San Jose Airport Curfew Faces New Legal Challenge

JUNE 23, 2003

Two years ago Oracle chief Larry Ellison won the right to fly his private jet in and out of San Jose's airport any time he wants, day or night. Now the owner of a larger and louder Boeing 727 that shuttles the San Jose SaberCats arena football team around the country wants the same luxury. So Horta Limited Liability Co., which is connected to the Fry family of Fry's Electronics and owns the Boeing, sued the city in a case that goes to court today.

U.S. District Judge Jeremy Fogel, the same judge who granted Ellison the exemption, is hearing the case. City officials worry that a loss in the case would devastate the already shaky 11:30 p.m. to 6:30 a.m. curfew, which helps protect thousands of residents from nighttime aircraft noise.

Horta's plane is bigger and, at 98 decibels vs. 86 decibels, significantly louder than Ellison's, city officials said. Even so, Horta's lawyers say the plane is entitled to a curfew exception for a limited number of takeoffs and landings during arena football season, which runs from February to June, and they call the city's refusal "arbitrary, unreasonable and discriminatory."

City Attorney Rick Doyle contends that Horta's plane is louder than any aircraft allowed to use the airport during the curfew.

But a lawyer for Horta, James Chadwick, said the 727 still meets the criteria for an exemption under San Jose's law -- namely, that it's a general aviation, or civilian, plane and that it is designated Stage 3, the quietest category. "We're either entitled to authorization" to take off and land during curfew hours, Chadwick said, "or the curfew should be thrown out."

Doyle said an adverse ruling by Fogel could "open the floodgates" to late-night takeoffs and landings by private jets and commercial airlines alike. He characterized the lawsuit as a case of "me too," with Horta trying to capitalize on Ellison's victory in 2001. Horta hired the same lawyers who won the Ellison case, Edward P. Davis Jr. and Chadwick, who also represent the Mercury News on some matters.

"They're trying to piggyback on Ellison's success," Doyle said. "Yet these are very different airplanes and we just can't accept that allowing a noisy airplane like this 727 is going to do the community any good."

The case comes as San Jose officials scramble to fix potentially fatal flaws with the curfew law, which residents near San Jose Mineta International Airport say is essential to maintain property values and ensure a good night's rest. "It really does impact the value of all the homes around here because people aren't going to move into a neighborhood where planes are going to fly all night long," said Linda Dittes, a member of the Rose Garden Neighborhood Preservation Association. Losing the curfew, she said, "would certainly jeopardize the quality of life in this neighborhood."

In his ruling on Ellison's lawsuit, Fogel wrote that San Jose's curfew ordinance is "unreasonably discriminatory" because the Oracle executive's Gulfstream V jet is quieter than other lighter planes allowed to use the airport during curfew hours. The judge said Ellison was entitled to an exemption, but Ellison has not used San Jose's airport in the past 12 months, airport officials said.

Under San Jose's law planes lighter than 75,000 pounds can take off and land late at night, but heavier aircraft cannot, unless the airport director grants an exemption. City officials say Horta's plane doesn't qualify for an exemption because it is occasionally rented out, and thus partly commercial.

Despite his criticism of the curfew in the Ellison case, Fogel declined to invalidate it, citing the city's interest in protecting residents from nighttime noise.

Less than a year after Ellison prevailed, Horta asked the city for a curfew exception. City officials responded by enacting a moratorium on any exemptions, saying they needed time to work with the Federal Aviation Administration to update the curfew law. Thirteen months later, officials are still working with the FAA and the moratorium remains in place. On Tuesday the city council is expected to extend the freeze another 90 days.

Airport officials have declined to act on Horta's curfew request while the moratorium is in effect, prompting Horta to sue the city in August. By taking away even the potential for an exemption during the moratorium, the city has essentially invalidated the curfew program, Horta's lawyers have argued.

Doyle likens the moratorium to a commonly used municipal planning device: freezing development until a land-use plan is crafted.

Fogel is scheduled to hear arguments in the case today, although neither side expects a ruling.

Councilman Ken Yeager, who represents several neighborhoods affected by airport noise, met recently with Randy Fry, president of Fry's Electronics, and his lobbyist, Ash Pirayou, about the case. Yeager said they were "interested in seeing if a deal could be worked out."

But despite months of negotiations, the city and Horta remain at loggerheads as they head to court. "Despite exceptional efforts to reach an agreement, the city so far has declined to settle with us," Chadwick said.

Yeager, for his part, said he's disappointed Horta is pressing ahead with the lawsuit. If the team needs to come in later, it should land at the San Francisco or Oakland airport, he said. "Clearly, if they were able to land it would bring great disruption" to thousands of people, the councilman said, "all for the sake of getting a couple arena football players home a little earlier."

Source: San Jose Mercury News