SUBJECT: NEW CASE LAW ON BANNING
SIGHT-SEEING FLIGHTS!
To: Parties Interested in Airport Noise
From: Gerald A. Silver, Pres. Homeowners of Encino
Stop the Noise! Coalition
National Helicopter Noise
Coalition
email: gsilver@sprintmail.com
New case law has just come down that reaffirms an airport's
right to ban
nuisance sight-seeing flights. The case, SeaAir v. New York
City, is
described below. Residents of Juneau, Alaska are seeking to
place a similar
ban on sight-seeing flights in effect. This is a very
significant case that
has changed the sight-seeing landscape considerably.
Below is a letter from Stop the Noise! Coalition to Los
Angeles Councilwoman
Cindy Miscikowsky asking that Los Angeles World Airports
initiate an
immediate ban on all tourist, flight-seeing and sight-seeing
operations from
Van Nuys Airport (VNY).
The material below should be read carefully by anyone
experiencing noise
from sight-seeing flights.
Thank you,
Gerald A. Silver,
Pres. Homeowners of Encino
*****************************************************************
STOP THE NOISE! COALITION
PO BOX 260205, ENCINO, CA 91426
email: gsilver@sprintmail.com
[List of 28 participating associations at bottom of
letterhead]
July 16, 2001
Councilwoman Cindy Miscikowski
Los Angeles City Hall, Room 415
200 N. Spring St.
Los Angeles, CA 90012
RE: REPETITIVE SIGHT-SEEING FLIGHTS OVER ENCINO, SHERMAN OAKS
On November 13, 2000, I wrote to John Agoglia, BOAC
President, bringing to
his attention troubling nuisance sight-seeing flights
emanating from Van
Nuys Airport (VNY). Upon investigation, we determined that
these were
repetitive sight-seeing flights conducted regularly during
evening hours
from VNY. These flights involved noisy Cessna and other
aircraft that fly
south out of VNY, then east down the Ventura Freeway and then
to a number of
sight-seeing destinations, returning to VNY.
These flights often occur within a few minutes of each other,
and thus
create a major annoyance to residents. In addition, several
helicopter tour
companies offer sight-seeing flights from VNY. Collectively,
these
helicopter and Cessna tourist and sight-seeing operations
cause a
significant amount of unnecessary noise.
On November 28, 2000, I received a response from Mr. Agoglia
in which he
stated that VNY has concluded that these tour flights
"are deemed acceptable
operations." He went on to say that, "Tour flight
operators are allowed to
fly for compensation and there are no Federal Aviation
Regulations (FARs)
that can prohibit them from departing at a designated flight
time . LAWA is
not in a position to deny access to any aircraft flying into
and out of VNY
as long as they comply with all applicable rules and
regulations governing
their operation."
In our view, sight-seeing flights out of VNY are not
consistent with the
location of an airport in the heart of a residential
community. We believe
that they should be terminated as soon as possible.
We believe in light of a new case decided less then a month
ago by the
Second Circuit Court of Appeals of the Federal appellate
courts, that VNY
can in fact regulate or flat out ban tourist and sight-seeing
operations.
In our opinion the case is the most significant yet
that bears upon the
scope of the LAWA's legal authority to regulate sight-seeing
from VNY to
reduce noise. The case is SeaAir NY, Inc. v. City of New
York, decided May
22, 2001. A copy of the decision is attached to this letter.
It affirms a
lower court decision (SeaAir, Inc. v. City of New York, 2000
WL 1201 379(2000)).
The importance of this case is that it deals specifically
with sight-seeing.
In this case, the City of New York had a regulatory code
which required that
a seaplane base on city-owned property be issued a permit. In
July 1999 the
City issued a permit for the seaplane base that included the
following
restriction:
To further minimize noise impacts on the general public,
commercial air tour
operations shall not be permitted at any time. The term
"commercial air
tour" means any flight conducted for compensation or
hire in a powered
aircraft where a purpose of the flight is sightseeing.
In response, the operator filed an action claiming that this
restriction
violated various clauses of the U.S. Constitution. However,
as stated by
the Court," the primary point of SeaAir's complaint was
that the City was
preempted by federal aviation statutes from restricting the
operation of
seaplanes at the 23rd Street base. SeaAir also claimed that
the City's
regulation was arbitrary and unreasonable since it was not
based on factual
evidence of noise levels."
The Court of Appeals for the Second Circuit held that
sight-seeing
activities where the passengers are not transported from one
place to
another, but rather where the destination is the same is the
place of origin
does not involve interstate air transportation as that term
is defined in
the federal statutes. Since the court concluded that such
flights do not
involve interstate air transportation, SeaAir could not
establish ". . .
that the City's regulation of sightseeing flights is
preempted."
In rendering its decision, the court made it clear that the
"City's
decisions to reduce the number of flights at the seaplane
base and to
prioritize transportation over tourism were a reasonable
means of achieving
noise reduction . therefore, that the City's actions
comported with their
proprietary rights."
With respect to SeaAir's other arguments, the court held:
There is nothing in this record to convince us that the
City's restriction
of sightseeing flights was unreasonable or arbitrary. The
City made the
determination that in order to reduce the noise impact on the
community, it
needed to cut the number of flights from the seaplane base, .
. . SeaAir
acknowledges that noise reduction is a legitimate
governmental objective but
claims that the City has no evidence that eliminating air
tours will achieve
it. It is reasonable, however, to assume that a reduction in
flights will
result in a corresponding reduction of noise. . .
Accordingly, the City's
restriction did not violate SeaAir's due process rights.
Now that the Second Circuit has upheld the District Court's
decision, it is
persuasive evidence that LAWA can no longer dismiss
restrictions on
sight-seeing flights. Rather, and particularly since it is a
pure
sight-seeing case, we believe it is the most important case
in the area.
Other cases where a municipality has run afoul of the
doctrine of federal
pre-emption have involved instances where the air traffic
involved was
indisputably interstate commerce.
We believe that this case has reset the legal stage with
regard to a
municipality's authority to regulate and control
sight-seeing. The case
holds that a municipality is free to regulate sight-seeing
activities
without colliding with federal jurisdiction. We believe this
case stands for
the proposition that using the same definition employed by
the City of
New York, LAWA can legally regulate and control sight-seeing
activities in
sundry and reasonable ways in order to reduce the noise at
VNY. This would
include regulating and controlling the hours of flights, the
numbers of
flights, or even banning them outright.
On behalf of our member associations I ask that you request
that LAWA
initiate an immediate ban on all tourist, flight-seeing and
sight-seeing
operations from VNY.
Cordially yours,
Gerald A. Silver,
President, Homeowners of Encino
Stop the Noise! Coalition
Cc: LAWA Executive Director, Community organizations
*********************************************************************
SeaAir NY, Inc. v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________________
August Term, 2000
(Argued: March 2, 2001 Decided: May 22, 2001 )
Docket No. 00-9096
______________________________
SeaAir NY, Inc.,
Plaintiff-Appellant,
v.
City of New York, City of New York
Fire Department, City of New York
Department of Business Services and
Robert Grotell, Individually and as
the Director of the Mayor's Department
of Transportation,
Defendants-Appellees.
Before WALKER, Chief Judge, OAKES, and POOLER, Circuit
Judges.
Operator of a seaplane sightseeing operation sued the City
of New York on a variety of constitutional grounds for
prohibiting seaplane sightseeing flights from the East 23rd
Street seaplane base. The United States District Court for
the
Southern District of New York, John S. Martin, Judge, granted
summary judgment to the City.
Affirmed.
Donald E. Creadore, Tunick,
Kupferman & Creadore, New York, NY
for Plaintiff-Appellant.
Ellen S. Ravitch, Office of
Corporation Counsel, City of New
York, New York, NY (Michael D.
Hess, Corporation Counsel, Stephen
J. McGrath and Deborah Rand, of
counsel), for Defendants-Appellees.
_____________________________
OAKES, Senior Circuit Judge:
SeaAir NY, Inc. ("SeaAir") sued the City of New
York and
various other municipal defendants (collectively, the
"City"),
charging that the City violated SeaAir's constitutional
rights by
restricting the operation of seaplane sightseeing tours. The
United States District Court for the Southern District of New
York, John S. Martin, Judge, granted summary judgment to the
City, finding that the restriction did not violate the
Supremacy
Clause, and that SeaAir did not have a valid due process or
equal
protection claim. We agree with the district court that
SeaAir
cannot demonstrate any constitutional violations and we
accordingly affirm the district court's decision.
BACKGROUND
The facts in this case were undisputed and are readily
summarized here. The East 23rd Street Seaplane Base, which is
operated by a lessee called New York Skyports, Inc., is on
city-
owned waterfront property. Beginning in March 1999, SeaAir
provided seaplane air tours which left from the seaplane
base,
flew around the metropolitan area for approximately 30
minutes,
and landed again at the seaplane base. During the flight, the
planes crossed into New Jersey airspace.
The City's regulatory code requires that a seaplane base on
city-owned property be issued a permit, which "may be
limited by
appropriate conditions . . . as may be necessary or desirable
to
insure the public safety and interest[.]" 66
RCNY 3-04(f)
(2000); see also 66 RCNY 3-02. In July 1999, the
City issued a
permit for the seaplane base that contained the following
restriction:
5. To further minimize noise impacts on the general
public, commercial air tour operations shall not be
permitted at any time. The term "commercial air
tour"
means any flight conducted for compensation or hire in
a powered aircraft where a purpose of the flight is
sightseeing.
In response, SeaAir filed suit on July 29, 1999, alleging
that
the restriction violated the Supremacy, Due Process, and
Equal
Protection Clauses of the Constitution as well as various
federal
statutes. The primary point of SeaAir's complaint was that
the
City was preempted by federal aviation statutes from
restricting
the operation of seaplanes at the East 23rd Street base.
SeaAir
also claimed that the City's regulation was arbitrary and
unreasonable because it was not based on factual evidence of
noise levels.
On August 12, 1999, the district court ordered a preliminary
injunction for the duration of litigation against enforcement
of
the regulation. On August 21, 2000, the district court
granted
the City's motion for summary judgment. Finding that SeaAir
did
not engage in interstate air transportation by virtue of its
travel into New Jersey airspace during its tours, the
district
court concluded that there was no federal preemption of the
City's regulations. The district court further found that the
City's decision not to permit seaplane sightseeing tours did
not
violate SeaAir's due process or equal protection rights
because
it was supported by the rational objectives of reducing noise
and
prioritizing transportation over sightseeing. The district
court
also ruled against SeaAir on its remaining statutory and
Commerce
Clause claims, none of which are appealed here.
DISCUSSION
We review the district court's award of summary judgment to
the City de novo. See Greater New York Metro. Food Council,
Inc.
v. Giuliani, 195 F.3d 100, 104 (2d Cir. 1999). Because the
parties agree that there are no material facts in dispute, we
need only determine whether the City was entitled to such a
judgment as a matter of law. See id.
As the district court recognized, SeaAir's preemption
argument under the Supremacy Clause relies entirely on the
conclusion that SeaAir engages in interstate air
transportation
as defined in 49 U.S.C. 40102(a)(25) (2000). This
is so
because if SeaAir does not engage in such transportation, it
does
not fall under the provision of the Airline Deregulation Act
of
1994 that expressly preempts state and local aviation
regulations. Section 40102(a)(25) defines "interstate
air
transportation" as:
the transportation of passengers or property by
aircraft as a common carrier for compensation . . . (A)
between a place in -- (i) a State, territory, or
possession of the United States and a place in the
District of Columbia or another State, territory, or
possession of the United States[.]
SeaAir principally argues that because its planes fly into
New
Jersey airspace during the course of their flights, they have
traveled "between" two states in satisfaction of
this statute.
The merit of SeaAir's position boils down to the proper
definitions of "transportation" and
"between." The district
court quoted Webster's definition of "transport" as
"to carry . .
. from one place to another." SeaAir NY, Inc. v. City of
New
York, No. 99 CIV 6055 JSM, 2000 WL 1201379, at *2 (S.D.N.Y.
Aug.
23, 2000). Because SeaAir does not carry its passengers from
New
York to New Jersey, but instead brings them back to where
they
started at the seaplane base, the district court concluded,
and
we agree, that SeaAir does not "transport" them to
another state.
Similarly, SeaAir does not take its passengers
"between" two
states, as that term is commonly understood, simply by flying
into the airspace of New Jersey. Despite SeaAir's urgings to
the
contrary, we do not live in a world in which a piece of air
can
serve as a place for the purposes of creating a
"between."
Indeed, as the government points out, accepting such a
definition
of "between" would render the statute nonsensical
because a plane
would travel through an infinite number of places in both
states
-- not simply between two places -- during a flight such as
the
one at bar.
Moreover, SeaAir's proffered meaning of "place"
conflicts
with the use of the word in another part of
40102(a)(25).
Section 40102(a)(25)(A)(ii) includes in the definition of
"interstate air transportation" transportation
between a place in
"Hawaii and another place in Hawaii through the airspace
over a
place outside Hawaii." (Emphasis added). If a place
could be
airspace itself, this provision would make no sense. That
fact
suggests that the "places" to which the statute
refers are on the
ground.
While it is perhaps a "down-to-earth" notion, we
believe
that Congress, in devising the language of
40102(a)(25), used
the words "transportation" and "between"
in their traditional
sense of movement from one place to another, and intended
that
the movement be from the earth of one state to the earth, not
the
airspace, of another. We agree with the district court that
SeaAir's air tours do not meet these requirements, and that
SeaAir therefore cannot establish that the City's regulation
of
sightseeing flights is preempted.
Even if SeaAir's air tours did qualify for protection from
local regulation under the Airline Deregulation Act's
preemption
provision, the City's regulation might still escape
preemption
under the exception established in 49 U.S.C.
41713(b)(3) (2000),
which states that a "political subdivision of a State .
. . that
owns or operates an airport" is not limited "from
carrying out
its proprietary powers and rights." The proprietor
exception to
federal preemption was the subject of our decision in Nat'l
Helicopter Corp. v. City of New York, 137 F.3d 81 (2d Cir.
1998),
where we found that the City had the proprietary right to
"promulgate 'reasonable, nonarbitrary and
non-discriminatory'
regulations of noise and other environmental concerns"
for a
heliport it owned and leased out at East 34th Street. Id. at
88
(quoting British Airways Bd. v. Port Auth., 558 F.2d 75, 84
(2d
Cir. 1977)). We noted in Nat'l Helicopter that the proprietor
exception "allow[s] reasonable regulations to fix noise
levels at
and around an airport at an acceptable amount," id. at
92, and
upheld evening curfews, weekend bans, and an overall
reduction in
helicopter operations at the heliport. See id. at 88-92.
Although we do not rely upon it today, our holding in Nat'l
Helicopter indicates that the City's noise-related regulation
of
sightseeing flights from the seaplane base would fall
comfortably
within the proprietor exception. As discussed below, the
City's
decisions to reduce the number of flights at the seaplane
base
and to prioritize transportation over tourism were a
reasonable
means of achieving noise reduction. It seems evident,
therefore,
that the City's actions comported with their proprietary
rights
under 41713(b)(3).
Turning to the due process and equal protection claims
before us, we find SeaAir's arguments in support of them to
be
unavailing. In order to state a valid claim for violation of
substantive due process, SeaAir must show that the City's
regulation was an "exercise of power without any
reasonable
justification in the service of a legitimate governmental
objective[.]" County of Sacramento v. Lewis, 523 U.S.
833, 846
(1998). As the district court stated, we have held that to
meet
that standard, the City's action must be "arbitrary,
conscience-
shocking, or oppressive in a constitutional sense[.]"
Kaluczky
v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
There is nothing in this record to convince us that the
City's restriction of sightseeing flights was unreasonable or
arbitrary. The City made the determination that in order to
reduce the noise impact on the community, it needed to cut
the
number of flights from the seaplane base, and of those
flights,
sightseeing tours were not as beneficial to the City as
commercial flights. SeaAir acknowledges that noise reduction
is
a legitimate governmental objective, but claims that the City
has
no evidence that eliminating air tours will achieve it. It is
reasonable, however, to assume that a reduction in flights
will
result in a corresponding reduction of noise. See Nat'l
Helicopter, 137 F.3d at 90 (holding that eliminating a
portion of
helicopter operations was a reasonable response to excessive
noise). Accordingly, the City's restriction did not violate
SeaAir's due process rights.
SeaAir's equal protection argument, although never clearly
set forth on appeal, seems to rely on the noise differences
between seaplanes and helicopters to claim that the City's
restriction unfairly discriminates against seaplanes. SeaAir
makes much of the fact that the district court mistakenly
stated
that seaplanes add more to ambient noise levels than do
helicopters. However, given that helicopters do not even
operate
from the seaplane base and that, as discussed in Nat'l
Helicopter, the City has restricted helicopter sightseeing
tours
as well as seaplane tours in pursuit of a general policy
against
air tourism, we fail to see how the district court's mistake
impacts the inevitable conclusion that there has been no
equal
protection violation here.
CONCLUSION
In light of the foregoing, the district court's grant of
summary judgment to the City is affirmed.