Loading...
HomeMy WebLinkAbout06 09 1989 Airport ordinance passes first readingISEBASTIAN Volume II, Number 15 June 9, 1989 (USPS 1506) Airport ordinance passes first reading By George Ricker Attorneys representing the city of Sebastian and the Federal Aviation Administration (FAA) have recommended that the City Coun- cil defer final adoption of the ordinance, im- plementing provisions of the airport referen- dum approved by voters on March 14, and instead agree to a study. Eliot Cutler described the "proposed agree- ment in principle" between the city and the FAA as a better. alternative than for the city to enter into litigation that could be expensive and time-consuming, and whose outcome would be uncertain. Cutler is a senior partner in the Washington, D.C., law firm of Cutler & Stanfield, which was hired by the city on April 20 to represent it on matters related to the airport referendum and its implementation. Bob Eisengrein, the senior attorney for air- port access in the office of the chief counsel of the FAA in Washington, D.C., suggested the agreement was preferable to entering into "an all-out `wild west shoot-out' in the federal courts over the referendum and implementing ordinance." The study could cost up to $200,000 and may take as long as one year. to complete. It will be funded by grants from the FAA that will cover up to 90 percent of its cost, exclud- ing a reduction of $27,908 of costs already paid by the FAA for the airport master plan. "The proposed study, when completed, would serve as a foundation for negotiations between the city of Sebastian and the FAA with input from other interested parties, aimed at determining the future role of the Sebastian Municipal Airport," the proposed agreement states. "An essential premise of the study would be that the airport's role and use must be consis- tent with the overall goal, and needs of the city of Sebastian in a proper balance with such appropriate federal objectives. "Rather than fitting the city of Sebastian to the Sebastian Municipal Airport or vice versa, the study would attempt to identify,ways to fit the two together." By a4-1 vote, the City Council approved the first reading of the ordinance and scheduled the ordinance for a public hearing and final action at a special meeting Monday night. Councilman Frank Oberbeck voted against approval. If it follows the course recommended by Cutler and Eisengrein, the council will hold its public hearing on the ordinance, but will defer final action until some future date. The City Council also will agree not to remove any runway lighting or take any other action that would change the character of the airport, as it is currently operated. For its part, the FAA, will refrain from "commencine. sunnortin¢ or encouraeina anv 2 se] legal action against the city" and will make a "good -faith effort" to provide the money for the proposed studies.' Once the study has been completed, Cutler advised the council, "We could find ourselves right back here in precisely the same situ- ation." In the interim, Cutler observed, a consider- able amount of data would have been pro- duced, information that might be useful in any litigation. He said he was confident the proposed ordi- nance was sound and would withstand any legal challenge. "But, if an agreement acceptable to the city, its citizens and the FAA can be reached, it would be unnecessary and unwise to fight a war," he added. Eisengrein advised the City Council that its adoption of the ordinance, implementing the provisions of the charter amendment, would force the FAA to initiate the procedure by which the ownership of Sebastian Municipal Airport would be returned to the U.S. govern- ment: In. addition, Eisengrein said the FAA would ask the U.S. Deparment of Justice to seek a temporary injunction, preventing enforce- ment of the ordinance until the reversion has taken place, and to seek an order, prohibiting See Airoort Pane 3-A Sebastian Sun Week of June 9,1989 Pg. S-A Airport (from 1 -A) the use of airport enterprise fund money to pay any of the city's legal costs in litigation arising out of an attempt to implement the ordinance imposing a 65 dBA noise limit. "At the same time," he added, "the FAA would work with the General Services Administration, the state of Florida and other units of local gov- ernment to work out transfer of the airport to an acceptable new owner." Eisengrein said the FAA had al- ready had some discussions with the state of Florida on the matter. How- ever, he did not characterize the na- ture of those discussions. Cutler noted he did not believe the FAA would be likely to prevail in any such legal challenge. agreement they believed both the city and the FAA could live with. He said he had come to Sebastian on Wednesday, before the City Coun- cil meeting, and had met with each member of the council on an individ- ual basis to explain the provisions of the agreement., About 15 minutes before the coun- cil meeting. was scheduled to begin, Cutler said Eisengrein had arrived with two last-minute changes that the FAA wanted to make in the agree- ment. "Notwithstanding the certainty at both ends of this table," he observed, "neither party would represent to his clients that the outcome of litigation over this matter is certain." The consequences of such litiga- tion are serious, he added. "If I am wrong," Cutler said, "the city would be divested of ownership of the airport, and ownership would pass to some other agency, most likely the state or county. . "If Mr. Eisengrein is wrong, the consequences to the United States would be serious and dramatic. They would extend beyond the city of Se- bastian and the state of Florida." "There is one certainty about litiga- tion," he observed. "It is time-con- suming and expensive." Both Cutler and Eisengrein noted it was in an effort to avoid such litiga- tion that the agreement in principle had been prepared over the last two weeks. The two men recalled numerous meetings and phone conversations during which the elements of the agreement had been negotiated. At 4 p.m. Tuesday, Cutler said the two had signed off on a recommended Cutler said he had been annoyed, but not surprised, at the action the FAA had taken. Eisengrein had asked for the changes during the previous day's discussions, Cutler said. "They are changes which I objected to then, and would object to now," he added. His objection to the changes in the agreement's language were because he did not think they were "necessary or meaningful," Cutler explained. For that reason, he did not think the changes should be allowed to stand in the way of the agreement itself. with the time limits stated in the amendment. Cutler said he thought the agree- ment had been drafted to minimize the likelihood of such ,an action V successful, but recommended that the question should be asked of City At- torney Charles Nash. Nash advised the council he was not prepared to give a legal opinion on the matter, but would be ready to do so at Monday night's meeting. During a break in the meeting, Nash said it was his "gut feeling" that the members of the City Council would not expose themselves to- any in- creased liability by taking the action recommended by Cutler and Eisen- According to the terms of the agree- ment, if a court, acting in response to legal action initiated by a private party or organization, orders the City Coun- cil to implement the ordinance, the FAA will be released from the agree- ment, but will pay the costs of the portion of the study that has been completed at that time. Should the City Council unilater- ally take such action, in the absence of a court order, the city would be obli- gated to repay all grant payments made by the FAA, and the grant would be voided. Mayor Richard Votapka asked whether individual members of the City Council could be held liable for failing to implement the provisions of the charter amendment, in accordance grem. He added that before giving a for- mal legal opinion, he wanted to re- search the matter more thoroughly. If the City Council agrees to defer final action on the ordinance and proceed with the study recommended by Cutler and Eisengrein, the situ- ation at the airport will remain as it is today. Those charter amendment provi- sions already in force, such as the restrictions on using grant money, will remain. The noise limit and land- ing fees will not be implemented. Should the study produce a basis for agreement between the city and the FAA about how to proceed with the development of the airport to serve the interests of both parties, the City Council could propose new charter amendments that would implement the terms that had been agreed to, Cutler advised the council. If the .City Council agrees to the attorney's recommendations, this will be the fourth study of Sebastian Municipal Airport that has been undertaken since the voters' adoption of the charter amendments. The other three were a financial study, noise study and community airport plan, all of which also were recommended by Cutler.