United States v. County of Westchester, 83 Civ. 3499(RJW)

• Decision Date: 24 August 1983
• Docket Number: 81 Civ. 6243(RJW) and 81 Civ. 6227(RJW).,81 Civ. 6177(RJW),No. 83 Civ. 3499(RJW),83 Civ. 3499(RJW)
• Parties: UNITED STATES of America, Plaintiff, v. The COUNTY OF WESTCHESTER, Defendant. NATIONAL BUSINESS AIRCRAFT ASSOCIATION, Plaintiff, and Federal Aviation Administration, Involuntary Plaintiff, v. Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County of Westchester; the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants. PANORAMA FLIGHT SERVICE, INC., Plaintiff, v. COUNTY BOARD OF LEGISLATORS FOR the COUNTY OF WESTCHESTER, Westchester County, Samuel S. Yasgur, Attorney for County, and Andrew P. O'Rourke, County Executive, Defendants. AIRCRAFT OWNERS AND PILOTS ASSOCIATION, Plaintiff, v. Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County of Westchester, the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants.
• Court: U.S. District Court — Southern District of New York

571 F. Supp. 786

UNITED STATES of America, Plaintiff, v. The COUNTY OF WESTCHESTER, Defendant.

NATIONAL BUSINESS AIRCRAFT ASSOCIATION, Plaintiff, and Federal Aviation Administration, Involuntary Plaintiff, v. Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County of Westchester; the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants.

PANORAMA FLIGHT SERVICE, INC., Plaintiff, v. COUNTY BOARD OF LEGISLATORS FOR the COUNTY OF WESTCHESTER, Westchester County, Samuel S. Yasgur, Attorney for County, and Andrew P. O'Rourke, County Executive, Defendants.

AIRCRAFT OWNERS AND PILOTS ASSOCIATION, Plaintiff, v. Andrew P. O'ROURKE, County Executive of the County of Westchester; Samuel S. Yasgur, Attorney of the County of Westchester, the Board of Legislators of the County of Westchester, and the County of Westchester, Defendants.

Nos. 83 Civ. 3499(RJW), 81 Civ. 6177(RJW), 81 Civ. 6243(RJW) and 81 Civ. 6227(RJW).

United States District Court, S.D. New York.

August 24, 1983.

COPYRIGHT MATERIAL OMITTED

Joseph, Powell, McDermott & Reinger, P.C., Washington, D.C., Herzfeld & Rubin, P.C., New York City, for plaintiff National Business Aircraft Ass'n.

John S. Yodice, Frederick, Md., Callahan & Wolkoff, P.C., New York City, for plaintiff Aircraft Owners & Pilots Ass'n.

Rudolph W. Giuliani, U.S. Atty., Susan Campbell, Asst. U.S. Atty., New York City, for involuntary plaintiff Federal Aviation Admin.

Samuel S. Yasgur, White Plains, N.Y., for defendant County of Westchester, et al.

McDonough, Marcus, Cohn & Tretter, New York City, for plaintiff Panorama Flight Service, Inc.

FINDINGS OF FACT

ROBERT J. WARD, District Judge.

A. The Parties

The Federal Aviation Administration ("FAA") is an operating administration of the United States Department of Transportation and is responsible for the regulation and control of the National Flight Control System. The National Business Aircraft Association ("NBAA") is a corporation organized under the laws of the State of New York whose purpose is to protect and promote the interests of member companies in the operation of their aircraft. NBAA has 51 member companies which regularly use the Westchester County Airport ("the Airport"). These member companies operate 134 aircraft including turbo jets, turbo propellor driven airplanes, propellor driven airplanes and helicopters. The Aircraft Owners and Pilots Association ("AOPA") is a corporation organized under the laws of the State of New York whose purpose is to promote and protect the interests of owners and pilots of general aviation aircraft. AOPA's 265,000 members own approximately 70 percent of the active general aviation aircraft fleet and fly approximately 70 percent of the general aviation hours logged. Panorama Flight Service Inc. ("Panorama") is a New York corporation with a principal place of business at the Airport engaged in the business of providing cargo and passenger air transport services. It operates a variety of light twin-engine aircraft between the Airport and various locations in the northeastern part of the United States. A portion of its cargo operations is conducted between 7 p.m. and 4 a.m.

The County of Westchester ("the County") is a municipal corporation organized and existing under the laws of the State of New York. Andrew P. O'Rourke is the County Executive of the County. Samuel S. Yasgur is the County Attorney. The Westchester County Board of Legislators is the legislative body of the County. Under § 101.21 of Chapter 617, Laws of 1937, Charter of Westchester County, the legislators are empowered to "exercise all powers of local legislation and administration as provided for counties in Article 9 of the Constitution of the State of New York."

B. The National Airport System

The FAA has prepared a national airport system plan pursuant to the Airport and Airway Development Act of 1970, and its successor legislation. The Airport is included in and is a part of the national airport system plan and is a part of the New York City metropolitan area airport system. The airspace and air traffic routing of aircraft arriving and departing at the New York City metropolitan area airports is a complex, highly structured and integrated system designed to provide for maximum air safety and efficiency in the use of the available navigable airspace. FAA air traffic controllers are responsible for establishing and maintaining the separation of aircraft during their operation. An "aircraft operation" is defined as either a landing or a take-off and is either "local" or "itinerant." A "local operation" is an aircraft operation within a 50-mile radius of an airport or within sight of an airport control tower, or an aircraft known to be departing or arriving from flight in local practice areas, or an aircraft executing practice instrument approaches. An "itinerant operation" is any operation other than a local operation. Airport operations are classified by the FAA as air carrier or commercial operations with other operations considered as general operations.

In 1976, 1980 and 1982, respectively, there were a total of approximately 1,289,000, 1,349,000, and 1,257,000 aircraft operations at the five major airports in the New York City metropolitan area, i.e., John F. Kennedy International (JFK), LaGuardia (LGA), Newark International (EWS), Teterboro (TEB), and Westchester County (HPN). Of these total operations there were approximately 207,000 operations at HPN in 1976 and 1980 and 183,000 operations there in 1982. This represents respectively 16.1%, 15.3% and 14.6% of the total operations at these five New York City metropolitan area airports. In 1976, 1980 and 1982, respectively, there were a total of approximately 511,000, 577,000, and 462,000 general aviation operations at the five major airports in the New York City metropolitan area. Of these general aviation operations there were approximately 188,000, 189,000, and 162,000 such operations at HPN in each of the respective years. This represents 36.8%, 32.8% and 35.1% of the total general aviation operations at these five airports in each of the respective years.

Of the total 183,000 operations at HPN in 1982, 162,000, or approximately 88.5%, were general aviation operations. In contrast to HPN, in 1982 there were 28,000, 25,000 and 38,000 general aviation operations at JFK, LGA, and EWR respectively for a total of 91,000 such operations out of 834,000 total operations at these three airports in that year.

Aircraft departing from HPN and LGA to the south and west are routed through and controlled by FAA air traffic controllers at the New York Terminal Radar Approach Control ("TRACON"). Peak times for air travel in the New York metropolitan area occur from 7:00 a.m. to 10:00 a.m. and from 3:00 p.m. to 10:00 p.m. During the morning peak period, particularly between 7 a.m. and 9 a.m., there are a substantial number of take-offs from HPN, LGA and EWS. Many of these departures follow the same route to the south and west out of the airspace controlled and managed by the New York TRACON, known as the Solberg route. What is involved in this process from an air traffic control perspective is the integration and intermingling of HPN, LGA and EWS departures with other air traffic from other airports overflying the area so as to assure the separation of air traffic for safety. There presently is a restriction of 20 miles separation between these flights, a separation which translates into approximately 4 minutes between flights or approximately 15 flights per hour along a specific route.

C. Westchester County Airport

The Airport is owned by the County. It provides services and facilities to persons traveling in and engaged in interstate commerce. The FAA operates and maintains an air traffic control tower at the Airport, which is staffed by Federal air traffic controllers. There are over 400 aircraft based at the Airport, approximately 275 to 350 of which are propeller driven and turbo-prop small aircraft. The balance are business jet aircraft. Air navigation equipment has been installed and is currently being operated at the Airport by the FAA pursuant to an agreement with the County.

The Airport is under the overall jurisdiction of the County Department of Public Works, and directly under the Transportation Division of that Department. The highest County official under the County executive with responsibility for the Airport is the Commissioner of Public Works, a position currently held by Commissioner Frank Bohlander. Working directly for Commissioner Bohlander as Director of Transportation Facilities is Arthur Ludwig.

Many AOPA members are based at the Airport, and many others have and in the future will operate aircraft to and from the Airport, all in interstate commerce. A number of these members have a continuing need to operate at the Airport during the hours from midnight to seven a.m.

The total operations at the Airport during the fiscal years 1981 and 1982 were as follows:

                                                 TOTAL OPERATIONS
                CATEGORY OPERATION               FY 81   FY 82
                Instrument                      144,672  117,625
                Total Aircraft                  186,065  183,645
                Total Itinerant                 145,183  141,935
                General Aviation Itinerant      124,382  121,704
                Air Carrier                       2,621    2,685
                

The Airport's ranking nationally based upon 377 airports and in New York State based upon 15 airports during the fiscal years 1981 and 1982 in all operations was as follows:

                                                    NATIONAL RANKING          NY STATE RANKING
                CATEGORY OPERATION                  FY 81     FY 82           FY 81   FY 82
                Instrument                          88        94              6       6
                Total Aircraft                      109       83              6       6
                Total Itinerant                     73        72              3       4
                General Aviation

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