National Helicopter Corp. of America v. City of New York

• Decision Date: 17 February 1998
• Citation: 137 F.3d 81
• Parties: NATIONAL HELICOPTER CORP. OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. The CITY OF NEW YORK; The Council of the City of New York; The City Planning Commission of the City of New York; The New York City Economic Development Corporation, Defendants-Appellants-Cross-Appellees. Dockets 97-7082, 97-7142.
• Court: U.S. Court of Appeals — Second Circuit

Page 81

137 F.3d 81

NATIONAL HELICOPTER CORP. OF AMERICA Plaintiff-Appellee-Cross-Appellant, v. The CITY OF NEW YORK; The Council of the City of New York The City Planning Commission of the City of New York; The New York City Economic Development Corporation Defendants-Appellants-Cross-Appellees.

Dockets 97-7082, 97-7142.

United States Court of Appeals Second Circuit.

Argued Sept. 8, 1997.

Decided Feb. 17, 1998.

Ellen S. Ravitch, New York City (Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, Stephen J. McGrath, Deborah Rand, New York City, of counsel), for Defendants-Appellants-Cross-Appellees.

Donald W. Stever, New York City (Janis M. Meyer, Clarke Bruno, Daniel Altman, Dewey Ballantine, New York City, of counsel), for Plaintiff-Appellee-Cross-Appellant.

Steven A. Mirmina, Washington, DC (Timothy M. Biddle, Lorraine B. Halloway, Crowell & Moring LLP, Washington, DC, of counsel), filed a brief for Amicus Curiae Helicopter Association International in support of Plaintiff-Appellee-Cross-Appellant.

Before: WINTER, Chief Judge, NEWMAN, and CARDAMONE, Circuit Judges.

Judge NEWMAN concurs in part and dissents in part in a separate opinion.

CARDAMONE, Circuit Judge:

This case concerns Manhattan's East 34th Street Heliport (Heliport or facility). In May 1996 New York City's Economic Development Corporation (Economic Development Corporation or Corporation), the agency responsible for administering the City's heliports, issued a Request for Proposals (Request) seeking a new fixed-base operator for the Heliport. The Request imposed certain restrictions on the use of the Heliport based on City law. Plaintiff National Helicopter Corporation of America (National Helicopter or National), which had been the Heliport's fixed-base operator for the past 20 years, filed an action in the United States District Court for the Southern District of New York, challenging the validity of those restrictions on the grounds that the regulation of airports is a field preempted by federal law. On January 7, 1997 Judge Sonia Sotomayor granted in part and denied in part National Helicopter's motion seeking permanent injunctive relief. The defendant City of New York, its Council, Planning Commission, and Economic Development Corporation, appeal from that judgment. National Helicopter cross-appeals.

BACKGROUND

Developers desiring to make use of City land must comply with New York City's Zoning Resolution, which "regulat[es] and restrict[s] the location of trades and industries and the location of buildings designed for specific uses within the City of New York When the City planned to develop a heliport on land it owned along the East River and adjacent to the F.D.R. Drive and 34th Street, it (through the Department of Marine and Aviation) applied for and in 1971 obtained from the Planning Commission a special permit to operate the Heliport for a term of five years. The facility, one of four public heliports in Manhattan, opened in 1972. National became its fixed-base operator in 1973 when it entered into a lease with the Department of Marine and Aviation for an initial term of 10 years. ¹ National subsequently renewed its lease and remained the fixed-base operator until August 1997 when it was legally evicted, although it remains entitled to use the Heliport for helicopter flights.

                and for such purposes divid[es] the City into districts."   New York City Zoning Resolution § 11-01.  Certain uses, "whose location or control requires special consideration," are permitted only if they have been granted a special permit by the City Planning Commission (Planning Commission).  Id. § 74-01.  The construction and operation of a heliport is one such use requiring a special permit.  Id. § 74-66.  An applicant seeking to obtain a special permit must work through layers of agencies, departments, commissions and corporations that comprise the City bureaucracy.  Such work is no sport for the short-winded
                

Prior Disputes Between the Parties

National's 20-plus-year relationship with the City has been far from harmonious. Each time a dispute has arisen, the parties have reached a settlement agreement committing National to perform certain obligations in exchange for continued permission to remain the Heliport's operator. Several of these settlement agreements are relevant to the issues now on appeal. The first agreement was executed in 1985, following a 1982 action brought by the City for National's failure to pay rent. The 1985 agreement required National to apply to the Planning Commission for a new special permit to allow for the continued operation of the Heliport because the City's original permit to operate the facility had expired in 1976. The City, in return, allowed National to renew its lease retroactively, enabling it to continue as the Heliport's fixed-base operator for a second period of ten years, effective October 4, 1983. In a subsequent 1989 settlement stipulation, the City agreed to extend National Helicopter's fixed-base operator lease until October 1995 and, in exchange, National Helicopter agreed to an 11 p.m. to 7 a.m. curfew of its operations.

Pursuant to the 1985 settlement agreement and as part of the special permit application process, National was required to prepare an Environmental Impact Statement (EIS) to assess the Heliport's effect on its surrounding environment. National hired Young Environmental Services to do this work, but Young had failed to complete the project by 1993. Following another rent dispute, the Economic Development Corporation (successor to the Department of Marine and Aviation and its successor, the Department of Ports and Trade), as the current agency in charge of administering the City-owned heliports, assumed responsibility for completing the EIS. National agreed to reimburse the City for its costs.

Another rent dispute developed in 1993, causing the City to serve a notice of termination of National's fixed-base operator lease because National had not made the agreed-upon rental payments spelled out in a prior settlement. In response, National filed an action against the City in New York State Supreme Court seeking a stay of eviction. The parties resolved this dispute in a series of settlements commencing on January 10, 1994. The final such settlement, entered on February 13, 1996, provided that the City would allow National to continue its occupancy of the Heliport on a month-to-month basis until July 31, 1996 at which time the City could eject National pursuant to an executed Order of Ejectment. National Helicopter further agreed to waive any claims that were

or could have been raised in its state court action against the City.

The Special Permit Application

Meanwhile, on June 29, 1995 the Economic Development Corporation and the Department of Business Services, as co-applicants, filed with the Planning Commission an application for a special permit to allow for the continued operation of the Heliport. The agencies' application discussed their proposal to attain the City's goals of redistributing sightseeing flights away from the Heliport to other City heliports by restricting tourist operations to Saturday and Sunday flights only and limiting the number of flights to a maximum of four per hour during a 12-hour operating day. The agencies hoped that these restrictions would reduce total operations at the Heliport by 47 percent.

Under New York City law, before the Planning Commission may award a special permit, the affected community boards, the borough president, the New York City Council, and the public must review the significant land use decision. See New York City Charter § 197-c. Pursuant to this review procedure, the Planning Commission certified the agencies' application, including a draft EIS, as complete on August 7, 1995. The Planning Commission referred the application to Manhattan Community Board 6 and the Manhattan borough president for consideration. Both opposed the application unless various conditions--including a curfew and the prohibition of weekend sightseeing operations--were met. On November 29, 1995 the City Planning Commission conducted a public hearing to consider comments from the affected community board, representatives of New York University's medical facilities located near the Heliport, and other community members.

The final EIS, issued on December 27, 1995, evaluated noise data measured at seven receptor sites surrounding the Heliport. It considered the impact of a 47 percent reduction in operations, as discussed in the application for the special permit, and concluded that the proposed reduction would decrease noise levels, both in magnitude and significant impact.

On January 9, 1996 the City Planning Commission recommended awarding the special permit to the Economic Development Corporation and the Department of Business Services for a period of ten years and subject to a variety of restrictions. On March 6, 1996 following a public hearing addressing the City Planning Commission's recommendations, the City Council enacted Resolution 1558, approving the issuance of the special permit, subject to the following conditions: (1) the restriction of weekday operations to between 8 a.m. and 8 p.m.; (2) the restriction of weekend operations to between 10 a.m. and 6 p.m.; (3) the phasing out of weekend operations entirely; (4) the reduction of operations by a minimum of 47 percent overall; (5) the barring of Sikorsky S-58Ts, or helicopters of a similar size, from use of the Heliport for sightseeing operations; (6) the prohibition of sightseeing flights over Second Avenue and the requirement that such flights heading north and south fly only over the East and Hudson Rivers; and (7) the requirement that helicopters using the Heliport be marked for identification from the ground. The Economic Development Corporation incorporated these conditions into its May 6, 1996 Request seeking a new fixed-base operator for the facility.

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