Palm Beach County Jet Ban Struck Down for the Second Time by the FAA
by Alan Armstrong1
On February 22, 2019, the FAA Director of Airport Compliance found that the jet ban implemented by Palm Beach County at Lantana Airport violated FAA Sponsor Grant Assurance No. 22 which requires recipients of federal funds at public airports make the airport available as an airport for public use on reasonable terms without unjust discrimination and that the airport be available to all kinds and classes of aeronautical activities. The Director’s Determination of February 22, 2019, marks the second time the FAA has found the jet ban at Lantana Airport could not be sustained. While the Director’s Determination was made following the filing of a Complaint under Part 16 of the Federal Aviation Regulations, an earlier complaint filed under Part 13 of the Federal Aviation Regulations resulted in a finding “that the Respondent’s [Palm Beach County’s] restriction is not consistent with Paragraph (a) of Grant Assurance No. 22, Economic Discrimination, and the FAA may request that the Respondent eliminate or alter restrictions at LNA (Lantana Airport) after further analysis is conducted by the FAA.”
This article will analyze and discuss the arguments advanced by the parties in the Part 16 litigation before the Director of Airport Compliance and explain the basis and reasoning for the Director’s Determination.
History of the Case
Captain Errol Forman filed an Informal Complaint under Part 13 on April 20, 2016, with the Southern Region Airport Division asserting a violation of Grant Assurance No. 22. On December 6, 2016, the FAA Southern Region issued its preliminary finding on the Informal Complaint and concluded that Palm Beach County’s restriction on jet aircraft as implemented at Lantana may be unjustly discriminatory and inconsistent with the County’s federal obligations. Further, the FAA’s Southern Region found in its Preliminary Report that the County’s repeal and act of rescinding all airport regulations adopted prior to October 27, 1987, vitiated the 1973 restriction on jet aircraft with the result that the 1973 restriction was not grandfathered as predating the Airport Noise and Capacity Act of 1990. On March 17, 2017, the FAA’s Southern Region Airports Division, in coordination with the Air Traffic Division, concluded that permitting jet aircraft operations on Runway 9-27 would not affect safety or efficiency at Lantana or surrounding airports.
Captain Forman had landed his turbo-fan Cessna aircraft at Lantana Airport on May 11, 2016, and again on May 28, 2016. Following the first landing, he received a warning letter from Galaxy Aviation, the only fixed base operator on the airport. After the second landing, he received a letter from the Airport Director threatening him with a fine or time in jail. In his Informal Part 13 Complaint, Captain Forman maintained that the basis for the restrictions on jet aircraft was noise, since (1) there were no public meetings discussing a noise contour map, (2) Palm Beach County never applied to the FAA to accomplish a noise study, and (3) Palm Beach County had no summary document concerning any noise complaints at the airport for the past five years. On June 19, 1973, Palm Beach County had enacted an ordinance restricting “[a]ll jet aircraft in addition to all aircraft weighing in excess of 12,500 pounds engaged in aircraft cargo operations…from parking, landing or taking off from the Lantana Airport. However, Palm Beach thereafter promulgated Ordinance No. 88-11 that purported to “supersede and repeal all airport regulations adopted on or before October 27, 1987.” Despite the fact that the 1973 Ordinance had been rescinded, the County maintained that its March 12, 1991 Interlocal Agreement with the City of Atlantis reaffirmed the jet ban even though the Interlocal Agreement applied only to “pure turbo jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations.”
In 1998, the County re-enacted the airport rules restricting “[p]ure turbo-jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations…[at LNA].” Despite the fact that the 1973 jet ban had been rescinded by Ordinance No. 88-11, the County maintained that it had consistently maintained the jet ban despite “editorial changes over time.”
The Issues Before the Director in the Part 16 Complaint
Captain Forman maintained in his Part 16 Complaint that Palm Beach County was in violation of Grant Assurance No. 22. In response, the County raised four principal issues:
The County argued that the jet restriction at Lantana Airport was a matter of local law beyond the FAA’s Part 16 jurisdiction;
- The County maintained that whether or not the jet ban policy was or was not grandfathered under the Airport Noise and Capacity Act of 1990 (ANCA) was immaterial, since issues arising under ANCA are not within the FAA’s Part 16 jurisdiction;
- The County maintained that Captain Forman had failed to carry his burden of proof; and
- The County maintained that its ban against jet aircraft was authorized in the interest of insuring the safety and efficiency of operations at the airport.
The remainder of this paper will discuss the four arguments advanced by the County and the findings made by the Director in regard to those arguments.
A: The Palm Beach County Jet Restriction Was Not A Matter of Local Law.
The Director rejected the argument that the Lantana jet restriction was a matter of local law beyond the FAA’s Part 16 jurisdiction. The Director declared:
…A restriction that violates Grant Assurance No. 22 will constitute a violation based on its effect on the airport and its users; it is irrelevant as to whether the restriction is codified in a County Code or not.
B: ANCA Was Not Beyond the FAA’s Part 16 Jurisdiction.
The second argument made by the County was that whether the Jet Ban policy was grandfathered was irrelevant because issues arising under ANCA were beyond the FAA’s Part 16 jurisdiction. The Director summarily rejected this argument declaring:
Since this case ultimately involves an alleged violation of the grant assurances, we need not address the extent to which ANCA can be addressed under Part 16. However, where the allegations regarding violation of the assurances are intertwined with issues related to ANCA, the Director is certainly authorized to examine or take notice of 1) the existence of or absence of grandfathered rights under ANCA and/or 2) whether the restriction in question have been agreed to by the airport proprietor and all aircraft operators and/or the 3) whether the restrictions have been submitted to and approved by the FAA. These conditions represent the “straight forward requirements” necessary to comply with ANCA’s simple rule,” i.e., “airport seeking to impose noise restrictions on Stage 3 aircraft [if not otherwise grandfathered, must obtain either the consent of all aircraft operators or FAA approval.” East Hampton, at 146. In order to reach a ruling on the Grant Assurances, the Director needs to understand the status of questioned noise and access restriction under ANCA and is both entitled to and capable of doing so.
C: The Director Rejected the Argument that Captain Forman Had Failed to Carry His Burden of Proof.
The Director then addressed the argument made by Palm Beach County that Captain Forman had failed to carry his burden of proof. In rejecting that argument, the Director paraphrased the allegations of Captain Forman, to wit:
The Complainant has demonstrated that the genesis of the jet ban restriction at Lantana was based upon noise. First, the June 19, 1973 minutes of the County Commission meeting recite this policy “would limit planes with extreme noise from utilizing such airport.”
- The County promulgated Ordinance No. 88-1 on May 24, 1988, superseding and repealing “all airport regulations adopted on or before October 27, 1988.”
- Palm Beach County on March 1991 entered into the Interlocal Government Agreement with the City of Atlantis and only restricted from the airport pure turbo jet aircraft and aircraft in excess of 12,500 pounds engaged in air cargo operations.
- On February 24, 1998, Palm Beach County adopted Resolution R-098-220 “to repeal existing rules and regulations…regarding…air traffic…[and] noise abatement.
- Page 66 of Resolution R-98-220 is captioned “Division Two – Noise Abatement and Control – Lantana Airport. On page 67 of Resolution R-098-220 below the language dealing with noise control, we find Section 12-6 entitled “Use Restrictions” and subparagraph (a) precludes the operation of “pure turbo-jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations.”
- When the Respondents filed their answer on June 10, 2016, they told the FAA Southern Region Airport Division: “Jets are generally noisier than propeller aircraft, and thus it was reasonable for the County to make the distinction between these types of aircraft for noise abatement purposes.”
- Despite the County’s self-professed concern for aircraft noise, there is no evidence that a noise study was conducted nor that there is a noise contour map in existence concerning Lantana Airport.
- Prior to (Captain Forman) filing his Complaint on August 10, 2017, the FAA conducted a safety and efficiency study of Lantana Airport; and in a letter from the FAA Southern Region Airport’s Division dated March 17, 2017, the FAA concluded “that permitting jet aircraft operations on Runway 9-27 will not affect safety or efficiency at LNA or surrounding airports” (Item 17, pp. 5-6).
After paraphrasing the allegations made by Captain Forman in his Complaint, the Director declared:
Accordingly, in this case, Captain Forman has stated a valid prima facie case for a Grant Assurance No. 22 violation based on his allegations of a denial of access to LNA. The Cessna Citation is a turbo fan stage 3 aircraft for noise purposes as reflected in Advisory Circular 36-1H, Noise Levels for U.S. Certificated and Foreign Aircraft. Captain Forman was operating a Cessna Citation when he landed at LNA and was cited for violations of the County’s Rules and Regulations.
D: The Jet Ban Was Not Authorized Based on Safety and Efficiency.
The fourth argument advanced by the County was that safety and efficiency authorized the promulgation of the jet ban, but the Director noted as follows:
…Forman claims there is absolutely no evidence in the record that Palm Beach County had a safety analysis conducted by the FAA before it promulgated the various iterations of its jet ban policy/resolution/ordinance at the Lantana Airport. (Item 1, p. 14).
After reviewing the record and the matters before him, the Director declared as follows:
The Director rejects the County’s limited view of the FAA’s authority. The federal government’s authority preempts the County’s Code in areas of airspace use and management, air traffic control, safety and the regulation of aircraft noise at its source. (FAA Order 5190.6B, 13.2(a)(1)).
In rejecting the County’s argument that safety and efficiency authorized the promulgation of the jet ban, the Director went on to declare:
The Director finds the County, by restricting aeronautical activities on the basis of safety and efficiency (or for any other purpose) without adequate FAA-justification, imposed unreasonable terms and conditions upon the aeronautical users affected by the restrictions. The County has not conducted any analysis to determine if the jet aircraft ban was justified, or continues to be justified, or whether it denies access to aircraft with an unjustly discriminatory effect.
The County’s jet restriction is unjustly discriminatory because it allows aircraft equally noisy or noisier than aircraft restricted from operating at the airport. (See Santa Monica Airport Association v. City of Santa Monica, 481 F.Supp. 927 (C.D. Cal. 1979), “In terms of the quality of noise produced by modern type fan-jets…there is absolutely no difference between the noise of such jets and the noise emitted by louder fixed-wing propeller aircraft which are allowed to use the airport.”
Moreover, even if the jet ban could somehow be justified, as written it appears to be misunderstood and potentially misapplied and this creates an inherent unjust discriminatory framework, which the County appears to exploit. While the ban refers to “pure turbo jet,” the Complainant’s aircraft is a turbo fan aircraft, which is a distinct and recognized technical classification. The term “jet airplane” means “any fixed wing airplane that is powered by a turbo jet or turbo fan engine regardless of whether is an airplane certificated to 14 C.F.R. Part 23 (small or commuter aircraft) or 14 C.F.R. Part 25 (transport category aircraft).” A turbo jet is [a] gas turbine engine designed to create all of it propulsion from exhaust gases. A turbo fan is a gas turbine engine designed to create its propulsion from exhaust gases and from air that bypasses the combustion process and is accelerated in a ducted space between the inner (core) engine case and the outer engine fan casing.
Importantly, the County applies its restriction on pure turbo-jet aircraft and aircraft in excess of 12,500 pounds engaging in air cargo operations to apply to all jet aircraft seeking access to LNA. In enforcing the ban against Complainant’s type aircraft, which is not a pure turbo jet, they County is not complying with the actual language in the jet ban itself and in doing so, creates an added layer of unjust discrimination.
The County has not produced any evidence of the relationship between its restriction and noise. It is unreasonable to impose a restriction in instances where there is noise data or justification for access restriction. The Director, as noted above, concludes that LNA’s jet restriction is not grandfathered under ANCA. Nor is there is any suggestion that this ban has been approved by “all aircraft operators” or otherwise approved by the FAA in accordance with 14 C.F.R. Part 161. Such a noise restriction is preempted and inherently unreasonable and therefore violates Grant Assurance 22.
Against this background, the County has not presented a persuasive argument or any evidence that this restriction on jet aircraft is reasonable. The ban is applied to all jet aircraft wanting to access LNA, no matter the weight or purpose. The ban does not comply with the requirements of Title 49 U.S.C. §47107(a) and Grant Assurance 22 requiring an airport sponsor to provide reasonable access without unjust discrimination.
The Findings and Conclusions of the Director
The Director found that Palm Beach County was in violation of 49 U.S.C. §47107(a) and is its federal obligations pursuant to Grant Assurance No. 22 dealing with economic discrimination. The Director’s Order afforded Palm Beach County thirty days to submit a plan for corrective action. The Director then declared in his findings:
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 corrective action plan as directed, the Director may initiate action to revoke or deny applications for Airport Improvement Program grants under 49 U.S.C. §§47114 and 47115.
The Director’s Determination demonstrates the fallacy of local governments enacting ordinances restricting access to airport based on noise concerns without first conducting a noise study or collecting any data to support the argument that there is a rational basis for a noise restriction. It also confirms that hollow arguments that restrictions on the use of airports or airspace are matters of “local law” will fail. Finally, it is clear that the FAA has jurisdiction to interpret the Airport Noise and Capacity Act of 1990 in adjudicating Part 16 complaints alleging violations of the FAA grant assurances including Grant Assurance 22.
The author of this article served as counsel to Captain Forman in both the Part 13 and Part 16 proceedings discussed in this article.
1 Alan Armstrong is an aviation lawyer who practices law in Atlanta, Georgia. He appears in the Bar Register of Preeminent Lawyers published by Martindale-Hubbell; is recognized in the 2019 Edition of Georgia’s Super Lawyers and also recognized in Atlanta Magazine 2019 Edition as among the Top Attorneys in Georgia.
2 Part 13.1 Report – Complaint Review Letter – Preliminary Regional Review of the Southern Region Airports Division, December 6, 2016.
3 Director’s Determination in the case styled Captain Errol Forman v. Palm Beach County, Florida and Palm Beach County Board of Commissioners, FAA Docket No. 16-17-13 (hereinafter “Director’s Determination”) at 2.
7 Id. at 2, 3.
8 Id. at 3.
11 Id. at 4.
14 Id.at 8.
16 Id. at 12.
17 Id. at 14.
18 Id. at 9.
19 Id. at 11.
20 Id. at 12, 13.
21 Id. at 13.
22 Id. at 14.
23 Id. at 15.
24 Id. at 17.
25 Id. at 18.