Captain Errol Forman v. Palm Beach County, Florida et al. - No. 16-17-13
Author:
D. Kirk Shaffer, Associate Administrator for Airports
Complainant(s):
Captain Errol FormanRespondent(s):
Palm Beach County, Florida; Palm Beach County Board of County CommissionersAirport(s):
Palm Beach County Park Airport (Lantana/LNA)
History:
Director’s Determination (2/22/19)
Holding:
Affirmed Violation of 49 U.S.C. § 47107(a) and Grant Assurance 22, Economic Nondiscrimination; Modifying Corrective Action Plan Ordered.Abstract:
Complainant, Errol Forman, alleged that Respondent violated Grant Assurance 22, Economic Nondiscrimination, by denying him access in his twin-engine, turbofan Cessna Citation to LNA, and that a jet ban policy at LNA was not grandfathered under the Airport Noise and Capacity Act of 1990 (“ANCA”). (Director’s Determination, p. 1.) More particularly, Complainant contended that the County violated 49 U.S.C. § 47107(a)(1) and Grant Assurance 22(a) by refusing to make LNA available to a class of aeronautical users. (Director’s Determination, p. 14.) He further alleged that the County’s laws only excluded pure turbo jet aircraft, but that the County unlawfully excluded turbofan aircraft like his and threatened him with a fine and/or jail time. (Director’s Determination, p. 14.) Complainant further asserted that the record demonstrated that Palm Beach County had unjustly singled out jets upon concerns for noise when those concerns had not been documented or scientifically demonstrated. (Director’s Determination, p. 14.)
The County, in opposition, argued that the Complainant was asking the FAA to “go well beyond its Part 16 jurisdiction” by: (1) launching an impermissible collateral attack on the County’s long-held interpretation and enforcement of the jet restriction; and (2) seeking a ruling that the jet ban was not grandfathered under the ANCA. (Director’s Determination, p. 1.) The County further argued that the FAA itself implicitly approved at least partial restrictions based on safety and efficiency. (Director’s Determination, pp. 14-15.)
The Director rejected “the County’s limited view of the FAA’s authority,” however, noting that the “Federal government’s authority preempts the County’s code in areas of airspace use and management, air traffic control, safety, and the regulation of aircraft noise at its source.” (Director’s Determination, p. 15.) The right of a municipal airport proprietor to control noise at local airports, the Director continued, is “unmistakably limit[ed]” by ANCA, unless covered by grandfather rights, “which, like in similar cases considered by the agency, ‘do not exist,’ and consequently the procedural requirements of ANCA are ‘mandatory and comprehensive.’” (Director’s Determination, p. 13.) Local ordinances not enacted in compliance with ANCA’s procedural requirements are “federally preempted” and “any actions taken in violation of legal mandates [i.e., such as ANCA’s] are, by their nature, unreasonable and arbitrary.” (Director’s Determination, p. 15.) Thus, the Director reasoned, “if enacted for purposes of limiting noise, all noise and access restrictions (unless grandfathered) that do not comply with ANCA’s procedural requirements constitute a violation per se of Grant Assurance 22.” (Director’s Determination, p. 15.)
Additionally, the Director agreed with the Complainant about the relevance of the decision of Aircraft Owners and Pilots Ass’n v. City of Pompano, Florida, FAA Docket 16-04-01 (2005), to his case. In that case, the FAA found that various safety and efficiency restrictions on operations lacked justification and support. (Director’s Determination, p. 15.) In that vein, the Director noted that the County had not defended the necessity of the jet ban on specifically identified and documented noise, safety, and efficiency concerns. (Director’s Determination, p. 15.) “Nor does the County provide justification why the ban is in the best interest of civil aviation or any evidence that LNA’s runway strength would not support aircraft above 12,500 pounds.” (Director’s Determination, p. 15.) “Rather, the County argued that the ban had been in place since 1973 and should be allowed to stand without providing evidence that a noise problem exists that cannot be mitigated through voluntary measures.” (Director’s Determination, pp. 15-16.)
The Director thus found that the County, by restricting aeronautical activities on the basis of safety and efficiency (or for any other purpose) without adequate FAA-approved justification, imposed unreasonable terms and conditions upon the aeronautical users affected by the restrictions. (Director’s Determination, p. 16.) The County had not conducted any analysis to determine if the jet aircraft ban was justified, or continued to be justified, or whether it denied access to aircraft with an unjustly discriminatory effect. (Director’s Determination, p. 16.)
In fact, the Director reasoned that the County’s jet restriction was unjustly discriminatory because it allowed aircraft equally noisy or noisier than the aircraft restricted from operating at the airport. (Director’s Determination, p. 16, citing Santa Monica Airport Ass’n v. City of Santa Monica, 481 F. Supp. 927 (C.D. Cal. 1979).) Moreover, the Director continued, “even if the ban could somehow be justified, as written it appears to be misunderstood and potentially misapplied, and this creates an inherent unjust discriminatory framework, which the County appears to exploit.” (Director’s Determination, p. 16.) That is, while the ban referred to “pure turbo jet,” the Complainant’s aircraft was a turbo-fan aircraft, which is a distinct and recognized technical classification. (Director’s Determination, p. 16.) The County applied its restriction on pure turbo-jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations to all jet aircraft seeking access to LNA. (Director’s Determination, p. 17.) In enforcing the ban against the Complainant’s type of aircraft, which was not a pure turbo jet, the County was not complying with the actual language in the ban itself, and, in doing so, created an added layer of unjust discrimination. (Director’s Determination, p. 17.)
In all, the Director found that the County had not presented a persuasive argument or any evidence that its restriction on jet aircraft was reasonable. (Director’s Determination, p. 17.) The ban was applied to all jet aircraft wanting to access LNA, no matter the weight or purpose—a ban that did not comply with the requirement of 49 U.S.C. § 47107(a) and Grant Assurance 22 requiring an airport sponsor to provide reasonable access without unjust discrimination. (Director’s Determination, p. 17.) As such, the Director agreed with the County that it be given an opportunity to engage in a “measured approach” to include a comprehensive noise and operational impact analysis to determine whether modifications to the jet restrictions were appropriate in the circumstances. (Director’s Determination, p. 17.)
Appeal: ANCA and Grant Assurance 22
On appeal, the County raised three issues. First, it alleged that the Director “had no jurisdiction to consider ANCA issues” in a Part 16 proceeding and that, even if the Director was vested with jurisdiction extended to ANCA, the Director erroneously found that the jet restriction was not grandfathered. (Final Agency Decision, p. 4.) The Associate Administrator rejected both contentions as the Director did not assert jurisdiction on the basis of ANCA, but rather the case involved an alleged violation of the grant assurances, triggering jurisdiction under 14 C.F.R. §16.1(a)(5). Additionally, the Associate Administrator concluded that the Director properly considered whether the restriction was grandfathered under ANCA because relevant case law has held that “actions taken in violation of [ANCA’s] legal mandates are, by their nature, unreasonable.” (Final Agency Decision, pp. 4-5.) (citing Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 153 (2d Cir. 2016) (emphasis added).)
The Associate Administrator also affirmed the Director’s finding, on the basis of a county ordinance that superseded and repealed all airport regulations, that no grandfather rights existed at the airport. The County argued (without authority) that no restriction was “in effect” within a time period relevant to the case; stated otherwise, the County argued that the term “in effect” was not limited to any particular legislative or administrative vehicle, but, essentially, focused on the past practices of the parties. (Final Agency Decision, p. 6.) According to the Associate Administrator, however, the Director clearly documented the ANCA grandfathering consideration, which was rescinded by local ordinance. (Final Agency Decision, p. 6.) What is more, a subsequent Interlocal Agreement that was post-ANCA did not establish grandfather rights as they were “simply guidelines.” (Final Agency Decision, p. 6.) Finally, the Director’s Determination was supported by ANCA itself and the specific conditions that must be satisfied under 49 U.S.C. § 47524(c).
Reconsideration of Previous FAA Actions
The County next took the position that the Director “not only revisit[ed] but reverse[d] the FAA’s prior determinations finding that the jet restriction is reasonable” and did so without support of a preponderance of reliable, probative, and substantial evidence contained in the record. The County further objected to the Director’s decision because the “restriction … had previously been expressly approved by FAA, and that FAA supported the … restriction … for over forty years.” (Final Agency Decision, p. 7.) The Associate Administrator found no error, noting that “a review of the Director’s Determination showed that previous FAA actions were discussed. The Director properly determined whether prior FAA actions were formal or informal and whether they were based on a complete record. The Director did not ignore previous FAA actions and explained the outcome based on a detailed review of the record. The Director recognized that FAA did informally opine on the restriction in the past but found that none of these opinions analyzed the issue in a comprehensive, binding, or final manner.” (Final Agency Decision, p. 7.)
Grant Assurance 22
Finally, the County asserted on appeal that the Director made “no effort to assess whether the jet restriction is justified in light of airspace, safety, efficiency, noise, national security, or any other previously legitimate and accepted concern.” (Final Agency Decision, p. 8.) The Associate Administrator rejected each of these contentions, writing: “[a]lthough the County speculates extensively over the ‘potential’ impacts of rescinding the restriction, the Associate Administrator finds no valid justification, either noise, weight, type of operations, safety or efficiency, environmental justification or otherwise for continuing to restrict operations at [the airport]. The fact that the County asks that the impacts of rescinding the restriction be studied by the FAA before requiring the County to take action illustrates the lack of justification for the restriction in the first place.” (Final Agency Decision, p. 15.) Therefore, based on the extensive evaluation of each of these contentions and analysis and the evidence provided in the administrative record, the Associate Administrator found that the Director did not err in finding the restriction in violation of Grant Assurance 22 and that, except for the time requirement for the submission of the Corrective Action Plan, the Order was appropriate. (Final Agency Decision, p. 15.)
The Associate Director also required the County to submit a detailed Corrective Action Plan whereby the County, subject to FAA approval, would permit immediate access by Complainant and other aircraft capable of utilizing the airport’s runways, infrastructure, and facilities; additionally, the County would provide a long-term, formal, and legal commitment to rescind and not enforce the restriction. (Final Agency Decision, p. 15.)
Petition to Eleventh Circuit Court of Appeals
As it had throughout the administrative proceedings, the County continued to contend that the FAA exceeded its authority under Part 16 by considering ANCA issues when analyzing Forman’s complaint. It also contended that the Associate Administrator’s conclusion, that Lantana Airport’s jet restriction was not grandfathered under ANCA, was arbitrary, capricious, unsupported by substantial evidence, and not in accordance with the law. However, the Eleventh Circuit Court of Appeals rejected each of these arguments in Palm Beach County v. Federal Aviation Admin., 53 F. 4th 1318 (11th Cir. 2022) (holding that the FAA did not exceed its authority by considering ANCA issues as part of a Part 16 proceeding, County’s jet restriction was not grandfathered under ANCA, and FAA’s determination was not arbitrary, capricious, or unsupported by substantial evidence).