ISSUES WITH THE AIRPORT NOISE HEARING BOARD

Many Hearing Board decisions have been rendered on invalid and unenforceable TMC "regulations." A review of the agendas of the Hearing Board meetings for the past 2 years is summarized in the following table:

The following facts can be noted about the Board cases over the past 2 years:

It makes no sense that the City of Torrance can penalize a pilot for complying with FAA Regulations. The local lawyer who had advised the Torrance-based pilots explained that the Hearing Board is improper and illegal for the reasons noted below.

1) No authority:
Substantial air safety issues are implicated when state or local governments attempt to regulate the operation of aircraft. The general balance between Federal and state authority in the context of aviation regulation is well established. The FAA has the exclusive authority to regulate aviation safety and the efficient use of the airspace by aircraft. Attempts by state and local governments to regulate in those fields are invalid and unenforceable.

2) Preemption:
A state or local law dealing with aviation will be preempted if it conflicts with FAA regulations. Any sch law is preempted if, as with the TMC Sections 51.5.5 through 51.5.7, it makes compliance with FAA regulations impossible or frustrates the purposes and objectives of such regulations. These ordinances conflict with FAA's exclusive authority involving takeoffs, landings, touch and go’s, stop and go’s, and low approaches. Courts across the country have confirmed that the FAA has exclusive jurisdiction over matters involving aviation safety. A small sampling of these court rulings is contained in the "Legal Basis" section, below.

3) Wrong purpose:
These hearings are purportedly being held “as provided in TMC Section 51.7." However, that section, by its plain text, applies only to persons charged with causing an aircraft to exceed the sound limits set forth in TMC Section 46.8.8, or 46.8.9. It does not address TMC Sections 51.5.5, 51.5.6, or 51.5.7 at all, nor do those sections reference an Administrative Hearing Board.

4) No judicial review:
The entire Hearing Board scheme, which provides for an appeal only to the City Council, is impermissible under the California Constitution, as it does not allow for judicial review. This violates the separation of powers contemplated by the California Constitution, as well as the judicial powers clause. It permits the City of Torrance to act as policeman, investigator, prosecutor, judge, jury and executioner without any independent review.

5) Lack of impartiality:
All of the Board members are City employees. This raises serious questions concerning the impartiality of the composition of the Airport Noise Hearing Board, which is also required under California law.

6) Pending litigation:
Federal litigation is currently pending that challenges the City's claim that it has the authority to enforce TMC Sections 51.5.5 through 51.5.7. Any City actions involving these sections of the TMC should be deferred until resolution of this litigation is complete.

Conclusion

The Airport Noise Hearing Board has been acting outside of its authority and should be discontinued. Any City actions involving the TMC sections in dispute must be postponed until resolution of the litigation is complete and the ability of the City to enforce the TMC Sections is determined by the Courts.


LEGAL BASIS


Some of the legal basis for FAA's exclusive authority over all matters involving aviation safety:

The Supremacy Clause:
The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "Supreme Law of the Land", and thus take priority over any conflicting state or local laws.

Preemption Doctrine:
The Preemption Doctrine is based on the Supremacy Clause of the U.S. Constitution. It holds that certain matters are of such a national (as opposed to local) character that federal laws preempt or take precedence over state or local laws. As such, a state or local government may not pass a law inconsistent with the federal law. A state or local law may be struck down, even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Congress has long vested the FAA with exclusive authority to regulate airspace use and air traffic control. In simple terms, this means that ordinances passed by state and local governments that attempt to regulate aviation in these areas are invalid and unenforceable.

Case Law: