Judge Says San Jose Airport Curfew Is Discriminatory

JUNE 13, 2001

A federal judge on Wednesday ordered San Jose International Airport to allow Oracle chief executive Larry Ellison to fly his private jet in and out of the airport late at night, calling the city's curfew law ``unreasonably discriminatory'' but declining to take the ``drastic step'' of striking it down.

The ruling by District Judge Jeremy Fogel was a decisive victory for Ellison, who had called rules barring him from using his Gulfstream V private jet at night "wacky" and "absurd." Barring an appeal by the city, the Oracle boss will be able to fly his $38 million plane at San Jose Airport whenever he wants.

There was, however, some consolation for the city. Although the judge called the curfew ordinance "inconsistent with federal law," he stopped short of invalidating the measure, citing the city's interest in protecting residents from nighttime noise. His decision was crafted narrowly to apply only to Ellison's jet and a handful of similar privately owned jets, and not to hundreds of commercial aircraft city officials had feared would be eligible for an exemption if Ellison got one.

"The one thing I'm very pleased about is that the judge has preserved the curfew," Mayor Ron Gonzales said. "That's the reason we went to court: to protect the neighborhoods and ensure people in the flight pattern get a good night's sleep."

The curfew has long been a big issue at City Hall, with politicians caught between the business community's push for a viable airport and residents' need for rest.

Ellison brought the lawsuit last year after repeated letters from the city complaining about his late-night takeoffs and landings. The curfew bans most airplanes from using the airport between 11:30 p.m. and 6:30 a.m.

The lawsuit contended that the curfew law was arbitrary because exemptions are granted based on weight rather than noise. Ellison's jet is quieter than many of the lighter planes allowed to use the airport late at night.

Fogel agreed. "The unreasonably discriminatory nature of the city's noise program is best demonstrated by the fact that twenty Gulfstream V jets taking off at the same time would make less noise than one Beechjet 400, an aircraft exempt from the curfew," Fogel wrote. "The stated objective of the curfew is to regulate nighttime noise, not an airplane's weight."

The judge went on to dismiss city attorneys' claim that an exemption for Ellison would "open the floodgates" to nighttime commercial flights. Commercial planes clearly are ineligible for a curfew exemption under the city's curfew ordinance, Fogel said.

"The court in essence has said you can make a distinction between commercial and non-commercial flights," City Attorney Rick Doyle said, "and that's a good thing."

Doyle said the city will be forced to offer curfew exemptions only to "the billionaires' club with large private jets." According to testimony by Oracle, only nine Gulfstream V jets -- the same type Ellison owns -- are in the state of California.

At the same time, the decision seemed to expose the curfew law to a broader challenge. Fogel limited his ruling to the question of whether Ellison's jet should get an exemption. Should Ellison push forward with his case, rather than than settle with the city on a curfew exemption, "he is likely to prevail" on the claim that the law "is unjustly discriminatory and thus inconsistent with federal law," Fogel wrote.

Calls to Oracle were referred to Ellison's attorney, Ed Davis, who was traveling and unavailable for comment.

Doyle said Wednesday he was still in the process of reviewing the ruling but that it was unlikely he would recommend an appeal. The city attorney acknowledged Fogel's concerns with the curfew's legality, but he remained confident the ordinance would survive a more thorough challenge.

Elizabeth Monley, president of the College Park Neighborhood Association and an outspoken supporter of the curfew, said she was pleased with the court ruling at first glance. She and others had feared Fogel would scrap the curfew entirely.

Although Fogel said he was disappointed the city and Ellison could not reach a compromise after more than a year in court and his repeated urgings, "I'm glad the city didn't waiver on this," Monley said. "I think fighting and insisting on the intent of the curfew is probably what got us this ruling."

Airport director of aviation Ralph Tonseth was less upbeat. He defended the airport's method of using weight as the deciding factor in granting exemptions. The city is precluded from updating its curfew, enacted in 1984, by a federal law approved six years later. "I'm disappointed," Tonseth said. "I disagree that the curfew is unjustly discriminatory."

Source: San Jose Mercury News

See also: Judge May End San Jose (California) Airport Curfew (April 9, 2001)