June 2, 2011 By: Ashley Archibald
SMO – A decade and $1.5 million in outside attorney fees later, City Hall will not challenge a federal appeals court decision to uphold a Federal Aviation Administration ruling barring City Hall from enforcing a ban passed in 2008 prohibiting class C and D jets from landing at Santa Monica Airport.
Perhaps more surprising is that the news surfaced at the annual meeting of Friends of Sunset Park, a neighborhood group, four months after that decision was reached in closed session by the City Council.
“I was taken back a little bit, a little surprised,” said Martin Rubin, member of Concerned Residents Against Airport Pollution, an advocacy group. “I thought it was bigger news than to come out that way.”
City Manager Rod Gould confirmed the group’s report.
“The council considered it, and chose to not go on,” Gould said.
The decision came down from a three-judge panel of the federal appeals court in Washington, D.C. Had City Hall chosen to appeal the decision, it could have gone either to the full appeals court, or the Supreme Court itself.
Assistant City Attorney Joseph Lawrence said the principal reason City Hall chose not to appeal the three-judge panel’s decision was that the scope of its analysis was extremely narrow.
The panel focused on whether or not there was “substantial evidence” to support the FAA’s decision to prohibit City Hall’s ban rather than taking on constitutional issues that city attorneys raised.
“In the world of legal stuff, substantial evidence means a good deal less than you might think it means,” Lawrence said.
The standard required that the FAA show any evidence, anything in the record that supported its decision.
“That gives them lots of leeway, and lots of discretion,” Lawrence said.
Although city attorneys and the outside legal firm Kaplan Kirsch and Rockwell, which is based in the capital, presented other arguments, the appeals court ignored them, Lawrence said, which substantially restricted what arguments could have been made to the Supreme Court.
Then there was the question of whether the Supreme Court would take the case at all and if City Hall could win if it got there, which the outside attorneys considered unlikely.
“In their words, we had ‘zero chance,'” Lawrence said.
In January, after the appeals court decision, City Council voted in closed session not to seek the appeal.
That decision ended almost 10 years of struggle with the FAA that accounted for $1.5 million in fees to outside attorneys and thousands of hours of work for city staff.
Trouble with the FAA over the larger-sized jets began in 2002 when the FAA filed a complaint against Santa Monica, said Deputy City Attorney Ivan Campbell, who did a great deal of work on the issue.
The complaint centered on a City Hall action to hire consultants to look at the possibility of banning size C and D jets, which officials argued were unsafe to land at SMO because of insufficient buffer zones at the end of runways near residential areas.
Between 2002 and 2008, when the City Council formally voted to ban the jets, the FAA and City Hall tried to come to a mutual agreement on the issue, but negotiations fell apart and a three-and-a-half year legal battle began, one which City Hall ultimately lost.
Lawrence characterized the court case as one of many routes to the ultimate goal of dealing with airport issues and safety concerns.
“This was one strategy to deal with major issues at the airport,” Lawrence said. “Those issues remain. They’re not solved, and this is not done. Just this one option has been exhausted. There are others out there.”
Lawrence said he could not elaborate on what those other options are.
Source: SANTA MONICA DAILY PRESS