City of Irving, Tex. v. Federal Aviation Admin.

• Decision Date: 28 December 1981
• Docket Number: No. CA 3-81-0947-R.,CA 3-81-0947-R.
• Citation: 539 F. Supp. 17
• Parties: CITY OF IRVING, TEXAS; Allene Harrington; Robert Harrington; and R. D. Harrington, Plaintiffs, v. FEDERAL AVIATION ADMINISTRATION; J. Lynn Helms, Administrator of Federal Aviation Administration; C. R. Melugin, Jr.; City of Dallas, Texas; City of Fort Worth, Texas; DFW Regional Airport Board; Ernest E. Dean, Executive Director; Jack Downey, Deputy Executive Director; and, Michael T. Brock, Director of Operations; and Air Transport Association of America, Defendants.
• Court: U.S. District Court — Northern District of Texas

539 F. Supp. 17

CITY OF IRVING, TEXAS; Allene Harrington; Robert Harrington; and R. D. Harrington, Plaintiffs, v. FEDERAL AVIATION ADMINISTRATION; J. Lynn Helms, Administrator of Federal Aviation Administration; C. R. Melugin, Jr.; City of Dallas, Texas; City of Fort Worth, Texas; DFW Regional Airport Board; Ernest E. Dean, Executive Director; Jack Downey, Deputy Executive Director; and, Michael T. Brock, Director of Operations; and Air Transport Association of America, Defendants.

No. CA 3-81-0947-R.

United States District Court, N. D. Texas, Dallas Division.

July 6, 1981.

As Amended December 28, 1981.

Don J. Rorschach, City Atty., Irving, Tex., Cecil W. Casterline, William B. Chaney, Richard L. Allen, John T. Helm, Drew R. Heard, Brett A. Ringle, Shank, Irwin, Conant, Williamson & Grevelle, Dallas, Tex., for plaintiffs.

Lee Holt, City Atty., Analeslie Muncy, Charles M. Bierfeld, Dallas, Tex., for defendant City of Dallas.

Paul C. Isham, Asst. City Atty., Fort Worth, Tex., for defendant City of Fort Worth.

Charles C. Wells, Debra G. Kress, Dallas, Tex., for defendants D/FW Regional Airport Bd. and Dean, Downey and Brock.

Susan V. Cook, U. S. Dept. of Justice, Washington, D. C., Charles Cabaniss, Asst. U. S. Atty., Dallas, Tex., for defendants Federal Aviation Administration, Helms and Melugin.

Lyman M. Tondel, Jr., Cleary, Gottlieb, Steen & Hamilton, New York City, Donald L. Case, Charles Babcock, H. Dudley Chambers, Jackson, Walker, Winstead, Cantwell and Miller, Dallas, Tex., for defendant Air Transport Ass'n of America.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This suit involves a controversy and a dilemma concerning runway 13L—the northwest-southeast diagonal, "crosswind" runway — at the Dallas-Fort Worth Regional Airport ("DFW").

The controversy is not new. It began even before DFW was opened. And this decision — which denies the plaintiffs' request for a temporary injunction prohibiting tests for a limited 60-day period of a revised south departure path for runway 13L—will not end the controversy. It will continue, after the tests end on August 9, in public hearings and in proceedings before the DFW Board and the Federal Aviation Administration ("FAA") and, perhaps, in judicial review of any subsequent decision by the FAA concerning runway 13L.

The dilemma, however, is new: Will a substantial number of Irving citizens (estimated at 25,000) who live and work in the area affected by the 13L tests be subjected to aircraft noise which disrupts their lives? Or, will a runway which cost $20 million in 1970 — whose use is necessary to relieve the acute problems of air traffic congestion at DFW and the resulting inconvenience to the general public — remain essentially useless?

The History of Runway 13L

Runway 13L was originally designed to handle the regular departure of all aircraft and to handle the arrival of aircraft (i) during peak periods of operation, or (ii) when there were strong west winds, or (iii) under any unusual conditions, such as runway repair or construction which closed the parallel north-south runways.

Irving was concerned about runway 13L even before the opening of DFW.¹ Straight departures from and approaches to the runway passed directly over Irving and some of its residential districts. Irving's concern — and the resulting correspondence, meetings with FAA and DFW representatives, and public hearings² — resulted in the adoption of a noise abatement procedure: aircraft departing runway 13L would turn 10° left (i.e., north)³ immediately after takeoff and then southeast again, generally along the route of Highway 114. This 10° north departure path for runway 13L was specifically covered in the original DFW Environmental Impact Statement:

"Runway 13L/31R is a diagonal crosswind runway which will primarily be used for southeast departures and to a lesser degree for landings to the northwest.

"Data provided by wind rose studies indicate that use of runway 31R for landings will be required for all aircraft during strong northwest wind conditions which may occur two percent of the time. This 2% applies to the total time this runway (31R) may be required for landings by all aircraft using the ILS because of strong northwest winds. It has no reference to departures on runway 13L. The use of 13L for departures will be primarily for the small general aviation aircraft and the smaller turbine powered air carrier flights.

"There will be a noise abatement procedure for departures using runway 13L effecting a 10 degree left turn when weather conditions will permit visual navigation during that phase of the departure. During periods of lowering ceiling and poor visibility, departures will initially proceed southeast along the localizer course of the instrument landing system (ILS) as directed by air traffic control.

"Maximized angles of descent on the glide slope will be used for instrument approaches on runway 31R.

"The runway will be used to insure the efficient and safe operation of the airport, and as necessary to handle traffic during emergency conditions on the airport."

This noise abatement procedure turned the planes departing runway 13L toward Love Field, and required the careful control and "mix" of the air traffic from both airports. The initial DFW airspace studies (Def. Exh. 4) indicated that this could be done safely and without delaying traffic from runway 13L (although this was based upon the assumption that Love Field would not be an air carrier airport).

Irving also felt that it had a commitment from both the FAA and DFW — in view of "repeated assurances" by both these agencies — that the air traffic on runway 13L would not exceed "2% commercial utilization on this runway." This was disputed by the FAA and DFW, who advised Irving on several occasions that the 2% figure applied only to landings — and not departures — on runway 13L (Def. Exh. 1, 2).⁴

Under the "Mid-Cities Agreement" — a "Letter of Intent and Agreement between owners of Dallas-Fort Worth Regional Airport and members of the North Texas Regional Airport Committee" executed in December of 1968 (Def. Exh. 4) — Irving also assumed responsibilities for the development of land near runway 13L. Paragraph H of that agreement provides:

"Non-owner Cities through their zoning and subdivision powers will prohibit uses incompatible with airport uses to be located adjacent to the airport proper and will obtain avigation easements through the same powers whenever needed and legally permissible." (Def. Exh. 4.)⁵

However, in August of 1977, Irving granted a request to rezone some of the property nearest runway 13L from industrial/commercial use to "residential or multi-family use." This was done over the protest of several property owners in this area (Def. Exh. 20).⁶ Some of the 25,000 Irving citizens now affected by the noise from runway 13L reside in this rezoned area, although many do not.

By late 1979 or early 1980 (Pltf. Exh. 17), several factors combined to cause concern about congestion at DFW and to create a desire among the airlines for increased use of runway 13L (Pltf. Exh. 26). These factors included:

(i) Love Field had continued to be utilized as both an air carrier and a general aviation airport after DFW opened — a fact not anticipated when DFW was constructed. This made it more difficult to use the noise abatement procedure because of the increased Love Field traffic,⁷ and flights departing runway 13L were often delayed on the ground for considerable periods of time. Thus, the runway was used very little.

(ii) Traffic increased at DFW not just by normal growth, but by the deregulation of the airlines — which resulted in a phenomenal increase in the number of flights at DFW (and other airports). For example, prior to June 11, 1981, American Airlines had 148 flights a day at DFW; it now has 215 flights a day. This substantial rise in air traffic has resulted in increasing delays and congestion at DFW because the two north-south parallel runways are not sufficient to handle the increased load.

(iii) The construction of additional runways at DFW (which were in the original plans) has not been possible because of many reasons: an unfavorable bond market, the probable loss of federal funds for airport construction, the heavy losses experienced by most airlines in recent years, uncertainty over terminal design and location, etc.

Thus, the need for additional capacity at DFW was obvious. But there was no money for the construction of new runways — and, even if there was, their completion would take years. Yet, the growth in air traffic, particularly with the effects of deregulation, meant increasing congestion and delay at DFW. So the airlines were pressing for the only immediate solution they say — the increased and unrestricted use of runway 13L. For example, the President of American Airlines projected these consequences if the restrictions on runway 13L continue:

"Long delays at DFW during the latter part of August, our peak passenger month, are simply unacceptable. Should this situation occur the airlines serving DFW will lose an immense amount of money; the airport's reputation will be severely — and perhaps permanently — damaged; the community will be outraged and all those charged with the efficient operation of the air transport system—airlines, government agencies and airport authority alike — will be justly subjected to heavy criticism. We cannot allow this to happen." (Pltf. Exh. 26).

Under these circumstances, DFW requested that the FAA consider the increased use of runway 13L. A letter in July of 1980 by the DFW Executive Director states:

"It is recognized that the EIS, as well as FAA letters to the City of Irving, committed use of the noise abatement procedures. At that time FAA assured all concerned that both commitments could be met — simultaneous use of Love Field and the noise procedures for DFW Runway 13L/31R. We recognize the need to be good neighbors with the communities

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