Airport Battle Set to Take Off in Burbank

More than 30 years ago, Burbank battled its airport all the way to the U.S. Supreme Court over noise, and lost in a defeat that reverberates to this day.

Any other quarrel might have died then and there. Not this one. It has lurched along for years, and now Burbank may be heading down the path to a second Supreme Court showdown.

In a case described as a possible kickoff to years of new litigation, the city and the airport authority are scheduled to face a Los Angeles County Superior Court judge Oct. 31 over control of the airport’s growth.

“This is a case that is going to have monumental impact,” said Bret Lobner, a senior assistant Los Angeles city attorney who specializes in airports. Until this or a similar case reaches the Supreme Court, the law will remain unclear on the ways in which local governments can control noise and airport growth through land-use rules, he said.

“This is the starting block. It’s not the end of the dispute. In fact, it’s close to the beginning,” said Peter Kirsch of Washington, D.C.-based Cutler & Stanfield, which represents Burbank.

At issue is whether Burbank holds veto power over the airport’s planned expansion. Both the city and the airport have said they will appeal to the nation’s highest court rather than accept defeat.

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It speaks to the depth of the squabble over the Burbank airport that three decades after the Supreme Court ruled in a Burbank case that local governments can’t restrict aircraft flight, the battle is still the crucible of important questions of airport control.

Burbank and the airport authority are now locked in a seemingly intractable argument over the airport’s plan to build a 19-gate terminal to replace the existing terminal of 14 gates.

Plans include a potential second phase of expansion that would increase the number of gates to 27.

The project is partly motivated by safety concerns: The Federal Aviation Administration has recommended that the existing terminal be moved because it is too close to the runway. But the airport is also planning for continued growth and has designed a facility to meet projections of a 20% increase in flights, said airport spokesman Victor Gill.

The Burbank Airport is surrounded by middle-class neighborhoods on almost every side--one reason why its airport battles have been especially bitter.

The city of Burbank now wants more control over the noise, traffic and pollution the new airport could generate.

But supporters say the city is trying to subvert regional needs, and wants to hamstring an airport that serves 5 million passengers yearly.

In contrast to the groundbreaking Burbank vs. Lockheed Air Terminal case of 1973, which chiefly dealt with noise, the newer case deals generally with local land-use authority over airport growth.

But the heart of the issue is the same: Federal versus local control over airports--or, put another way, the interests of people who ride in planes versus those over whom they fly.

“It’s an area . . . where the law has not been finally decided with absolute clarity,” said Richard Simon of McDermott, Will & Emery, attorney for the airport.

The particulars of the case are as follows:

Burbank argues that the airport must get land-use permits from the city to acquire land and build the new terminal. The city has cited a section of the state public utilities code stating that airports should abide by local land-use procedures to acquire land to expand.

“The airport authority simply wants unencumbered expansion at the airport. They think the expansion of the airport should purely be driven by market forces and that the constituents are the airlines,” said Burbank City Councilman Dave Golonski. “We say our constituents are the whole community.”

The airport argues that it can go ahead without local permits because federal authority preempts state laws as they apply to airport construction for safety purposes. “The airport authority . . . has to strike a balance between local environmental concerns and regional interests,” said Gill, the airport spokesman.

The airport argues in court papers that Burbank is trying to use its land-use regulations to hold the airport project hostage until it gets the agreements it wants on noise--despite the Supreme Court’s prior ruling against noise restrictions by entities other than an airport proprietor.

“The clear purpose [of Burbank’s lawsuit] is to control noise,” said Simon.

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Attorneys on both sides say the case may hinge on fine lines in the law, such as whether federal preemption of local rules still applies when an airport has acquired new property.

However, Simon said: “In the long run, airport cases like this are important because there are relatively few of them, and there are airports everywhere and they are in an expansion mode now.”

The Burbank dispute is complicated by a 1990 federal law that sought to bring consistency to noise regulations at airports. The law provided for the gradual phasing out of older, louder commercial planes, which are no longer used at Burbank Airport except in the case of breakdowns.

Since the passage of this law, no airport has succeeded in limiting flights of the newer quieter planes, FAA spokesman Tim Pile said.

That doesn’t mean airports can’t try to get such restrictions approved. But “the message is unmistakable. It is going to be difficult,” Pile said.

Burbank wants restrictions on flights of newer planes at the planned terminal anyway, if not through the FAA then through voluntary agreements struck with airlines. “We have said no curfew, no terminal,” said Burbank City Manager Bud Ovrom.

The controversy has dragged on for so long that even some longtime activists in the dispute say they think it will never be resolved.

“I don’t think there will be a final solution to this,” said Margie Gee, an airport opponent and former airport commissioner. Gee’s children were babies when she first began lobbying against the airport; now they’re grown. “One learns something after 30 years,” she said.

FAA spokesman Pile summed up a general feeling after explaining his agency’s position. “Boy. It’s a real mess,” he muttered.

Events of the last few years have increased the pessimism. The airport’s plans for a new, bigger airport terminal have been embroiled in lawsuits, and settlement talks have repeatedly fallen apart amid finger-pointing.

So contentious is the issue that recently, even a professional mediator hired as a peacemaker got pulled into the melee; the city became piqued over controversial statements she had made and briefly considered withholding her pay, said Mayor Bob Kramer.

Attempts to resolve the case out of court continue. Last week, Glendale Mayor Larry Zarian said he offered to arrange a meeting between the disputants and FAA officials.

Kramer said he is willing to take part, but offered little hope that the meeting would produce any settlement. “We will just go and hear what they have to say,” he said.