A federal appellate court has ruled that Santa Monica city leaders cannot impose a ban on certain aircraft at its municipal airfield, dealing the city and airport safety proponents another legal setback.

The Ninth District Court of Appeal in Washington, D.C. denied the city’s petition for review, which was filed Friday, Jan. 21 on whether city officials could deny access to category C and D aircraft to the airport. The council and neighborhood groups claim those aircraft pose a danger to those who live less than 300 feet from the airport’s runway.

Category C aircraft are planes that travel at a speed of 121 knots, but less than 141 knots, and planes that fall into Category D have speeds of 141 knots, but less than 166 knots, according to the Federal Aviation Administration.

The FAA contended that Santa Monica did not have the authority to ban any aircraft from the airport due to certain conditions that airport operators must abide by because the city accepts federal grants.

The court concluded that the ban on C and D aircraft was flawed, as other types of airplanes are permitted to land and depart from the airfield.

“The ordinance, which bans all Category C and D aircraft from the airport but permits Category A and B to continue to operate is facially discriminatory,” the court wrote. “Petitioner argues that the FAA failed to consider whether the ordinance is unjustly discriminatory, but this is not the case.”

The City Council approved an ordinance March 27, 2008 that banned larger, faster aircraft from the airport, citing the lack of runway safety protection as well as the short distance between residences and the runway. The FAA quickly appealed the ordinance and obtained an injunction against the municipality, setting the stage for a series of legal showdowns that led to a federal appellate court appearance.

Santa Monica Deputy City Attorney Ivan Campbell met with the city’s legal staff and members of its City Council days after the ruling to determine its next move.

“We’re going to have to gauge the likelihood of success as well as what the City Council would like to pursue from a policy standpoint,” Campbell said.

The three-judge panel viewed the federal government’s response to the city’s passage of the ordinance as an appropriate one that did not violate any laws. They also cited Grant Assurance 22, which mandates that municipalities not discriminate against certain types of airplanes.

“The FAA’s final agency decision, which concluded that petitioner’s ban on Category C and D aircraft from Santa Monica Airport was inconsistent with petitioner’s contractual obligations to the federal government to make Santa Monica Airport available for use of ‘fair and reasonable terms and without unjust discrimination, to all types, kinds and classes or aeronautical uses’ was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law,” wrote Chief Justice David Sentelle. “The petition for review is denied.”

The ruling continues a string favorable to the FAA since the legal battles began over whether the city government could determine which aircraft can use its general aviation airport. A lower court ruled against Santa Monica in 2008, as well as an FAA administrative hearing officer in 2009.

The appellate court found that the FAA relied on three conclusions that determined that the aircraft ban was unfair.

Federal law gives the FAA exclusive jurisdiction over aviation safety. The agency determined that Category C and D jets can operate safely at the airport despite the lack of runway safety areas and that Category C and D aircraft are less likely to be involved in an overrun than Category A and B aircraft.

Additionally, according to FAA authorities, in the unlikely event of an overrun by the larger planes, it is very unlikely that the aircraft would reach the neighborhoods beyond the runway.

City and airport officials disagree with that analysis and point to instances at other airports where airplanes have overshot runways that were not bordered by residential neighborhoods.

FAA officials also determined that the risks associated with overruns and undershoots at Santa Monica by Category C and D aircraft can be mitigated without implementing a total ban and without reducing the utility of the runway, including installing safety protections called Engineered Material Arresting Systems (EMAS) at one or both runway ends.

EMAS is a bed of porous concrete blocks that collapse under the weight of a jet’s landing gear, thus slowing the jet down and preventing most runway overruns, according to the FAA.

Airport safety advocates like Cathy Larson reject the notion that the EMAS would remedy any runway safety concerns.

“What the FAA has offered has always been a substandard solution,” said Larson, the co-chair of the Friends of Sunset Park Airport Committee.

Ian Gregor, an FAA spokesman, said his agency would continue to assist Santa Monica leaders with runway safety protection if they are amenable.

“The FAA remains ready, willing and able to help Santa Monica pay for installing an Engineered Material Arresting System at the airport to address the city’s safety concerns,” Gregor told The Argonaut.

Rep. Henry Waxman (D-Santa Monica) has reiterated his support to his constituents regarding airport safety.

“I remain committed to working with the city of Santa Monica and all of the airport’s neighbors to bring the FAA to meaningfully address the long-standing safety issues at Santa Monica Airport,” the congressman said.

Calls for comment to the California Pilots Association were not returned.

Larson said she was disappointed with the court’s decision but not surprised, a sentiment often expressed by those who live near the airport on past court rulings.

“It seems to be a track record of (the court system) federal agencies,” she said.

Possible legal actions that Santa Monica could pursue are petitioning for a rehearing by the court on the ban, allowing the decision to stand or appealing to the Supreme Court.

“The FAA was, and remains, confident in our legal position,” Gregor said.

Safety and environmental concerns tend to dominate virtually any discussion on the city-owned airport, and at times with strong political overtones. Last year, Marcy Winograd, a Democratic candidate for the 36th Congressional District, joined an anti-pollution organization, Concerned Residents Against Airport Pollution, in calling for lawmakers to sign a “no jets” pledge, agreeing to not fly into or depart the airport in a jet.

All of the candidates who ran in the 53rd Assembly District signed the pledge, as did then Assemblyman Ted Lieu, Winograd and Rep. Jane Harman (D-Venice).

Santa Monica City Councilman Kevin McKeown credited the city’s legal representatives for their efforts in what many felt was an uphill battle to win the right to implement what they believed was an important safety consideration.

“We continue to value residents’ safety over the somewhat different interests of the federal bureaucracy, and our attorneys and consultants made the strongest possible case to the court,” McKeown stated in an e-mail response. “We must now move forward toward 2015 even more mindful of the FAA’s power, and the system’s tendency to favor federal agencies.”

The date that McKeown referred to is when an agreement between the city and the FAA expires. The FAA contends that the agreement is in effect until 2023.

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