On November 1, 2017, the United States Court of Appeals for the Ninth Circuit handed down a sweeping victory for Buchalter’s client Bonner County, owner and operator of Sandpoint Airport in Sandpoint, Idaho.
 
The airport was sued in 2012 by real estate developer SilverWing at Sandpoint, LLC for actions the county took in order to achieve compliance with federal aviation regulations and specific safety directives from the Federal Aviation Administration.  SilverWing sought tens of millions of dollars in damages under 42 U.S.C. § 1983 for alleged inverse condemnation and violation of equal protection in addition to a state law claim for breach of the covenant of good faith and fair dealing arising from a “through-the-fence” access agreement.
 
After prevailing on summary judgment in the U.S. District Court for the District of Idaho, Buchalter’s Aviation Practice Group, led by attorneys Barbara Lichman and Paul Fraidenburgh, won a complete victory in the Ninth Circuit on every issue across the board, including the affirmance of an attorney fee and cost award totaling almost $800,000 (which is likely to increase after appellate fees and costs are added).
 
With respect to the preempted state law claim, the Ninth Circuit held: 


Continue Reading

The decision of the Federal District Court for the Northern District of Idaho in SilverWing at Sandpoint, LLC v. Bonner County, a case that has been “hanging fire” for almost two years, was worth the wait.  On Friday, November 21, 2014, the Court granted Defendant Bonner County (“Bonner County”) summary judgment on all Plaintiff SilverWing at Sandpoint, LLC’s (“SilverWing”) federal claims for inverse condemnation, or “taking,” of private property by a public entity without just compensation, in violation of the 5th Amendment to the United States Constitution, and 42 U.S.C. § 1983, or violation of a plaintiff’s constitutional or other federal rights by a person acting under color of state law.  See, e.g., Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).  In addition, the Court granted summary judgment on SilverWing’s state law contract claim for breach of the covenant of good faith and fair dealing.   

In this case, SilverWing claimed that Bonner County had taken its property by implementing a plan for the airport, an Airport Layout Plan (“ALP”) approved in accordance with the regulations promulgated by the Federal Aviation Administration (“FAA”), that showed the single runway at Sandpoint Airport moving 60 feet to the west, toward SilverWing’s property.  SilverWing argued that forcing the movement of a taxiway that already been constructed to service the “hangar homes” in the development, and thus causing it to incur upon the five lots closest to the runway, making them unbuildable, caused a loss to SilverWing of $26 million.  The Court ruled that implementation of the requirements of the ALP was a federal requirement arising out of federal responsibility for aviation safety and not within the discretion of Bonner County.  
 


Continue Reading

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
 
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
 
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
 
The governmental meetings are planned for the following locations and times:
 


Continue Reading

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 
 


Continue Reading

On March 27, 2013, the Los Angeles County Airport Land Use Commission (“ALUC”) gave the latest in a series of approvals including those from Los Angeles Board of Airport of Commissioners (“BOAC”) and Los Angeles City Planning Commission, of the proposed Los Angeles International Airport Specific Plan Amendment Study Project (“Project”).  The Project includes construction of a new terminal, addition of runway safety lighting, and, its centerpiece, the reconfiguration of the North Runway Complex with movement of runway 6L/24R 260 feet north. 

Most notably, the Project will impose dramatic impacts on surrounding communities, including significant new noise impacts on over 14,000 people, 12,000 in the City of Inglewood alone.  Moreover, the Project adversely impacts the goal of regionalization which is a centerpiece of the Stipulated Settlement signed by the Petitioners in City of El Segundo, et al. v. City of Los Angeles, et al., Riverside County Superior Court Case No. RIC426822.  A principal goal of that settlement was, and remains, diversion of air traffic to other airports in the region, not the encouragement of access to LAX. 
 


Continue Reading

On July 27, 2012, Los Angeles World Airports (“LAWA”) released the “Specific Plan Amendment Study Draft Environmental Impact Report” (“DEIR”), involving, among other things: (1) a realignment and extension of runways to the east on the North Airfield Complex, including a separation of the two north runways to permit their unimpeded use by the largest operating aircraft, A-380s and 747-800s (“Category VI”); (2) expansion and renovation of the terminals; and (3) associated movement and potential undergrounding of surrounding thoroughfares including Lincoln Boulevard.  Sides are already forming over the proposed plan. 


Continue Reading

A lesson for all those who oppose the development of airports – be careful what you ask for, you might get it.  Ten years ago the City of Irvine, California, won its epic battle over the conversion of El Toro Marine Corps Air Station (“El Toro”) to a new commercial airport for Orange County, California.  The site is more than 3,000 acres in size, and was, at the time, surrounded by a 14,000 acre “no development” buffer zone, that the military had maintained to insulate itself from liability for noise and other impacts from aircraft operations at El Toro. 

Despite the largest land use buffer around any airport in the nation, and the fact that the noisiest military aircraft then in existence, the F-14, F-16 and F-18 fighter jets, had been operating regularly and continuously out of El Toro for more than 50 years, when El Toro was marked for closure under the Base Reuse and Realignment Act, 10 U.S.C. § 2687, et seq., (“BRAC”), and conveyed to Orange County through a public benefit conveyance, a number of cities in South Orange County, including Irvine and Laguna Niguel, banded together to stop the conversion.  Their alternative was a 3,600 acre “Great Park” on the El Toro site, to include sports facilities, entertainment venues, and wildlife preservation areas, and limited commercial and residential development on the periphery. 

It was a very convincing story, and, ultimately, in 2003, after 10 years of political and legal battles and the expenditure of many millions of dollars on both sides, the effort prevailed in the passage of an Initiative, Measure W.  The Initiative transferred land use planning authority from Orange County to the City of Irvine, for the purpose of developing the “Great Park.”  The only problem is, another 10 years and mega-millions of dollars later, the Great Park remains an empty field hosting an occasional tent show or fair, and is on the verge of becoming what its skeptics expected all along.
 


Continue Reading

On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”). 

The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport.  The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport.  The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care.  The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law.  Cal. Gov. Code § 835.  The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied.  The Appellate Court’s decision is flawed for at least two reasons. 
 


Continue Reading

On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia.  Petitioners, made up of communities and residents surrounding the airport

The Los Angeles Times reports that, while economic conditions are slowly improving throughout most of the nation, including most of California, California’s Inland Empire, comprised of Riverside and San Bernardino Counties is not so fortunate. The Times reports that the volume of home sales in San Bernardino County dropped 18.3% from last June, and in Riverside County 14.7%. Similarly, jobs fell throughout the Inland Empire in sectors such as leisure and hospitality (minus 3,200 jobs in June) and educational and health services (minus 1,300 positions in June). Finally, the region lost 3,900 construction jobs over the year, and more than 75,000 since the peak of construction in June, 2006.

As part of the solution to this ongoing problem, the City of Ontario and County of San Bernardino have joined together to negotiate a return of Ontario International Airport (“ONT”), operated by the City of Los Angeles through its Airport Department, L.A. World Airports (“LAWA”) since 1967, to local control. ONT has, consistent with the condition of the local economy, seen an approximate 30% decrease in operations since 2007.
 


Continue Reading