Inside the Fence

Sept. 6, 2005
Much ado about noise; or, who will be next to step up to the plate?

Much ado about noise; or, who will be next to step up to the plate?

In June, a U.S. Court of Appeals ruled in favor of the Naples (FL) Airport Authority in its bid to ban all Stage 2 aircraft at its airport. The ruling came after a long and costly ($3.4 million) battle between Naples and FAA. Along the way, Naples lost its ability to get federal funding until the issue was resolved.

Central to the debate was Naples’ thorough Part 161 study of the negative impact of noise on its community and an effort to rewrite the federal guidelines which set minimum noise impact levels at 65 dnl. Naples sought a 60 dnl threshold.

It’s an interesting thing about Part 161. Since its inception, many communities saw it as — finally — a definitive process for taking control of what type of aircraft used their airport. FAA saw it as a restrictive process that would make it very difficult for cities to do just that. To use a metaphor, it was like rolling a huge snowball up a large hill, only to have it come crashing down. Perhaps the hot Naples sun helped diminish the effort.

Despite the ruling, the jury is still out on Part 161. Peter Kirsch of Kaplan Kirsch & Rockwell, LLP was a lead attorney for Naples in the debate. Explains Kirsch, “The authority’s theory, which I think remains accurate, is they had to restrict the noisiest aircraft for their very survival. At the time, there was political pressure to close the airport.

“What the court said is, if you have good data and substantial evidence to support your restriction, FAA can’t come after you just because it disagrees with your conclusions.”

Enter David Bennett, FAA’s airport/noise guru, who sees the ruling more as an affirmation of the agency’s right to have oversight on the issue. Explains Bennett, “The decision was based exclusively on the facts of this particular case. While the other side argued FAA no longer had authority to review Stage 2 restrictions, the court decided FAA did have the authority. So our review continues; at least that’s settled in law now.

“Naples is an unusual situation. It’s a resort area, a retirement community. There are low noise levels throughout the community as well as expectations. Most communities would not meet that criteria.”

Counters Kirsch, “One way to describe it is, the balance of power between FAA and airports has shifted slightly. Each has gained a little more power.”

What does it all mean? “We probably won’t know until the next one comes along,” says Bennett.


Thanks for reading.