Tag Archives: Santa Monica Airport

Santa Monica Airport: Going environmental

Posted on by
6

When it comes to the Santa Monica Airport (SMO), what a difference a few years, a lot of community action, and a decisive election have made. Four years ago, in the aftermath of losing its battle with the FAA over large jets, the City of Santa Monica was gun shy about the airport. It initiated a “Visioning Process” for the airport that ended up envisioning nearly everything that might happen at SMO except the vision that most residents concerned about the airport wanted: shutting it down.

Fast forward. Two months ago the City Council listed closing SMO as one of the three major priorities for the City. Last week the City took out full-page advertisements and created a website designed to mobilize community action against the Federal Aviation Administration (FAA) for the purpose of doing that. Tomorrow night, the council will act on recommendations from staff to start a process to curtail environmental impacts of airport operations until it can be closed.

All of this is in the context of continuing litigation to establish or confirm the City’s right to close all or part of the airport. There are two cases. The City initiated one against the FAA in 2013 to have the courts declare that the City now has the right to close the whole airport. (That litigation is tied up in a procedural appeal in the Ninth Circuit.) Airport interests brought the other case—it’s a FAA administrative proceeding seeking to extend the City’s obligation to operate the airport under a contract with the FAA from 2014 to 2023. (In that case, the FAA was supposed to give its decision months ago, but has for the third time delayed the decision.)

A city government that was not long ago trying to rationalize every problem SMO creates is now throwing every argument and strategy it can at the FAA to close the airport. It’s particularly notable that the City is working in concert with the two U.S. representatives, Ted Lieu and Karen Bass, whose constituents are affected most by the airport; this represents a big change from a few years ago when it was hard to get the local congressional delegation interested.

It is also notable that the City is making environmental arguments against the airport that it had not made before. These arguments, which have been championed for years by Los Angeles resident Martin Rubin and his organization, Concerned Residents against Airport Pollution (C.R.A.A.P.), potentially will allow the City to make an end run around at least the strictest aspects of FAA control.

This environmental argument is mostly what tomorrow night’s hearing is about. Staff is proposing various measures, including moving to require that all fuels sold at the airport be low lead or unleaded for prop planes, or biofuels for jets; requiring that current airport lessees begin mitigation of contamination of premises they have occupied; and moving to have the City take over fuel sales. Finally, staff wants authority to begin developing plans for a cap on total emissions generated by the Airport, something that could ultimately provide overall limits on airport operations.

Of course, the goal is not to operate a cleaner airport, but to close it and build a park. But making the airport operate more cleanly not only has intrinsic benefits, for so long as the airport is operating, but also increases pressure on the aviation businesses there.

All of this is radical change from where the City was not long ago. The sea change began after the 2012 election where nearly all the candidates supported closing the airport, and obviously picked up with the 2014 election when Measure LC won handily, defeating the aviation industry’s Measure D 60% to 40%. Also, one has to credit the hiring of new City Manager Rick Cole, who is taking a much more dynamic approach to the airport and its future than did his predecessor, Rod Gould.

Tomorrow night City Council should adopt all of the staff recommendations, but it should try to go even farther. For one thing, it should have staff report back on the possibility of ending all fuel sales at the airport and what this would mean, both legally and practically. Another thing the Council should do—at least I don’t see why the City can’t do it—is to terminate all leases with flight schools. The numerous flight schools at SMO are responsible for a large proportion of takeoffs and landings, and given the residential areas around the airport, it’s a dangerous place to learn to fly. I haven’t heard of any FAA regulations that require airports to have flight schools.

Without going too deep into the controversy, there is a group of anti-airport activists who believe the City can go much further than what staff proposes—and close the airport now. It’s impossible to imagine how this could be done given that the City is engaged in ongoing litigation over what its rights are, especially given that other parties brought one of the cases against the City. Although in my opinion these activists are correct about what the City has the right to do, when they ask the question, “why are the jets still flying,” it’s as if they never heard the words “contempt of court.” Judges don’t like it when litigants go outside the process.

In law school they teach that there is no right without a remedy. With respect to SMO, the City of Santa Monica is working on establishing and creating its remedies, both in the courts and on the ground.

Thanks for reading.

U.S. Reps to FAA: make up your administrative mind

Posted on by
5

A few weeks ago U.S. Representatives Ted Lieu and Karen Bass organized a meeting in Washington where Santa Monica officials and local residents could express their grievances about Santa Monica Airport to Federal Aviation Administration (FAA) officials. The meeting had no concrete effect because the FAA had declared ahead of time that its representatives would not respond to anything that was said there, but the meeting did result in Reps. Lieu and Bass promising to press the FAA to issue an overdue decision in an administrative proceeding brought against the City by the National Business Aviation Association (NBAA) and other aviation interests.

By way of background, the case Lieu and Bass referred to involves a grant of money Santa Monica received from the FAA for airport upgrades under a contract entered into in 1994. The contract obligated the City to assure continued operation of the airport, but for no longer than 20 years, i.e., the City’s obligations under the contract would terminate no later than 2014. This is important because the City was not going to accept any money from the FAA that would tie the City’s hands beyond the expiration of another agreement with the FAA, from 1984, that required the City to operate the airport only to July 1, 2015. (The City’s obligations under the 1994 contract are often referred to as “grant assurances,” and the case is often referred to as the “grant assurances case.”)

In 2003 the 1994 contract was amended to increase the amount of the FAA’s grant by about $240,000 because work contemplated in the 1994 agreement proved to be more expensive than anticipated. The amendment, however, left the remaining terms of the contract, including its 2014 expiration date, unchanged. Nonetheless, last year the NBAA was the lead plaintiff in an FAA administrative law proceeding demanding that the FAA tell the City that it was bound, because of the 2003 amendment, to keep the airport operating until 2023, i.e., 20 years after the increase in the grant.

For months now the grant assurances case has been fully briefed. The delay maintains the status quo at the airport, which must please the aviation parties who brought the action. Santa Monica wants a decision. Any decision (for reasons I’ll discuss below).

Last week Lieu and Bass acted on their promise and sent a letter to the FAA that not only asked the agency to make up its administrative mind, but also forcefully expressed the City’s case why the 2003 amendment did not extend the contract term. (You can read the letter here.)

The decision in the grant assurances case is of tremendous importance—but not, I would argue, for what the decision might be. Whatever the decision is, it will free the City to take drastic action regarding the airport.

More background. Santa Monica has brought its own lawsuit against the FAA to determine whether a 1948 agreement requires the City to operate the airport “in perpetuity.” The case now languishes, on appeal from a procedural decision against the City, in the Ninth Circuit. But the 1948 agreement should not apply to a large parcel of land (known as the “Western Parcel”) that includes 2,000 feet of SMO’s 5,000-foot runway. If the City is not otherwise obligated (such as because of the grant assurances) to keep the airport operating, then regardless of the enforceability of the 1948 agreement the City should be able to close down the Western Parcel and reduce the runway to not more than 3,000 feet. In that event the largest private jets would not be able to use SMO.

(Important parenthetical: the FAA disputes this, and says that the 1948 agreement would be violated if the City terminated aviation on the Western Parcel. But if the FAA does bring an action against the City on this issue, it will be better to litigate first over the Western Parcel than over the airport as a whole.)

But why do I say that the actual decision in the grant assurances case is not important?

What is hamstringing the City from pulling the trigger on the Western Parcel is not whether the FAA might rule that the 2003 amendment extended the grant assurances to 2023, but rather the fact that the case is still pending. The City Council decided over a year ago that if the 2003 increase in the grant did extend the term of the grant assurances, then to resolve the matter the City would repay the FAA the $240,000. While the City has made strong arguments on both procedural and substantive grounds for why the FAA should dismiss the case, in practical terms the only issue is whether the City gets to keep the $240,000.

In a post two weeks ago, I wrote that the City need not make any strategic decisions regarding the airport until it receives the FAA’s decision in the grant assurances case. True enough, but the Lieu/Bass letter focuses the mind. Why? It’s one thing for the City to be patiently waiting for the FAA to announce a decision in the case, but it’s quite another when two members of Congress call the FAA out on their delay.

The FAA’s decision should come soon, but no matter what the decision is, the City’s strategy should be the same: announce a closing date, as soon as practicable, for all aviation operations on the Western Parcel.

Thanks for reading.

SMO leases: City Council steps off the track to let the train pass by

Posted on by
9

Sometimes government—not unlike other aspects of life—can be simpler than expected, and anticlimax rules the day. Whimper rather than bang. This was the case with the City Council’s vote last week on leases at Santa Monica Airport (SMO). I wrote about the issue last week, trying to analyze as many angles about a complex question as I could in one column. In retrospect, overdid it. When the leases finally came before council Tuesday night, the council, after hearing a complicated staff report and about 75 speakers, quickly came to a unanimous and sensible decision that appears to have sidestepped controversy.

As has been reported, City Council approved three-year leases for restaurants and a theater, but deferred action on four leases to aviation businesses. What the council notably didn’t do was step into the controversial issue of whether the City is required to maintain aviation businesses while the City’s litigation with the FAA is pending. Instead, council asked staff to hold off on the proposed aviation leases because they all allowed for subleasing, which the council had told staff in March that it didn’t want. The council also directed staff to investigate further what are the appropriate market rates rents.

The decision reminded me of the old t’ai chi strategy about how to avoid being killed if you’re standing on railroad tracks and a train is roaring towards you—namely, step off the tracks.

Stepping off the tracks was not the advice City Council was getting from some anti-airport activists. For months, going back to before the council authorized staff in March to negotiate three-year leases for both aviation and non-aviation uses on some airport land, there’s been a steady drumbeat demanding that the City confront the FAA and the aviation industry head on, by banning aviation businesses, no matter what the consequences—which are manifestly unpredictable—might be.

The demands have mostly taken the form of emails to councilmembers that are cc’d to activists, but Monday, the day before the hearing, the City received a formal “lawyer’s letter” from Jonathan Stein, of Sunset Park Anti-Airport, Inc., warning the councilmembers that if they approved leases with aviation businesses at the rates staff was recommending Stein would do what he could to have them personally prosecuted by the District Attorney for making “gifts of public funds.”

Stein’s group has been sending out mailers for months to residents of Sunset Park and Ocean Park more or less accusing Mayor Kevin McKeown and other council members and staff of conspiring with aviation interests to create a jetport at the airport. Readers may recall that Stein is the attorney who filed the ill-fated suit against the City and aviation lobbying groups in 2014 trying to invalidate the industry’s initiative to preserve the airport before it could be voted on. (The initiative, as Measure D, was, thankfully, overwhelming defeated in the November 2014 election.)

At the council meeting, cooler heads prevailed. Although initially Councilmember Sue Himmelrich made a motion not to give leases to aviation businesses, by the time council had approved its directions to staff to defer approval of the leases use (aviation or non-aviation) was not part of the council’s reasons. The primary reason, as Himmelrich confirmed to City Attorney Marsha Moutrie, was to get subleasing out of the leases. Subleasing is also an issue with non-aviation property at the airport.

So what happens next? City Manager Rick Cole made it clear that it’s going to take time for staff to answer the council’s questions about subleasing and rental rates. During that time the status quo will stay the same at the airport, with the notable change that the City is making considerable money as the direct lessor to some large business tenants at the airport that formerly paid rent to aviation businesses that had master leases, in effect subsidizing aviation operations. That money now goes to the City.

Don’t hold your breath, but by all rights the City should soon get an overdue answer from the FAA on whether the FAA agrees with aviation businesses that the City is required to keep the airport open until 2023 because of federal money the City spent on the airport. There is no reason to make any strategic decisions about the airport until the City receives that decision.

Anecdote department: A week ago Sunday I flew back from my vacation in Italy. At one point in the long flight, while I was hanging around in the back of the plane, I got to talking with a young man who it turned out had moved to Santa Monica a few years ago. One thing led to another, and our discussion turned to local politics. He said he hadn’t paid much attention to last year’s election (let’s put it this way, he didn’t recall that I’d been a candidate), except that he and his wife had made sure to vote to turn the airport into a park. (They have a new baby and they were looking ahead.)

Listening to us talk was another passenger, and at a certain point he asked us if we thought Santa Monica Airport would close. I said yes, ultimately. He nodded, and said that he owned property near Van Nuys Airport, and that recently there had been a lot more interest in properties around that airport . . . from aviation businesses at Santa Monica Airport that were expecting it to close, and were looking for places to move to.

Thanks for reading.

Rights and Remedies at Santa Monica Airport

Posted on by
4

Time, tide and vacation wait for no man, and as it happened I was traveling the past two weeks when there was big news about Santa Monica Airport. Regrettably I missed “Start the Park,” the celebratory barbecue that the Santa Monica Airport2Park Foundation threw July 1 to note the termination of the 1984 Settlement Agreement and the immediate prospects of turning twelve acres of asphalt used for airplane tie-downs into parkland.

Mayor Kevin McKeown at the "Start the Park" barbecue

Mayor Kevin McKeown at the “Start the Park” barbecue

Then there was a potentially significant meeting in Washington. Under the auspices of U.S. Reps Ted Lieu and Karen Bass, representatives from the Federal Aviation Administration (FAA) heard from Santa Monica officials and from members of the public about why Santa Monica needs to control the airport land it has owned for almost a century. Because the FAA had made it clear that their representatives would not comment on anything said at the meeting there could never be concessions from the FAA that some airport-impacted residents originally hoped for or even expected, but the meeting might still lead to changes from the agency.

When Bobby Shriver was a member of the City Council he expressed the view that the path to solving the airport problem would run through the political process in Washington if and when local congressional representatives got involved. For decades our congressman, Henry Waxman, took a hands-off approach to the airport; the activism of Lieu and Bass is a notable change. It might not be the only factor that ultimately allows the City to close the airport, but at least in the short-term it appears that Lieu and Bass might at least be able to push the FAA to give the City a quicker FAA ruling on whether the City must operate the airport until 2023 to satisfy so-called “grant assurances.”

But whatever politicians outside Santa Monica do or don’t do about the airport, the biggest issues always end up before the City Council. Tonight the council will have more tough decisions to make, in particular whether to grant three-year leases to aviation businesses. This issue was controversial in March, when the council voted to allow three-year leases on part of the airport provided that the leases included clauses that allowed the City to terminate if the City gained control of the land.

The issue is even more charged now. In March opponents of the three-year leases wanted leases to be given on a month-to-month basis; now many opponents want to go further, and evict all aviation businesses from the airport. They argue that now that the 1984 Agreement has expired, the City has the right to close the airport, and further that even if the City can’t do that during the pendency of current litigation, the City can get rid of any businesses that support aviation and still not be in violation of any obligations to the FAA.

It’s hard to argue with this reasoning, because the substance of the argument is correct. The City, if you look at the documents and the history, acquired, as of July 1, the right to close the airport. In fact, the City based its 2013 lawsuit against the FAA on that right. The FAA must know that it has a terrible case—in 2000 it issued a ruling that after July 1, 2015, the future of the airport would be a “local land use matter.” The agency has in recent years repudiated that decision, declaring that under a 1948 agreement the City must operate the airport in perpetuity, but there’s a reason the FAA has been trying to keep the issue out of federal court.

There’s an adage in law that there’s no right without a remedy, meaning that if you can’t enforce a right, you may as well not have it, and at the moment the City has no remedy to enforce its rights. With litigation and administrative proceedings pending, the City is vulnerable. Based on recent history, it’s reasonable to fear (as the City Attorney does) that if the City made it practically impossible or even difficult to use the airport the FAA would come down on the City like a ton of bricks, those bricks taking the form of an injunction that could freeze the status quo at the airport for years and years.

There may come a day (for instance, if the Ninth Circuit rules that Santa Monica doesn’t have legal standing to get a declaration of its rights in federal court) when the City’s only means of getting a judicial validation of its rights will be to close the airport, but until then the City’s best strategy is a patient one—continue the litigation in federal court to get a declaration of its rights, meanwhile do what it can to reduce the impact of airport operations.

We’ve been through this before. In 2008, after years of trying to deal with the FAA about safety issues associated with large jets, the City banned them from the airport. The FAA immediately struck back and got an injunction. The City’s cause was noble, but the City lost, as the courts affirmed an FAA administrative ruling that the big jet ban violated the City’s grant assurances. In retrospect the ban was a mistake. The case cost the City a lot in money and credibility, and made the City Council and City staff gun-shy. Not only that, but it was during the course of these proceedings that the FAA repudiated its 2000 ruling that after July 1, 2015 the future of the airport would be a local land use matter.

As for the business terms of the leases, I’m no expert in leasing rates or appraisals. It’s troublesome, however, that staff did not find a way to open the bidding process to non-aviation businesses for properties being used now for aviation purposes. This likely would have increased rents—under the proposed leases aviation tenants will be paying less per square foot than office tenants would pay. It does seem, however, that the City is again handcuffed because of the need, out of fear of FAA action, to keep some airport businesses operating while the litigation proceeds.

It’s hard to be patient, but ultimately, I hope in just a few years, the City is going to get control over the airport land. At that point the City will convene a public process not only to design a great park there, but also to determine the future of the aviation buildings.

Thanks for reading.

Start the Park

Posted on by
1

I’m out of town on vacation and so I’m going to miss the happy event, but a momentous occasion will be celebrated tomorrow, July 1, in Santa Monica, namely the beginning of the creation of a great park on the site of Santa Monica Airport. Today, June 30, 2015, is the termination date of the 1984 Settlement Agreement between the City of Santa Monica and the Federal Aviation Administration. While by all rights the City should be able to close the airport tomorrow, July 1, administrative proceedings and the course of the City’s litigation to establish its right are holding up that inevitable eventuality. However, the 1984 Agreement contained provisions (namely requirements to provide aircraft tie-downs) that unquestionably expire today and the expiration of those requirements frees up for City use about 12 acres of land south of the runway and north of Airport Avenue (in two parcels more or less straddling the existing Airport Park).

Under Measure LC passed by Santa Monica voters last November all land released from aviation use must be used for park and recreation purposes unless voters approve something different. The City Council has duly designated these 12 acres to be turned into a park, and the budget the council recently passed includes funds for an expedited process to plan the conversion of the land (now covered in asphalt) into parkland. These 12 acres will be the first of 170 or so acres of park that the City will ultimately create from the airport land.

With antecedents in the campaign to pass LC (and defeat the aviation industry’s Measure D), a new 501(c)(3) non-profit has been formed, the Santa Monica Airport2Park Foundation, to organize public support for the park conversion. The foundation is hosting a barbecue tomorrow at Airport Park, on land adjacent to the one of the new park parcels, and the public is invited. To view the invitation, and to RSVP, click here. (If you plan to attend, be sure to RSVP so that the organizers know how much food to get.)

Wishing I could be there! (But nonetheless enjoying where I am.)

Thanks for reading.

Can Santa Monica regulate emissions at SMO? Let’s find out.

Posted on by
4

Even if planes and jets made no noise, emitted nothing harmful, and never crashed, I’d still want to close Santa Monica Airport (SMO). Why? Because the airport and its mile-long runway, which the City owns, should be a public park and cultural facility that everyone can use instead of a privatized facility that benefits only a few users of private planes and jets. For this reason, I haven’t spent a lot of time analyzing technologies that might make the airport a better neighbor by making flying over neighborhoods less objectionable, such as by making aircraft quieter or cleaner. I’ve been more interested in figuring out how to close the airport to build the park.

As we know, however, closing SMO is complicated, because of the regulatory powers of the Federal Aviation Administration (FAA), not mentioned a tangled legal history. Briefly put, the City’s position is that as of July 1 it will have the right to close SMO, but proving that in court is difficult. If the City simply tries to close SMO, or does something the FAA considers equivalent to closing it, the FAA will likely get an injunction freezing the status quo, and begin its own administrative proceedings, where it has all the advantages, to determine the City’s rights.

The City wants the issue adjudicated in federal court, where the playing field will be more level. For that purpose the City brought a case in federal court in 2013 seeking a “declaration” of what its rights are. The FAA, not eager to have an independent federal judge decide the issue, got the case dismissed on procedural grounds. The question whether the City can get a decision from a federal district judge is now being decided in the Ninth Circuit Court of Appeals, with a decision not expected until 2016.

In the meantime, the City Council in March gave direction to staff to take various actions after July 1 designed to limit impacts of aviation uses at SMO and to enhance non-aviation uses—notably by converting twelve acres currently being used for aircraft tie-downs into parkland and by allowing non-aviation uses on the south side of the airport to negotiate longer term leases for the use of city-owned properties.

One thing the City Council did not do was follow a recommendation from the Airport Commission to add limits on aircraft emissions to leases to aviation businesses. The council followed the advice of City Attorney Marsha Moutrie, who gave her office’s opinion that federal legislation preempted any action the City would take regarding emissions. The commission and other supporters of emissions controls have, however, made the counter-argument that provisions in the City’s 1984 settlement agreement with the FAA allow the City to regulate emissions if the City acts before the 1984 agreement expires on July 1.

Now, however, City Councilmember Terry O’Day has put the issue back on the council’s agenda: he’s added an item for tomorrow night’s council meeting requesting consideration of an ordinance and leasing standards that would limit allowable emissions of air pollutants from aircraft and other sources at SMO.

I am a lawyer, but I’m not going to pretend to know enough about federal preemption law and the specific laws applicable to aviation to venture an opinion about who is right on the preemption issue. However, I’m not surprised O’Day is bringing this up.

O’Day is a veteran of the environmental movement. I remember him telling me, during the election campaign in 2012, before the City had decided on the bold move of suing the FAA in federal court, that he thought that pollution controls, which have greatly expanded in importance since the City battled the FAA in 1984, could be the City’s ultimate card to play against the FAA. Environmental science has shown how pollutants in the air are more dangerous than previously thought. As O’Day has reminded me, the need to reduce the negative health impacts of air pollution is what gave the environmental movement the ammunition it needed to begin to force the clean up the ports of Los Angeles and Long Beach.

Again, sorry, no opinions here on what can or should be done. Like a lot of people I’ll be listening to the discussion. If I can, I’ll try to sort things out in a future blog.

• • •

Speaking of the airport, and battles over the airport, readers will probably recall that after the aviation industry filed its initiative (ultimately called Measure D on the 2014 ballot) to take control of SMO away from the City Council (and for all practical purposes preserve the status quo there forever), a group of eleven Santa Monica residents went to court to try to prevent the initiative from reaching the ballot.

It was a well-motivated move, but one that ultimately foundered because it turns out that it’s near impossible to prevent a measure with enough signatures from getting on a ballot in California. Even worse, a judge ordered the plaintiffs to pay $31,525 to reimburse some of the aviation industry’s legal fees, on the grounds that the lawsuit prejudiced the industry’s rights to free speech. This is a hardship for many of the plaintiffs, and for a couple of months a campaign has been underway to raise money to help them pay the bill. (As it happened, of course, Measure D lost big at the polls (after the aviation industry spent almost $1 million exercising its free speech rights!), but that doesn’t help the plaintiffs out—they are still on the hook.)

It now turns out you can help out the plaintiffs and get some fine art for your walls.

On May 3 the Santa Monica Eleven launched an online art auction that runs two weeks—until May 17.

Renowned artists, painters, photographers, and sculptors from Santa Monica, Venice and London, have furnished artworks for the auction. These works include Laddie John Dill’s Ariel Perspective, Gregg Chadwick’s The Hum of Time and Steve Bernstein’s The Roofs of Rye, as well as cartoons from award-winning satirist Tony Peyser. And a lot of other good stuff at prices for any art collector’s budget.

To view the art and take part, click here.

Remember, though, the auction closes this Sunday, May 17.

To donate to the Santa Monica Eleven directly click here.

Thanks for reading.

 

 

Just what did City Council do about Santa Monica Airport Tuesday night?

Posted on by
10

Pending litigation (as described in my post last week) shaped what the Santa Monica City Council could do with the Santa Monica Airport (SMO) at the council’s big meeting Tuesday night. The shape of the airport that emerged was one of disaggregation. It was not for nothing that the council’s discussion of the issue didn’t gain traction until Mayor Kevin McKeown broke the airport down for analytical purposes into three parcels. By evening’s end the notion of the airport as a unitary place had disintegrated.

Various users of properties on the south side of the airport, from artists and theater companies, to Barker Hangar and the Spitfire Grill, have viewed themselves as part of SMO even though the land they sit on was designated as non-aviation land under the City’s 1984 agreement with the Federal Aviation Administration (FAA). The council, however, by declaring that the non-aviation land is not going to be subject to airport leasing standards, conclusively severed these users and the land from the airport.

The decision on leases affects these users, but the most dramatic result of the disaggregating of SMO was council’s instruction to staff to fast-track the expansion of Airport Park by the addition of 12 acres of non-aviation land currently used for aircraft tie-downs. The new parkland will be the first manifestation of Measure LC, but more are on the way. There are other aviation uses in buildings on non-aviation land that will now be vacated, leaving room for more arts and cultural activities.

Continuing the disaggregation, the council made decisions that differentiate the Western, or “Quitclaim” Parcel, which includes about 2,000 of the 5,000 feet of the airport’s runway, from the “1948 Parcel” that constitutes the balance of the aviation land at SMO. The parcels are different legally. After World War II the federal government transferred (“quitclaimed”) its interests in the Western Parcel back to the City with no strings attached. The feds returned their interest in the 1948 Parcel to the City pursuant to an “Instrument of Transfer” that included the City’s promise to operate the land as an airport in perpetuity. The enforceability of that perpetuity clause is the subject of the City’s pending lawsuit against the FAA, a lawsuit that will take at least several years to resolve.

Depending on how that lawsuit proceeds, it’s possible that the City will want to close the Western parcel (and shorten the runway) before it can take action with respect to the 1948 Parcel. On that basis, responding to arguments from anti-airport activists, City Council instructed staff not to agree to rental agreements beyond month-to-month for any uses on the Western Parcel, while it allowed somewhat longer leases on the 1948 Parcel.

The most controversial action (assuming you’re for closing the airport) City Council took Tuesday was to authorize staff to negotiate leases on the 1948 parcel of up to three years (but ending no later than June 30, 2018). These leases can go to aviation businesses, but the council required that they include a clause allowing the City to terminate the lease early if it can close airport facilities. The leases may also include conditions that benefit the public.

This action was controversial because some anti-airport activists believe that allowing only month-to-month leases would hasten the closing of SMO. It’s hard, however, to understand this reasoning since existing businesses, including aviation businesses, would likely stay even if they could only rent month-to-month. (Oddly, some proponents of the month-to-month leases argued that this was a reason to favor month-to-month leases.) The availability of even short-term leases on the 1948 Parcel should attract new tenants that would replace departing aviation businesses (by now some of them must see the writing on the wall) and pay higher rents.

Month-to-month leases would not make closing the airport or ridding the local skies of jets come any sooner. It’s unfortunate that the City didn’t file its lawsuit five years ago, but while the lawsuit is pending, relying on it is the City’s best strategy. The alternative would be for the City to close the airport unilaterally; this would, however, result in the FAA seeking and undoubtedly obtaining an injunction that could freeze the airport status quo for a long time. Requiring only month-to-month leases now means nothing.

In fact, I would have gone farther with the leases than the council did. There are good tenants on the 1948 Parcel, in particular Typhoon restaurant, that want to invest in tenant improvements, but can’t do so if they only have short-term leases. I wish the council had instructed staff to consider longer terms for tenants that commit to large investments in improvements. It’s unlikely that any aviation businesses would want to make long-term investments while the City’s litigation is pending. There’s a reason the FAA has been doing whatever it can to keep the 1948 perpetuity clause out of federal court and it’s the same reason aviation interests spent almost a million dollars trying to pass Measure D last year: the FAA has no case.

Tuesday night the council took a rational, legally justified, step-by-step approach to the airport. It’s unfortunate that some anti-airport activists, justifiably frustrated by the negative impacts of the airport, feel betrayed because the council didn’t accept their argument about month-to-month leases. And yes, SMO will be open for at least three more years. But it’s rare that the best strategies and tactics involve charging blindly into the breach.

Thanks for reading.

When it comes to Santa Monica Airport, it’s hurry up and wait

Posted on by
15

Since becoming involved in Santa Monica politics 20 years ago I always heard, most cheerfully from the late Ken Genser, that the City would close Santa Monica Airport (SMO) in 2015. That’s because the City signed an agreement with the Federal Aviation Administration (FAA) in 1984 that says that the City could do so on July 1, 2015. Unfortunately, that is not going to happen. The City and its rights to its airport land are mired in litigation, litigation that affects what the City Council can do Tuesday night when it will consider the future of the airport land.

While there are various lawsuits swirling around the airport, there are two that crucially prevent the City from closing SMO or even drastically reducing airport operations on July 1. Both suits arise from or are complicated by mistakes the City made in the past 15 years; I say that to explain the predicament, not to cast blame, because it would have been hard at the time the mistakes were made to foresee the consequences.

The first case is the one that the City filed in federal court against the FAA in 2013 seeking “declaratory relief,” meaning that the City asked the court to declare what the City’s rights are to the airport land. Until the City knows what its rights are, specifically under a 1948 agreement with the federal government, it’s hard for the City to make decisions about SMO. The City wants these rights adjudicated in federal court rather than in an FAA administrative proceeding, and that’s why Santa Monica brought the action for declaratory relief.

Although the City has a strong case on the merits, it would be rash to act on the rights it believes it has (i.e., to close SMO) before proving those rights in court. Why? Because the FAA could then turn around and in effect become the plaintiff, bringing an action to enforce its alleged rights under the 1948 agreement in an administrative proceeding, i.e., in its home court. The FAA would undoubtedly be able to obtain an injunction stopping the City from doing anything with respect to SMO until the entire administrative process was resolved.

The City’s mistake with the lawsuit was not to take into account the potential impact of procedural delays. The FAA was able to have the case dismissed on procedural grounds; while that is now under appeal in the Ninth Circuit, that court is so backed up that a decision won’t be handed down until sometime in 2016. Who knows where it will go from there. With the benefit of hindsight, the City should have begun this action four or five years ago.

The second case is based on something that happened in 2003. In that year the City used $250,000 from a 1994 grant from the FAA to improve SMO. As Ken Genser always told me, the City was careful not to accept any money from the FAA after 1994 because the money came with strings—the City had to give “assurances” that it would not close the airport for 20 years, and the City didn’t want to do anything that would affect the 2015 date.

While the City believed that spending 1994 money in 2003 did not extend the 20-year term of the 1994 grant assurances, the FAA disagrees, and has initiated an administrative proceeding saying that the City is obligated to keep the airport open at least until 2023. This action will drag on through the FAA process for several years. While many believe the City’s only penalty would be to pay back the money, again there’s nothing stopping the FAA from seeking an injunction.

The upshot of all of this is that Santa Monica can’t close SMO until these actions are resolved. If the City tried to do so the FAA would probably get an injunction, because it can argue in court that closing the airport is a drastic measure that would cause irreparable harm (to aviation). No judge is going to allow an airport to close while the merits are still being litigated.

So where does this leave us Tuesday night? The staff report for the meeting has some good ideas, notably recommending that City Council instruct staff to initiate a process to turn land on the south side of the airport, which has been used for airplane tie-downs, into parks (beginning to fulfill the promise of Measure LC!), and at least one certifiably bad idea, having an election in 2016 about future uses on the airport land. Mostly, however, the staff report navigates the litigation logjam in a canoe of creative equivocation.

Among those residents who most closely follow the airport issue, the most controversial recommendations involve what to do with the leases of city-owned property at the airport. While there is general agreement, including from staff, that rents must be raised to market rates and that the City must receive rent from subtenants who currently pay their rent to the City’s leaseholders, there are many who believe that all leases at the airport should become month-to-month, hoping that this will hasten closure.

For the reasons discussed above, I don’t believe that making all leases month-to-month will lead to closing the airport any faster. It seems to me that the City can achieve more of its objectives, including increasing rents, by a flexible approach that allows for longer-term leases with appropriate conditions. What those conditions are is something that City Council members will likely grapple with Tuesday night, and which will continue to be an issue as leases are negotiated.

Thanks for reading.

2014: A historic election in Santa Monica

Posted on by
2

Going back in history, there have been some big elections in Santa Monica, elections that made Santa Monica what it is.

In 1916 Santa Monica voters approved a water bond to create a municipal water system. In 1917 they voted down annexation by Los Angeles. In the ’20s Santa Monica passed another bond issue to acquire the Charnock wells in West L.A. and, armed with their own water, voters again defeated annexation. In 1939 voters prohibited oil drilling in the city. In 1954 voters prohibited oil drilling in the bay.

We may not remember the identities of the politicians from back then, but those votes and their consequences reside deep in the collective civic unconscious of all Santa Monicans.

Fifty years from now, if the Santa Monica election of 2014 is remembered, it’s not likely to be remembered for the elections (and machinations) I’ve been writing about the past two weeks. More likely it will be remembered (occasionally) when someone enjoying the big park that the City is going to build on the site of the Santa Monica Airport will reflect back, and recall how Santa Monica voters in 2014 overwhelmingly passed Measure LC, which for all practical purposes mandates that a park will replace the airport, and defeated Measure D, the aviation industry’s measure designed to prevent the City from closing the airport.

The aviation industry’s well-funded effort to subvert normal political process in Santa Monica had the result of making it more likely that the airport will close. The landslide, where roughly 60 percent of voters rejected the industry’s desperate attempt to preserve the airport, creates a political context for closure by invalidating any aviation arguments about what “the people really want.” This will reverberate up the political ladder—even to the Federal Aviation Administration (FAA) and to Congress.

And when the airport closes, LC, because of its requirement of a vote on any development other than a park, means that the land now being used for aviation purposes, in the range of 160 or 170 acres, will become a park.

On a personal note, losing my campaign for City Council wasn’t fun, but it was a great privilege to serve on the Executive Committee of the Committee for Local Control of Santa Monica Airport Land (CLCSMAL), the grassroots political committee that raised money and coordinated the campaign to pass LC and defeat D. Participating in that campaign was the highpoint of 20 years of activism.

So where now? How do we get from the 2014 vote to closing the airport and building a park? Where’s the cup, where’s the lip, and where are the slips between?

The big date is July 1. That’s the day after the 1984 Settlement Agreement, and all the aviation leases, expire. Based on the City’s interpretation of its rights as owner of the airport land, that’s the day the City can close the airport.

But the City’s rights are in dispute. While there are various legal issues, ultimately there is one: the FAA claims the City can’t close the airport because of a “perpetuity” clause in a 1948 agreement. It’s unlikely the FAA will abandon that claim, and the City and the FAA are going to need their dispute adjudicated.

The key factor will be in what forum that litigation takes place. The City wants its claims heard in federal court, where it will stand on comparatively equal footing with the FAA. To that end the City sued the FAA in 2013, seeking “declaratory relief”—i.e., a declaration of the City’s rights ahead of its taking action to close the airport. The FAA wants the issue determined in its own administrative proceedings, where it controls the pace of the proceedings and benefits from certain presumptions. To stay out of federal court, the FAA argued that the relevant procedures did not allow for the City’s suit. The judge agreed and dismissed the case.

The City has appealed that decision to the Ninth Circuit Court of Appeals. The City filed its brief in October and the FAA filed its reply brief last week. It does not appear that the Appeals Court has set a date for oral argument. Possibly we’ll have a decision by July 1. If the City wins the appeal, and sends the case back to District Court, then there will be a trial—no doubt followed by an appeal by whomever loses.

If the Ninth Circuit upholds the dismissal of the City’s suit, tactics will be more complicated. District Court Judge John Walter, when he dismissed the City’s suit, declared that although he “would like to address the merits of the City’s claims,” he had to conclude, “reluctantly,” that under the Constitution he didn’t have jurisdiction because the City’s claims were not ripe for review.

To make the conflict ripe, the City would need to close the airport, or at least take action that would lead to closure unless the FAA intervened. (In the words of the FAA’s brief, “If, in the future, the City ceases to operate Santa Monica Airport as an airport, and if the United States opts to exercise its right of reversion, the underlying dispute may be litigated in an action brought by the federal government.”)

But aye, there’s the rub, because if the FAA takes action to stop the City, it’s likely at least to try to do so with administrative proceedings. The situation is tricky. The City shouldn’t do anything that calls into question its right to close the airport July 1, but it needs to be careful that it doesn’t trigger a FAA proceeding when it could still get the case into federal court.

In the meantime, the City is not powerless. Most significant, all the leases on the aviation land expire June 30. (Not to be confused with leases on non-aviation land that the City has controlled since 1984; these should be dealt with separately.) The City needs to take control of the properties it owns at the airport and collect market-rate rents from tenants and subtenants. Even if the City defers closing the airport for an interim period while its rights get sorted out, it will be informative to see how many aviation businesses can survive at the airport without the twin subsidies of below-market rents and the money they make by subleasing property at market rates.

These issues will be the subject of much discussion in upcoming months. For now what I wanted to do was to remind folks about what an important election 2014 was for the future of Santa Monica.

Thanks for reading.

Dissecting a Press Release

Posted on by
1

Tuesday evening the Santa Monica City Council gave direction to City Attorney Marsha Moutrie to prepare a measure for the November ballot. The measure would be an alternative to the initiative that the Aircraft Owners and Pilots Association (AOPA) has put forward to (in Ms. Moutrie’s words) “protect vested interests at the Santa Monica Airport” and “lock in the status quo at the Airport.”

Before the council hearing Tuesday the AOPA, through its local front organization, “Santa Monicans for Open and Honest Development Decisions” (SMOHDD), issued a press release. I’ve decided to reprint the release here in its entirety, into which I’ll insert my comments. Here it is.

FOR IMMEDIATE RELEASE

June 24, 2014

CONTACT: John Jerabek
(310) xxx-xxxx

Santa Monica City Council Plans Competing Airport Ballot Initiative to Confuse Voters

Last April, Santa Monica voters launched* one of the largest petition drives in the City’s history in an effort to end 40 years of political and legal wrangling over Santa Monica Airport and place the final authority for redeveloping** this valuable land where it should be — in the hands of the voters. This effort culminated with an unprecedented 15,734 signatures*** being submitted to the City Clerk in early June to pass the “Voters Decide” Charter Amendment on the November ballot.

* “Santa Monica voters launched . . .” Well, no. According to the Fair Political Practices Commission (FPPC) filings for SMOHDD, the petition drive was entirely organized and paid for by the AOPA, a Washington, D.C.-based lobbying organization. The AOPA hired Arno Political Consultants and other political operatives to import into Santa Monica an army of signature gatherers — you probably met some of them if you bought groceries during May and early June. (To access the SMOHDD FPPC filings, go to the City’s Clerk’s webpage for Disclosure Statements, click on “Public Access Portal,” and then “search by name” for “Santa Monicans for Open and Honest Development Decisions.”)

** “the final authority for redeveloping . . . ” Also false. The AOPA initiative is silent about the redevelopment of the airport land — I hope this doesn’t shock anyone, but the AOPA is only interested in whether the airport stays in operation as an airport, and the right to vote in its measure is limited to the decision to close the airport. Should voters vote to do so, then, so far as the AOPA is concerned, see you later — the City can do whatever it wants with the land without any vote.

*** “15,734 signatures” is not a victory for the AOPA, but an admission that they expect a huge number of their signatures to be rejected as not valid, since they only need somewhat more than 9,000 good ones. If their signature quality had been better, they would surely have submitted their signatures a week earlier when they would have been assured that the County Registrar of Voters would have enough time to review them. (I’ve previously written about the signatures in detail here and here.)

Alarmed at the prospects of requiring voter approval of any effort to redevelop 227 acres of Santa Monica Airport land, the City Council this evening directed staff to draft the City’s own “voter initiative” to compete with the Voters Decide plan.

Anyone who watched the City Council hearing knows that the council was not “alarmed” about giving voters approval of redevelopment at the airport, since the council members repeatedly instructed the City Attorney to come back with a measure that would give voters the right to vote on future development. What is driving the council to consider a competing measure is the fact that Section 2(b) of the AOPA initiative seeks to prevent the City Council from managing the airport and the buildings and other property the City owns there in any way different from the status quo.

“This latest scheme is designed to mislead voters into thinking that they will be consulted before* politicians and developers achieve their goals of forcing out 175 businesses** and redeveloping airport land, at a loss of up to 1,500 jobs and $247 million in business activity,” said John Jerabek, a board member of Santa Monicans for Open and Honest Development Decisions, the sponsor of the real “Voters Decide” initiative. “This new tactic is a charade, just the latest attempt by City politicians to achieve their development plans*** while keeping voters out of it,” Jerabek continued.

* “consulted before . . . ” False. As discussed already, the council members told the City Attorney to include a right to vote on future development of the airport land, a right the AOPA initiative doesn’t have.

** “175 businesses . . . ” Of all the garbage the AOPA has dumped on Santa Monica in this campaign, one false claim they can’t let go of is that by closing the airport the City would be putting 1,500 people out of work and causing a big hit to the city’s economy. This claim goes back to a study the City commissioned in 2011 from the HR&A consulting firm about the airport’s economic impact. Indeed, as HR&A found, the airport is the site of economic activity, but the amount of that activity turned out to be trivial in context of the whole of the city’s economy — the equivalent, the study said, of a 300,000 square foot office building, which if you follow development in Santa Monica you know isn’t much.

But beyond that, most of the airport’s economic impact is from non-aviation businesses. Yes, there are more than 1,500 jobs at the airport, but according to the study, only 178 of them are in aviation. For instance, Volkswagen has its West Coast design center in offices it subleases from an aviation business that has a master lease from the City — a lease that terminates July 1, 2015, at which point, if the AOPA initiative doesn’t interfere, the City will be able to take over the building and collect rents from Volkswagen — rents that we at Airport2Park hope one day will pay for the operating expenses of a big park. These non-aviation jobs aren’t going anywhere if the airport closes and, given the demands for office space in Santa Monica, the City will have no trouble leasing space now occupied by aviation businesses to new businesses.

*** “their development plans.” Another big lie. There are no development plans for the airport. This is fear-mongering pure and simple.

The Voters Decide initiative is simple:
– There can be no change in land use at Santa Monica Airport without voter approval.
– Unless change is approved by voters, the land will remain in low-density airport use.
– The City’s land-use authority is not constrained; the City can do what they think best, but not on behalf of special interests or self-interested activists and only following a citywide approval vote.

Again, if you read the AOPA initiative you’ll see that it only requires a vote on closing the airport. Once voters vote to close the airport, that’s it.

“Our message for City politicians is clear,” Jerabek continued. “If the City has a plan for 227 acres of the most valuable land on the Westside, let them get it approved by Santa Monica voters. It’s that simple!“

The message is clear, all right: we are nervous that the FAA can’t keep the airport open and we’re pulling out all the stops to get this deceptive measure passed so that we can continue to use all that publicly-owned land for ourselves.

About Santa Monicans for Open and Honest Development Decisions
The Santa Monica Voters Decide Initiative is being led by Santa Monicans for Open and Honest Development Decisions. The committee believes the City and airport opponents have not been forthcoming with voters and taxpayers about redevelopment and land-use plans for the valuable airport property. The committee is supported by local residents, businesses and the Aircraft Owners and Pilots Association.

Now this is amusing. This “committee” was formed by the AOPA using the political law firm of Reed and Davidson; which even supplied one of its partners, Flora Yin, as one of the three Santa Monica residents who filed the initiative. According to its most recent FPPC statement, through June 4, the SMOHDD has spent $144,577 and taken in $59,977 in contributions. (The organization has outstanding debts of $90,993 — most of it to Arno and to Reed & Davidson.)

Of the $59,977 in contributions, $56,000 had come from the AOPA (in cash; the AOPA contributed another $1,000 in services). About $3,000 had come in through 18 individual contributions of at least $100, but of those 18 contributors, only three have Santa Monica addresses, and their contributions total only $300. (A small amount, $670, has also been contributed in contributions less than $100, and granted, these contributors could include some Santa Monicans, too.)

But get that — just three contributors who have given at least $100 to SMOHDD are Santa Monicans. Of about $60,000 so far contributed, only $300 have come from them — half of one percent.

So — who has not been forthcoming? Is there any evidence that the SMOHDD is a genuine local organization that is supported by any residents and local businesses who don’t have an personal or financial interest in the airport?

Thanks for reading.

A page from the most recent FPPC fiing for SMOHDD

A page from the most recent FPPC fiing for SMOHDD