III. Whether The Airport Noise And Capacity Act Of 1990 (ANCA), 49 U.S.C. Section 47521 Et Seq., Affects The Applicability Of The Statutory And Contractual Grant Assurance Obligations Under 49 U.S. C. Section 47107(a)(1) and Grant Assurance No. 22 To The NAA’s Stage 2 Ban

The NAA argues that compliance with ANCA and its implementing regulations in Part 161 is all that it must accomplish before it can implement its Stage 2 ban. [57] It correctly notes that neither ANCA nor Part 161 provides authority for the FAA to approve a Stage 2 ban, [58] although such approval is required prior to a restriction of Stage 3 aircraft. [59] According to the NAA, the grant assurances are inapplicable to a Stage 2 ban, and the FAA does not have the authority to deny implementation of such a ban by finding a violation of the Assurances. It is the FAA’s position that ANCA did not supercede the Airport’s grant assurances, and that the agency can evaluate a Stage 2 access restriction in order to determine if the restriction violates an assurance even when an airport has satisfactorily completed the Part 161 process.

Congress made several findings in support of its passage of ANCA. The first four of these findings are that:

(1) aviation noise management is crucial to the continued increase in airport capacity;

(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system;

(3) a noise policy must be carried out at the national level;

(4) local interest in aviation noise management shall be considered in determining the national interest.

There have not been any cases which have spoken to the relationship between ANCA and the Grant Assurances, so both parties have focused their arguments on their reading of the statutory language, the legislative history, and what they perceive as the ramifications of the opposing party’s interpretations.

The language which is the focus of attention in this argument is contained in 49 U.S.C. §47533, titled “Relationship to other laws.” The particular words at issue are the following:

Except as provided by section 47524 of this title, this subchapter does not affect-
(1) law in effect on November 5, 1990, on airport noise or access restrictions by local authorities…

The FAA states that it has always interpreted ANCA as a statute which does not provide additional authority to airports, and which does not relieve an airport from complying with its grant assurances. For example, in issuing the regulations at 14 C.F.R. Part 161, which implement ANCA, the agency commented that:

[ANCA] in no way grants airport operators any authority they did not have prior to the Act. Under Section 9304(h), 49 U.S.C. App.2351(h), preexisting legal limitations on airport operators’ authority are not affected except as required by applying the terms of section 9304. The courts have consistently recognized FAA’s legal authority to challenge airport noise and access restrictions that are discriminatory, unreasonable, or impose an undue burden on interstate commerce. This authority is expressly preserved and recognized by the Act. 61

The FAA also argues that Congress did not evidence a clear intent to repeal 49 U.S.C. 47017, which sets out the Grant Assurances, and that absent a clear statement to do so, it would be improper to infer that it had such intent. The FAA contends that Section 47524 of ANCA and Section 47107 can be reconciled by simply reading ANCA as adding to, rather than replacing the preexisting law. In other words, FAA’s position is that with regard to the restrictions on Stage 2 aircraft, ANCA imposes additional criteria onto the preexisting criteria inherent in the Grant Assurances for access restrictions.

Thus, the requirements set forth in Subpart C of Part 161 are in addition to whatever preexisting law was in effect on November 5, 1990. [64]

In further support of its analysis, the FAA states that if the NAA’s position is adopted, it would result in Stage 2 aircraft receiving less protection than non-Stage, Stage 1, and Stage 3 aircraft, which certainly could not have been the intent of Congress. In addition, it asserts that the NAA’s position would lead to the type of inconsistent and uncoordinated restrictions which ANCA was designed to deter. [65] See 49 U.S.C. §47521.

The FAA applied this interpretation of ANCA to the NAA’s Stage 2 ban from the beginning of the Part 161 process, and it refers to a series of letters wherein the agency advised the NAA that it would evaluate the proposed ban pursuant to the Grant Assurances. In the agency’s letter to the NAA of August 21, 2000, Woodie Woodward, Acting Associate Administrator for Airports, [66] advised that

The FAA’s review of the proposed restriction is not limited to compliance with applicable provisions of the Airport Noise and Capacity Act (ANCA) and Part 161. ANCA does not supercede applicable requirements under preexisting Federal law, including assurances in FAA-awarded airport development grants.

Several FAA officials participated in an NAA meeting on January 18, 2001. At this meeting, the officials, including Mr. Bennett, again advised that the FAA intended to evaluate the Stage 2 ban under the Airport’s Grant Assurances. Mr. Paul L. Galis, Deputy Associate Administrator for Airports, followed up this meeting with a letter to the NAA once again noting that the access restriction would have to comply with the Grant Assurances and offering the agency’s preliminary opinion that the proposed ban would be in compliance. Subsequent letters from the FAA dated February 16, 2001, [69] and March 14, 2001, [70] affirmed the agency’s position.

Accordingly, in the regulatory history of Part 161 and in the FAA’s processing of this Stage 2 ban, the FAA’s position consistently has been that ANCA would not preclude the agency from examining the ban under the Airport’s Grant Agreement. Of course, by itself consistency does not establish the validity of a legal position, but as the agency required to implement ANCA, its interpretation and application of this statute is certainly relevant. Indeed, an agency’s interpretation of a statute which it is required to implement is given deference so long as its interpretation is reasonable. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984); Meyer v. Holley, 537 U.S. 280 (2003); Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 466 (D.C. Cir. 1998). Here, the FAA has been charged with carrying out the requirements of ANCA and it consistently advised the public of its interpretation of this statute through the Part 161 rulemaking process. I do not find the FAA’s interpretation of ANCA to be unreasonable, and I find it to be consistent with the purposes of the statute. Moreover, I concur that there is no clear indication that Congress intended that the “savings clause” in ANCA override the grant assurances. As the courts have noted, the grant agreement is not a simple contact between the airport proprietor and the government, but is “…part of a procedure mandated by Congress to assure federal funds are disbursed in accordance with Congress’ will.” City and County of San Francisco v. FAA, 942 F.2d 1391, 1396 (9th Cir. 1991). [71] I am not persuaded that Congress intended for ANCA to override the important obligations of an airport that accepts federal funds.

Accordingly, I find that ANCA does not affect the applicability of the statutory and contractual grant assurance obligations under 49 U.S.C. §47107(a)(1) and Grant Assurance No. 22 to the NAA’s Stage 2 ban.

IV. Whether The NAA’s Ban On Stage 2 Aircraft Is Consistent With Its Statutory And Contractual Obligations To Make Its Airport Available For Public Use On Reasonable Terms To All Types, Kinds, And Classes Of Aeronautical Activities

Background As noted above, between 1989 and 1999 the NAA had participated in several studies under 14 C.F.R. Part 150, which resulted in FAA approval of a variety of noise mitigation actions, including airspace/operational and land use measures, and eventually a complete ban on Stage 1 aircraft in 1999. These measures were adopted based upon NAA’s use of the DNL 65 dB contour to define non-compatibility of residential land use. In 1997 the FAA approved measures which would have created a buffer at the DNL 60 dB contour, noting that although the NAA had adopted the DNL 65 db noise contour as the threshold of incompatibility for residential areas, for zoning and land use planning the same standards could be applied to the DNL 60 dB contour, as this use of land is within the authority of the local governments. [72]

The NAA’s Part 161 Study, released on June 30, 2000, used the DNL 60 noise contour as the basis to recommend the Stage 2 ban, stating that, “[I]n deference to established City of Naples and Collier County policies and regulations, the NAA adopted the goal of minimizing residential land use within the 60 decibel Day-Night Average Sound Level noise contour to the maximum feasible extent.” [73] The NAA’s Part 161 Study begins by commenting that “[O]perations by aircraft that are certificated pursuant to Part 36 of the FAA regulations as Stage 2 jets are the principal source of the noise impact that causes community concern.” [74] It states that a City of Naples ordinance established the DNL 60 dB as the limit for land use compatibility within the City, adding that the ordinance requires general development site plan (“GDSP”) approval by the City Council for residential development in this contour. The Study also notes that Collier County advised that it intends to adopt this noise contour as the limit for land use compatibility as well. [75] As noted in several locations in the Study, the consultant was requested to review several possible use restrictions in order to address the land compatibility issue. The Study limited its examination to three alternatives: night restriction of Stage 2 operations; 24 hour restriction of Stage 2 operations; and night restriction of all operations. Minimizing residential land within the 60 dB contour was the goal of the Study. [76] Its conclusion was that the 24 hour restriction of Stage 2 aircraft operations is “an effective way to reach the NAA’s goal of minimizing population within the 60 dB DNL contour with balanced and reasonable costs that decrease over time.” [77]

As noted previously, this Study began a series of communications from the FAA questioning, among other things, the selection of the DNL 60 noise contour and the apparent failure of the initial Study to consider non-restrictive alternatives. [78] The Supplemental Analysis, dated June 23, 2001, provided information regarding: (1) the definition of the Airport Noise Study Area, including an explanation of the “reasonable circumstances” for selecting this noise contour and evidence of liability concerns; and (2) documentation of the NAA’s consideration of non-restrictive alternatives. [79]

In its October 31, 2001 letter commenting on the NAA’s Supplemental Analysis, the FAA advised that the Airport Authority had responded to the Part 161 “consultation, notice, and analysis requirements of Subpart C [of Part 161].” [80] However, the FAA reminded the NAA that compliance with the “largely procedural” requirements of ANCA did not indicate that the ban complied with other laws. In particular, the FAA continued to question the use of the DNL 60 dB noise contour. On the same date, the FAA issued the Notice of Investigation which commenced this Part 16 proceeding and eventually led to the Director’s Determination on March 10, 2003. The Notice of Investigation summarized the applicable law and noted some of the FAA’s concerns regarding the proposed Stage 2 ban. [81] After reviewing the NAA’s response to the NOI, the FAA on March 10, 2003, issued its Director’s Determination, concluding that the Stage 2 ban is (1) preempted by Federal law; and (2) not consistent with NAA’s statutory and contractual obligation to make its airport available for public use on reasonable terms and without unjust discrimination to all types, kind, and class of aeronautical users. [82]

The NAA, having received federal funds pursuant to the federal grant approval process, must comply with the assurances which attach to that grant. [83] 49 U.S.C. §47101 et seq. provides for Federal airport financial assistance for the development of public-use airports under the Airport Improvement Program. Section 47107 et seq. sets forth the assurances to which an airport sponsor agrees as a condition of receiving Federal financial assistance. The grant assurances remain in effect for 20 years from the date of the grant. [84] Grant Assurance 22(a), Economic Nondiscrimination, implements 49 U.S.C §47017(a)(1) through (6), and requires, in part, that a federally obligated airport

will make its airport available as an airport for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical activities, includ- ing commercial aeronautical activities offering services to the public at the airport.

The Aviation Safety and Noise Abatement Act of 1979 (“ASNA”), 49 U.S.C. §47501 et seq., directed the FAA to: (1) establish a single system of noise measurement to be uniformly applied in measuring noise at airports and in surrounding areas for which there is a highly reliable relationship between projected noise and surveyed reactions of people to noise; (2) establish a single system for determining the exposure of individuals to noise from airport operations; and (3) identify land uses that are normally compatible with various exposures of individuals to noise. [88] The FAA adopted 14 C.F.R. Part 150 (“Airport Noise Compatibility Planning”) to implement ASNA. Part 150 established the “day-night average sound level” (DNL) as the noise metric for determining the exposure of individuals to airport noise, and identified residential land use as being normally compatible with noise levels below DNL 65 dB. [89] Part 150 provides criteria for the development of a Noise Compatibility Plan (“NCP”). Although participation in a Part 150 process is voluntary, the FAA has established standards which parallel those described in FAA Order 5190.6A. See 14 C.F.R Part 150, Section B150.5. Preparation of an NCP requires that the airport operator analyze a variety of alternative measures: (1) acquisition of land and interests therein, including but not limited to air rights, easements, and development rights; (2) construction of barriers and acoustical shielding, including the soundproofing of public buildings; (3) implementation of a preferential runway system; (4) use of flight procedures to control the operation of aircraft to reduce exposure of individuals or specific noise sensitive areas to noise in the area around the airport; (5) implementation of restrictions on the use of the airport by type or class of aircraft based on the noise characteristics of the aircraft; (6) other actions or combination of actions which would have a beneficial noise control or abatement impact on the public; and (7) other actions recommended for analysis by the FAA for the specific airport. [90]

The agency has stated that the Part 150 process provides a means to ensure that an airport operator’s actions are consistent with its grant assurances. [91] It is through the Part 150 process and the approval of several NCP’s, discussed above, that the NAA enacted various noise mitigation measures, resulting in the elimination of all residential land use within the DNL 65 dB contour.

According to the NAA, the Stage 2 ban at APF had the effect of removing 936 people from the total of 1,306 who resided within the 2005 DNL 60 dB noise contour. [92] Appendix B to the Part 161 Study and Appendix F to the Supplemental Analysis show the number of dwellings and residents within the 60 DNL, and their location in reference to the runways. This information reveals that most of the population within this contour live to the southwest of the airport. The identification of the particular developments and their location within the contour can be determined by examining figure 2.1, page 21 along with pages 20-29 of the Supplemental Analysis.

Discussion

Pursuant to FAA Order 5190.6A and 14 C.F.R. Part 150, the FAA has stated that the statutory requirement for an airport to be “available for public use on reasonable terms” means that a regulation restricting airport use for noise purposes must (1) be justified by an existing non-compatible land use problem; (2) be effective in addressing the identified problem; and (3) reflect a balanced approach to addressing the identified problem that failure considers both local and Federal interests. [93] The Director’s Determination also states that for an access restriction to be reasonably consistent with reducing existing non-compatible land uses, there must be an existing non-compatible land use problem which is effectively addressed by the restriction. [94] The incompatible land use addressed by the restriction must be “real and significant.” [95] The FAA stated that although it has approved non-restrictive remedial noise mitigation projects outside the 65 based on “explicitly documented locally determined land use compatibility values”, this case presents the first situation where an airport has sought to impose a restriction based upon a local land compatibility standard. [96]

This Initial Decision has previously noted that an agency’s interpretation of a statute which it has authority to implement is subject to deference. Chevron, supra. It is not disputed that Congress has given the FAA the responsibility to implement 49 U.S.C. §47107 and to monitor compliance thereof by airports which receive public financing. Moreover, deference may also be appropriate to an agency’s interpretation of regulations which it has promulgated pursuant to its rulemaking authority. See Drake v. FAA, 291 F.2d 59 (D.C. Cir. 2002) (providing for deference to agency interpretation of its regulations) However, this deference- whether relating to statutory or regulatory language- does not relieve an agency from the burden of establishing that its interpretation is reasonable and its application to a particular set of facts is correct.

It is the FAA’s position that despite the NAA’s designation of the DNL 60 dB noise contour as the threshold for residential land use, there was not an existing noise compatibility problem which would justify the ban of a total class of aircraft, and that even if there were such a problem, the NAA did not use a balanced approach in trying to resolve it. The agency argues that that there is a significant difference between a land use restriction imposed by a local government and a restriction which impacts the use of the airport. The NAA asserts that it was entitled to select the DNL 60 dB contour as its threshold of compatibility, and that its ban was carefully targeted to the relatively small number of aircraft which cause most of the disturbance. The NAA further contends that it carefully considered all of the other options, including non-restrictive measures, and that the ban was the most cost effective and reasonable strategy to address the land use compatibility problem within the 60 DNL dB contour. The NAA points to Part 150, Appendix A, Table 1, and Part 161, giving the local jurisdictions some flexibility in selecting an airport noise study area (“ANSA”). The FAA does not challenge an airport’s right to select a non-compatibility threshold of DNL 60 dB for residential property. FAA Reply brief at 2. However, the parties strongly disagree over whether under the particular circumstances at this Airport, a Stage 2 restriction would be consistent with the NAA’s obligations under Grant Assurance No. 22(a).

14 C.F.R. Part 150 allows local authorities certain flexibility in determining non-compatibility of land uses. A note to the land use compatibility table in Appendix A, states:

The designations contained in this table do not constitute a Federal deter- mination that any use of land covered by the program is acceptable or unacceptable under Federal, State, or local law. The responsibility for determining the acceptable and permissible land uses and the relationship between specific properties and specific noise contours rests with the local authorities. FAA determinations under part 150 are not intended to subs- titute federally determined land uses for those determined to be appropriate by local authorities in response to locally determined needs and values in achieving noise compatible land uses.

The FAA has approved, under the part 150 program, definitions of non- compatibility that are broader than those delineated by the DNL 65 and that are at some variance with Table 1 of part 150. In each case the FAA found that, in view of the particular local circumstance, the broader definition of non-compatibility was reasonable. The FAA has never taken the position that such an action would set a precedent for changing the overall definition of compatible land uses as shown in Table 1 of part 150. Thus, part 150 permits, for reasonable circumstances, a degree of flexibility in determining a study area and the compatibility of land uses to noise. [97]

On the other hand, the selection of a contour below DNL 65 dB and a subsequent restriction is not, per se, a violation. Indeed, as noted, the FAA agrees that the decision to select this contour was within the discretion of the NAA, and there is nothing in the pertinent regulations or statutes which confers the FAA with the authority to reject an access restriction unless it can demonstrate that it violates the contractual obligation that the airport has pursuant to 49 USC §47107. The FAA does not have the authority to regulate local land use, and it must respect the authority and interests of the local jurisdictions that exercise the authority- recognized by Part 150- to regulate the use of their land for the protection of the residents in the vicinity of the airport. Having previously concluded that ANCA does not eliminate the need for a grant assurance compliance review, logically the next step in the process would be to evaluate the proposed restriction under the assurances. As noted above, the standards for evaluation of an access restriction flow from Part 150 and FAA Order 5190.6A. In fact, the NAA agrees that the FAA may reject a proposed restriction submitted by an airport proprietor pursuant to a Part 150 study. [98]

There is no specific formula to apply to an access restriction in order to evaluate its compliance with the grant assurances. Rather, the answer must necessarily depend upon an examination of all of the particular circumstances surrounding the identified incompatible land use and the measures taken for noise mitigation. The ultimate question is whether the designation of a non-compatibility threshold of DNL 60 dB in this particular situation reflects a noise compatibility problem which supports banning Stage 2 aircraft, and whether the NAA used the proper balance in deciding to implement this access restriction. The answer to these questions requires an examination of the assurance, and an evaluation of the totality of the circumstances surrounding the non-compatible land use and the efforts by the NAA to address it. There is no way to avoid examining all of the factors which support both the determination of non-compatibility and the factors which led to the decision to impose the restriction. This, in turn, requires an examination of the actions taken by the local authorities regarding the determination of incompatibility, as well as a review of the circumstances surrounding the affected land.

Certain parameters of this examination are not in dispute. For example, it is clear that the federally designated threshold for incompatible residential land use is DNL 65 dB. [99] The significance of this noise contour was developed by the Federal Interagency Committee on Urban Noise (FICUN) in its Report in 1980. The FICUN, of which the FAA was a member, established the general guideline that standard residential construction was compatible with noise exposure up to the DNL 65 level. [100] There is no dispute that there is not any residential land in this contour in the City of Naples or Collier County. The land use compatibility table in Part 150 contains guidelines for communities, based upon FICUN’S suggestions. As noted above, it also reflects a local government’s responsibility to determine the appropriate uses for land within its jurisdiction.

The use of DNL is also well-established as the standard metric for evaluating noise impacts and determining appropriate mitigation measures. DNL is the 24 hour average sound level, in decibels, for the period from midnight to midnight, obtained after the addition of ten decibels to sound levels for the periods between 10 p.m. and 7 a.m.. [101] 14 C.F.R. Appendix A150.3 requires the use of yearly DNL for the study of aircraft noise events at an airport and for determining the cumulative exposure of individuals to noise at airports. Although there was some challenge to the value of this metric at the hearing, (discussed below), there is no dispute that this is the established basis for evaluating noise problems and developing the noise exposure maps (“NEM”) used in the Part 150 process. Part 161 incorporated the noise standards and methodology of Part 150. 14 CFR §§161.9, 161.11. While containing data regarding other metrics, the NAA’s Part 161 Study acknowledges the significance of the DNL metric. [102]

After the FAA provided feedback on the Part 161 Study and the parties discussed the scope of further analysis, the NAA presented its Supplemental Analysis to the FAA in June 2001. The NAA’s Part 161 Supplemental Analysis notes that it provides additional information in two areas: (1) the definition of ANSA, including further documentation of “reasonable circumstances” and evidence of liability concerns; and (2) documentation of the consideration of non-restrictive alternatives. [103]

With regard to the “reasonable circumstances” leading to the selection of the DNL 60 dB as the threshold for compatible residential land use, the NAA stated that they “arise from the totality of the history of noise mitigation and abatement efforts at the Airport,” [104] citing, among other things, announcements and ordinances issued by the local governments. The Supplemental Analysis also contains information on local conditions in Naples which the NAA offered in further response to this issue.

There has been considerable controversy and evidence over the zoning ordinances and residential developments in Naples and Collier County since the NAA began its Part 161 efforts. Contrary to the NAA’s assertion in its reply brief that these issues are “irrelevant”, actual or permitted land use is an important matter in determining whether a locality has actually established a claimed noise contour threshold. However, in this case the evidence is not dispositive of this issue.

The FAA argues that the local governments allowed residential property to be constructed within the DNL 60 dB contour, and that in any event, the zoning ordinances in these jurisdictions did not prohibit such development. Thus, the agency contends, the governments’ actions were not consistent with the assertion that they had established this contour for their threshold. The NAA, which correctly notes that it does not have zoning authority, disputes these allegations. The record in this proceeding does not support the FAA’s position regarding the development of residential land within the contour. The properties at issue were either non-residential, or in the case of the Bayfront development, were authorized prior to the promulgation of the zoning ordinance in 1998 which the City of Naples relies upon as reflecting the DNL 60 dB contour. In addition, although it was later determined that Bayfront was within this contour, at the time it was authorized the NEM displaying the pre-ban 60 dB contour indicated that it was outside this area. [105]

The zoning ordinances, on the other hand, did not prohibit residential development with the DNL 60 dB contour. The City of Naples enacted ordinance No. 98-8165 on January 1, 1998. Although it required special approval for residential construction within the contour, this ordinance clearly did not preclude such development. [106] The current ordinance specifically allows for transient lodging, which is considered residential property under 14 C.F.R. Part 150. [107] Collier County’s zoning ordinance, even as amended by No. 2000-43 in June 2000, allows for residential building within the contour with required sound insulation, stating that it would be “generally compatible” with the appropriate insulation. In its post-hearing brief Collier County, as a Participant, addresses its zoning policies, explaining that the ordinance is applicable to the entire County, allowing for flexibility in other locations. Collier states that it is unlikely that approval would ever be granted for residential development within the DNL 60 dB contour around APF, describing the attenuation option as “only a theoretical option”, [108] but that if approval were given, it is probable that avigation easements would be acquired and that notice to the prospective landowners regarding aircraft noise would be required. [109] In summary, I do not find that any residential land development was approved within the DNL 60dB contour in either the City of Naples or in Collier County after the NAA announced its Part 161 Study, but I also find that neither jurisdiction has unequivocally prohibited such development.

Several other factors have been cited by the NAA regarding its selection of the DNL 60 dB contour. For example, in its Supplementary Analysis, the NAA responded to the FAA’s comments about the apparent lack of liability faced by the NAA for excessive aircraft noise. [110] The NAA argues that liability should not be an issue either for the exercise of its proprietary powers or for determining its compliance with the grant assurances. However, although actual or potential liability is not a prerequisite for the enactment of noise control measures under the proprietary powers exception, as decided herein, it is a legitimate factor to examine in evaluating the reasonableness of an access restriction based upon a locally designated threshold.

The NAA did not provide any credible evidence that it could be held liable for noise-related damages. There is no dispute about the absence of any actual liability, as NAA has conceded that there has not been any judicial determination of liability against the Airport. [111] Nor were there any pending lawsuits at the time the Stage 2 ban was enacted. Potential liability is a more difficult issue, as the NAA, as proprietor of the Airport, is always subject to possible litigation in connection with its operations. However, based upon the noise levels documented in the record, along with a review of the current federal and local law in this area, the evidence does not support a finding of current potential liability. [112] During the hearing, Mr. Eric West, a Commissioner of the Airport Authority, referred generally to his concern for the Airport’s potential liability. However, this evidence lacks specificity and corroboration and is not persuasive. [113] Further, the evidence regarding the alleged threat from a “resort complex” immediately southeast of the Airport is vague and unsubstantiated. [114] There is no evidence regarding the specific nature of this alleged threat, or the theory under which any legal action could have been taken. In addition, this property, which is actually the Rock Creek Campground, an RV park located to the southeast of the Airport, [115] was the subject of substantial noise mitigation efforts in the past according to the NAA. [116] The mere existence of complaints does not warrant a finding that NAA has a potential for liability- particularly when the overwhelming number of complaints are not even in the DNL 60 dB contour which the ban was designed to protect, and are located in areas where additional development has not been restricted and is ongoing. [117] It is doubtful that such development would be permitted if there were any real risk of liability from noise complaints from within these areas. To the extent complaints are relevant to the issue of liability, the record shows that relatively few of the noise complaints were from southeast of the Airport where the aforesaid Campground is located. [118]

Mr. West also testified that negative community perceptions about the Airport have changed “dramatically” in the last five years based upon what NAA has done regarding noise, [119] although the Stage 2 ban has only been in effect since March 2002. [120] The Mayor testified that property values in Naples have increased “beyond all belief”. [121] Her testimony makes it clear that the property which the Mayor is referring to is located in the area where most of the noise-related complaints were made.

In reaching the conclusion that NAA does not face actual or potential liability for excessive aircraft noise, I have reviewed the information submitted by NAA in its Part 161 Supplementary Analysis regarding legal actions in other jurisdictions. I affirm the Director’s Determination that these lawsuits do not establish potential liability for NAA, and any such fears are purely speculative.

There has been considerable controversy during this proceeding over the significance of such factors as complaints, Naples lifestyle issues, and ambience. The NAA argues that these factors were not used to “justify” the Stage 2 restriction, but that they support the ban and help show its overall benefits. In addition, the NAA asserts that much of this information was provided in the Supplemental Analysis as a result of the FAA’s questions regarding local conditions supporting a DNL 60 dB threshold. The NAA asserts that the only critical factors are that the DNL 60 dB contour was selected by the NAA, and that the ban is the most effective method to accomplish its goal of minimizing residential land use within that area. However, as reflected by the Director in his Determination and direct testimony, the FAA’s interpretation of the grant assurance and the statutory and regulatory law which it is responsible for implementing requires a further analysis of the locally defined non-compatibility and the remedy chosen by the Airport in order to determine if the Airport has violated its obligations under its grant agreement. Having found that this interpretation is reasonable, the factors cited above become relevant to this inquiry regardless of whether they were intended as “justification”; support” or merely additional data.

In response to the FAA’s question during the Part 161 process for information regarding the “reasonable circumstances” underlying the selection of the DNL 60 dB contour, [122] and in direct testimony from NAA witnesses, the NAA has sought to portray the area around the Airport as an unusually peaceful and tranquil environment with outdoor lifestyles and open-air housing, which requires protection from noisy stage 2 aircraft. See also post-hearing briefs from Participants City of Naples and Collier County. However, the evidence does not support the position that the portions of the City of Naples or Collier County within the DNL 60 dB contour around APF are uniquely quiet or substantially different from communities in other small but growing cities in the South or elsewhere. See NAA Exhibit 17 for an aerial photograph of the Airport and the surrounding area, showing what could be described as a suburban environment with a fair degree of congestion to the southwest of the Airport.

For instance, despite the direct testimony of Mr. Theodore D. Soliday, Executive Director of the NAA, describing the Naples area, [123] the witness agreed that the area around the airport is fairly dense with structures; that with regard to several communities within the pre-ban DNL 60 contour: the Beau Mar development is an apartment complex located at what can be fairly busy intersections; that the Mariner’s Cover development another multifamily complex is on a six lane road where there is a fair amount of traffic; that the Bayfront condos are by the same road, just north of US 41; and that the Naples Bay development is just south of State Highway 42, where traffic can be counted on to occur. There are about 674 people in these communities (out of a total estimate of 1306 for 2005 identified by the Part 161 Supplemental Analysis as living within the DNL 60 dB contour). [124] These locations are southwest of the Airport, with restaurants, shopping, and tourist areas. The housing in these neighborhoods represents a different type of housing than in the rest of Naples, with a different kind of ambient noise level than other areas. [125, 126]

In two of the residential developments identified by Mr. Soliday -- Bayfront and Waterfront -- the residents were beneficiaries of mitigation in the form of avigation easements and formal notice of the projects’ proximity to the airport. [127] According to the Part 161 Study, Bayfront had an estimated population for the years 2000 and 2005 of 320, while the figure for the Waterfront project was 88. The Bayfront residents moved in around 2000 or 2001. [128] A letter from Mr. Soliday of April 6, 2000, to a Bayfront official commented about proposed language for the prospectus, stating, in part, “[I]t is important that individuals purchasing residential property at Bayfront recognize that the airport is located less than ½ mile to the east of Bayfront.” [129] In fact, the residents of Bayfront were given warning about noise from other sources as well, such as from restaurants, bars, and other businesses. This notice concluded by advising: “NO ONE TO WHOM A QUIET, SERENE RESIDENTIAL ENVIRONMENT IS IMPORTANT SHOULD CONSIDER PURCHASING A UNIT IN THIS CONDOMINIUM FOR HIS OWN USE AND OCCUPANCE.” [130]

Another issue which was the subject of considerable testimony was that of noise complaints. The NAA states that it did not rely upon complaint data for the selection of the DNL 60 noise contour or the decision to ban Stage 2 jets. However, complaint data were submitted along with the initial Part 161 Study and NAA officials have referenced this information as reflecting, at a minimum, an added benefit of the ban. Regardless of how it was intended to be used, I find that the complaint data do not constitute reliable evidence of a non-compatible land use and do not support the reasonableness of the Stage2 ban. [131] First, the overwhelming number of complaints are from outside the DNL 60 contour which the ban was designed to protect. [132] Further, the testimony of Mr. Connor, the FAA’s noise expert, convincingly established that complaint data are not a reliable basis upon which to base a significant noise mitigation effort. [133] The subjective nature of noise was accepted by the other witnesses as well. In addition, Dr. Fidell’s testimony was not persuasive with regard to the issues in this case. Although his expertise in his field is well-established, to the extent that Dr. Fidell challenged the reliance on DNL levels, he did not suggest a scientifically established alternative method upon which to evaluate and designate noise contours. Mr. Connor, with reference to the FICON, convincingly testified that there is no valid procedure to “enhance” DNL values. [134] Perhaps most important, this Part 16 hearing is not the forum to displace the well-established and regulatory-based DNL metric. Finally to the extent that Dr. Fidell supports the NAA use of complaint data, he cannot reconcile the fact that the complaints are overwhelmingly from outside the DNL 60 dB contour which has been selected as the threshold for residential non-compatibility by the NAA. Regarding Dr. Dubbink’s testimony, his ISIS program revealed the comparative sound levels of certain aircraft, but did not shed additional light on the critical issues in this proceeding. Although as the NAA properly notes, supplemental metrics such as SEL data can be useful for certain purposes, noise compatibility thresholds, as the NAA also acknowledges, are determined by reference to DNL values. [135]

In summary, after reviewing all of the evidence which the NAA has submitted regarding the selection of the DNL 60 dB noise contour, the record supports the Director’s conclusion that the Stage 2 jet ban is not justified by an existing non-compatible land use problem, and that the access restriction is not reasonably consistent with reducing non-compatible land use, as described in FAA Order 5190.6A. Although the NAA submitted information regarding such matters as potential liability, complaints, the Naples environment, SEL contours, and others, none of these factors supports the finding of a non-compatible land use problem which would justify the Stage 2 ban. The NAA contends that these additional factors are largely irrelevant to the issues in this hearing, because it has the legal right to select a noise compatibility threshold lower than the Federal standard. There is no dispute that the City of Naples and Collier County have the clear authority to define for local land use purposes a threshold of non-compatible land use which differs from the Federally established DNL 65 dB contour. However, for the reasons described above, the evaluation of an access restriction under an airport’s grant assurances requires an analysis of all of the circumstances surrounding the restriction, including the selection of a locally selected non-compatibility threshold and the incompatible land use identified by the airport. The FAA has the right and indeed the obligation to ensure that the actions taken by the NAA in response to the designation of this threshold do not violate the Airport’s statutory and contractual obligation to make APF available for public use on reasonable terms to ally types, kinds, and classes of aeronautical activities. Based upon the record presented to me, I find that the Stage 2 ban is not consistent with this obligation, and is therefore in violation of Grant Assurance No. 22(a).

The Director’s Determination also concluded that the NAA violated Grant Assurance No. 22(a) when it failed to take a balanced approach to resolving its stated land use compatibility goal. [136] The requirement to use a balanced approach in enacting a noise mitigation measure is inherent in the “reasonableness terms” standard in the grant assurance. It emanates from the requirement, set forth in FAA Order 5190.6A, that an airport restriction “meet both local needs and the needs of the national air transportation system to the extent practicable.” The NAA challenges the origin of this requirement, but it is established in agency policy, and was published by the FAA as a guidance for the consideration of airport use restrictions. [137] In addition, FAA Advisory Circular 150/5020-1 notes the importance of looking at alternatives in dealing with noise control at airports. It is therefore proper for the FAA to rely upon its interpretation in analyzing the Stage 2 ban. Although the above finding makes a finding on this issue unnecessary, I will proceed to address this aspect of the Director’s Determination.

The FAA’s position is that the NAA did not consider a combination of non-restrictive measures which would have addressed the land use issue without adversely impacting the Federal interest in maintaining access to Federally-funded airports. The FAA also contends that the NAA set its goal so narrowly that it automatically precluded the consideration of options that would have helped address the non-compatible land. The FAA claims that if the NAA has considered options such as land acquisition, including easements; sound insulation; airport and aircraft noise abatement procedures; and voluntary restraint of Stage 2 operations, it may have achieved significant noise mitigation without having to resort to its ban on Stage 2 jets. It adds that while an airport is not required to exhaust all non-restrictive measures before enacting an access restriction, an airport is required to analyze various options in order to determine if there are reasonable alternatives short of imposing a ban.

The FAA first argues that a large proportion of the population (approximately 400 out of a total of 1,307) within the DNL 60 dB contour have already received noise mitigation in the form of avigation easements and noise notices prior to purchasing their property, pointing in particular to the Bayfront and Waterfront developments previously mentioned in this Initial Decision. [138] Thus, the agency alleges, the NAA unfairly impacts the Federal interest when it includes these residents as among those who must be removed from the contour to achieve the NAA’s goal. The NAA states that easements and notices do not relieve the affects of the noise exposure, which of course is accurate. However, while easements and notices may not be a substitute for removal from a noise contour, they constitute legal mitigation from the effects of noise exposure. Further, there is no indication that the NAA fully explored the possibility of obtaining easements on additional property within the DNL 60 dB contour or purchasing limited parcels of land.

Likewise, the NAA did not use a balanced approach when it rejected any mitigation via sound insulation. Such benefits are inherently recognized in zoning ordinances of both the City and Collier County, as well as by guidance published by the Florida Department of Transportation -- despite the outdoor activities and open-air residences in the area. [139] Again, although sound insulation may not be as perfect a solution to a noise issue as removing the source of the noise, it is a well-established noise mitigation technique which is noted in Part 150. As with the taking of easements, the NAA was not required under a balanced approach to employ sound insulation for all residences, and the Supplemental Analysis reflects the substantial cost of such an effort. Nevertheless, a balanced approach requires that further consideration be given to this measure in at least a portion of the affected contour, along with the other possible mitigation measures.

The FAA’s argument that the NAA failed to properly consider other options, such as flight track alternatives and noise abatement operating procedures, is less convincing. The NAA presented evidence that FAA air traffic control personnel opposed flight track changes which would have reduced the population within the contour by about 21%. [140] Mr. Edwin M. Baldwin, 3rd, testified in support of the modeling and analysis of the voluntary noise abatement procedures, and I do not find that the NAA’s study of these procedures reflects a failure to use a balanced approach. [141] In addition, the agency’s reliance upon the cost-benefit data to support a violation of the grant assurance is misplaced. Mr. Robert A. Samis, an FAA economist, testified at length about the cost-benefit table in the Determination, as did several other witnesses. Mr. Bennett testified that his conclusions regarding the reasonableness of the Stage 2 ban and the grant assurance violations did not depend upon the cost-benefit analysis. [142] Taking into account the significant differences of opinion on this evidence, I conclude that it does not support the FAA’s position regarding the NAA’s failure to use a balanced approach.

Finally, in evaluating whether a balanced approach has been incorporated into a mitigation measure, it is reasonable to examine the nature of the problem which is the cause for the mitigation efforts. In this case, the locally selected land compatibility threshold of DNL 60dB presents a more moderate noise problem than that which would be presented by the Federally designated DNL 65 dB contour. The same remedies for land in a DNL 65 dB contour may not be appropriate for land in a DNL 60 dB contour, particularly when there may be an impact on access to the airport. Further analysis must be made of the less restrictive options even if they do not result in as complete a reduction in noise as an outright ban. Indeed, the NAA’s goal of minimizing the population within the 60dB contour appears to have predetermined the outcome of its analysis and has placed an unfair burden on the Federal interest. In this situation, while certainly a close decision, I conclude that the failure to consider a combination of easements, land acquisition, and insulation supports a finding that the NAA did not use a balanced approach in addressing its stated land use problem. An airport’s acceptance of Federal funds places upon it certain obligations which require that it consider a wider variety of options to alleviate a locally designated area of non-compatibility than considered by the NAA in this instance.