Doubts Raised on Legality of Night-Takeoff Ban at Van Nuys

Los Angeles faces legal problems, although they may not be insurmountable, in trying to ban nighttime takeoffs at Van Nuys Airport, says a legal opinion by the city attorney’s office.

The opinion was requested by the City Council, which is considering an 11 p.m.-to-7 a.m. curfew on all takeoffs at the municipal airport except for emergency and military flights.

Questions raised in the opinion about the city’s ability to impose a curfew include:

Whether closure at night of the nation’s busiest general aviation airport, combined with existing curfews at several other Los Angeles area airports, will create an undue burden on interstate commerce, thereby violating the commerce clause of the U.S. Constitution.

“A total takeoff night curfew at Van Nuys Airport, the busiest general aviation airport in the country, will cause an additional impact on nighttime air operations in Southern California and perhaps have a measured impact on the entire airport system of the country and, because of the cumulative effect created, constitute an undue burden on interstate commerce,” Assistant City Atty. Breton K. Lobner wrote in the nine-page opinion.

“Based on present case law, while not free from doubt, we must conclude the implementation of a total nighttime takeoff curfew ordinance at Van Nuys Airport, assuming some Southern California airports remain operational at night, will not place an impermissible burden on interstate commerce,” the attorney wrote. “The issue, however, is not as clear-cut today as it was in the past.”

Whether a curfew will violate the deed, which transferred ownership of the airport from the federal government to the city in 1949.

The deed requires that the airport “shall be maintained for the use and benefit of the public at all times in good and serviceable condition.”

“The above language can arguably be interpreted to preclude night closure of Van Nuys Airport,” Lobner wrote. “It may, however, only mean that the city has a constant duty to maintain the airport in serviceable order.”

”. . . The federal government has authority to enjoin a total takeoff curfew ordinance for Van Nuys Airport based on the language of the quitclaim deed,” the opinion says. “As to the federal government’s position regarding a curfew at Van Nuys Airport, we can only speculate today.”

A spokesman for the Federal Aviation Administration in Los Angeles said the agency has not taken a position on the proposed curfew. But the agency generally considers curfews to be contrary to the airport’s obligations under an FAA agreement, he added.

The City Council in 1981 restricted evening departures at the airport to planes registering no more than 74 decibels. But Councilman Joel Wachs in February proposed extending the ban to all nighttime takeoffs because of continued complaints from homeowners that they have been unable to sleep because of noise from the airport.

Bob Hayes, an airport spokesman, said Wednesday that while he believes some people are bothered by the airport noise, “it doesn’t disturb people to the degree that people would like you to believe.” Of 541 noise complaints received by the airport during the first six months of 1987, 325 came from nine households, he said.

The proposed curfew would not affect landings, which are not as noisy as takeoffs, officials said.

Last year, there were 3,849 nighttime departures from Van Nuys Airport, according to a report by the city Department of Airports. That represents less than 1% of the 476,000 flights in and out of the airport.

Lobner said another potential problem with a curfew is that some of the leases with private companies at the airport prohibit the city from taking any steps to “prevent full and free access to the premises at all hours of the day and night.”

“It can be reasonably argued that the language was intended to guarantee tenants 24-hour use of their leaseholds and the surrounding airport facilities without unreasonable interference from the city,” he wrote.

“Therefore, we conclude that the adoption of a total night takeoff curfew ordinance may leave the city with some exposure to damages for breach of the lease covenant language.”

The city attorney’s office recommended that before the City Council takes further action, it hold hearings to determine the extent of the noise problem at the airport, ask the FAA for information and “analyze the Van Nuys Airport noise contour studies to determine whether the benefits derived from a total takeoff curfew will appreciably and measurably improve the noise problem.”

The City Council’s Industry and Economic Development Committee is to consider the city attorney’s report in early August before making a recommendation to the full council.