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Santa Monica’s Lawsuit Against FAA Resonates with City’s Property Owners

Santa Monica Real Estate Company, Roque and Mark


Harding Larmore Kutcher & Kozal, LLP  law firm
Harding, Larmore Kutcher & Kozal, LLP

By Jason Islas
Staff Writer

November 4, 2013 -- When City Hall sued the Federal Aviation Administration Thursday to affirm its control over the 97-year-old Santa Monica Airport (SMO), one argument resonated with the city’s landlords.

In the 32-page document City officials filed with federal courts Thursday, City Hall argued, among other things, that the FAA’s claim that Santa Monica must run the 227-acres of City-owned property as an airport forever was a violation of constitutional property rights. (“City Hall Sues FAA Over Future of Santa Monica Airport,” November 1)

Summing up the argument, Councilmember Bob Holbrook asked, "How can the federal government force us to be in a business if we choose not to be in that business?"

Exactly, said local attorney Rosario Perry, a vocal opponent of Santa Monica’s once-stringent 1979 rent control law.

“I, speaking on behalf of the Housing Providers of Santa Monica, strongly support the City's efforts to disengage itself from overly burdensome governmental control of private property,” Perry wrote in an email to The Lookout Friday.

He added that the argument shows that the City “recognizes the value of real property and the Fifth Amendment protections which afford private property its revered place in our framework of orderly society.”

The complaint argues that the “FAA’s demand that Santa Monica operate an airport in perpetuity at its direction and on its terms amounts to a taking by the United States without just compensation,” a violation of the Fifth Amendment.

It goes on to argue that “the FAA’s command that Santa Monica run an airport on the Airport Property in perpetuity deprives Santa Monica of its right to use the property for other purposes.

“The FAA’s assertion lacks factual and legal support, and impairs Santa Monica’s rights as a municipality and property owner,” the complaint reads.

Perry laughed at the language. “Whose ox is being gored now?” he asked rhetorically.

Perry saw strong parallels between the City’s complaint against the FAA and those complaints made against City Hall over the years by landlords who argue against local laws that impose rent limits and affordable housing quotas and, before passage of the 1985 Ellis Act, severely circumscribed land owners’ ability to go out of the rental business.

In 2009, California courts ruled that local laws requiring land owners to build subsidized affordable housing, at their own expense, was a violation of property rights. ("Santa Monica Affordable Housing Advocates Back Senate Bill," September 4)

But it’s not quite the same when two government entities duke it out over control of property, said Holbrook.

Another argument the City makes is that the FAA is “commandeering the City and its officials to act for the purposes of the United States,” a direct violation of the City’s “sovereign rights,” protected by the 10th Amendment.

That argument makes more sense to former mayor Dennis Zane, one of the architects of Santa Monica’s 1979 rent control law and co-founder of the powerful political organization, Santa Monicans for Renters’ Rights.

"The second part is not as strong a claim,” he said referring to the claim that the FAA was in violation of the Fifth Amendment. “Property ownership has inherently public constraints."

The filing of Thursday’s lawsuit marked the beginning of the latest battle in the City’s ongoing war with the FAA over the future of the embattled airport.

In the past, as private jets became more prevalent, the City tried to regulate the types of airplanes that can use the 5,000 foot runway, only to be stonewalled by the FAA.

In the early 1980s, the City tried to cap the number of flights at the airport, initiating a lengthy legal battle with the FAA. While the City failed in its initial goal, it signed an agreement with the federal agency that obligated Santa Monica to operate the airport until 2015.

Now, with that date approaching, the FAA, which looks to Santa Monica Airport as a place to divert private jet traffic away from LAX, has renewed claims that improvements made by the federal government to the airport during World War Two, when it temporarily leased the airport from Santa Monica, obligate the City to operate the airport indefinitely.

In its claim, City Hall calls those claims “arbitrary and unsupported” and, through the suit, seeks to “establish its right to operate its property in the exercise of its police power for the benefit of its citizens.”

"They claim it's not really our property," Holbrook said. "We're just trying to find out who owns the airport."

While Santa Monica is confident in its claim to the property, it will likely take some time for this most recent lawsuit to be settled, especially since the losing side will most likely appeal the federal court’s decision, Holbrook said.

But first, the FAA has 60 days to respond to Santa Monica’s claim.

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