The city of Santa Monica, Calif., has filed a complaint against the FAA that might finally decide the issue of who has control of its beleaguered airport and also set precedents in legal disputes about airport ownership and control throughout the U.S.

The city filed the complaint on October 31 in the U.S. District Court for the Central District of California. The complaint seeks “to establish the city’s right to control future use of the Santa Monica Airport property,” according to a city statement. “The lawsuit...asks the court to declare that the city holds clear title to the land. It also challenges as unconstitutional the FAA’s claim that the city must continue to operate the airport indefinitely, even after contracts establishing the city’s airport obligations expire.”

The statement adds, “The city has owned and operated the airport since the 1920s. During World War II the city leased it to the federal government for a nominal amount in support of the war effort. During the war, the city and the federal government worked together to expand and improve the airport; and, after the war, when the federal leases expired, the airport was returned to the city through an instrument of transfer. The federal government claims that the instrument of transfer obligates the city to operate the airport ‘in perpetuity’ (forever) or forfeit its ownership interest to the federal government. The city disputes this claim based, in part, on the city’s near 100-year ownership of the airport land, the fact that the airport was merely leased (not sold), and constitutional guarantees that prohibit commandeering property without compensation and forcing local governments to perform the federal government’s work.”

Essentially, the city now believes that it did not relinquish title to the airport when it leased the property to the U.S. government during World War II, when Douglas Aircraft produced thousands of airplanes for the war effort. During its leasehold, the government substantially improved the airport, building the single runway, the control tower and other infrastructure. When it relinquished the leasehold on Aug. 10, 1948, the agreement with the city stipulated not only that the property remain an airport, but also that if the city violates any part of that agreement, the property reverts to the federal government.

Because the city accepted federal grant money for airport improvements, it was obligated to keep the airport open for 20 years after taking the money. However, the city is disputing the way the grant agreements are written and claims that its obligations to the airport end on July 1, 2015. The last time that the airport accepted and used money for improvements was 2003, and therefore airport proponents believe that this means the airport must stay open until at least 2023. In keeping with its desire to close the airport in 2015, the city has refused to renew any airport property leases beyond July 1, 2015.

All of these efforts, but especially the lawsuit, are designed to help the city “explore any and all possibilities for a voluntary agreement with the federal government that might modify airport operations so as to significantly curtail adverse impacts on the community.” The adverse effects include claims of excess noise and pollution, but possibly of more importance may be interest by local developers in converting the airport into far more profitable use. This is something the city does not acknowledge.

The recent complaint is formally a quiet title action, a tool commonly used for boundary disputes between property owners, said aviation law professor and pilot Lon Sobel. “The judge resolves who really is the owner based on underlying documents,” he explained. “The claim is a proper claim because the FAA is claiming it has rights to the airport property and to manage and use the property, and the city claims no. Where two people claim to be the owner, the true owner has to be resolved.”

Precedent-setting Potential

The reason that this issue specifically is of importance, Sobel said, is that the FAA realizes that this argument isn’t just about Santa Monica but could affect many other airports that were taken over by the government during the war then released back to local municipalities. “This is not about whether Harrison Ford [who bases his airplanes at Santa Monica] or NetJets gets to continue to fly into Santa Monica,” he said, “but what would happen if general aviation was suddenly shut out of dozens if not hundreds of airports around the country.”

Sobel explained that the lawsuit focuses on three agreements that the city entered into regarding its airport. The first is the 1948 post-war agreement, and because there is a dispute over who controls the land, it could hinge on the FAA’s view that while the government relinquished its lease, it retained the right to possession and specifically the right to possess all of the improvements that it made to the airport. The second is the 1984 settlement, which was in response to lawsuits that had been filed in the early 1980s. This agreement allowed the airport to develop some land for non-aviation uses and obligated the city to keep the airport operating until at least 2015 and applied some new noise-abatement procedures.

Issues that are raised with the lawsuit, Sobel said, include: “A., whether the 1984 agreement completely terminated the 1948 agreement’s perpetual-airport-use requirement and replaced it with a requirement that the airport remain an airport only until 2015. Or B., whether, when the 1984 agreement expires in 2015, the 1948 agreement becomes the effective agreement once again, and the dispute between the city and the FAA over the 1948 agreement’s perpetual-airport-use requirement will thereby be resurrected. I believe the answer is B.”

Finally, there is the question of how grant money affects agreements between the government and airport-owning municipalities. “It turns out that this dispute has to do with proper interpretation of the grant,” Sobel said. The last grant agreement signed by the city was in 1994, and these run for 20 years. While the complaint does not mention when the city last received money under the 1994 agreement, he added, “my understanding is that the city continued to get money under the 1994 agreement until something like 2003.” If the grant assurances requirement means 20 years from the date the city last accepts the grant money, then Santa Monica would be obligated to operate the airport until at least 2023, not 2015. Sobel believes this is the case because it wouldn’t make sense to give a city money for an airport, say, during the 19th year of a 20-year agreement, then have the airport close a year later.

Evidence for this is that the city has refused to take any money that the FAA has offered to pay for an Esco engineered material arresting system (Emas) at the end of Santa Monica’s Runway 21. An Emas could help prevent a runway overrun, an event about which airport neighbors have expressed a great deal of concern. But according to Sobel, “the city attorney told the city council that [accepting money for the Emas will] push out our obligations another 20 years.”

The government’s side of this entire dispute may have merit, Sobel said, because in cases of eminent domain, “there is a statute of limitations on wrongful taking. If the government said, ‘We’re taking that property,’ the owner has to assert its claim of ownership promptly. People can’t wait 40 years and say, ‘They took my property and now I want to be paid.’”

However, if the judge in this case decides that the government retains the right to occupy the improvements that it made to the airport (the runway, control tower, utilities and so on) then the result may be an argument over how much the government has to pay the city for these rights. “The city will say the rights to occupy the runway are worth billions of dollars,” Sobel said. “Then the neighbors will see what they have pushed the city into doing.” In other words, forcing this issue into a legal dispute that will be decided in the courts could result in the establishment of a huge monetary value for the land. For those neighbors wishing to see Santa Monica airport developed into a serene park, that won’t happen, he said. “It’s got no value as a park.”

The government has up to 60 days to file a response to the Santa Monica complaint and had not done so by the time this issue went to press.

NBAA “pledged to oppose the most recent action taken by [the city].” According to NBAA president and CEO Ed Bolen, “For decades, NBAA has been deeply involved in the battle to keep Santa Monica Airport accessible to business aviation. The association has always supported the FAA’s position–that the city has certain obligations with regard to the airport–and we are optimistic that position will be upheld. Nevertheless, we are reviewing the specifics of the city’s claim, and determining how NBAA can best ensure that access to SMO will be preserved.”

The lawsuit, said AOPA, “lacks any merit in law and is another desperate bid by the city to close Santa Monica Municipal Airport.” AOPA general counsel Ken Mead said, “It is abundantly clear that the claims made in the city’s lawsuit have no basis in fact. The city’s argument is hardly a novel one, and it should be very clear by now to members of the Santa Monica City Council and opponents of the airport that the airport must remain in operation under its agreement with the federal government. That may be politically unpopular for a few council members, but it happens to be the law.”