Court Thwarts Attempt by City Voters to Impose Restrictions on Operation and Use

What happened? The Burbank-Glendale-Pasadena Airport Authority (“Airport Authority”) just won a legal case after the voters in the City of Burbank tried to impose a number of procedural obstacles and specific restrictions on the operation and improvement of Burbank Airport (soon to renamed “Bob Hope Airport”). An appellate court in Los Angeles, however, found them to be illegal and therefore refused to enforce them. The case is called City of Burbank v. Burbank-Pasadena-Glendale Airport Authority and is cited at California Court of Appeal, Second Appellate District, 03 CDOS. 9934 (opinion issued November 19, 2003).

Why should I care?
A significant number of public airports in California now face or are threatened by local efforts to restrict their operation and use within the regional and national transportation systems. As a result, if you either operate or support a public use airport in California, this case is important because it discusses some of the legal limits that apply to such efforts.

What caused this dispute?
In 1977, the three cities of Burbank, Glendale and Pasadena formed the Airport Authority as a separate government agency for the sole purpose of owning and operating Burbank Airport (until then privately owned by Lockheed Corporation). In 2001, the voters in the City of Burbank passed Measure A, a local initiative that restricted the operation and improvement of Burbank Airport. Specifically, it required the city to hold a referendum election with a two-thirds voter approval requirement before the city council could approve any financing or construction of an airport terminal.

Aside from making it more difficult to build a new terminal, Measure A also made it more difficult for the Airport Authority to operate and maintain Burbank Airport in a safe and efficient manner. This measure did so by preventing the city council from consenting to the acquisition or rezoning of any land for an airport use or the financing or construction of any new, rebuilt, relocated or expanded airport facility under any conditions or due to any circumstances unless and until the airport complied with 12 specified conditions. These conditions, which were imposed on the Airport Authority, included:

(1) Mandatory curfew on non-emergency aircraft operations between 10 pm and 7 am;
(2) Limit on the maximum number of aircraft operations each year;
(3) Limit on the maximum number of aircraft passengers each year;
(4) Fines and sanctions for violations of the curfews and limits in (1) through (3);
(5) Ban on all operations of aircraft not originally manufactured and certified to meet FAR Part 36 Stage 3 noise limits;
(6) Airport funding of a program for sound insulation that includes providing the matching funds for completion of the work;
(7) Banning easements used as sound abatement measures;
(8) Preparation and certification of an Environmental Impact Report for all property owned, leased or used by the airport;
(9) Development of a master plan for all airport property and city approval of that plan;
(10) Banning the extension of existing runways, adding runways, or modifying runways to accommodate heavier traffic;
(11) Imposing heavy fines on the airport for any violation of these conditions; and
(12) Reimbursing the city for lost property tax revenues resulting from conversion of the airport from private ownership in 1977 and for the airport’s fair share of all costs related to infrastructure improvement and maintenance.

Measure A also imposed duties on Burbank (a) to establish a city department to enforce Measure A’s terms and conditions and to investigate alleged violations; (b) to hire an independent consultant to monitor noise levels; and (c) to amend any and all existing city laws to conform to Measure A’s requirements.

What did the courts do? Based on these extensive restrictions, the City of Burbank asked a trial court to review Measure A’s validity within a week after it was approved by a majority of Burbank’s voters. The trial court declared the measure invalid and illegal under state airport law and the California Constitution. The appellate court agreed; its analysis is discussed below.

Why did the courts support the airport?
A. Legislative Preemption through the State Aeronautics Act Public Utilities Code Section 21661.6 is part of the State Aeronautics Act, which pertains to the regulation of California airports and governs their expansion and enlargement and the construction of new ones. Section 21661.6 specifically addresses the criteria for expanding and enlarging an existing public airport and provides that, before an airport acquires land for expansion, it must submit a plan to the board of supervisors or city council in which the property is located.

The plan must show the airport-related uses and other uses proposed. The city council or board of supervisors must then hold a public hearing and thereafter approve or disapprove the plan.

The court’s decision contrasts the powers of the people to enact regulation by initiative or referendum under Article II of the California Constitution against the right of the Legislature to preempt such power in matters of statewide concern. Citing Simpson v. Hite (1950) 36 Cal.2d 125, the court concluded that the initiative and referendum power couldn’t be used in areas in which the local legislative body’s discretion was preempted by statutory mandate. In determining the Legislature’s intent to preempt, the court found significant the fact that the statute specifically directed the city or the board of supervisors (as opposed to merely identifying the local “legislative body”) to carry out the purpose of Section 21661.6 created a “strong inference” that action by initiative would be barred.

B. Matters of Statewide Concern
The court then analyzed whether the subject matter involved a municipal affair (which would be subject to initiative or referendum) or a matter of statewide concern. In reference to the latter phrase, and citing Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, the court made clear that any matter of more than local concern, including matters of regional but not statewide concern, should be considered as a matter of statewide concern. In the case of the airport, the court noted that, like highways, airports were used primarily for travel between cities and often required the resources and planning of more than one jurisdiction to construct and maintain them. Additionally, the court noted that airport facilities would likely have impacts outside the boundaries of the city where they are located.

C. Disruption of Routine Operations of Government
As a separate basis for invalidating the initiative, the court additionally found that the language of the Aeronautics Act inferred that the Legislature must have intended exclusive delegation to the city or the board of supervisors in order to prevent disruption of the routine activities of government. Citing Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, the court stated that when the Legislature had made clear its intent that one public agency is to exercise a specific discretionary power, that power is in the nature of a public trust and may not be exercised by others in the absence of statutory authorization.

D. Power to Zone by Initiative
While conceding the ability of the voters to affect zoning decisions by initiative, the court concluded that Measure A was far more than a mere local zoning ordinance and that it addressed matters of statewide concern and importance. According to the court, the overriding purpose of Measure A was to create procedural obstacles and impose specific restrictions on operating or improving the airport directly as well as indirectly through the imposition of the 12 conditions contained therein. In enacting Section 2166l.6, the Legislature intended the authority it delegated be exercised by the city council specifically and exclusively, precluding use of an initiative.

What does it all mean?
This appellate decision represents a critical pushback to the rising tide of NIMBYism being asserted against efforts to maximize the utility, efficiency and potential economic advantages of California’s airport transportation assets. This court has drawn a line in the sand, saying to those who would oppose the use and improvement of these assets that it’s no longer their call. The Legislature has spoken and its message is clear – decisions on airport development are within the exclusive jurisdiction of locally elected officials.

A couple of cautionary notes; first, the decision can still be appealed to the California Supreme Court, and if that court accepts the appeal, the decision could potentially be overturned; second, the voters can still get their say, albeit indirectly, by throwing out their local politicians if they don’t like their decisions.

But make no mistake; this is a major step forward for those who want to see the value of airport transportation assets maximized, and a big step back for those who don’t.

* * * Stanley Taylor and Brian Chase recently gave a presentation about innovative financing options to the Association of California Airports. They have also participated in discussions concerning the future use of Buchanan Field, ageneral aviation airport located in the City of Concord.

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