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Tweed-New Haven Airport Autority v. Jepsen

United States District Court, D. Connecticut

September 30, 2017

TWEED-NEW HAVEN AIRPORT AUTHORITY, Plaintiff,
v.
GEORGE JEPSEN, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF CONNECTICUT Defendant.

          MEMORANDUM OF DECISION

          Robert A. Richardson United States Magistrate Judge.

         Plaintiff, Tweed-New Haven Airport Authority (hereinafter “Plaintiff” or “the Authority”), brings this suit against George Jepsen in his official capacity as Attorney General for the State of Connecticut (“Defendant”), seeking declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §2201 et seq. (Dkt. # 1). Plaintiff alleges that Conn. Gen. Stat. 15-120j(c) violates the Supremacy Clause of the United States Constitution.

         For the reasons set forth below, the Court finds that the plaintiff lacks standing to bring this action and that Conn. Gen. Stat. 15-120j(c) is not preempted by the Supremacy Clause.

         PROCEDURAL BACKGROUND

         Plaintiff filed this action on November 24, 2014 in federal court. (Dkt. # 1). On June 30, 2016, the defendant filed a Motion to Dismiss. (Dkt. # 39). On August 8, 2016, plaintiff filed a memorandum in opposition to defendant's motion to dismiss. (Dkt. # 44). On August 22, 2016, the defendant filed a reply memorandum in support of its motion to dismiss. (Dkt. # 45). On September 29, 2017, the Court held oral argument on the motion to dismiss. (Dkt. # 49). On December 9, 2016, the undersigned denied the motion to dismiss. (Dkt. # 53).

         A bench trial was held on March 22, 2017 before the undersigned. (Dkt. # 67). On May 19, 2017, the parties submitted simultaneous post-trial briefs. (Dkt. #'s 73-74). On July 19, 2017, at the request of the parties, oral argument was held on the post-trial briefs. (Dkt. # 77).

         FACTUAL BACKGROUND

         The following facts, drawn from the parties' Stipulation of facts in their Joint Trial Memorandum, are undisputed. (Dkt. # 59, Stipulation of Facts).[1]

         Tweed-New Haven Airport Authority is a public instrumentality and political subdivision of the state of Connecticut, pursuant to Conn. Gen. Stat. 15-120i, et seq. (Stip. # 2). The airport property is owned by the City of New Haven and leased to the Authority pursuant to the terms of a Lease and Operating Agreement, dated July 1, 1998. (Stip. # 7).

         The length of Runway 2/20 is currently approximately 5, 600 linear feet. (Stip. # 9). In 2009, the state of Connecticut, through Public Act 09-7, amended Conn. Gen. Stat. §15-120j by adding subsection (c) which provides, in relevant part: “Runway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet.” (Stip. # 9).

         The Airport is among the public-use airports included in the National Plan of Integrated Airport Systems. (Stip. # 10). The Airport consists of numerous structures, including an airport terminal building and an air-rescue and fire-safety facility, Runway 2/20, which runs essentially North/South on the site, crosswind Runway 14/31, which runs Northwest/Southeast, and a number of taxiways. (Stip. # 12). All of these structures are within the Airport's boundaries and are part of the Airport Layout Plan (“ALP”). (Stip # 13). The ALP is approved by the FAA, which maintains full control over any modifications to the ALP, including limitations on runway length. (Stip. # 13).

         The Airport is classified by the United States Department of Transportation Federal Aviation Administration (“FAA”) as a primary, commercial service airport in that it provides regularly scheduled commercial passenger air service. (Stip. # 14). As a result of this classification, the Airport is currently required to, and does, hold an operating certificate under FAA regulation part 139 (14 C.F.R. Part 139), which currently requires the Airport to have runway safety areas on its main runway that are acceptable to the FAA. (Stip. # 14).

         Part 139 establishes the rules governing the certification and operation of airports serving scheduled passenger-carrying operations of an air carrier operating aircraft configured for more than 9 passenger seats. (Stip. # 15). The Airport is required under Part 139 to operate and maintain the Airport according to standards contained in the FAA Advisory Circulars. (Stip. # 15). Additionally, as a recipient of federal aid under the FAA Airport Improvement Program (“AIP'), the Airport is required to comply with AIP grant assurances. (Stip. # 15).

         The FAA requires a master plan that outlines future plans for upgrading airport facilities for each Part 139 airport. (Stip. # 16). The Airport's updated master plan for the Airport, which included extending the length of Runway 2/20 up to 7, 200 linear feet, was approved by the state and by the FAA in 2002. (Stip. # 16).

         There is one commercial airline providing service to the Airport from Philadelphia, with four scheduled flights per day in each direction and a capacity of no more than 37 passengers on each flight. (Stip. # 17). The length of the runway has a direct bearing on the weight load and passenger capacity that can be safely handled on any given flight. (Stip. # 17).

         Since 2009, the Airport has failed to attract a single new scheduled commercial carrier, and service remains low, with fewer than 35, 000 emplanements per year. (Stip. # 18). Weight penalties are imposed on aircraft for safety reasons, and a longer runway could potentially reduce or eliminate the weight penalties that are imposed on existing flights at the Airport. (Stip. # 19). Current scheduled commercial service at the Airport is entirely provided by a single type of aircraft, the Bombardier DH8-100 (the “Dash 8”). (Stip. # 20).

         Runway 2/20, because of its length, does not allow the Dash 8 to takeoff at maximum capacity. (Stip. # 21). The Dash 8 has capacity for 37 passengers, but generally only 33 passengers are allowed on the plane. (Stip. # 6). Lengthening Runway 2/20 would allow the Dash 8 and other larger aircrafts to potentially service the Airport, hold more passengers and service additional destinations. (Stip. # 22).

         The Airport has commenced planning on a runway extension project to increase the functioning length of Runway 2/20, within the existing boundaries of the Airport and the ALP, on land that is currently part of the runway safety areas. (Stip. # 23). The planning documents describe several alternatives for lengthening Runway 2/20 up to 6, 601 linear feet and modifying related taxiways. (Stip. # 23). The initial step in the Project is to perform an Environmental Assessment of the various layout and construction options. (Stip. # 23). The Authority has expended private funds to hire Hoyle, Tanner & Associates, Inc. (“Hoyle”), a consulting engineering firm, which has conducted a preliminary environmental assessment. (Stip. # 23).

         Robert M. Furey is Senior Vice President at Hoyle, which is located in Manchester, NH. (Stip. # 25). Hoyle specializes in airport planning, design and construction administration and has performed engineering work for the Authority since 1999. (Stip. # 27). Mr. Furey has personal knowledge regarding the Preliminary Environmental Assessment at the Airport and the environmental assessment process. (Stip. # 26). Federal review and comment is necessary for any construction project located within the ALP, and one of the initial steps in any such project under the applicable federal regulations is to submit an Environmental Assessment to the FAA. (Stip. # 28).

         Hoyle looked at a number of alternatives for lengthening Runway 2/20 ranging from 6, 601 linear feet up to 7, 000 linear feet. (Stip. # 29). The Authority proposes to pave a portion of the Runway 2/20 runway safety areas and this paved section would be considered a runway extension. (Stip. # 24).

         In 2014, Hoyle completed the first three chapters of an Environmental Assessment, as the customary procedure is to submit a Preliminary Environmental Assessment to the FAA for review and comment before drafting the full Environmental Assessment. (Stip. #'s 30-31). The ultimate document that the Authority submitted to the FAA for review included only runway alternatives that were not longer than 6, 601 linear feet. (Stip. # 29).

         The FAA has declined to review and comment on the content of the Preliminary Environmental Assessment for more than two years. (Stip. # 32). The FAA has not provided funding to the Project and has not reviewed the alternative layouts presented in the Preliminary Environmental Assessment. (Stip. # 32). FAA review of the Preliminary Environmental Assessment is a necessary step in the Environmental Assessment process. (Stip. # 33).

         The FAA is not proceeding with review of the Environmental Assessment in part because the Authority is in violation of several federal grant assurances and regulations. (Stip. # 34). The FAA's decision not to respond to the Authority's request for review of the Preliminary Environmental Assessment is in part because of the runway length limitation in Connecticut General Statutes §15-120j(c). (Stip. # 35).

         Whenever the Authority accepts federal funds, it agrees to various grant assurances which, among other things, require compliance with a long list of federal statutes and regulations directed to airport facilities and operations. (Stip. # 36). Non-compliance by an airport such as Tweed can result in enforcement action by the FAA. (Stip. # 36).

         FAA Advisory Circular 150/5300-13A, Airport Design, establishes criteria for the separation of runways and parallel taxiways. (Stip. # 37). The runway to taxiway separation distance is a function of the Airport Reference Code. (Stip. # 37). The ALP approved by the FAA for the Airport identifies the primary runway, Runway 2/20, as a C-III runway. (Stip. # 37). The designation C-III includes aircraft with approach speeds of 121 knots or more but less than 141 knots, and wingspans greater than 79 feet but less than 118 feet. (Stip. # 37).

         The interactive runway design standard matrix (Table 3-5) in FAA Advisory Circular 150/5300-13A specifies that the runway centerline to parallel taxiway centerline for C-III aircraft is 400 feet. (Stip. # 38). The current locations and dimensions of taxiways, which are integral to the aircraft landing and takeoff system, are not in compliance with federal regulations in terms of their distance from Runway 2/20. (Stip. # 39). This non-standard separation between the taxiway and the runway could be brought into compliance as part of the proposed runway extension project. (Stip. # 39).

         Hoyle prepared drawings depicting improvements to Taxiways A, F and G at the Airport. (Stip. # 40). The primary safety improvement alternative is to extend the runway with a taxiway centerline separation to the required distance of 400 feet, in accordance with FAA Advisory Circular 150/5300-13A, Table 5. (Stip. # 40). This would provide the Airport and FAA with safer runway and taxiway ground maneuvering as well as greater separation between active takeoff and landing operations and aircraft which are either holding short or maneuvering adjacent to the runway. (Stip. # 40).

         The alternatives identified in the Preliminary Environmental Assessment include the extension of the parallel taxiway. (Stip. # 41). A full length parallel taxiway is required for runways with instrument approach procedures with visibility minimums below one mile. (Stip. # 41). The existing Runway 2/20 instrument landing system approach has visibility minimums of ¾ mile. (Stip. # 41). Construction of the parallel taxiway at the standard 400 foot runway centerline to taxiway separation would bring the airport into compliance with FAA standards. (Stip. # 41).

         Although there is no enforcement action pending by the FAA against the Authority due to the non-standard separation between the taxiway and the runway, the FAA has issued notice to the Authority that the Authority is not in compliance with all of the requirements of CV.F.R/ part 139, the Airport Certification Manual and the Airport Operating Certificate. (Stip. # 42). The FAA expects the Authority to achieve the standard 400 foot separation between Taxiway A and Runway 2/20 and the 400 foot separation has been included in the Preliminary Environmental Assessment. (Stip. # 42).

         The Authority is not in compliance with FAA design standards due to the non-standard taxiway geometry. (Stip. # 43). The FAA has given the Authority until May 6, 2021 to redesign and reconstruct its taxiways, including realignment of Taxiway A, to bring the Airport into compliance with federal design standards. (Stip. # 43). There is no current or pending FAA enforcement action against the authority for noncompliance with any FAA safety standard applicable to 49 U.S.C. Part 139 airports or any standard contained in FAA Advisory Circular 150/5300-13A. (Stip. # 44).

         Tom Reich, the Director of Air Service Development at AFCO AvPorts Management, LLC, has provided marketing services to the Tweed-New Haven Airport and for other airports around the country. (Stip. # 45). He was previously employed as a market analyst for Independent Air and as the Manager of Market Planning for Colgan Air's United Express and U.S. Airways Express branded operations. (Stip. # 45). Mr. Reich has provided marketing services for the Airport since December 2011. (Stip. # 46). During the time that he has provided marketing services to the Airport, Mr. Reich has been in touch with approximately ten different airlines with regard to the possibility of those airlines bringing service to the airport. (Stip. # 46).

         From 2012 to 2016, Mr. Reich attended the Airports Council International-North America JumpStart Air Service Development Conference, where airlines and airport administrators convene annually. (Stip. # 48). Mr. Reich has met with numerous airline representatives at the JumpStart conferences with regard to the possibility of those airlines bringing service to the Airport, and has remained in steady contact with airline representatives throughout the years, even outside of JumpStart conferences. (Stip. # 48).

         In Mr. Reich's experience, there are three primary factors that determine whether or not an airline will choose to provide service to a given destination: (1) market size; (2) equipment performance; and (3) economic viability. (Stip. # 49). One analysis, completed by AvPort, shows that the South-Central Connecticut market is the largest catchment area in the United States in terms of existing passenger demand without nonstop flights to Orlando, Florida. (Stip. # 50).

         In Mr. Reich's experience, the overriding issue with respect to an airline choosing to provide service to a new destination is economic viability. (Stip. # 51). Runway length is an integral part of an airline's economic viability analysis due to the weight restrictions a shorter runway can cause and the resulting limit to the number of passengers that can be carried on the flight. (Stip. # 51). Lengthening a runway could eliminate safety concerns and could reduce the need for these weight restrictions at a given airport, allowing aircraft to carry more passengers while increasing the profit potential of the flight to an acceptable level for the airline. (Stip. # 52)

         In Mr. Reich's experience, weight restrictions can impose economic impediments at airports, such as Tweed, with short runways. (Stip. # 53). The Airport has the thirteenth shortest runway out of 348 airports where commercial service is provided, and according to the AvPorts analysis, the twelve airports with shorter runways do not have as large a catchment area as Tweed-New Haven Airport. (Stip. # 53). Tweed-New Haven Airport has the shortest runway in the nation for catchment areas with $1, 000, 000 or more people. (Stip. # 53).

         Allegiant Air has prepared this type of economic analysis for the Airport and has declined to service the Airport because “runway 2/20 is too short for Allegiant to comfortably operate regularly scheduled commercial service.” (Stip. # 55). Over his last five years providing marketing services to the Airport, Mr. Reich has been unable to convince any new airlines to commence service at Tweed. (Stip. # 57).

         Over the past eight years the Authority has been operating the Airport at a loss which has required annual subsidies from the state of Connecticut in the amount of $1, 500, 000 and from the City of New Haven in the amount of $325, 000. (Stip. # 58). The subsidy from the State was reduced to $1, 480, 000 for fiscal year 2016-2017. (Stip. # 58). Notwithstanding marketing efforts, the Authority has not received a commitment from any airline to provide service at the Airport if the statutory restriction on the length of Runway 2/20 is removed. (Stip. # 59).

         In 2009, a Memorandum of Agreement (“MOA”) was established among the City of New Haven, the Town of East Haven, the Authority and certain members of the General Assembly. (Stip. # 60). The MOA limits Runway 2/20 to the existing paved runway length of 5, 600 feet. (Stip. # 61). It also limits daily commercial departures to thirty and annual emplanements to 180, 000. (Stip. # 61).

         Section III of the MOA references a bill for adoption in the 2009 Legislative Session that limited the length of the runway, increased the number of members of the Authority's Board of Directors to be appointed by the Town of East Haven and City of New Haven related to the airport property. (Stip. # 62), Section III also called for additional appropriations for the Authority in the two fiscal year budgets being considered in the 2009 Legislative Session that would have reduced the capital bond commitment of the State to the Airport. (Stip. # 62)

         The bill reducing the capital bond authorization was defeated and the restriction on the runway and the change in board membership in the designated bill were adopted, but the payment in lieu of taxes portion of the bill was not adopted and $1.5 million of additional appropriations were approved, whereas the MOA called for $2 million. (Stip. # 62). The items that were not adopted in the 2009 Legislative Session have not been adopted by subsequent General Assembly action. (Stip. # 62).

         Section IV of the MOA provides in pertinent part: “[T]his agreement may be terminated by written notice by either the City or the Town in the event . . . (c) the State of Connecticut fails to enact the Legislative Initiatives contained in Section III of this Agreement in the 2009 Legislative Session.” (Stip. # 63). To date, the City of New Haven has not taken steps to invalidate the MOA. The ...


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