Court Upholds Florida Airport's Right to Ban Stage-2 Jets

AUGUST 10, 2001

The Naples Airport Authority has won a significant victory in its effort to control airport noise. A U.S. District Court judge earlier this week dismissed a lawsuit that challenged a ban on certain types of aircraft at Naples Municipal Airport. The lawsuit, which challenged the constitutionality of a ban on "stage-2" jets at the airport, was filed by two national trade groups, the National Business Aviation Association and the General Aviation Manufacturers Association.

Judge Gregory Presnell issued a summary judgment that dismissed the case, meaning it's dismissed "with prejudice" and thereby prevents the NBAA and GAMA from suing again. Both parties still have the right to appeal the decision.

Stage-2 jets were made primarily between 1975 and 1983 and are noisier than jets made after that time. The airport banned the aircraft because airport officials believe stage-2 jets contribute to noise problems in and around the airport.

Naples airport officials said stage-2 jets make up less than 1 percent of the aircraft that fly out of the airport but are responsible for more than 40 percent of the noise complaints filed by local residents.

The NBAA, a Washington, D.C.-based trade group that represents about 6,400 corporate members who fly in connection with their primary business, had sought a permanent injunction that would prohibit the city airport from enforcing the stage-2 jet ban. NBAA officials were critical of the decision and didn't rule out an appeal. "With all respect to the court, we disagree with (Presnell's) opinion and are examining our further legal options," NBAA President John W. Olcott said.

GAMA, also based in Washington, joined the lawsuit after the NBAA filed. The GAMA is a national trade association that represents more than 50 U.S. manufacturers of fixed-wing general aviation aircraft, engines, avionics, and component parts.

Presnell ruled that the trade groups did not prove their case challenging the constitutionality of the ban. He also ruled that the stage-2 ban satisfies all constitutional standards and is reasonable and not discriminatory.

"We're very pleased with the summary judgment," Naples Airport Authority Chairman Eric West said. "From our mindset, this is a significant victory."

The Airport Authority believes local communities have a right to decide what is in their best interests as long as they are not in violation of the law. The summary judgment ratifies that belief, West said.

The lawsuit was scheduled to go to trial Aug. 20 in Fort Myers.

West said the manner in which Presnell issued the summary judgment was significant. Presnell ruled that the Airport Authority had the right to set local noise restrictions and could decide what was excessive noise.

When the Airport Authority conducted the noise study that recommended the Stage 2 jet ban, it used a 60-decibel noise level. The Federal Aviation Administration uses a 65-decibel level and the NBAA suggested the noise study was illegitimate because it didn't follow the standards of the federal government.

But Presnell ruled that the airport had the right to use 60 decibels because there is no language in federal statutes or regulations indicating that using 60 decibels is forbidden.

"If Congress or the (FAA) had intended to preclude local authorities from considering noise levels below 65 (decibels) in making an access restriction decision, either could have easily done so," Presnell said in his ruling. "They did not."

The responsibility for determining the acceptable and permissible land uses and the relationship between specific properties and specific noise regulations rests with local authorities, Presnell said.

Presnell also rejected the argument that the ban was discriminatory because the means to ban Stage 2 jets were set forth in the Airport Noise and Capacity Act that became federal law in 1990.

That act sets forth a procedure for banning certain types of aircraft that the Airport Authority followed, Presnell said.

Olcott urged the FAA to step in and take action against the authority.

"The court's ruling also does not (prevent) the Federal Aviation Administration from pursuing its administrative remedies against the airport," Olcott said. "The impact of the ban on aircraft noise in and around Naples will barely be perceptible, but the economic impact on the community will be real and adverse."

The FAA has been critical of the Stage 2 ban. Naples Airport instituted the ban at the beginning of this year but later deferred enforcing it because of objections from the federal agency.

Even though the lawsuit is settled the authority does not expect to begin enforcing the ban until it has worked out its problems with the FAA, West said.

FAA officials have criticized the ban because it used a 60-decibel noise level.

The authority is free to use 60 decibels but has to provide evidence and an explanation of why it used the lower level. The authority didn't do that, said Lynne Pickard, manager of the FAA's community and environmental needs division.

The study also didn't include an examination of nonrestrictive ways to reduce airport noise, such as noise barriers, land purchases and voluntary curfews, FAA officials said.

The FAA doesn't have to approve the stage-2 jet ban but it does have to rule that the Airport Authority followed proper procedures in instituting the ban. The FAA has said the authority didn't follow proper procedures.

In June the authority completed a $102,500 scope of services study that it believes takes care of all the issues cited by the FAA. But the federal agency hasn't yet said whether it believes the scope of services study addressed all of its concerns.

Pickard promised the Airport Authority at a meeting earlier this year that the FAA would take an unofficial look at the scope of services agreement once it is completed and let the authority know if the work addressed all of the objections the federal agency had with the original noise study. Thursday, West said the Airport Authority was still waiting to hear from the FAA. "We think a response from the FAA is overdue," West said.

Two weeks ago, FAA spokeswoman Holly Baker said the FAA is reviewing the study and expects to respond to the Airport Authority in the next couple of weeks.

The Airport Authority will have to undergo a 45-day public comment period and a 180-day notification period after it amends the study. That means the earliest the ban can be enforced again is 2002.

The FAA also claims that the airport is being discriminatory by banning Stage 2 jets and will lose its ability to get federal grants if it goes forward. Federal law prohibits awarding government grants to organizations or groups that discriminate.

The Airport Authority is planning to deal with all issues related to the noise study first and address the FAA over the issue of grant compliance, West said.

West declined to comment directly when asked if Presnell's ruling that the stage-2 jet ban was not discriminatory would help in their dealings with the FAA, since the federal agency claims the ban does discriminate. "I'll just say there was nothing in the judge's ruling that hurts us in our dealings with the FAA," West said.

The Airport Authority still has to defend itself in a lawsuit filed by Marion J. Rickard, a Colorado resident. Rickard, filed suit earlier this year alleging that the aircraft ban unfairly discriminates against the owners of stage-2 jets. Rickard owns a Lear Model 24 D stage-2 jet, the lawsuit states.

West said he was confident the Airport Authority would be able to defend itself in that case because the issues were the same as in the lawsuit that was dismissed earlier this week.

The Airport Authority has now spent about $1.1 million in its efforts to ban Stage 2 jets. That figure includes legal fees, multiple noise studies and every other expense related to the Stage 2 jet ban.

Source: Naples News