MEMORANDUM 05-100

 

TO:            Mayor Hornaday / Homer City Council

 

FROM:      Walt Wrede

 

DATE:        May 17, 2005

 

SUBJECT: Resolution 05-65 / Air Craft Noise

 

Council member Mike Yourkowski has inquired several times in the past regarding what the City might do to control aircraft noise over the Community. I am reprinting comments City Attorney Gordon Tans made in an e-mail note after Mike brought the topic up last summer. This is a very quick and short answer. Please keep in mind when reading this that Mike was interested at the time in regulatory actions the City could take on its own. Gordon offered to do more research if we wanted him to. We decided that it was not a good use of Gordon’s time because the answer to Mike’s question seemed very clear and straightforward.

 

I am providing this information (Gordon’s response) to show that Resolution 05-65 appears to be consistent with the advice provided by the City Attorney.

 

  1. Congress has preempted local regulation of aircraft and noise when the local government is attempting such regulation under its general police powers (regulatory powers in the advancement of public health, safety, and welfare). See City of Burbank v. Lockheed Air Terminal Inc., 411 US 624 (1973); the Federal Aviation Act, 49 USC Sec.40101 et seq.: and the Noise Control Act, 49 USC Sec. 44715 et. Seq.
  2. When acting as proprietor of the airport, the local government has more leeway to promulgate reasonable, nonarbitrary, nondiscriminatory, regulation of noise. See National Helicopter Corporation v. City of New York, 137 F3d, 81 (2nd Cir. 1998). The extent to which this is proper is the subject of numerous reported legal decisions.

 

This is an extremely brief and necessarily broad summary. To flesh this out with more detail, including the nuances of when and what may be regulated under the propriety authority would take a great deal more time and effort.

 

It strikes me that the two entities that might have some ability to influence noise at the airport are the FAA as the federal regulatory agency with preemptive power to regulate air traffic, and the State DOT/PF as the proprietor of the Homer airport. The City should pursue its complaints with those two entities.

 

It is unlikely that the City could ever pass a valid regulation to curb the noise from airplanes in flight.   Gordon