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:

In spite of its title (Airport NOISE Hearing Board), none of the Board's 10 cases involved an aircraft exceeding the sound limits set forth in TMC Section 46.8.8, or 46.8.9.
Three of the cases were about "low approach" violations. No information was available about whether these were due to missed approaches or to aborted landings (also included in the definition of "low approach" in TMC 51.5.4). These actions are required by FAA Regulations in certain conditions for safety reasons.
The only Board decisions of "guilty" were against aircraft NOT based at Torrance. There was no information on whether these pilots were represented by counsel or even attended the hearing in person.
Three of the Torrance-based pilots sought legal advice and their hearings were either cancelled or postponed.
The summons for the fourth Torrance-based pilot was rescinded the day after he received it. He, too, had planned to seek legal advice.
All ten of the cases involved TMC sections that are currently the subject of an active Federal Court case questioning the validity and enforceability of those sections.

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:

Local governments cannot regulate control of aircraft or airspace, or any aspect of aviation navigation. City of Burbank v. Burbank-Glendale-Pasadena Airport Authority, 72 Cal. App. 4th 366, 85 Cal. Rptr. 2d 28 (2d Dist.1999).
Limitations on aircraft taking off and use of the airport runway involve air safety, which is field preempted by the Federal Aviation Act. Restrictions that conflict with the Federal Aviation Act or sufficiently interfere with federal regulation of air safety are preempted. Tweed-New Haven Airport Authority v. Tong, 930 F.3d 65 (2d Cir.2019). •
Municipal ordinances cannot prohibit flights of aircraft at altitudes (i.e. low approaches, missed approaches, aborted landings). Only the federal government has the right to regulate safe altitudes of flight at any elevation and take-off and landing patterns. Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812, 17 Pub.Util. Rep. 3d (PUR) 244 (2d Cir. 1956).
An airport cannot restrict the number of planes flying, as it constitutes an attempt to regulate air navigation which is exclusively within the jurisdiction of the federal government. Gary Leasing, Inc. v. Town Bd. of Town of Pendleton, 127 Misc. 2d 194, 485 N.Y.S.2d 693 (Sup 1985).
Aviation commerce and safety are governed by pervasive federal regulations, and applicable local standards are field preempted. The Federal government, not city, controls the airspace above city limits.Noise regulation ordinances, flight-pattern controls, restrictions on operations, air safety regulations, and pilot drug-testing provisions are all impliedly preempted by the Federal Aviation Act (FAA). International Aerobatics Club Chapter 1 v. City of Morris, 76 F.Supp. 3d 767 (N.D. Ill. 2014).
In May of 2015, the Torrance City Attorney stated: "Congress has tasked the Secretary of Transportation, via the FAA, with the task of "assigning,maintaining, and enhancing safety and security as the highest priorities in air commerce," as well as "controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both of those operations." (49 U.S.C. 44718, subd. (d).)The United States Court of Appeals for the Ninth Circuit recognizes that,"federal law occupies the entire field of aviation safety." Montalvo v. Spirit Airlines (9th Cir. 2007) 508 F.3d 464,473.)
California state courts note that the Ninth Circuit's position is consistent with the positions taken by the Second, Third, Sixth and Tenth Circuits. {Citizens Opposing a Dangerous Env't v. Cnty.Of Kern 2014) 228 Cal.App.4th 360, 364 [noting that the aforementioned Circuits of the Federal Court of Appeals have concluded that Congress intended to occupy the entire field of aviation safety."].)

ISSUES WITH THE AIRPORT NOISE HEARING BOARD

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