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![]() It's beginning to look like we're going to hear D9 Cats illegally ripping up the runway in the dead of night again as occurred with Meigs in Chicago and Capistrano in Orange County, California. http://www.airfields-freeman.com/CA/...rangeCo_SE.htm ================================================== ====================== https://www.avweb.com/avwebflash/new...-229733-1.html Court Stops Santa Monica Runway Destruction By Russ Niles A federal judge issued a temporary restraining order preventing the shortening of the runway at Santa Monica Airport the day before the work was to begin. As the National Business Aviation Association convenes in Las Vegas for its annual convention, the last-ditch order prevents the removal of 1,500 feet of the SMO runway, which effectively bars all but the smallest business jets from using it. Work was to start Monday morning (Oct 9, 2017). NBAA and other aviation groups have spent millions of dollars over the last three decades trying to preserve SMO as a viable business airport. The order is significant because it could lead to a injunction against ripping up the runway. The injunction is expected to be heard in about two weeks. At issue was the private deal between the FAA and the City of Santa Monica that led to the feds allowing the city to reclaim the airport property in stages until its federal obligations expire in 2028. The court ruled that it was likely the petitioners would win their case in a trial and the restraining order was issued to ensure the damage wasn’t done before they got the chance to argue the case in court. The full order is he https://d3n8a8pro7vhmx.cloudfront.ne...RO-Granted.pdf UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KATE SCOTT; JAMES BABINSKI, Plaintiffs, v. CITY COUNCIL FOR THE CITY OF SANTA MONICA; DOES, 1 through 10, inclusive, Defendants. ) CV 17-07329 RSWL (FFMx) Order Application for Temporary Restraining Order and Order To Show Cause re Preliminary Injunction [6] I. INTRODUCTION Currently before the Court is Plaintiffs Kate Scott and James Babinski’s (“Plaintiffs”) Ex Parte Application for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction [6] (“Application”). Specifically, Plaintiffs seek to enjoin Defendant City Council for the City of Santa Monica (“Defendant”) from taking any action to shorten the runway of the Santa Monica Municipal Airport (the “Airport”). Ex Parte Appl. (“Appl.”) 1:21-26, ECF No. 6-1. The Court, having reviewed all papers and arguments submitted pertaining to this Application, NOW 1 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 1 of 8 Page ID #:697 FINDS AND RULES AS FOLLOWS: the Court GRANTS Plaintiffs’ Application [6]. II. DISCUSSION A. Legal Standard 1. Ex Parte Application Ex parte applications are for extraordinary relief. For ex parte relief to be granted, “the evidence must show that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). The moving party also must be without fault in creating the crisis that requires ex parte relief, or that excusable neglect caused the crisis. Id. Pursuant to Local Rule 7-19.1, “[i]t shall be the duty of the attorney so applying (a) to make reasonable, good faith efforts orally to advise counsel for all other parties, if known, of the date and substance of the proposed ex parte application and (b) to advise the Court in writing and under oath of efforts to contact other counsel and whether any other counsel, after such advice, opposes the application.” 2. Temporary Restraining Order Injunctive relief is an “extraordinary remedy.” Winter v. Natural Res. Def. Council Inc., 555 U.S. 7, 22 (2008). “Temporary restraining orders are governed by the same standard applicable to preliminary 2 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 2 of 8 Page ID #:698 injunctions.” Niu v. United States, 821 F. Supp. 2d 1165, 1167 (C.D. Cal. 2011)(citation omitted); see Fed. R. Civ. P. 65. A plaintiff seeking a temporary restraining order “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. B. Analysis 1. Ex Parte Application Because Defendant plans to begin construction on October 9, 2017, Plaintiffs’ cause will be irreparably prejudiced if the Court heard the matter on regularly scheduled motion procedures. See Appl., Ex. A. Plaintiffs were not at fault in creating this crisis because the City of Santa Monica sent out an email on September 22, 2017, notifying recipients that construction would begin October 9, 2017. Decl. of R. Christopher Harshman (“Harshman Decl.”) ¶ 10, Ex. A, ECF No. 6-1. Plaintiffs complied with Local Rule 7-19.1(a) by providing written notice of and a voicemail regarding this Application. Harshman Decl. ¶ 14. Additionally, Plaintiffs satisfied Local Rule 7-19.1(b) through counsel’s assertion that Joanna Simon, an attorney with Morrison Foerster, intends to oppose this Application on Defendant’s behalf. Id. Based on the foregoing, ex 3 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 3 of 8 Page ID #:699 parte relief is proper. 2. Temporary Restraining Order Plaintiffs successfully establish all of the required elements to grant their Application and enjoin Defendant from shortening the Airport runway. a. Success on the Merits Under California Public Utilities Code section 21664.5, an amended airport permit is required for every airport expansion, including “acquisition of runway protection zones” and “realignment of an existing runway.” While the department may provide regulatory exemptions, it may not exempt the requirement for public hearings pertaining to environmental considerations.1 Cal. Pub. Util. § 21664.5(a). In Trancas Property Owners Association v. City of Malibu, 41 Cal. Rptr. 3d 200, 210 (Ct. App. 2006), the court explained that California Public Utilities Code “[s]ection 54956.9’s implied allowance for adoption of settlements in closed session . . . cannot be construed to empower a city council to take or agree to take, as part of a nonpublicly ratified litigation settlement, action that by substantive law may not be taken without a public hearing and opportunity for the public to be heard.” 1 “Environmental considerations include but are not limited to noise, air pollution, and the burden upon the surrounding area caused by the airport or airport expansion, including but not limited to, surface traffic and expense.” Cal. Pub. Util. Code § 21666(e). 4 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 4 of 8 Page ID #:700 Public hearings are to be conducted in accordance with California Government Code section 11500 et seq. Cal. Pub. Util. Code § 21669.6. Under California Government Code section 11501, California Government Code section 11400 et seq.’s requirements apply to Defendant’s operation of the Airport. Here, Defendant entered into a settlement agreement (the “Settlement Agreement”), wherein it purportedly acquires runway protection zones and realigns an existing runway at the Airport. ECF No. 6-6 at 19, 22- 23; Harshman Decl. ¶ 12. To approve this Settlement Agreement, Defendant held a closed session, preventing public comment on the matter. See Verified Am. Pet. (“Pet.”), Exs. D, E, ECF No. 6-4. Thus, Plaintiffs will likely prevail at trial on the merits of their claim that Defendant failed to comply with the foregoing substantive law mandating a public hearing for environmental considerations arising from the terms of the Settlement Agreement.2 b. Irreparable Harm Plaintiffs argue that the proposed realignment will force planes to fly approximately 100 feet lower in 2 Plaintiffs also argue a public hearing was required for the Airport’s nightly closures and ten-day closure in December. Appl. 8:7-8. However, the pertinent statute reads that “upon the request of an affected or interested person, the department may conduct a public hearing.” Cal. Pub. Util. Code § 21605 (emphasis added). Thus, Plaintiffs are not likely to prevail on the merits of this ground. 5 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 5 of 8 Page ID #:701 altitude, causing increased noise at the departure end of the runway near adjacent neighborhoods. Harshman Decl. ¶¶ 3-5. Plaintiff Kate Scott is a resident of the Sunset Park neighborhood just west of the Airport. Pet. ¶ 4. Additionally, Plaintiffs contend flight at lower altitude over densely populated areas increases the risk to pilots, such as by eliminating the ability to turn back to land on the departure runway in the event of engine or other mechanical failure. Harshman Decl. ¶ 6. Plaintiff James Babinski regularly operates aircraft at the Airport and enrolls in instrument flying lessons at the Airport. Pet. ¶ 5. These harms are irreparable because money damages are inadequate for this kind of noise and danger. See Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545 (1987)(“Environmental injury, by its nature, can seldom be adequately remedied by money damages.”). In addition, these harms are imminent as construction, which is currently scheduled for October 9, 2017, immediately will prevent planes from utilizing the runway in its current state and taking off at the corresponding altitude. c. Balance of Equities and Public Interest Plaintiffs request to maintain the status quo at the Airport. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509 (2013)(balance of harms tipped in applicants’ favor 6 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 6 of 8 Page ID #:702 where injunction harmed defendant by delaying change to longstanding status quo for few months, but without injunction, applicants’ harm would be permanent). Defendant failed to file an opposition and delineate its potential harms from injunctive relief, leaving the Court to speculate as to its harms. Assuming the harms are monetary losses from delayed construction,3 “it appears that many of these costs may be self-inflicted” due to Defendant’s rush to begin shortening the runway. Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002), abrogated on other grounds by Winter, 555 U.S. at 22. Thus, the balance of equities tips in Plaintiffs’ favor. Finally, the public has a strong interest in ensuring Defendant abides by California’s public hearings requirements so that their interests are fairly considered. As such, Plaintiffs have established all of the elements for temporary restraining orders. III. CONCLUSION Accordingly, Plaintiffs’ Application is GRANTED. Defendant and its employees, agents, and all persons 3 Defendant apparently will spend $3.52 million to complete construction by December 31, 2017. Appl., Ex. C. This injunction will delay construction by two weeks (pursuant to Federal Rule of Civil Procedure 65’s time limit), but Plaintiffs are private individuals obtaining an injunction against a governmental entity. Therefore, they need only post a minimal bond. See Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322, 323 (9th Cir. 1975)(finding $1,000 bond to be reasonable). 7 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 7 of 8 Page ID #:703 acting with them or on their behalf are hereby ORDERED not to take any action to shorten the runway of the Airport beginning immediately. Defendant also is ORDERED to show cause as to why it should not be restrained and enjoined in the same manner pending trial of this action. Defendant must file its response, if any, no later than October 13, 2017 at 4:00 p.m. Plaintiffs must file any reply no later than October 18, 2017 at 4:00 p.m., at which point this Court will take the matter under submission. Plaintiffs shall serve a copy of this Order on Defendant no later than October 9, 2017. Additionally, Plaintiffs are ORDERED to post a $5,000.00 bond or cash in that amount by October 9, 2017 at 4:00 p.m. IT IS SO ORDERED. DATED: October 8, 2017 /s/ RONALD S.W. LEW HONORABLE RONALD S.W. LEW Senior U.S. District Judge -------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai..._s_Office.aspx Airport News Monday, October 2, 2017 All, I hope this email finds you in good health. I consider this a very special email because it will be my last communication to you as a group. I am happy to share that on October 6th, I am retiring and will be leaving my post as Senior Advisor of Airport Affairs. Thirty-four years of military, federal, state, regional and local government service is enough, or as we say in Spanish, Basta! (Or is 34 years enough? See below.) Indulge me as I share some of my personal insights on the past two years of work. It has been quite an adventure! Just over two years ago, I saw a job announcement for Senior Advisor to the City Manager and I decided to apply. I read hundreds of news articles, Airport Commission and City Council reports. I read articles by aviation lawyers, State Attorney General opinions, City Attorney opinions, NBAA statements, AOPA statements, FAA Part 16 decisions, etc. After a great deal of research along with my extensive background in federal grants administration and years of real estate practice, I concluded the City of Santa Monica was in the right on the issues. Having never joined a cause I knew to be wrong, I accepted the job offer. When I started this job , I heard many opinions, including: "Closing the airport is a lost cause, the FAA will never agree." "The City is not serious about regaining control of airport land." "Big money interests will never let the airport close." "The former City Attorney is secretly trying to sabotage the case" "The 1948 Instrument of Transfer is iron clad " The 1994 grant assurances are bullet proof." "SMO is part of the national aviation system and the entire American aviation system will collapse without it!" I listened to these opinions, and began my work determined and optimistic. It took a little over a year, but in February of 2017, the City Council agreed to a historic Consent Decree with the federal government to close the airport in 2028 and shorten the runway to 3,500 feet in the interim. Many people thought shortening the runway would never happen yet construction to shorten the runway begins October 9 and is scheduled to be complete by December 30. According to national aviation experts and local air traffic controllers, we anticipate a 45% reduction in jet traffic. How did we accomplish this? It started and ended with community support and courage by the City Council, City Manager and City Attorney. In my view, our outside legal counsel at Morrison & Foerster also did an outstanding job. But in the end, it was people power over a small but determined elite. To you, the Santa Monica Community, I say congratulations! In the past two years, we also fundamentally reformed the economics at the airport. In 2015, Santa Monica Airport generated $5.8M in annual rent revenue and owed the City's general fund millions. In 2017, because Council's policy to eliminate subtenant leases, and bring all tenants to market rates, the Airport will generate over $13M in annual rent revenue. This means the airport will be financially self-sufficient, generate enough funds to repair and replace facilities, (there is a huge back logged of deferred maintenance) and finally repay the debt owed to Santa Monica taxpayers. A job well done. Despite the great leap forward, there is still some unfinished business. To ensure continued progress, City Manager Rick Cole has appointed Suja Lowenthal as my replacement. Suja is a current City employee, working at the Big Blue Bus. She is well qualified to serve in the position and I am confident will devote all of her creative talents to the job. Now what will I do? My intent was to retire and chill in Puerto Rico because that is my family origin. Now that Hurricane Maria has hit the island I will go there to work with FEMA and help the island recover. Bad times is when you need friends and family. I am hurt deeply by what happened to Puerto Rico-the enchanted island that truly lives up to its name. If you want to help Puerto Rico, I encourage you to visit when the time is right and stay for as long as possible. Despite the new travel restrictions imposed by the President my passport is valid, I think?. So, eventually once Puerto Rico is a bit more stable I will travel overseas and return to the USA, if allowed back in. Ha ha! I will also definitely teach yoga. Given the zaniness in DC, I will continue to write political satire. I will miss the work at the City and hope you will continue to remain engaged and active on all airport issues and the City in general. And by the way my, my encouragement to remain engaged in airport issues also applies to the pro-aviation activists. I want to thank my colleagues at City Hall for their support. I encourage everyone to treat each other with respect and work together to keep Santa Monica a wonderful community. Amen! Hari Ohm! Inshala! Sadhu! Now I fly off into the sunset, but not over Sunset Park residents! Nelson Hernandez Former Senior Advisor to the City Manager ---------------------------------------------------------------------- http://www.flyingmag.com/santa-monic...ten-smo-runway Santa Monica Rushes to Shorten SMO Runway City Council approves $3.5 million contract to help quickly eliminate jet traffic from the 100-year-old airport. By Pia Bergqvist August 10, 2017 SMO runway The city of Santa Monica will spend $3.5 million of taxpayer money to move forward with the controversial shortening of the runway at SMO. City of Santa Monica With the agreement the City of Santa Monica made with the FAA earlier this year to shorten the runway at SMO and ultimately close the airport in 2028, the city is working quickly to shut out business jets from the embattled airport as soon as possible. This week, the city council approved a contract with Aecom for the shortening of the runway from 4,973 feet to 3,500 feet for a “guaranteed maximum price” of $3.5 million out of the pockets of the city’s taxpayers. Aecom has been contracted to design and oversee the runway project. The new runway distance would render it too short for most jet traffic that now flies in and out of the 100-year-old airport. What the city refers to as construction, but what is actually destruction, is set to begin in October. Initially the work will be done at night, but there will be 7 to 10 days during which the airport will be closed. The plan is for the work to be complete by the end of the year. According to NBAA attorney Jol Silversmith, the city’s goal is to complete the work before the deadline for chart amendments to be published in February. Staff members from Santa Monica’s Planning and Public Works boards have started working on a plan for the future use of the parcels of airport property that the city has reclaimed. While the city’s plans are in line with the agreement reached with the FAA, there are several lawsuits and amicus briefs in the process that could put a stop to the shortening of the runway as well as the planned closure of the airport in 2028. NBAA has a lawsuit pending against the FAA, claiming it was beyond the agency’s authority to sign the agreement to close the airport. Airport tenants have a similar lawsuit in the process against the city. Initial plans for the runway shortening are mostly for restriping, Silversmith said – modifications that would not be very difficult to reverse. Should the pending lawsuits be successful, the city will be obligated to return the runway to its previous length, at additional costs to its taxpayers. ------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai...g/Updates.aspx https://www.smgov.net/uploadedImages...ing.png?n=3269 Santa Monica Department of Public Works Please be advised that the construction schedule to shorten the Santa Monica runway has been adjusted by nine (9) days due to delays in vendor mobilization of equipment and personnel. The new project start date is Wednesday, October 18, 2017. ... Stelios Makndes Airport Director |
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![]() https://www.avweb.com/avwebflash/new...-229795-1.html SMO Runway Shortening Resumes By Mary Grady After halting a plan last week to start work on shortening the runway at Santa Monica Airport, a federal court has lifted its temporary restraining order, and the work will begin “within the next week,” according to a post on the city’s Facebook page on Tuesday. The court’s order means “the legal complaints raised lack merit,” the city’s airport director, Stelios Markrides, said in a statement. The city plans to shorten the single runway, which is now about 5,000 feet long, to 3,500 feet, which would effectively limit the size of jets that can land there. The airport will be closed after Dec. 31, 2028. General aviation advocacy groups have lobbied for 30 years to preserve SMO as a viable business airport, while local residents have complained about noise, pollution and fear of crashes. On Wednesday, AOPA general counsel Ken Mead reacted to the new development: “The Santa Monica City Council is now wasting millions in tax dollars on a move that will only increase traffic, congestion and pollution for the citizens of Santa Monica,” he said. “Not only is a lot of money being wasted, but money will also be lost when the restricted use of the airport deprives the citizens of the economic, employment and emergency services advantages that had historically been provided from the airport.” NBAA's Alex Gertsen, director of airports and ground infrastructure, said the fight isn't over. NBAA is engaged in litigation pending before the U.S. Court of Appeals, District of Columbia Circuit, challenging the settlement agreement between the FAA and the city, claiming the FAA didn't follow basic statutory requirements when it concluded the unprecedented settlement. Should NBAA prevail, the city will be obligated to restore the runway. Meanwhile, NBAA said the runway reduction work is expected to begin Oct. 23. The airport will be closed to all aircraft, including helicopters, Monday through Friday from 9 p.m. to 7 a.m. local time, while the project is underway. On Mon, 09 Oct 2017 06:37:15 -0700, Larry Dighera wrote: [i] It's beginning to look like we're going to hear D9 Cats illegally ripping up the runway in the dead of night again as occurred with Meigs in Chicago and Capistrano in Orange County, California. http://www.airfields-freeman.com/CA/...rangeCo_SE.htm ================================================= ======================= https://www.avweb.com/avwebflash/new...-229733-1.html Court Stops Santa Monica Runway Destruction By Russ Niles A federal judge issued a temporary restraining order preventing the shortening of the runway at Santa Monica Airport the day before the work was to begin. As the National Business Aviation Association convenes in Las Vegas for its annual convention, the last-ditch order prevents the removal of 1,500 feet of the SMO runway, which effectively bars all but the smallest business jets from using it. Work was to start Monday morning (Oct 9, 2017). NBAA and other aviation groups have spent millions of dollars over the last three decades trying to preserve SMO as a viable business airport. The order is significant because it could lead to a injunction against ripping up the runway. The injunction is expected to be heard in about two weeks. At issue was the private deal between the FAA and the City of Santa Monica that led to the feds allowing the city to reclaim the airport property in stages until its federal obligations expire in 2028. The court ruled that it was likely the petitioners would win their case in a trial and the restraining order was issued to ensure the damage wasn’t done before they got the chance to argue the case in court. The full order is he https://d3n8a8pro7vhmx.cloudfront.ne...RO-Granted.pdf UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KATE SCOTT; JAMES BABINSKI, Plaintiffs, v. CITY COUNCIL FOR THE CITY OF SANTA MONICA; DOES, 1 through 10, inclusive, Defendants. ) CV 17-07329 RSWL (FFMx) Order Application for Temporary Restraining Order and Order To Show Cause re Preliminary Injunction [6] I. INTRODUCTION Currently before the Court is Plaintiffs Kate Scott and James Babinski’s (“Plaintiffs”) Ex Parte Application for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction [6] (“Application”). Specifically, Plaintiffs seek to enjoin Defendant City Council for the City of Santa Monica (“Defendant”) from taking any action to shorten the runway of the Santa Monica Municipal Airport (the “Airport”). Ex Parte Appl. (“Appl.”) 1:21-26, ECF No. 6-1. The Court, having reviewed all papers and arguments submitted pertaining to this Application, NOW 1 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 1 of 8 Page ID #:697 FINDS AND RULES AS FOLLOWS: the Court GRANTS Plaintiffs’ Application [6]. II. DISCUSSION A. Legal Standard 1. Ex Parte Application Ex parte applications are for extraordinary relief. For ex parte relief to be granted, “the evidence must show that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). The moving party also must be without fault in creating the crisis that requires ex parte relief, or that excusable neglect caused the crisis. Id. Pursuant to Local Rule 7-19.1, “t shall be the duty of the attorney so applying (a) to make reasonable, good faith efforts orally to advise counsel for all other parties, if known, of the date and substance of the proposed ex parte application and (b) to advise the Court in writing and under oath of efforts to contact other counsel and whether any other counsel, after such advice, opposes the application.” 2. Temporary Restraining Order Injunctive relief is an “extraordinary remedy.” Winter v. Natural Res. Def. Council Inc., 555 U.S. 7, 22 (2008). “Temporary restraining orders are governed by the same standard applicable to preliminary 2 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 2 of 8 Page ID #:698 injunctions.” Niu v. United States, 821 F. Supp. 2d 1165, 1167 (C.D. Cal. 2011)(citation omitted); see Fed. R. Civ. P. 65. A plaintiff seeking a temporary restraining order “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. B. Analysis 1. Ex Parte Application Because Defendant plans to begin construction on October 9, 2017, Plaintiffs’ cause will be irreparably prejudiced if the Court heard the matter on regularly scheduled motion procedures. See Appl., Ex. A. Plaintiffs were not at fault in creating this crisis because the City of Santa Monica sent out an email on September 22, 2017, notifying recipients that construction would begin October 9, 2017. Decl. of R. Christopher Harshman (“Harshman Decl.”) ¶ 10, Ex. A, ECF No. 6-1. Plaintiffs complied with Local Rule 7-19.1(a) by providing written notice of and a voicemail regarding this Application. Harshman Decl. ¶ 14. Additionally, Plaintiffs satisfied Local Rule 7-19.1(b) through counsel’s assertion that Joanna Simon, an attorney with Morrison Foerster, intends to oppose this Application on Defendant’s behalf. Id. Based on the foregoing, ex 3 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 3 of 8 Page ID #:699 parte relief is proper. 2. Temporary Restraining Order Plaintiffs successfully establish all of the required elements to grant their Application and enjoin Defendant from shortening the Airport runway. a. Success on the Merits Under California Public Utilities Code section 21664.5, an amended airport permit is required for every airport expansion, including “acquisition of runway protection zones” and “realignment of an existing runway.” While the department may provide regulatory exemptions, it may not exempt the requirement for public hearings pertaining to environmental considerations.1 Cal. Pub. Util. § 21664.5(a). In Trancas Property Owners Association v. City of Malibu, 41 Cal. Rptr. 3d 200, 210 (Ct. App. 2006), the court explained that California Public Utilities Code “[s]ection 54956.9’s implied allowance for adoption of settlements in closed session . . . cannot be construed to empower a city council to take or agree to take, as part of a nonpublicly ratified litigation settlement, action that by substantive law may not be taken without a public hearing and opportunity for the public to be heard.” 1 “Environmental considerations include but are not limited to noise, air pollution, and the burden upon the surrounding area caused by the airport or airport expansion, including but not limited to, surface traffic and expense.” Cal. Pub. Util. Code § 21666(e). 4 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 4 of 8 Page ID #:700 Public hearings are to be conducted in accordance with California Government Code section 11500 et seq. Cal. Pub. Util. Code § 21669.6. Under California Government Code section 11501, California Government Code section 11400 et seq.’s requirements apply to Defendant’s operation of the Airport. Here, Defendant entered into a settlement agreement (the “Settlement Agreement”), wherein it purportedly acquires runway protection zones and realigns an existing runway at the Airport. ECF No. 6-6 at 19, 22- 23; Harshman Decl. ¶ 12. To approve this Settlement Agreement, Defendant held a closed session, preventing public comment on the matter. See Verified Am. Pet. (“Pet.”), Exs. D, E, ECF No. 6-4. Thus, Plaintiffs will likely prevail at trial on the merits of their claim that Defendant failed to comply with the foregoing substantive law mandating a public hearing for environmental considerations arising from the terms of the Settlement Agreement.2 b. Irreparable Harm Plaintiffs argue that the proposed realignment will force planes to fly approximately 100 feet lower in 2 Plaintiffs also argue a public hearing was required for the Airport’s nightly closures and ten-day closure in December. Appl. 8:7-8. However, the pertinent statute reads that “upon the request of an affected or interested person, the department may conduct a public hearing.” Cal. Pub. Util. Code § 21605 (emphasis added). Thus, Plaintiffs are not likely to prevail on the merits of this ground. 5 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 5 of 8 Page ID #:701 altitude, causing increased noise at the departure end of the runway near adjacent neighborhoods. Harshman Decl. ¶¶ 3-5. Plaintiff Kate Scott is a resident of the Sunset Park neighborhood just west of the Airport. Pet. ¶ 4. Additionally, Plaintiffs contend flight at lower altitude over densely populated areas increases the risk to pilots, such as by eliminating the ability to turn back to land on the departure runway in the event of engine or other mechanical failure. Harshman Decl. ¶ 6. Plaintiff James Babinski regularly operates aircraft at the Airport and enrolls in instrument flying lessons at the Airport. Pet. ¶ 5. These harms are irreparable because money damages are inadequate for this kind of noise and danger. See Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545 (1987)(“Environmental injury, by its nature, can seldom be adequately remedied by money damages.”). In addition, these harms are imminent as construction, which is currently scheduled for October 9, 2017, immediately will prevent planes from utilizing the runway in its current state and taking off at the corresponding altitude. c. Balance of Equities and Public Interest Plaintiffs request to maintain the status quo at the Airport. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509 (2013)(balance of harms tipped in applicants’ favor 6 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 6 of 8 Page ID #:702 where injunction harmed defendant by delaying change to longstanding status quo for few months, but without injunction, applicants’ harm would be permanent). Defendant failed to file an opposition and delineate its potential harms from injunctive relief, leaving the Court to speculate as to its harms. Assuming the harms are monetary losses from delayed construction,3 “it appears that many of these costs may be self-inflicted” due to Defendant’s rush to begin shortening the runway. Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002), abrogated on other grounds by Winter, 555 U.S. at 22. Thus, the balance of equities tips in Plaintiffs’ favor. Finally, the public has a strong interest in ensuring Defendant abides by California’s public hearings requirements so that their interests are fairly considered. As such, Plaintiffs have established all of the elements for temporary restraining orders. III. CONCLUSION Accordingly, Plaintiffs’ Application is GRANTED. Defendant and its employees, agents, and all persons 3 Defendant apparently will spend $3.52 million to complete construction by December 31, 2017. Appl., Ex. C. This injunction will delay construction by two weeks (pursuant to Federal Rule of Civil Procedure 65’s time limit), but Plaintiffs are private individuals obtaining an injunction against a governmental entity. Therefore, they need only post a minimal bond. See Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322, 323 (9th Cir. 1975)(finding $1,000 bond to be reasonable). 7 Case 2:17-cv-07329-RSWL-FFM Document 12 Filed 10/08/17 Page 7 of 8 Page ID #:703 acting with them or on their behalf are hereby ORDERED not to take any action to shorten the runway of the Airport beginning immediately. Defendant also is ORDERED to show cause as to why it should not be restrained and enjoined in the same manner pending trial of this action. Defendant must file its response, if any, no later than October 13, 2017 at 4:00 p.m. Plaintiffs must file any reply no later than October 18, 2017 at 4:00 p.m., at which point this Court will take the matter under submission. Plaintiffs shall serve a copy of this Order on Defendant no later than October 9, 2017. Additionally, Plaintiffs are ORDERED to post a $5,000.00 bond or cash in that amount by October 9, 2017 at 4:00 p.m. IT IS SO ORDERED. DATED: October 8, 2017 /s/ RONALD S.W. LEW HONORABLE RONALD S.W. LEW Senior U.S. District Judge -------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai..._s_Office.aspx Airport News Monday, October 2, 2017 All, I hope this email finds you in good health. I consider this a very special email because it will be my last communication to you as a group. I am happy to share that on October 6th, I am retiring and will be leaving my post as Senior Advisor of Airport Affairs. Thirty-four years of military, federal, state, regional and local government service is enough, or as we say in Spanish, Basta! (Or is 34 years enough? See below.) Indulge me as I share some of my personal insights on the past two years of work. It has been quite an adventure! Just over two years ago, I saw a job announcement for Senior Advisor to the City Manager and I decided to apply. I read hundreds of news articles, Airport Commission and City Council reports. I read articles by aviation lawyers, State Attorney General opinions, City Attorney opinions, NBAA statements, AOPA statements, FAA Part 16 decisions, etc. After a great deal of research along with my extensive background in federal grants administration and years of real estate practice, I concluded the City of Santa Monica was in the right on the issues. Having never joined a cause I knew to be wrong, I accepted the job offer. When I started this job , I heard many opinions, including: "Closing the airport is a lost cause, the FAA will never agree." "The City is not serious about regaining control of airport land." "Big money interests will never let the airport close." "The former City Attorney is secretly trying to sabotage the case" "The 1948 Instrument of Transfer is iron clad " The 1994 grant assurances are bullet proof." "SMO is part of the national aviation system and the entire American aviation system will collapse without it!" I listened to these opinions, and began my work determined and optimistic. It took a little over a year, but in February of 2017, the City Council agreed to a historic Consent Decree with the federal government to close the airport in 2028 and shorten the runway to 3,500 feet in the interim. Many people thought shortening the runway would never happen yet construction to shorten the runway begins October 9 and is scheduled to be complete by December 30. According to national aviation experts and local air traffic controllers, we anticipate a 45% reduction in jet traffic. How did we accomplish this? It started and ended with community support and courage by the City Council, City Manager and City Attorney. In my view, our outside legal counsel at Morrison & Foerster also did an outstanding job. But in the end, it was people power over a small but determined elite. To you, the Santa Monica Community, I say congratulations! In the past two years, we also fundamentally reformed the economics at the airport. In 2015, Santa Monica Airport generated $5.8M in annual rent revenue and owed the City's general fund millions. In 2017, because Council's policy to eliminate subtenant leases, and bring all tenants to market rates, the Airport will generate over $13M in annual rent revenue. This means the airport will be financially self-sufficient, generate enough funds to repair and replace facilities, (there is a huge back logged of deferred maintenance) and finally repay the debt owed to Santa Monica taxpayers. A job well done. Despite the great leap forward, there is still some unfinished business. To ensure continued progress, City Manager Rick Cole has appointed Suja Lowenthal as my replacement. Suja is a current City employee, working at the Big Blue Bus. She is well qualified to serve in the position and I am confident will devote all of her creative talents to the job. Now what will I do? My intent was to retire and chill in Puerto Rico because that is my family origin. Now that Hurricane Maria has hit the island I will go there to work with FEMA and help the island recover. Bad times is when you need friends and family. I am hurt deeply by what happened to Puerto Rico-the enchanted island that truly lives up to its name. If you want to help Puerto Rico, I encourage you to visit when the time is right and stay for as long as possible. Despite the new travel restrictions imposed by the President my passport is valid, I think?. So, eventually once Puerto Rico is a bit more stable I will travel overseas and return to the USA, if allowed back in. Ha ha! I will also definitely teach yoga. Given the zaniness in DC, I will continue to write political satire. I will miss the work at the City and hope you will continue to remain engaged and active on all airport issues and the City in general. And by the way my, my encouragement to remain engaged in airport issues also applies to the pro-aviation activists. I want to thank my colleagues at City Hall for their support. I encourage everyone to treat each other with respect and work together to keep Santa Monica a wonderful community. Amen! Hari Ohm! Inshala! Sadhu! Now I fly off into the sunset, but not over Sunset Park residents! Nelson Hernandez Former Senior Advisor to the City Manager ---------------------------------------------------------------------- http://www.flyingmag.com/santa-monic...ten-smo-runway Santa Monica Rushes to Shorten SMO Runway City Council approves $3.5 million contract to help quickly eliminate jet traffic from the 100-year-old airport. By Pia Bergqvist August 10, 2017 SMO runway The city of Santa Monica will spend $3.5 million of taxpayer money to move forward with the controversial shortening of the runway at SMO. City of Santa Monica With the agreement the City of Santa Monica made with the FAA earlier this year to shorten the runway at SMO and ultimately close the airport in 2028, the city is working quickly to shut out business jets from the embattled airport as soon as possible. This week, the city council approved a contract with Aecom for the shortening of the runway from 4,973 feet to 3,500 feet for a “guaranteed maximum price” of $3.5 million out of the pockets of the city’s taxpayers. Aecom has been contracted to design and oversee the runway project. The new runway distance would render it too short for most jet traffic that now flies in and out of the 100-year-old airport. What the city refers to as construction, but what is actually destruction, is set to begin in October. Initially the work will be done at night, but there will be 7 to 10 days during which the airport will be closed. The plan is for the work to be complete by the end of the year. According to NBAA attorney Jol Silversmith, the city’s goal is to complete the work before the deadline for chart amendments to be published in February. Staff members from Santa Monica’s Planning and Public Works boards have started working on a plan for the future use of the parcels of airport property that the city has reclaimed. While the city’s plans are in line with the agreement reached with the FAA, there are several lawsuits and amicus briefs in the process that could put a stop to the shortening of the runway as well as the planned closure of the airport in 2028. NBAA has a lawsuit pending against the FAA, claiming it was beyond the agency’s authority to sign the agreement to close the airport. Airport tenants have a similar lawsuit in the process against the city. Initial plans for the runway shortening are mostly for restriping, Silversmith said – modifications that would not be very difficult to reverse. Should the pending lawsuits be successful, the city will be obligated to return the runway to its previous length, at additional costs to its taxpayers. ------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai...g/Updates.aspx https://www.smgov.net/uploadedImages...ing.png?n=3269 Santa Monica Department of Public Works Please be advised that the construction schedule to shorten the Santa Monica runway has been adjusted by nine (9) days due to delays in vendor mobilization of equipment and personnel. The new project start date is Wednesday, October 18, 2017. ... Stelios Makndes Airport Director |
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On Friday, October 20, 2017 at 7:00:02 AM UTC-5, Larry Dighera wrote:
Initial plans for the runway shortening are mostly for restriping, Silversmith said – modifications that would not be very difficult to reverse. Should the pending lawsuits be successful, the city will be obligated to return the runway to its previous length, at additional costs to its taxpayers. ------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai...g/Updates.aspx https://www.smgov.net/uploadedImages...ing.png?n=3269 Santa Monica Department of Public Works Please be advised that the construction schedule to shorten the Santa Monica runway has been adjusted by nine (9) days due to delays in vendor mobilization of equipment and personnel. The new project start date is Wednesday, October 18, 2017. ... Stelios Makndes Airport Director Capistrano in Orange County, California ?? When did that country clubber flyboy, priviledged enclave get bulldozed ?? |
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On Tuesday, October 31, 2017 at 6:16:25 PM UTC-5, wrote:
On Friday, October 20, 2017 at 7:00:02 AM UTC-5, Larry Dighera wrote: Initial plans for the runway shortening are mostly for restriping, Silversmith said – modifications that would not be very difficult to reverse. Should the pending lawsuits be successful, the city will be obligated to return the runway to its previous length, at additional costs to its taxpayers. ------------------------------------------------------------------------- https://www.smgov.net/Departments/Ai...g/Updates.aspx https://www.smgov.net/uploadedImages...ing.png?n=3269 Santa Monica Department of Public Works Please be advised that the construction schedule to shorten the Santa Monica runway has been adjusted by nine (9) days due to delays in vendor mobilization of equipment and personnel. The new project start date is Wednesday, October 18, 2017. ... Stelios Makndes Airport Director Capistrano in Orange County, California ?? When did that country clubber flyboy, priviledged enclave get bulldozed ?? Well..well, another hobbyist weekend playland went bye-bye: "With the dust settled on establishing the airport, other problems began. In April 1974, a small plane lost power on takeoff and flipped into the creek bed near the end of the runway. By 1976, complaints were starting to come from new developed homeowners, and a shutdown of the airport was considered. A similar closure was considered five years earlier as now the airport had become too small for the developing aircraft, and numbers of aircraft now located there dwindled down to 60. Then the unthinkable happened. On Memorial Day weekend, May 28, 1977, a 5-year-old girl was killed when she was struck by the propeller of a crashed plane. The plane was towing a banner and crashed shortly after takeoff. The young girl was riding a bicycle along a path bordering San Juan Creek. The airfield was ordered to be shut down a month after the accident as details of the crash emerged. Not only was the pilot uninjured but he was not properly licensed, had no permission to tow banners and fled to Jamaica after the incident. The airport was closed in 1978. Now, all that remains is the road leading to the airport, Avenida Aeropuerto, and the street where the runway once laid, Calle Aviador." http://www.danapointtimes.com/its-hi...calle-aviador/ |
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Thread | Thread Starter | Forum | Replies | Last Post |
City Of Santa Monica Approves Runway Shortening | Larry Dighera | Piloting | 1 | August 17th 17 01:59 AM |
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