The City’s litigation with the Federal Aviation Administration (FAA) over safety issues at Santa Monica Airport (SMO) is likely to continue at least into the year 2011 – that was the message that was clearly “between the lines” of reports by the lawyers and comments by the public at the Council meeting on Tuesday, November 11.
City Attorney Marsha Moutrie explained that oral argument before the Ninth Circuit has been scheduled for next week, November 19, on the City’s appeal from the federal District Court preliminary injunction restraining the City from enforcing its ban on Category C and D jets at SMO. Because the appellate court is handling that case on an expedited basis, she expects a decision in two to three months’ time.
While that decision will affect SMO operations in the near term, the dispute over the permanent resolution of safety issues now pending in administrative proceedings before the FAA will continue. In that case, the hearing has been rescheduled (to be reset for March, Moutrie expects) and the parties have been ordered to mediation in an effort to reach a settlement. The lawyers came before the City Council seeking guidance in approaching the mediation.
Tom Devine, the Washington, D.C. lawyer expert in FAA matters who is acting as outside counsel for the City, reported his best estimate is that the FAA proceedings and resulting appeals would run into 2011 if a settlement is not reached, and he added that if the City ultimately prevails he expects the FAA to then initiate another proceeding to challenge the outcome on procedural grounds.
The City Council, having already discussed these matters with the lawyers in closed session, then turned to the public for its guidance as to how the City should proceed. As Mayor Pro Tem Richard Bloom put it: Should the City settle now for some safety improvement at SMO and achieve a prompt and certain resolution, or should it pursue the litigation, spend years with the status quo, and risk no safety improvements in the end?
Bloom acknowledged that the question was “abstract” inasmuch as the confidentiality agreement governing the mediation prevented the public from being told just what the “some safety improvement” consisted of. Nevertheless, everyone seemed to understand it involved the use of EMAS – a crushable concrete bed at the end of the runway to slow down a plane that failed to stop by the end of the runway proper upon landing – and no one contradicted that understanding.
More than a dozen people offered public comment, most from Sunset Park, but also from Venice and Rancho Park/Cheviot Hills, and all urged the Council to reject EMAS and stick by its ban on C and D aircraft. Zina Josephs read a position statement from the Friends of Sunset Park, which she said was supported by North of Montana Assn., Ocean Park Assn., Pico Neighborhood Assn., and Santa Monica Coalition for a Livable City (SMCLC); Marty Rubin later added that it was also supported by Concerned Residents Against Airport Pollution.
Ping Ho presented studies showing that only a small percentage of general aviation accidents involve overruns, and the substantial majority involve veer-offs, accidents that occur when the plane is airborne, and other incidents that EMAS does not affect at all.
Airport Commissioner Susan Hartley summed up the public comment after the hearing: “The overwhelming message of the residents is not to wimp out. Proceed with the litigation. Don’t build a bridge to nowhere with EMAS. We need the C and D ban. We deserve to be safe.”
Councilmember Ken Genser spoke for the Council when he said, “We heard you,” and that the public comments would be considered in future closed session meetings with the lawyers.
Transportation Impact Fee Report
The Council also heard the report on Why Didn’t the City Collect the Transportation Impact Fees [Santa Monica Mirror, September 25-October 1 and October 23-29]. Moutrie and City Manager Lamont Ewell essentially said: We don’t know. Councilmember Kevin McKeown pressed them as to what they learned from those who had been City Manager and Planning Director at the time (1991-1996), and they replied that they only reviewed City records. Genser confirmed that that was the limit of the Council’s request.
During public comment, Sherrill Kushner of the SMCLC board claimed that “tens of millions of dollars [were] uncollected from developers,” and urged the Council to ask the City Attorney to investigate “whether the fees can be collected retroactively.” In response to later questions from councilmembers, Moutrie said the 1991 ordinance “only authorized the fee, but the amount was never set,” so “there’s nothing to collect now.”
In the end, the report was simply “received and filed,” with councilmembers’ reactions ranging from Genser and Bloom who found the episode “not productive” and urged everyone to look forward and not back, to McKeown who said: “Let’s agree that focusing on retroactivity is not productive, but this has been a wake-up call, and we have gained by the fact this has been brought to our attention,” and then went on to quote George Santayana’s maxim that those who cannot remember the past are condemned to repeat it.
The Council adopted on second reading an ordinance to create a tobacco retailer licensing program.
At Councilmember Bobby Shriver’s request, it heard a brief report from Ewell on the use of the median on 4th Street near Adelaide Drive (at the top of “The Stairs”) for exercising and “the associated allocation of resources to enforce existing laws at the location.” Ewell confirmed that no City actions were undertaken at the request of any councilmembers and promised a full report November 25 or not later than December 2.