Kenneth D. Paskar and Friends of LaGuardia Airport, Inc. v. The Port Authority of New York and New Jersey, an Interstate Compact Agency Pursuant to Article I, Section 6 of the U.S. Constitution – No. 16-11-04
FAA Docket No:
FAA Docket No. 16-11-04
Complainant(s):
Kenneth D. Paskar, Friends of LaGuardia Airport, Inc.Respondent(s):
The Port Authority of New York and New JerseyAirport(s):
LaGuardia Airport (LGA)
History:
See also Director's Determination dated 9/27/12.
Holding:
Affirming Director’s Determination (dismissing complaint).Abstract:
Complainants alleged that the Port Authority of New York and New Jersey violated its grant assurances by failing to stop the construction of the North Shore Marine Transfer Stations in College Point (“NSMTS”), New York, near LaGuardia Airport. The Complainants specifically alleged that the Respondent failed to maintain and operate the airport in a safe and serviceable condition, failed to prevent the establishment of a hazard adjacent to the airport, failed to prevent the establishment of an incompatible land use adjacent to the airport, and that it did not comply with FAA policies, standards, and specifications.
The Director’s Determination evaluated two issues: (1) whether the Respondent’s alleged failure to prevent the construction of the NSMTS at its proposed location constituted a violation of Grant Assurances 19, 20, 21, and 34; and (2) whether the Respondent’s alleged failure to follow the recommendation contained in an FAA/USDA panel report, with regard to the NSMTS facility, constituted a violation of Grant Assurances 19, 20, 21, and 34 and related policies, standards, and specifications.
The Director found that the Respondent’s actions were reasonable to ensure the NSMTS did not present a safety hazard to LGA, or interfere with its use for airport purposes; that the Respondent completed its due diligence and ultimately determined that the proposed NSMTS was located outside the existing Runway Protection Zone (“RPZ”) for Runway 3; that the Respondent did not unreasonably deviate from its approved airport layout plan (“ALP”) (p. 41, Director’s Determination), but acted with regard to existing obstructions and the NSMTS reasonably and consistent with its grant assurance obligations; and that the Respondent did not fail to prevent the creation of a new airport hazard or incompatible land use near LGA. Finally, the Director concluded that the City incorporated the Panel Report’s recommendations into the NSMTS operating permit issued by the New York State Department of Environmental Consideration; “however the City is not a Respondent in these proceedings and the allegations are therefore viewed in terms of the Port Authority’s actions and obligations as the airport sponsor. (p. 55, Director’s Determination.) Therefore, with regard to this allegation, the Director finds that the Respondent is not in violation” of Grant Assurance 5, 19, 20, 21, 34 “because the Respondent’s actions met the standards of reasonableness and due diligence.” (p. 53, Director’s Determination.)
On appeal, the Complainants raised four issues: (1) the Director ignored the facts of the case by concluding that NSMTS was not in the runway protection zone for Runway 31 at the airport and therefore erroneously concluded that the Port Authority had not violated Grant Assurances 19, 20, 21, and 34; (2) the Director failed to take into account the fact that the location of NSMTS at College Point prohibited the airport from implementing the long planned and Congressionally mandated precision approach for Runway 31 in violation of Grant Assurances 19, 20, 21, and 34; (3) even if the Director were correct in determining that the NSMTS were outside the runway protection zone and did not conflict with installation of a precision approach, it created a hazardous wildlife attractant and therefore violated Grant Assurances 19, 20, 21 and 34; and (4) the Director erred in his determination and finding that the Port Authority did not fail to take “appropriate action” to protect terminal airspace from the creation of airport hazards and incompatible land uses of Grant Assurances 20 and 21.
The Associate Administrator for Airports affirmed the Director’s findings: (1) the record supported the finding that the FAA determined that the NSMTS was outside the current and ultimate RPZ, not located within the Port Authority leasehold at LGA, and not located on any other airport sponsor-owned properties (p. 30, Final Agency Decision); (2) the record also showed that the FAA and Port Authority studied and determined that a precision approach could not reasonably be installed (p. 30, Final Agency Decision.); (3) the Complainants failed to adduce evidence to counter the finding that the NSMTS was compatible with safe operations at LGA because it was a fully-enclosed trash transfer station and was not airport property or within the RPZ, and that the Port Authority reasonably relied on the conclusions reached in the Panel Report with regard to this compatibility (p. 34, Final Agency Decision); and (4) among other actions, the FAA conducted an obstruction evaluation of the proposed NSMTS on two separate occasions, and the FAA issued No Hazard Determinations. (Final Agency Decision, p. 39.) The record showed that an “FAA/USDA panel of experts concluded that, with design changes to the NSMTS facility and adherence to certain operational procedures, the proposed NSMTS would be compatible with safe air operations at LGA.” (Final Agency Decision, p. 39.)
[The Complainant had also brought suit against the City of New York and New York City Department of Sanitation, challenging the construction of a garbage transfer facility nearby the airport as violative of the Resource Conservation and Recovery Act and the Federal Aviation Act. The action was dismissed. See Paskar v. City of New York, 3 F. Supp. 3d 129 (S.D.N.Y. 2014). See also Paskar v. Fed. Aviation Admin., 478 Fed. Appx. 707 (2d Cir. 2012) (denying petition for review challenging FAA order dismissing City of New York from the Part 16 proceeding on the grounds the city was neither a sponsor nor a proprietor).]