United States v. County of Westchester
Cite as: 571 F.Supp. 786


UNITED STATES of America, Plaintiff,

Federal Aviation Administration, Involuntary Plaintiff,
Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County
of Westchester; the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants.

Samuel S. Yasgur, Attorney for County, and Andrew P. O'Rourke, County Executive, Defendants.

Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County
of Westchester, the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants.

Nos. 83 Civ. 3499(RJW), 81 Civ. 6177(RJW), 81 Civ. 6243(RJW) and 81 Civ. 6227(RJW).

Aug. 24, 1983


Joseph, Powell, McDermott & Reinger, P.C., Washington, D.C., Herzfeld & Rubin, P.C., New York City, for plaintiff National Business Aircraft Ass'n.

John S. Yodice, Frederick, Md., Callahan & Wolkoff, P.C., New York City, for plaintiff Aircraft Owners & Pilots Ass'n.

Rudolph W. Giuliani, U.S. Atty., Susan Campbell, Asst. U.S. Atty., New York City, for involuntary plaintiff Federal Aviation Admin.

Samuel S. Yasgur, White Plains, N.Y., for defendant County of Westchester, et al. McDonough, Marcus, Cohn & Tretter, New York City, for plaintiff Panorama Flight Service, Inc.

ROBERT J. WARD, District Judge.


A. The Parties

The Federal Aviation Administration ("FAA") is an operating administration of the United States Department of Transportation and is responsible for the regulation and control of the National Flight Control System. The National Business Aircraft Association ("NBAA") is a corporation organized under the laws of the State of New York whose purpose is to protect and promote the interests of member companies in the operation of their aircraft. NBAA has 51 member companies which regularly use the Westchester County Airport ("the Airport"). These member companies operate 134 aircraft including turbo jets, turbo propellor driven airplanes, propellor driven airplanes and helicopters. The Aircraft Owners and Pilots Association ("AOPA") is a corporation organized under the laws of the State of New York whose purpose is to promote and protect the interests of owners and pilots of general aviation aircraft. AOPA's 265,000 members own approximately 70 percent of the active general aviation aircraft fleet and fly approximately 70 percent of the general aviation hours logged. Panorama Flight Service Inc. ("Panorama") is a New York corporation with a principal place of business at the Airport engaged in the business of providing cargo and passenger air transport services. It operates a variety of light twin-engine aircraft between the Airport and various locations in the northeastern part of the United States. A portion of its cargo operations is conducted between 7 p.m. and 4 a.m.

The County of Westchester ("the County") is a municipal corporation organized and existing under the laws of the State of New York. Andrew P. O'Rourke is the County Executive of the County. Samuel S. Yasgur is the County Attorney. The Westchester County Board of Legislators is the legislative body of the County. Under s 101.21 of Chapter 617, Laws of 1937, Charter of Westchester County, the legislators are empowered to "exercise all powers of local legislation and administration as provided for counties in Article 9 of the Constitution of the State of New York."

B. The National Airport System

The FAA has prepared a national airport system plan pursuant to the Airport and Airway Development Act of 1970, and its successor legislation. The Airport is included in and is a part of the national airport system plan and is a part of the New York City metropolitan area airport system. The airspace and air traffic routing of aircraft arriving and departing at the New York City metropolitan area airports is a complex, highly structured and integrated system designed to provide for maximum air safety and efficiency in the use of the available navigable airspace. FAA air traffic controllers are responsible for establishing and maintaining the separation of aircraft during their operation. An "aircraft operation" is defined as either a landing or a take-off and is either "local" or "itinerant." A "local operation" is an aircraft operation within a 50-mile radius of an airport or within sight of an airport control tower, or an aircraft known to be departing or arriving from flight in local practice areas, or an aircraft executing practice instrument approaches. An "itinerant operation" is any operation other than a local operation. Airport operations are classified by the FAA as air carrier or commercial operations with other operations considered as general operations.

In 1976, 1980 and 1982, respectively, there were a total of approximately 1,289,000, 1,349,000, and 1,257,000 aircraft operations at the five major airports in the New York City metropolitan area, i.e., John F. Kennedy International (JFK), LaGuardia (LGA), Newark International (EWS), Teterboro (TEB), and Westchester County (HPN). Of these total operations there were approximately 207,000 operations at HPN in 1976 and 1980 and 183,000 operations there in 1982. This represents respectively 16.1%, 15.3% and 14.6% of the total operations at these five New York City metropolitan area airports. In 1976, 1980 and 1982, respectively, there were a total of approximately 511,000, 577,000, and 462,000 general aviation operations at the five major airports in the New York City metropolitan area. Of these general aviation operations there were approximately 188,000, 189,000, and 162,000 such operations at HPN in each of the respective years. This represents 36.8%, 32.8% and 35.1% of the total general aviation operations at these five airports in each of the respective years.

Of the total 183,000 operations at HPN in 1982, 162,000, or approximately 88.5%, were general aviation operations. In contrast to HPN, in 1982 there were 28,000, 25,000 and 38,000 general aviation operations at JFK, LGA, and EWR respectively for a total of 91,000 such operations out of 834,000 total operations at these three airports in that year.

Aircraft departing from HPN and LGA to the south and west are routed through and controlled by FAA air traffic controllers at the New York Terminal Radar Approach Control ("TRACON"). Peak times for air travel in the New York metropolitan area occur from 7:00 a.m. to 10:00 a.m. and from 3:00 p.m. to 10:00 p.m. During the morning peak period, particularly between 7 a.m. and 9 a.m., there are a substantial number of take-offs from HPN, LGA and EWS. Many of these departures follow the same route to the south and west out of the airspace controlled and managed by the New York TRACON, known as the Solberg route. What is involved in this process from an air traffic control perspective is the integration and intermingling of HPN, LGA and EWS departures with other air traffic from other airports overflying the area so as to assure the separation of air traffic for safety. There presently is a restriction of 20 miles separation between these flights, a separation which translates into approximately 4 minutes between flights or approximately 15 flights per hour along a specific route.

C. Westchester County Airport

The Airport is owned by the County. It provides services and facilities to persons traveling in and engaged in interstate commerce. The FAA operates and maintains an air traffic control tower at the Airport, which is staffed by Federal air traffic controllers. There are over 400 aircraft based at the Airport, approximately 275 to 350 of which are propeller driven and turbo-prop small aircraft. The balance are business jet aircraft. Air navigation equipment has been installed and is currently being operated at the Airport by the FAA pursuant to an agreement with the County.

The Airport is under the overall jurisdiction of the County Department of Public Works, and directly under the Transportation Division of that Department. The highest County official under the County executive with responsibility for the Airport is the Commissioner of Public Works, a position currently held by Commissioner Frank Bohlander. Working directly for Commissioner Bohlander as Director of Transportation Facilities is Arthur Ludwig.

Many AOPA members are based at the Airport, and many others have and in the future will operate aircraft to and from the Airport, all in interstate commerce. A number of these members have a continuing need to operate at the Airport during the hours from midnight to seven a.m.

The total operations at the Airport during the fiscal years 1981 and 1982 were as follows:

                                   TOTAL OPERATIONS 
      CATEGORY OPERATION          FY 81     FY 82   
      Instrument                  144,672   117,625 
      Total Aircraft              186,065   183,645 
      Total Itinerant             145,183   141,935 
      General Aviation Itinerant  124,382   121,704 
      Air Carrier                   2,621     2,685 
The Airport's ranking nationally based upon 377 airports and in New York State based upon 15 airports during the fiscal years 1981 and 1982 in all operations was as follows:

                              NATIONAL RANKING    NY STATE RANKING 
 CATEGORY OPERATION          FY 81     FY 82     FY 81     FY 82   
 Instrument                  88        94        6         6 
 Total Aircraft              109       83        6         6 
 Total Itinerant             73        72        3         4 
 General Aviation Itinerant  39        26        1         2 
 Air Carrier                 236       206       10        10      

During the year 1982, the Airport accounted for approximately 31% of the itinerant general aviation operations in the New York metropolitan area. The FAA predicts that between 1982 and 1990, total operations at the Airport will increase by 40% and that general aviation activity will grow in greater proportion to all other types of aircraft operations.

D. Federal Grants to Westchester County for the Airport

Since 1970, the County has applied for and received from the FAA development grants totalling approximately $4.2 million for projects involving the Airport, and has applied for and received grant-in-aid funds for Airport planning totalling approximately $250,000. The terms, conditions and assurances prerequisite to receiving grant monies, and in particular applicable to the grants from FAA to the County, are set forth in those grant agreements.

One of the assurances made by the County in accepting those grants, and one of the conditions to receipt of those grant monies, as set forth in the grants at paragraph 2, page 2, is that the County would carry out the projects in accordance with the Airport and Airway Development Act of 1970, 49 U.S.C. 1701 et seq., which until September, 1982 required, inter alia:

As a condition precedent to his approval of an airport development project ..., the Secretary shall receive assurances in writing, ... that --

(1) The airport to which the project for airport development relates will be available for public use on fair and reasonable terms and without unjust discrimination....

(5) All of the facilities of the airport developed with Federal financial assistance and all those usable for landing and takeoff of aircraft will be available to the United States for use by Government aircraft in common with other aircraft at all times....

49 U.S.C. 1718 (emphasis added) (superseded by Airport and Airway Improvement Act of 1982, 49 U.S.C. 2201 et seq., at s. 2210(a)(1) and (a)(6)).

The grant applications and agreements signed by the County as grantee also require that the grantee comply with FAA regulations promulgated pursuant to the Airport and Airway Development Act of 1970. Those regulations require that a grantee have complied with previous grant agreements. The County provided assurances to the Secretary of the United States Department of Transportation that all of the facilities of the Airport developed with Federal assistance and all those usable for landing and take-off of aircraft would be open and available at all times and would be available to the United States for use by government aircraft in common with other aircraft at all times.

As of May, 1983, the FAA declined to provide further grant-in-aid funds to Westchester for the Airport based on its decision that the County had failed to comply with the terms, conditions and assurances set out in the existing grant agreements by enacting a curfew at the airport.

E. Background of the Curfew

Surrounding the Airport are the suburban communities of Harrison, Rye, North Castle, Rye Brook, Port Chester and Mount Pleasant, New York and Greenwich, Connecticut. In July, 1974, a lawsuit was filed by the Town of Greenwich and others, entitled Town of Greenwich v. Westchester County, No. B-74-280 (D.Conn.). The lawsuit primarily concerned noise and was settled by an agreement between the parties to the litigation to create a negotiating committee that would attempt to deal with the issues raised by the lawsuit.

A committee was formed, and commenced operating in September, 1975. One member of the committee was Ms. Joan Caldwell, its co-chairperson, President of the Northwest Greenwich Homeowners Association. The other members of the committee were representatives of the Town of Greenwich, NBAA, and the Westchester County Pilots Association. Meetings were attended by these representatives, as well as a representative of the FAA. The committee made significant contributions to noise abatement at the Airport. It worked with owners and operators at the Airport to reduce touch-and-go operations; restrict the use of reverse thrust, except in emergency conditions; initiate higher flights around the Airport; reduce engine runups or maintenance tests on the runway; and obtain noise complaint information through the installation of a noise complaint telephone number. Further, the committee recommended noise abatement flight procedures and a voluntary curfew at the Airport limiting take-offs and landings between the hours of 11:30 p.m. and 6:30 a.m. Information concerning the voluntary curfew was disseminated by the NBAA, the FAA and the County.

In 1978, the County was named as a defendant in an action entitled Posillippo v. Morgan, 78 Civ. 4629 (S.D.N.Y.), which arose in part from noise caused by aircraft utilizing the Airport. This action was subsequently settled. The stipulation of settlement in no way bars the relief sought herein.

Since 1981, the Airport has implemented with the approval of the FAA five procedures that have resulted in the abatement of noise:

a. revised runway No. 16 departure procedures, implemented May, 1982;
b. revised runway No. 34 arrival procedures, implemented December, 1981;
c. revised helicopter arrival and departure routes, implemented early 1983;
d. higher altitudes on runway No. 34 departures, implemented January, 1983; and
e. the raising of airspace during late evening to morning, in conjunction with the New York TRACON, implemented June 1981.
The magnitude of sound is measured in units of decibels. In measuring aircraft noise, the decibel scale commonly used is the A-weighted scale ("dBA"). It represents the magnitude of sound in terms related to human responses to sound. From November, 1977 through April, 1978 a study of aircraft noise impact between the hours of 11:00 p.m. and 6:30 a.m. ("the 1978 Study") was conducted for the County by Pan American World Services, Inc., which manages the Airport for the County. The 1978 Study was conducted through the use of a portable noise monitor. The results of the 1978 Study were that the hourly average aircraft noise levels at all locations exceeded 60 dBA on only three occasions after 11:00 p.m., and that on no occasion did the hourly average aircraft noise levels exceed 55 dBA between 12:00 midnight and 7:00 a.m. at any off-airport location, and that the noise levels during the voluntary curfew period were within acceptable limits. The Report of the 1978 Study concluded that the "existing voluntary night jet operating restrictions are effective and that any hard and fast rule would make an insignificant difference in cumulative community noise exposure level."

At no time from the conclusion of the 1978 Study until the imposition of the curfew on October 1, 1981 did the County install noise monitoring equipment. Nor did the County promulgate any regulation establishing quantified levels of noise to be permitted in or around the Airport.

According to Commissioner Bohlander, the only noise monitoring conducted by the County at the Airport from the conclusion of the 1978 Study until the imposition of the curfew was random monitoring by a hand-held noise monitor. This random monitoring confirmed the absence of any significant noise impact on the Airport environs during the hours of 12:00 midnight to 7:00 a.m.

Prior to the 1978 Study, the County retained a consultant to conduct a study of noise impact on the area around the Airport, which study is known as the Westchester County Airport Noise Control and Land Use Compatibility Planning Study: Short Term Noise Abatement Plan ("ANCLUC Study"). The ANCLUC Study designated areas of land around the Airport as the primary impact area and the secondary impact area, the primary impact area consisting of the area surrounding the Airport which is exposed to a noise level not exceeding 65 Ldn and the secondary impact area consisting of that area surrounding the Airport which is exposed to a noise level not exceeding 60 Ldn. "Ldn" is a measure of the average of total noise in a particular area over a 24-hour period expressed in units of decibels with a 10 decibel penalty added to all noise occurring during the nighttime hours (10 p.m. to 7 a.m.).

The results of the ANCLUC Study showed that the land use impact in the primary impact area was comparatively small; only 335 persons were estimated to live within the primary impact area. The ANCLUC Study recommended against a closing of the Airport during nighttime hours, as such action would result in "only negligible reduction in nighttime jet operations, ... and would result in a small change in net community noise exposure." The Study rejected imposition of a nighttime curfew, and instead suggested several operational changes to minimize noise impact. The ANCLUC Study recommended immediate implementation of specific routes for helicopter traffic and the use of a preferential runway system for specific times.

Despite the recommendations of the ANCLUC Study and the 1978 Study by the Airport Manager, in or around December, 1980, the County Board of Legislators passed Resolution 225-A of 1980, directing that the administration (the County Executive) impose a curfew at the Airport, emergency operations excepted. The County Executive declined to impose a curfew and returned the resolution to the Board of Legislators. When Resolution 225-A of 1980 was passed, the committee that grew out of Town of Greenwich v. Westchester County, supra, passed a resolution asking that the County submit the issue to the committee so that it would be able to assist in solving the noise problem. The County did not respond. Consequently, the committee's expertise was never utilized by the County to analyze the nighttime noise impact over areas surrounding the Airport. The committee thereafter passed a resolution opposing the implementation of a curfew.

Continued in Part Two