In light of the flurry of emails and phone calls we’ve received in recent days, I’d like to ensure that everyone is well-armed with the facts about our long-planned expansion of general aviation at the airport and its impact on the curfew.  In the social media-driven landscape of instant conspiracy theories, rumors and innuendo, as Justice Brandeis reminds us, “sunlight is the greatest disinfectant.”

Public Hearing

There will be a hearing this Tuesday, April 16, at the evening council session (which begins at 7pm, with most matters commencing around 7:30pm) to discuss the impact of any new agreements with Signature Flight Support—a provider of services for corporate jets and other general aviation—on the curfew.

Although the Signature contract came before Council for approval yesterday, proposed changes in the contractual language relating to curfew compliance left some people confused and concerned. Over the objections of some of my colleagues, I pushed to have this language vetted by deferring any final decision on the contract until the following week.

At that hearing, I expect to support the execution of a contract with the winning bidder, Signature Flight Support (“Signature”). I also expect that the contract will ensure continued enforcement of the curfew restrictions contained in our Municipal Code. Signature has never sought to change the curfew, or to avoid fines for violating it. This development will create hundreds of jobs in San Jose and generate well over $3 million in revenue to the City and Airport.

Nonetheless, I deferred the matter because I believe it’s critical that we publicly vet 11th-hour changes on issues of intense interest for many of our residents, rather than stoking concerns about whether City Hall is cutting “back-room deals” to weaken the curfew.

The Curfew

So here are some facts:

The Municipal Code provides that the City may fine and take other action against airlines and other businesses that operate planes emitting noise exceeding 89 decibels between the hours of 11:30pm and 6:30am.

San Jose is one of only nine cities in the United States with a curfew restricting flight operations at its airport.  We’ve had to litigate to protect it from legal challenge, in part because the FAA has clearly disfavored curfews at many other major airports and has effectively eliminated some local curfew ordinances.  Nonetheless, in the City of San Jose, we’ve stood by it, and protected it.

Curfews and Contracts

On the West side of the Airport, we have operators of smaller planes (we refer to this as “General Aviation”) that are bound by language in their contracts that requires them to abide by the curfew.  It also provides for the potential termination of their leases if they violate the curfew (we’re the only airport in the United States with such strong lease provisions).  Typically, we impose fines on violators, but where an offender appears particularly egregious, we have taken more forceful legal action to terminate a lease. For simplicity, I’ll refer to that curfew language the “West Side” version.

On the East side of the Airport, we have large commercial airlines that operate under leases with the Airport. Those leases last came up for a Council vote on their renewal in March of 2007.  When Airport staff similarly sought to insert language into those airline leases to require compliance, we heard widespread objections from Citizens Against Airport Pollution (CAAP), which had publicly urged residents to stand against what they viewed an attempt to “weaken” curfew protections. 

Those allegations left many people at City Hall scratching their heads, and Airport staff attempted to explain the issue in public meetings and memoranda. Recognizing the importance of the confidence of residents in City Hall’s commitment in the curfew, I proposed in a March 2007 memorandum to take the curfew language out of the lease, and simply require all airlines to abide by the restrictions in the Municipal Code. That motion prevailed at Council. For simplicity, I’ll refer to that curfew language in the airline contracts as the “default” curfew language.

West Side Development and Contract Negotiations

When we announced our plans to expand the Airport’s West Side for additional corporate jet activity, many residents again became concerned in late 2011 and early 2012, asserting that doing so would somehow undermine the curfew. (A thorough description of the West Side development issues can be found in a very readable Powerpoint presentation, or in a less readable report and supplemental report that Airport staff presented to Council.)  To address those public concerns, in March of 2012, I drafted a memorandum specifically urging that we maintain the “West Side” curfew-related language in any new lease.  The Council approved that change on April 3, 2012.

Unfortunately, when the City issued a “Request for Proposals” (the document that sets out the minimum requirements for any contract bid) to potential bidders in the summer of 2012, the curfew issue was unintentionally omitted.  Signature was informed of the need to include this language when City negotiators only recently raised it.  Objections arose when key partners of Signature’s—including Google’s affiliate, Blue City Holdings—balked, expressing understandable concern that after investing tens of millions of dollars in building offices and terminals, they could be summarily and arbitrarily terminated for a single curfew violation.

Ultimately, the impasse was resolved in recent days with a suggestion that we simply revert to the same “default” language governing the commercial airlines contracts. That is, Signature would be bound by the Muni Code curfew restrictions, and pay fines for any violation, just like any airline.  On Friday of last week, I agreed to support that change.

Given the sensitivity of the curfew issue in our communities, I expected that there would be a public vetting of the language prior to any signature.  A staff report describing the issue emerged Monday, the day before our Council vote,  the timing of which obviously did not provide the public with a fair opportunity to digest the information or respond.  Accordingly, when the item came up for a council vote, I made a motion to identify Signature as the winning bidder, but to stall any execution of the contract until we could vet the changes in the curfew language publicly next week.

Effect of the Language Change

In my view, the change of contractual language has no significant impact on our enforcement of the curfew.  We can continue to impose fines for planes emitting more than 89 decibels that are violating the curfew, relying on our Muncipal Code.  On the other hand, we never had the authority to impose fines for planes emitting less than 89 decibels anyway, and nothing changes in that regard.  With repeated violations, we can still seek to terminate a contract and sue for unfair business practices or nuisance, as we have in the past, regardless of whether the contract provides that authority (as it does for other General Aviation tenants) or California law does so.

Under the proposed “default” language, Signature Air will be bound by the same terms as the airlines.  Other West Side tenants, however, have “me too” provisions in their contracts, which provide that if any other tenants have curfew language different than theirs, they will all be bound by the new language. Accordingly, companies like Atlantic Aviation and AvBase will have curfew terms that revert to the “default” language in their own leases, so their contracts will also resemble the airlines in that regard. Again, that outcome was acceptable to CAAP and other community groups in 2007, so little reason exists why today should be any different.

Environmental Impact Reports and Noise

Don’t we need to conduct an Environmental Impact Report to assess the impact of development on noise?  Yes, but we’ve already done so.

Over the last two decades, San Jose councils have repeatedly voted to support expansion of aviation operations to maximize the economic and fiscal value of underutilized land near the Airport.  In 1997, the Council approved an Airport Master Plan and its accompanying Environmental Impact Report (EIR) that contemplated large increases in commercial air traffic along with the attendant changes in noise and emissions.

That Master Plan has undergone repeated revision, and in the most recent addendum, approved by Council in 2010, reflects a less ambitious growth trajectory than planned by Council in 1997. Revised planned operations for 2027 reflected 20 percent less air traffic than had been previously planned for a date (2010) 17 years earlier. The number of general aviation (GA) flights in the current plan at full build-out of the West Side property would result in 42 percent less air traffic than the level that was environmentally “cleared” by the 1997 EIR.  In other words, the scale of the airport’s planned growth has shrunken dramatically, and the law does not require any additional environmental clearance if we reduce the proposed impacts.  Here, the anticipated noise impacts and particulate emissions appear greatly diminished by the smaller plan, as well as the airlines’ decisions to supplant their loudest and oldest commercial jets (e.g., the Boeing 727, MD-80’s) with newer models.

I look forward to discussing all of these issues at Tuesday’s public hearing.  In the meantime, feel free to or our senior policy analyst, with your thoughts.

Signature_Flight_Support_Feb_08,_2013.pdf” title=“Signature Flight Support’s Press Release on San Jose Project”>Signature Flight Support’s Press Release on San Jose Project