Captain Errol Forman (a retired Eastern Airlines pilot) has been engaged in a struggle with Palm Beach County for nearly five years to force Palm Beach County to lift its restriction on the operation of jet aircraft at the Palm Beach County Park commonly known as Lantana Airport (hereinafter as “Lantana” or “KLNA”). Captain Forman’s saga began with landing, on two occasions, his Stage 3 Cessna Citation Model No. CE-501 aircraft at Lantana, the consequence of which was to receive a letter from the Airport Manager threatening Captain Forman with a fine or alternately imprisonment in the Palm Beach County Jail.  Captain Forman’s Part 13 (informal complaint) was filed with the FAA Atlanta Airport District Office in April 2016, and resulted in a finding by that office on December 6, 2016, that Palm Beach County was in violation of FAA Sponsor Grant Assurance No. 22(a) that requires the Airport Sponsor to ” … make the airport available as an airport for public use on reasonable terms and without unjust discrimination… ”  Thereafter, the FAA Atlanta Airport District Office dispatched three written notices to Palm Beach County seeking to obtain the cooperation of Palm Beach County in lifting the prohibition against the operation of jet aircraft at Lantana. See, e.g., letter from Deandra Brooks, FAA Atlanta Airport District Office to Nicholas Clabbers, Esq. and Alan Armstrong, Esq., March 17, 2017 [“The County is hereby requested to update the information regarding its restriction on jet operations at LNA with the FAA’s National Flight Data Center… within sixty days ofreceipt of this letter.”]. A second attempt was made by the FAA to enlist the cooperation of Palm Beach County by way of a letter dated May 26, 2017, again from Deandra Brooks of the FAA Atlanta Airport District Office requesting: “The FAA’s Southern Region is now making its second request for corrective action. We ask that the County update information regarding its restriction on jet operations at LNA to ensure its ongoing compliance with Grant Assurance 22 by June 26, 2017.” In that same letter, Ms. Brooks advised counsel for Palm Beach County that the FAA was placing the County on a status of “Conditional Compliance.” Finally, on July 21, 2017, Ms. Brooks again wrote counsel for the County and counsel for Captain Forman in which the FAA made its third and final request that Palm Beach County “develop a responsive corrective action plan… “

On August 10, 2017, Captain Forman filed a Part 16 (formal) Complaint with the FAA alleging violations of FAA Sponsor Grant Assurance No. 22(a) and 49 U.S.C. §47107(a)(l) which provides:

The Airport will be available for public use on reasonable conditions and without unjust discrimination.

On February 22, 2019, the FAA Director of Airport Compliance and Management Analysis rendered a decision once again finding that Palm Beach County was in violation of FAA Sponsor Grant Assurance No. 22(a) (hereinafter “the Director’s Determination”). After rendering its findings and conclusions, the FAA, in the Director’s Determination declared:

If Palm Beach County fails to submit a Corrective Action Plan acceptable to the FAA within the time provided, unless extended by the FAA for good cause and/or fails to implement and complete the Correction Action Plan as directed, the Director may initiate action to revoke or deny applications for Airport Improvement Program grants under 29 U.S.C. §§47114 and 47115.

On March 25, 2019, Palm Beach County appealed from the Director’s Determination, seeking a determination by the Associate Administrator for Airports.¹ On January 10, 2021, the FAA Associate Administrator for Airports issued the Final Agency Decision affirming the Decision of the Director of Airports and finding violations of FAA Sponsor Grant Assurance No. 22 and 49 U.S.C. §47101(a). This article will summarize the findings and conclusions contained in the Final Agency Decision.

Analysis of the Conclusions Rendered by the FAA in Rejecting the Arguments of Palm Beach County

The Final Agency Decision is an extremely detailed and thorough document that any practitioner involved in airport access litigation would be well advised to digest and evaluate. It is a very comprehensive document disposing of a host of arguments and positions advanced by Palm Beach County in response to the Part 16 Complaint lodged by Captain Forman with the FAA. In the remainder of this article, we will briefly consider a number of the conclusions reached by the Associate Administrator in disposing of the arguments advanced by Palm Beach County.

A.   The Mere Fact that the Director Concluded Palm Beach County Had Not Complied with the Airport Noise and Capacity Act of 1990, in Concluding There Was A Violation of Grant Assurance No. 22, Did Not Deprive the FAA of Jurisdiction; Nor Did the Director Assert ANCA As a Basis for Jurisdiction.

The factual posture of the case was that in 1973, Palm Beach County adopted an ordinance banning the operation of pure turbo jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations from operating at the Lantana Airport.² On October 27, 1987, Palm Beach County rescinded and superseded the 1973 restrictions with the passage of County Ordinance 88-11 entitled: “An Ordinance of the Board of County Commissioners …Promulgating Airport Regulations.”³ In 1991, Palm Beach County entered into an Interlocal Agreement with the City of Atlantis referring to the jet ban restriction as “simply guidelines.”⁴ ANCA took effect October 1, 1990. On February 24, 1998, Palm Beach County adopted Resolution R-98-220 entitled, in part, “Noise Abatement and Control.”⁵ There was no evidence in the record that Palm Beach County complied with ANCA either by obtaining approval of airport operators nor the approval of the FAA.⁶ Despite the fact that there was a gap in the “jet ban” being “in effect” from 1987 to 1998, and despite the fact that Palm Beach County had not complied with ANCA, it claimed the “jet ban” was grandfathered, and there was no need to comply with ANCA.⁷ Palm Beach County’s argument that the jet ban was grandfathered required the Director to evaluate that argument in the context of the allegations of a violation of Grant Assurance No. 22. However, Palm Beach County then argued that the Director used ANCA as a basis for his jurisdiction in resolving the Part 16 Complaint.

The Associate Administrator rejected Palm Beach County’s argument that the Director had employed ANCA as a basis for jurisdiction reasoning that “[t]he Director noted that the case involves ‘an alleged violation of the Grant Assurances’ and therefore jurisdiction is proper under 14 C.F.R. §16.l (a)(S).”⁸ Despite the fact that there was no ordinance and no regulatory expression of the “jet ban” from 1987 to 1991 when the Interlocal Agreement was executed, Palm Beach County argued, nonetheless, that the so-called “jet ban” had remained “in effect.”⁹ Palm Beach County advanced this argument asserting that the “jet ban” was grandfathered under 49 U.S.C. §47524 providing, inter alia:

(c) Stage 3 Aircraft.–{1) Except as provided in subsection (d) of this section, an airport noise or access restriction on the operation of Stage 3 Aircraft not in effect October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary Transportation after an airport or aircraft operator’s request for approval as provided by the program established under this section…

The Associate Administrator rejected Palm Beach County’s argument that the jet ban had remained in effect on October 1, 1990, noting: “The term ‘effect’ can be defined as ‘[t]he operation of a law, or an agreement or an act.’ Black’s Law Dictionary, p. 514 (6^th ed. 1990)… ” ¹⁰ The Associate Administrator rejected Palm Beach County’s argument that the jet ban was grandfathered noting: “There is no support for the County’s approach of establishing grandfather rights that is based on an alleged practice untethered from law and in contradiction to record evidence.” ¹¹ The Associate Administrator’s, having concluded that the “jet ban” was not grandfathered noted: ” … The Director properly considered whether the restriction was grandfathered  under ANCA because relevant law has held ‘actions taken in violation of [ANCA’s] legal mandates are, by their very nature, unreasonable. ¹² In conducting this analysis and reaching this conclusion, the Associate Administrator relied on Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 Fed.3d 133, 153 (2d Circuit 2016) noting that East Hampton was relevant to the question of whether the actions of Palm Beach County were reasonable under Grant Assurance No. 22 which was analogous to the “proprietor’s exception” considered in East Hampton.¹³

In and to the extent that Palm Beach County argued that the FAA had no jurisdiction under ANCA in adjudicating a Part 16 Complaint, the Associate Administrator noted that Grant Assurance No. l(a) required Palm Beach County to comply with all applicable federal laws including 49 U.S.C. Subtitle VII which includes ANCA.

Next, Palm Beach County argued that Aircraft Owners and Pilots Association v. City of Pompano Beach, FAA Docket No. 16-14-01, 2005 WL 3722717 (Dec. 15, 2005) was authority for the proposition that the Director should have considered ANCA in conducting his analysis. However, the Associate Administrator rejected that argument because Pompano involved deeds that pre-dated ANCA while the case in issue dealt with grant assurances that were post ANCA, the last Sponsor Grant Assurance Agreement having been executed in 2017.¹⁴

A.    A Host of Non-Adjudicatory Comments by FAA Personnel Were Not Binding on the Director in Rendering His Decision

Over the years, there had been a number of letters written by FAA personnel dealing with the jet ban at Lantana which did not take exception to the existence of the jet ban. However, a June 25, 1973, letter pre-dated the effect of ANCA and therefore was not controlling.¹⁵ A December 11, 2015, letter from the FAA suggested that the author was simply unaware of the “gap” in the existence of the jet ban from 1987 to 1991.¹⁶ A 2001 informal complaint by the Aircraft Owners and Pilots Association did not result in a final order and therefore was not determinative.¹⁷ The Associate Administrator disposed of this second argument noting:

The Associate Administrator finds that the Director did not err in considering prior FAA actions regarding the restriction. Rather, the Associate Administrator finds that (1) the Director correctly identified and analyzed past FAA actions and statements and found that none of them demonstrated that the airport was grandfathered based on a restriction in place on October 1, 1990, and (2) that the Director correctly considered relevant supporting analysis concerning the restriction’s reasonableness and unjustly discriminatory effects.¹⁸

A.   Palm Beach County’s Assertion that the Director Should Not Have Found A Violation of Grant Assurance No. 22

The scope of the discussion provided by the Associate Administrator in disposing of the Palm Beach County argument that there was no proof of a violation of Grant Assurance No. 22 is extremely thorough, comprehensive and well-written. The aviation practitioner would do well to read this decision for no other reason than to develop a more complete grasp and understanding of the many factors that may and may not be employed in denying access to a public use airport. While the Director did not provide expansive comments on all of these arguments, the Associate Administrator addressed six different arguments in concluding there was adequate proof by a preponderance of probative evidence of a violation of Grant Assurance No. 22. Palm Beach County had essentially conceded that the basis for the so-called “jet ban” was noise.¹⁹ The absurdity of Palm Beach County’s position is demonstrated by the following excerpt from the Final Agency Decision:

As the Director stated and as the record shows, the County has not produced a valid noise justification to substantiate the reasonableness of the restriction [FAA Exhibit 2, Item 1, Page 15]. What the record shows is a concern about noise going back to 1973, but no substantive data was considered or developed since. The County has responded to the “noise problem” by restricting access but has not provided adequate documentation of the noise problem or the restriction. For example, there are no noise studies, no 14 C.F.R. Part 150 noise maps or similar studies/materials, no data on the severity of the noise problem or if the noise situation has increased or decreased over time, no data validating whether certain aircraft types or operations impact noise contours, no alternative studies, no comparable land use assessments, or other relevant noise documentation to indicate the noise problem has been, or is, substantiated. Not surprisingly, these are the same types of documents that would be required to support an access restriction under ANCA. See 14 C.F.R. Part 161.²⁰

The absence of any data to support the County’s position that aircraft noise was the basis for the so-called “jet ban” as manifest by these comments of the Associate Administrator:

There is unjust discrimination in this case. Noisier aircraft are permitted to use LNA. Simple facts show this. For example, at takeoff, Complainant’s 11,400 lbs., Stage 3 Citation (CE-501) jet has a noise level of 67.3 dBA while a single­ engine 4,000 lbs. Cessna 210 propeller aircraft has a noise level of 71.4 dBA. On approach, Complainant’s Citation jet has a noise level of 77.7 dBA, while a Beech 60 has a noise level of 80.0 dBA.  This is as true today as it was in 1973. Since all of these aircraft existed in 1973. Although the effects of the restriction are exacerbated today because many more modem jet aircraft are quieter than propeller aircraft, the fact is that the restriction was flawed the day it was adopted.²¹

The second so-called justification for Palm Beach County’s “jet ban” ordinance was that aircraft weighing more than 12,500 pounds had to be excluded for two reasons. The first reason was noise, and the second reason was aircraft weight. Both of these arguments by the County were rejected.

With regard to the argument that aircraft weighing more than 12,500 are noisier than aircraft weighing less than that weight was rejected by the Associate Administrator who observed:

The Director’s Order specifically asked the County to rescind the restriction, which includes the weight limitation. The weight limitation is unreasonable because it is part of the County’s “noise” regulations and there is no justification in the record linking noise and weight. Many aircraft weighing less than 12,500 lbs. generate higher noise levels than aircraft above that weight. For example, at takeoff, a dual-wheel 14,500 lbs. SA226-AC Metro 3 Turbo Prop has a noise level of 69.25 dBA, while a much smaller 5,l 00 lbs. Beech B55 propeller aircraft has a noise level of 73.0 dBA. This disparity shows the unjustly discriminatory effect of the weight limitation. A review of the record reveals no plausible justification for the weight restriction.²²

Similarly, the argument that heavier aircraft would damage the runway and taxiways was rejected by the Associate Administrator who wrote:

The fact is that aircraft heavier than the standard aircraft may have a lower relative damage factor than some lighter aircraft. A significant number of aircraft weighing less than 12,500 lb. that use LNA can cause wear and damage to the pavement in a similar manner as aircraft weighing more than 12, 500 lbs. As a more technical explanation, the County’s arguments and statements do not specify locations and related conditions, specific wheel configurations, Pavement Condition Index (PCI), base course, sub-base or overlay type, needed or expected maintenance requirements, levels of use, or methodology used to determine the relative damage by each aircraft, Cumulative Damage Factor (CDF). Aircraft heavier than the standard aircraft may have a lower relative damage factor than some lighter aircraft. Small aircraft may have a much larger impact on the thinner sections designed specifically for light aircraft than they will have on thicker pavements designed for all aircraft.²³

To the extent Palm Beach County attempted to use design standards as limitations on operations, the Associate Administrator observed:

In the Matter of the City of Santa Monica, FAA Docket No. 16-02-08, 2009 WL 3176873, Final Agency Decision and Order, p. 37-38 (July 8, 2009) (“Design standards are not operational requirements and are not mandatory for existing facilities”).²⁴

The third problem presented by Palm Beach County’s “jet ban” was the fact that it restricted cargo aircraft from the airport. Once again, this restriction was rejected by the Associate Administrator who declared:

Restricting a cargo carrying aircraft at LNA and permitting the same aircraft carrying passengers or engaging in other activity, cannot justified. Besides the unreasonableness and unjustly discriminatory aspects of the County’s restriction, restricting an aircraft operating under 14 C.F.R. Part 135 holding an Air Carrier Certificate or Operating Certificate under 14 C.F.R. Part 119, as a cargo operator at LNA has no justification in the record. The record contains no valid justification for this arbitrary distinction on the type of operation that an aircraft might conduct. As a restriction to any airport user intending to carry cargo, this unreasonable, unjustly discriminatory element of the restriction must be corrected.²⁵

The fourth argument of Palm Beach County that its “jet ban” was justified was based upon arguments of safety and efficiency. In addressing this argument, the Associate Administrator observed: ” … We are examining this issue notwithstanding that the evidence strongly suggests the real reason for these restrictions is noise mitigation and not safety and efficiency.”²⁶ The Associate Administrator noted that as part of the Part 13 proceedings, there was an FAA Part 13.1 Report and follow-up letter dated April 18, 2017, which included coordination with Air Traffic and Flight Standards. Based upon information elicited from those two branches of the FAA, the FAA concluded in the report that access to Lantana could not be justified based on safety and efficiency resulting in the conclusion that Palm Beach County “has imposed unreasonable terms and conditions on aeronautical users at LNA.”²⁷

The fifth argument advanced by Palm Beach County was that permitting jets to land at Lantana could trigger the necessity of an environmental evaluation under the National Environmental Policy Act (NEPA). Rejecting the County’s argument that the FAA’s requirements for corrective action could trigger a NEPA evaluation, the Associate Administrator noted:

… Administrative enforcement proceedings under 14 C.F.R. Part 16 are not subject to environmental review. The inapplicability of NEPA does not depend on the idea that the FAA’s decision merely “order[s] the County to take administrative action,” as the County indicates. [FAA Exhibit 2, Item 2, Page 20]. Rather, NEPA does not apply because administrative enforcement proceedings are not a federal action subject to NEPA. Simply put, NEPA does not apply to these proceedings… ²⁸

The sixth and final argument in Palm Beach County’s attack on the finding of a violation of Grant Assurance No. 22 was the claim that the FAA did “not allow the County to address the alleged non-compliance with any approach other than a complete repeal of the jet restriction.” ²⁹ In response, the Associate Administrator observed:

… The record does reflect that the County was given numerous opportunities and time to address the restriction and initiate corrective action in some form. Yet, it has not done so. Even before the Director’s Order, the County was asked three times by FAA to develop a corrective action plan (CAP) to repeal the restriction, but it did not.³⁰

After conducting an exhaustive analysis of Palm Beach County’s arguments and refuting each and every one of them, the Associate Administrator found no valid justification for the jet ban based on noise, weight, type of operations, safety or efficiency, or environmental justifications.³¹ The Associate Administrator concluded that the jet ban is not grandfathered, is unreasonable, and is unjustly discriminatory.³² Based upon the foregoing, the Administrator entered the following Order:

ACCORDINGLY, it is hereby ORDERED that:

• The County is afforded 60 days to submit a detailed Correction Action Plan (CAP) consistent with this Final Agency Decision and acceptable to the FAA, which would:
• Subject to FAA approval, permit immediate access by Complainant and other aircraft capable of utilizing LNA’s existing runways, infrastructure, and facilities, and
• Within 180 days, subject to FAA approval provide a long-term, formal and legal commitment by the County to rescind or not enforce the restriction, and
• Pending the FAA’s approval of the CAP’s two elements, any approval of any application submitted by the County for amounts apportioned under 49 U.S.C. §47114(d) and authorized under 49 S.C. §47115 will be withheld in accordance with 49 U.S.C. §47106(d), and
• The FAA will consider appropriate action regarding the County’s non-compliance with ANCA and 49 U.S.C. §47524, and the appeal is dismissed pursuant to 14 F.R. §16.33, and
• The appeal is dismissed, pursuant to 14 F.R. §16.33.³³

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Conclusion – What Does the Future Hold for Palm Beach County?

¹ Palm Beach County and Palm Beach County Board of Commissioners Notice of Appeal and Brief in Support of Its Appeal of the Director’s Determination, February 22, 2019, in the case style Captain Errol Forman v. Palm Beach County, Florida, and the Palm Beach County Board of Commissioners, FAA Docket No. 16-17-13.

² Final Agency Decision at 2.

³ Id. at 6.

4 Id.

⁵ Id.

⁶ Id. at 5.

⁷ Id.

⁸ Id. at 4.

⁹ Id. at 6.

¹⁰ Id. at 6.

¹¹ Id. at 7.

¹² Id. at 4, 5.

¹³ Id. at 5, fn. 3.

¹⁴ Final Agency Decision at 5.

¹⁵ Id. at 7.

16 Id.

¹⁷ Id. at 8.

¹⁸ /d. at 8.

¹⁹ Final Agency Decision at 9.

²⁰ Id. at 10.

21 Id.

²² Id. at 11.

23 Id.

24 Id.

²⁵ Id. at 12.

²⁶ Id. at 12.

27 Id. at 13.

28 Id. at 14.

29 Id.

30 Id.

³³ Id. at 15, 16.

³⁴ Palm Beach County Isn’t Done Fighting for Jet Ban at Lantana Airport, by: Hannah Morse, Palm Beach Post, February 9, 2021.

³⁶ /d. at 2.

31 Id.

3s Id.