Calistoga, CA 94515 February 25, 2018
FLIGHTS v. LANDINGS AS THEY REGARD “PREEMPTION”:
One of the fundamental errors in the Memorandum is that it assigns provisions in the initiative which are clearly outside its scope. As a result, the potential of legal challenges these provisions may have do not apply to this initiative. Contrary to the Memorandum’s claims, this initiative contains no provisions regulating helicopter activity in the air which is the domain of Federal law.
The initiative’s language exclusively regulates helicopter activity on the ground (landings and take-offs) at vineyards over which the county has jurisdiction. Such jurisdiction was thoroughly investigated by the County in 2004 when it adopted Ordinance P04-0198 which prohibits helicopter landings at wineries.
In addition to prohibiting personal use heliports, the initiative prohibits only landings and takeoffs and the transport of persons on the ground to and from vineyards who are not “essential” in the conduct of aerial direct agricultural activities. It further specifies that landing a helicopter on a vineyard is permitted only if it is “unavoidable”.
The following Memorandum Sections allege that this initiative regulates helicopter activity during flights:
Page 11, 2(c): “The initiative may effectively require county staff and helicopter operators to ‘guess’ at who may participate in a flight “. This initiative does not address who may participate in a flight.
Further: “..who is ‘essential’ to a qualifying helicopter flight”. This initiative does not regulate who is essential to a helicopter flight.
Further: “…is a helicopter flight unavoidable only when crops are at risk..?.” The initiative does not specify which flights are unavoidable or place any limits on any flights anywhere in the county no matter what the purpose.
Page 12, 2(c): “Would not a ‘landing’ always be ‘unavoidable’ after a ‘takeoff?'” This is a rhetorical question . Landings and takeoffs are permitted at public airports and at entitled locations as well as under the limitations of this initiative.
Page 13, 2(e): “The initiative replaces ‘direct agricultural production activity’ with ‘direct agricultural activity’. This initiative specifies: “Direct aerial agricultural activities”, thereby omitting the word “production” simply because there is no possible production activity in a helicopter in the air.
Page 13, 3: “Post-flight reports”. This initiative does not mandate post-flight reports as it does not regulate flights. It only mandates the filing of a “post-landing” report justifying a landing.
Page 14, 2(4): “Any helicopter that landed would never be able to take off”! This a rhetorical statement because if the landing was in violation, the violation must be removed by whatever means necessary to complete the task.
Page 15, 2(a) Note: “Federal law preempts a municipal ordinance which attempts to govern flight paths of aircraft”. This law does not apply to this initiative which does not regulate helicopter flight paths or any other activities in the air. (However it appears to apply to the Palmaz permit application in which county staff has prescribed flight paths).
Page 18, 2(a)(ii): “Ninth Circuit’s ‘direct interference’ test…whether the initiative’s limitation of helicopter flights…”.This initiative does not place any limitations on any flights anywhere for whatever reason.
Further: “Insofar as the initiative targets flights with a particular purpose…” This initiative does not target any flights anywhere for whatever reason.
Page 19, 2(a)(iii): “The initiative attempts to prohibit flights that are avoidable…”. This initiative does not prohibit any flights anywhere for whatever reason.
Further: “If only ‘essential’ personnel were permitted to staff these flights…it would be legally problematic”. The initiative places no restrictions on the staffing of any flights.
Further: “The initiative’s ‘essential’ personnel requirements regulate who might travel on a given flight…might be preempted”. This initiative does not regulate who might travel.
Page 21, 2(b)(ii): “It appears the initiative’s restrictions on aerial spraying might be preempted”. The initiative places no restrictions on aerial spraying.
Further: “If the initiative were to be construed so as to ban certain aerial applications of pesticides and other restricted materials, it would appear to raise the foregoing concerns, as articulated by the Attorney General”. (also advanced on Page 22). This initiative does not restrict any aerial applications.
Page 26, D(b)(1): “(The initiative) narrows the scope of permitted helicopter flights”. This initiative does not regulate the permitting of any flights for whatever purpose.
If the above allegations ascribing intent in this initiative to regulate helicopter activity in the air were correct, the Memorandum’s concerns regarding preemption and possible legal challenge would also be correct. But this is not the case.
Further, the Memorandum fails to identify a single helicopter landing situation at a vineyard on the ground – which is what this initiative regulates – as being preempted by Federal law.
This initiative does not restrict any helicopter flights for whatever purpose anywhere, nor does it regulate who may or may not be a helicopter passenger. It does however, specify under which conditions helicopters may land (and take off), an area over which local governments have jurisdiction not preempted by Federal law.
Under this initiative the right to land (and take off) at a vineyard during the conduct of an aerial operation is permitted only if it is “unavoidable” and only if the persons transported to the ground to and from such vineyard are “essential” to the conduct of such operation.
“ESSENTIAL” AND “UNAVOIDABLE”:
The Memorandum claims that the terms “essential” and “unavoidable” in this initiative are vague.
“Essential”: Absolutely necessary, indispensable.
“Avoid”: To prevent from happening – “Unavoidable”: Unable to prevent from happening.
The following sections of the Napa County Code make use of the term “essential” without further definition or clarification:
15.12.100 – essential for wine processing operations
18.20.010 – essential to the general health, safety and welfare
2.58.080 – essential governmental functions
15.52.013 – essential physical features
13.15.080 – essential public services
Plus 10 other sections of Napa County Code.
The following sections of the Napa County Code make the use of the term “unavoidable” without further definition or clarification:
18.119.010 – unavoidable need
18.119.015 – unavoidable need
18.107.180 – unavoidable impact
15.14.070 – unavoidable impact
16.12.320 – unavoidable hazardous conditions
18.108.027 – drainage facilities that unavoidably have to be installed
Both terms show up in thousands of provisions of California state statutes and court rules without further definitions or clarifications. If these terms are vague as the Memorandum claims, Napa County and the State of California have a real problem!
In the absence of any proof or example under which either of these terms might be vague in this initiative as the Memorandum fails to do, the mere claim that it does so, does not make it so.
The sole attempt the Memorandum makes to illustrate the alleged vagueness of the two terms is on Page 19, 2(a)(iii):
“Given the public’s generally unfamiliarity with agricultural flights, it might be helpful to consider an analogous limitation affecting commercial air travel. To this end, regulating what agricultural flights are “unavoidable”, or necessary, would be akin to imposing a rule that only commercial passenger flights that are necessary would be allowed to proceed. Under this scenario, only flights carrying passengers that have an absolute need to travel (e.g., to receive medical care) would be permitted to take off or land outside of a public airport. Meanwhile, if only “essential” personnel were permitted to staff these flights, then presumably only a pilot and perhaps a skeleton crew of attendants would be required. It would seem very likely that a court would determine these rules directly
interfere with the conduct of aviation operations. As discussed in Section III.B.2, it is not clear how the initiative defines “unavoidable” and “essential” , but it would seem that any local decision that involved sorting out who could board or facilitate a flight would be legally problematic”.
The Memorandum’s analogy is logically flawed, if not downright disingenuous because it does not in any way apply to the scope of this initiative:
1) The Memorandum invokes a hypothetical (analogous) far-fetched scenario of a commercial airline flight because it is unable to find one as it pertains to agriculturl aerial applications.
2) It argues that only certain passengers may board the airline. The initiative poses no restrictions on who may or may not be aboard a helicopter in the course of aerial agricultural operations.
3) It argues that only passengers that have an absolute need to travel would be permitted to take off or land outside a public airport. Once again, this initiative imposes no restrictions as to who may or may not be permitted to travel on a helicopter outside a public airport.
This initiative solely and unambiguously specifies that if a helicopter were to land at (not just fly over) a vineyard, the reason for doing so be unavoidable (i.e. could have been prevented from happening) AND that if the reason for landing is to transport a person, that such person’s activity on the ground must be essential (i.e. indispensable) to the completion of the aerial operation.
ADMINISTRATVE AND FISCAL IMPACTS, Page 33, 2(a):
The Memorandum argues that: “Significant costs would arise in the event it became necessary for the County to institute a code enforcement action against an alleged offender, potentially costing tens of thousands of dollars”.
As the Palmaz personal use helicopter application has demonstrated, this one application has consumed over 1,000 hours of staff time and 20% of the Planning Commission’s hearings in 2017. While the applicant reimburses the county for staff time, it fails to do so for the cost of facilities’ wear and tear, and for staff pension costs which arguably equally costly. This initiative will eliminate future private heliport applications and reduce all associated costs.
In addition, were the initiative not to be approved by the voters, future private heliport applications will increase in number and the use permit conditions imposed on them will in time necessitate an administrative mechanism for fielding and evaluating complaints and monitoring adherence to use permit conditions. This has been the case in several other parts of the country such as Aspen, Torrance, Long Island. There is no reason to believe the county will escape the necessity of such administrative infrastructure should additional private heliport use permits be granted.
If nothing else, this initiative will preclude future escalation of administration costs and at the same time free up Napa County government to perform other important functions.
SAFETY, Page 36, (C):
The Memorandum states: “Further, it is unclear whether prohibiting personal use airports would reduce the risk of accidents. Under a prohibition, flights still might occur but between public airports or personal airports located in nearby counties. Under this scenario, flight routes could be longer or shorter; if longer, incurring a greater number of flying hours, the risk of accident potentially could increase”.
The argument as compelling as it looks at first glance fails to consider certain facts which lead to the opposite conclusion.
1) Public airport facilities provide a much more sophisticated support infrastructure compared to private ones.
2) According to statistics provided in the California Land Use Handbook (ALUH):
Chapter 8-25: 37% of helicopter accidents are taking place within 1 mile of a landing site be at an airport, a heliport or other location.
Chapter 8-6 (bar-graph): 55% of all aircraft fatal accidents occur within 2 miles of an airport and 72% within 4 miles of an airport.
While it is not the duty or within the jurisdiction of the County to protect helicopter passengers from injury, it is its duty to minimize accident collateral damage on the ground as long as it is within its jurisdiction as is the case in awarding personal heliport use permits.
It is obvious that if one were to draw the 1 or 4-mile increased danger radius solely around the two public airports at Napa and Angwin that the area covered would be geometrically smaller than if heliports were scattered all over the county, potentially covering its entirety with 1 to 4 mile radius circles.
In addition, public airports have equipment available to respond to an accident in their vicinity which private heliports do not.
In 2018 alone the accident (3 fatalities) in Newport Beach, CA, caused severe damage to a home and in the Grand Canyon, NV (3 fatalities) crash, the helicopter burst into flames.
ALUH Chapter 9-56 states: “Any land uses which can attract birds should be avoided, but those which are artificial attractors are particularly inappropriate because the generally need not be located near airports”. Locating new airports near them is therefore inappropriate as it exposes people and property on the ground to unecessary danger. The ALUH identifies such attractors:
• Golf courses with water hazards
• Landscaping with particular water features
• Wildlife refuges, and most important
Given the fact that such features are abundant throughout the county – in fact identify the county – there is no question that scattering heliports all around the Napa valley, by far increases the risk of collateral damage on the ground, including persons, homes, wineries both throughout the county and its cities. it also increases the likelihood of wildfires following crashes as compared to limiting them to the two public use airports.