowledging generally that within these categories there is a "significant range of acceptable
options [which] may well offer significant relief to the airport’s noise impact problems,
especially when linked with a_nprop!58t~...landing and takeoff profiles and approach-departure
~." AC150/5020-1, ¶ 322. [Emphasis added.] This is prex:isely what the offset ILS is
proposed to do. Therefore, AC150/5020-’1 offers a strong indication that procedures such as the
proposed offset ILS, when used appropriately~ will not meet obstacles to approval at the FAA.
FAR Part.~9.l.87 was renumbered in 1993 as FAR Part 91.129.
However, "consistent with the final authority of the pilot in command concerning
the safe operation of the aircraft as described in Section 91.3(a), ATC [Air Traffic Control] may
assign a different runway if requested by the pilot in the. interests of safety." FAR Part
91.129Ch). 30
Mr. Kermeth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 11
THE PROPRIETOR’S AUTHORITY TO IMPLEMENT NOISE ABATEMENT
PROCEDURES SUBJECT TO ANCA.
If, for argument’s sake, noise abatement approach procedures were subject to ANCA, the
airport proprietor would arguably have even greater authority to enter into enf0reeable
agreements with airport tenants.
A. The Aim_on Proprietor’s Exclusive Authori _ty to Initiate and Apply for Stage 3
RestrietiQns.
Despite seemingly onerous procedural requirements for approval of noise and access
restrictions, proprietors maintain a pivotal role in initiating noise and access restrictions under
ANCA. Pursuant to Part 161, it is "airport operators" who have the authority to propose or
implement Stage 2 and Stage 3 aircraft noise and access restrictions. Part 161,303.- An "airport
operator" is defined as the "airport proprietor". Part 161.5. In fact, the airport proprietor is the
~ party who can impose noise or access restrictions pursuant to Part 161.301(e).
B.The Airport Proprietor’s Exclusive Authori _ty to Negotiate Enforceable
¯ A_m’eements.
Moreover, Subpart B of Part 161 allows the airport proprietor to enforce regulation of
existing noise and access in an additional way. The airport proprietor may enter into enforceable
agreements with existing aircraft operators and new entrants to implement specified noise and
access restrictions, part 161.10(b) ("Subpart B Agreement"). To doso, the airport proprietor
must comply with specified notice requirements, part 161.103. However, a Subpart B
agreement does not need FAA approval as long as the notice requirements are complied with,
part 161.107(b), and the agreement is signed by the airport proprietor and all aircraft operators
and new entrants, ~Pcart 161.107(e), who have submitted certain required information to the
proprietor. Part 161.105.
Finally, Subpart B allows an airport proprietor, outside the strictures of ANCA, to enter
into an agreement with less than all existing aircraft operators and new entrants, as long as the
airport proprietor does not attempt to enforce that agreement against a party who has not signed
it. p~art 161.101(d). Thus, despite its broad scope, ANCA leaves the door open for an airport
31
Mr. Kenneth Dickerson
Office of the City Attorney
City of Foster City
August 18, 1998
Page 12
proprieto.r to by-pass ANCA, and enter into enforceable "extra regulatory" agreements with
aircraft operators as long as enforcement is consensual.
V.CONCLUSION.
Fedoral preemption is a fact of life in airport operation. Howev~’, preemption by no
means divests the airport proprietor of its prerogatives with respect to noise mitigation. Indeed,
the recognized scope of preemption, while explicitly encompassing rates, routes and charges of
air carders, just as explicitly accommodates noise and access restrictions developed and/or
negotiated by the airport proprietor which are subgtantively reasonable and procedurally correct.
While the airport proprietor does not have the final authority to adopt such measures, the
proprietor does have a pivotal role in their imposition by the FA.A. It is theairport proprietor
who must prepare and justify a request for preferential runway use and special approach
procedures as noise abatement measures. For ex,~,aple, Order 8400.9, paragraph 3c, id~ntifies
"airport proprietors as responsible for taking the lead in local aviation noise control plans". The
Order goes on to p:’. :.de that the airport proprietor may propose specific noise abatement
measures to the FAX. ,t is our uridorstanding that "~’-. FAA, as a matter of Informal pracL~ce~ will
only change approach or departure procedures for noise abatement purposes (as opposed to
. safety purposes) whore requested by the airport oporator. In the case of a new ILS procedure for
noise abatement purposes, the airport proprietor must as a practical matter propose the approach
procedure to the FAA and justify its adoption.
Even more fundamentally, it is the airport proprietor who possesses the authority, at the
local level, to entor into mandatory enforceable negotiated agreements to implement noise
abatement take..offand approach procedures. It is our opinion that the offset ILS and selective
use of runway 28-R for night approaches, the subjects of this opinion, fall within the purview of
Order 8400.9(b) and AC150/5020-1. ¶ 322, mandating their enforcement by agreement between
the airport proprietor, and aircraft operators and the FAA, outside ANCA. And even if such
procedures wore construed to fall within ANCA, the airport proprietor would then possess even
greater authority. In the latter ease, the airport proprietor need not even obtain FAA approval,
but may negotiate and enter into emCoreeable agreements with the aircraft operators pursuant only
to the procedural rexluirements of Part 161, Subpart B.
Mr. Kenneth Dickerson.
Office of the City Attorney
City of Foster City
August 18, 1998
Page 13
Finally, if the airport proprietor chooses not to proceed under either ofthe above sections,
.it still possesses the exclusive power to negotiate a voluntary agreement between the airport and
aircraft operators that neither requires FAA appro~,al nor runs the gauntlet ofANCA Subpart B
strictures. (Order 8z~00:9. ¶ 5(e); p...~rt 161.101(d))
In summary, while the scope of airport proprietor prerogative has been narrowed in recent
years where the regulation of Stage 3 airera~ is concerned, and while the FAA may, under some
circumstances outlined above, have final approval authority of noise and access agreements and
other regulations affecting Stage 3 aircraft, it is the airport proprietors who, in the last analysis,
possess the sole authority to propose, negotiate and implement reasonable,- non-discriminatory " "
noise and access regulations at the airports of America.
From the above discussion, it is evident that there are a number of other possible noise
abatement measures in addition to the use of Runway 28-R and the offset ILS approach
procedure for that runway which could be pursued by San Francisco International Airport. While
detailed review of such additional measures is beyond the scope of this opinion, we are able to
provide you with further guidance if requested. If you have any questions concerning the matters
contained in this opinion, please feel free to contact us.
Sincerely,
CHEVALIER, ALLEN & LICHMAN, LLP
Barbara E. Lichman, Ph.D.
JOHN L. MARTIN/Uq~Orl Dtreaor
San Francisco International Airport
G~I"~NAY TO THE P#,CIFIC
AIRPORT/COMMUNITY ROUNDTABLE
350 Harbor Way
South San Francisco, CA 94080
Attention: Patrick Kelly, Chairman
ATTACHMENT D
RECEIVED
OCT 2 3 EHI’i)
A/C ROUNDTABLE
October 20, 1998
Dear Airport/Community Roundtable Members:
As I indicated in the October Roundtable meeting, the A~ort is substantially in
agreement with the letter prepared by the Foster City Attorney regarding noise
issues. For your reference, I have attached a letter prepared by Harold McE1hinny
of Morrison and Foerster, who represents the Airport on noise matters.
I remain committed to using all legal power available to me in the development and
enforcement of noise regulations. However, as Foster City’s outside counsel noted,
I must obtain the consent of the airlines and the express approval of the FAA in
order to regulate aircraft noise or to otherwise a~ect aircraft flights. I do not have
unilateral authority to establish noise abatement regulations. I believe that the
Airport and Roundtable working together to approach the FAA and the airlines on
noise issues is the right approach. By way of example, we are working on a
cooperative basis with all parties on studying a possible off-set ILS which could
reduce the noise impact in Foster City.
The Roundtable has historically been an effective forum because all communities
have worked together with the Airport, the FAA and the airlines toward-a common
goal. I am concerned that having individual cities hire outside law firms and
consultants to address their own noise issues may promote solutions that wiltharm
other communities and possibly create schisms within the Roundtable. I am
confident that this is not the case with Foster City’s hiring of outside counsel.
However, I believe it would be more effective for the entire Roundtable to continue
to work with the Airport to obtain the outside expertise that is needed.
Attachment
35
Very~
/~.~i.y yOLIrS’
L. Martin
I~OKKISON & FOEKSTER ~
SAN FRAN~.
October 13, 1998
RECEIVED
~ohn Martin
Director of Airport
San Francisco In~onal AL’~rt
P.O. Box 8097
San Francis~, California 94128
DIRECTOR’S OFFICE
ATTACHMENT E
WA.~’,IINGTO~ D.~.
HONG ~G
Wrist’s ~ Dial Number
(415) 268-7265
Re: CCSF- City of Foster City
De, at John:
Thank you for sending me a copy of Barbara Lichman’s letter of August 18,
1998 and asking for my comments. As you know, I have r~pre, sented San Francisco
International Aixport on noise issues since 1981. I have personally supervised the
litigation of many of the cases Ms. Lichman cites in h~r memorandum. Under the
dir~tion of the Airport Commission, we have successfully made SFIA America’s most
aggressive major airport on noise regulation issues.
As Ms. Lichman candidly notes, her lettciis largely a theoretical discussion of
the doctrine of preemption. She does not cite any examples of mitigation mcasm’es that
have not been considered by SFIA. As such, we generally agree with each of her
conclusions.
I) We arc well aware of Part i 6 I. AS you know, SFIA has recently submitted a
proposed curfew extension to the FAA pursuant to Part 16 I. When it is granted, SFIA
will be the fu’st airport in the country to have successfully completed the extremely
onerous Part 161 process.
2) By defmition, federal preemption means that an ah-port operator cannot act
independently in an area, but re, quires the express approval of the FAA. We agree with
Ms. Lichrnan that federal law preempts local controls over operational proce~ures~ and
that such procedures must be submitted to the FAA for review and approval.
37
sf-584~07
John Martin
October 13, 1998
Page Two
3) Iris, of course, obvious that if the airlines agr-~.to implement any noise
mitigation procedure, they have the power to instruct their pilots to put it into effect. It
is equally obvious that anyone, including the Airport, can "negotiate" with the airlines
for almost anything. Wha~ follows, however, is that airlines’ consent is required.
Although Ms. Lichman does not mention it, you are well aware that the SFIA Use and
Lease agreement contains provisions that require the Airport to obtain almost
unanimous airline consent to lease revisions.
4) Part 161 does provide for the enforcemem of agreements to which the
Airport, the FAA and the airlines have all agreed. I am not currently aware that any
such agreement has ever been negotiated by any airport. As you know, the P, ound Table
has had some suew.ess in engaging the airlines in constructive negotiations.
5) Ms. Lichman’s final conclusion, of course, d~scribes the activities of the
Round Table, and SFIA’s role in formally presenting to the FAA proposals that have.
won the support of all affected cities.
I would like to note that we had a very pleasant meeting with Ms. Lichman and
with Kenneth Dickerson. During the meeting, we reim’atezi that the Airport consistently
addresses noise issues through the Round Table, and thatwe were not pr~ to
discuss in a separate meeting what they described as Foster City’s ’Mnique" problems.
We expressed our willingness to consider, and to present to the Round Table, any
specific mitigation measures that they feel we have overlooked.
Yours truly,
Harold .L McElkinny