It’s rare when the Santa Monica City Council dedicates an entire meeting to one topic, but the council is doing that Tuesday night, when the sole item on the agenda (beyond the consent calendar) will be the future of Santa Monica Airport.
And why not? Fifty years from now, the council members will be remembered, if at all, for what they do with the airport (or forgotten for what they don’t do).
As someone involved in the movement to close the airport and turn it into a great city park, I frequently have friends telling me that what we at Airport2Park.org are doing is great, but futile, because “the FAA will never let the airport close.”
It’s not a matter of legal analysis. They don’t have views about that. When I ask them how the FAA can force the City to operate the airport if the FAA doesn’t have the legal right to do so (assuming, yes, that the City can prove that in court), they shrug or roll their eyes.
We’re talking about some deep cynicism about the feds and the powers of politically-insulated, self-perpetuating, industry-captured agency.
In many ways, the staff report for Tuesday night’s meeting is a response to this kind of thinking because it outlines a practical (if, in my view, a somewhat too cautious) approach to extricating the airport land from the FAA’s grip. If the City’s lawsuit against the FAA was a bold stroke on constitutional and other high-minded principles, the staff’s recommendations want to treat the airport land like any other piece of real estate — not only real estate that the City can regulate under its municipal powers, but real estate that it owns and with respect to which it also has “proprietor’s rights.”
It’s probably not a coincidence that these tactics echo a line in a ruling the FAA issued in a 1998 proceeding brought by airport tenants seeking to negotiate from their landlord (the City) lease extensions beyond the expiration in 2015 of the 1984 Settlement Agreement between the City and the FAA. In that case the FAA itself ruled that after the City’s obligations under the 1984 agreement to operate the airport expires, what happens to the airport land will be “a local land use matter.”
Simple as that — “a local land use matter.” When the City finally pins the FAA down in court, where the issue will be the intent of the parties when they made the 1984 agreement, i.e., whether the parties to the 1984 agreement intended for it to supersede the infamous “perpetuity clause” in the 1948 Instrument of Transfer (IOT), the FAA is going to have a hard time explaining away that line from one of its official rulings.
In framing the airport’s future within the language and concepts of local land use matters, City staff recommends a series of measures. These include the re-leasing of airport facilities the City owns at market rates for the purposes of ending the City’s subsidies of the airport (but which will also open the airport up to non-aviation tenants that can pay higher rents); taking back and removing from airport use a crucial parcel of land that is not subject to the 1948 IOT (which would incidentally mean reconfiguring the airport with a much smaller runway that larger corporate jets could not use); reducing (or eliminating) aviation fuel sales at the airport; and otherwise requiring that all uses at the airport are compatible with the uses in surrounding neighborhoods.
These recommendations also echo recommendations that anti-airport organizations and the Airport Commission have made to reduce the impact of the airport and its operations, without necessarily causing a direct confrontation with the FAA. The anti-airport organizations have been vehement in exposing the negative impacts of the airport, and want the whole airport closed, but they have also been cautious in the tactics they recommend.
Meanwhile, perhaps the most striking sentence in the staff report is this one: “For years, community members assumed that the City could close the Airport in 2015 when the 1984 agreement with the federal government will expire.” That simple statement, which recognizes that it has always been the community’s understanding that the 1984 agreement was meant to the be the last extension of Santa Monica Airport’s operative life, should establish the context for all of the City’s future actions regarding the land there.
Land that will be the location for a great park.
Thanks for reading.
Mr. Gruber, this is one of several columns in the last few years where you have claimed:
(1) that by entering into the 1984 agreement obligating the city to operate the airport until 2015, the FAA gave up any right it has (or acknowledged that it had no right in the first place) to force the city to operate the airport after 2015 under the 1948 instrument of transfer; and
(2) that the statement in the 1998 Part 16 Director’s Determination about the post-2015 airport being “a local land use matter” confirms your first claim.
These were always weak arguments, ignoring the context of the 1984 agreement (a settlement of actual and threatened litigation, which imposed certain temporary obligations on the city beyond its perpetual obligation to keep the airport open, and provided the city with certain temporary rights to limit airport activities in exchange) and the fact that the 1948 instrument of transfer wasn’t even in the record on the 1998 Part 16 proceeding and that the post-2015 airport future wasn’t at issue in that proceeding (making the “local land use matter” statement “dicta” to those of us burdened by a legal education).
But now, both arguments stand rejected by a federal judge, Judge John Walter in his order granting the FAA’s motion to dismiss. Read pages 5, 6, and 13 of the opinion, if you haven’t already. Since Judge Walter’s conclusions rejecting your arguments were essential to his granting the motion to dismiss, unless the city successfully appeals the order, they are binding on the city in any future lawsuit (“res judicata” to the legally educated). Probably time to come up with some new arguments. . . .
I have read the decision — and the judge stuck to the statute of limitations and other procedural issues. He said the City’s case wasn’t ripe, he didn’t say it was wrong. And the SOL issue was only under the Quiet Title Act, it’s not relevant if the City closes the airport and the FAA brings a proceeding against the City. Read the end of the decision — the judge practically apologizes that he’s not able to make the decision and give the City the legal guidance it sought.
.For years, community members assumed that the City could close the Airport in 2015 when the 1984 agreement with the federal government will expire.
Actually community members assumed this because they were reassured by City officials that this was the case.
I read the staff report. Very interesting. Too cautious? I don’t know but I was impressed with the staff’s trying to prepare for a continuing period of uncertainty possibly extending for several years and also the need to operate a safe airport during that period.
It’s true they are threading a needle. But I believe Tuesday night people will have some good ideas to pursue in addition to what they recommend.