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Mon, May 25, 2015

ANN Special Report: Colorado NIMBYs Defeated... For Now

Vicious Campaign Against Skydiving Operation By Small, But Vocal, Group Loses Court Case

News/Analysis by ANN CEO/Editor-In-Chief, Jim Campbell

Those of us who work and play in the aviation world have seen it all before... a small GA airport falls victim to complaints as more and more homes are built/sold/occupied around it and a number of the homeowners (and not necessarily all that many, percentage-wise) decide that their own sensibilities take precedence over those they would seek to displace, silence, even destroy... despite the fact that the airport was (in most cases) there long before they arrived.

These are the same people who ignore the noise made by their lawnmowers, motorcycles, music systems, and other audible properties but become positively unglued when an airplane drones by for a few seconds while in the process of taking off or landing... with durations far less lengthy than other audible attractions.

That being said, an amazing court action came to a close this past week as a Colorado Judge ruled against every claim made by a surprisingly small but intrusive anti-noise/anti-airport/anti-skydiving group ram-rodded by a few folks who claim to have been disturbed by the "excessive" noise created by a Skydiving center that has been in place for decades at Colorado's Vance Brand Municipal Airport.

Mile-Hi Skydiving has been fighting the NIMBYs and their noise campaign for a while... according to a story in Longmont's Times Call newspaper, "Complaint data collected between Jan. 1, 2014, and Dec. 13, 2014, found that 1,646 airport noise complaints about operations at Vance Brand were made by 110 people, and that 52 percent of complaints were made by one person."

Relying on a lot of what appeared to be 'over-the-top' rhetoric and claims of extensive 'suffering' from Airport noise resulting from the "as much as 12 hours a day" Skydiving operations; Longmont Colorado's "Citizens For Quiet Skies" (headed by Plaintiff Kimberly Gibbs--a person with a history of anti-airport activism) sued Mile-Hi Skydiving center in order to force them to curtail their operations and diminish the audible impact of their operations... despite the fact that a number of parties to the action lived on nearby properties that included their signing a, "Disclosure Statement acknowledging and agreeing that, due to the proximity of their property to the Airport, there would be aircraft passing over the property. (They) also acknowledged that the frequency of aircraft passing over the property may increase in the future."

The legal skirmishing apparently got ugly on more than a few occasions with the anti-airport parties making a number of claims that have yet to be verified or have since/otherwise been proven false... and an actual site visit by the Presiding Judge to a number of the CQS member homes during actual aircraft operations (where the high-noise levels failed to be substantiated), produced even more invective and spurious allegations of the aircraft making changes to reduce their noise foot print, despite radar tracks that seemed to suggest that the aircraft were following fairly regular paths that they had taken in the past (wind and weather permitting) to conduct dropzone operations. Following the Judge's visit and the obvious lack of documented and appreciable noise, the CQS supporters went into overdrive suggesting that the Judge was treating the Dropzone with favor, and/or that the Judge was acting in anything but an impartial manner.

CQS also claimed that their home values were adversely impacted... a claim not borne out by the evidence. CQS claimed that the noise levels were excessive, again, a claim not borne out by the evidence... and a number of other assertions that reportedly did not stand Legal scrutiny.

The noise-to-fact ratio increased until District Court Judge, Judith L. LaBuda, denied Plaintiff's claims for nuisance, negligence, and negligence per se, on May 21st. Judge LaBuda's findings contained a lot of detail and certainly seemed to attempt to hear all sides of the issue, but none-the-less concluded, time and time again, that CQS had failed to make their case.

Among the more intriguing excerpts we read in the ruling made by Judge LaBuda, we read the following:

  • "The Court finds the noise produced by Mile-Hi’s operations is not offensive, annoying, or inconvenient to a degree significant enough that a normal person in the community would consider it unreasonable for those individuals who choose to reside in close proximity to an airport. The Plaintiffs are concerned about noise during daytime and early evening hours, which they believe impacts the use of their backyards and leisure activities. Mile-Hi planes do not typically operate after dusk. Though the Individual Plaintiffs may at times find the noise to be irritating or frustrating, the Court finds the gravity of harm to Plaintiffs in this matter is not significant or severe. An individual may also find it irritating or frustrating to listen to the sound of motorcycles and trucks on nearby streets, to hear lawn mowers throughout the day, to hear children’s yells or laughter in a back yard, or hear the loud playing of music from a neighbor’s home. But simply because a certain noise level is irritating or frustrating to a small group of people does not equate to the noise being significant enough that a normal person in the community would find it as offensive, annoying, or inconvenient."
  • "The Court finds the utility of Mile-Hi conducting a legitimate business that complies with FAA noise regulations and provides tax revenue and recreational and other service to the community outweighs the Plaintiffs’ concerns of noise, particularly when Plaintiffs moved into an area known to have an airport in close proximity and the particular noise from Mile-Hi was in the low 30 DNL level for flyovers."
  • "Further, because the federal regulations regarding airplane noise are the standard with which Mile-Hi must comply, and because there is no evidence before the Court that Mile-Hi has violated the federal noise limits, Mile-Hi has not unreasonably and substantially interfered with the Plaintiffs’ use and enjoyment of their homes."
  • "There is also no credible evidence that the Plaintiffs have been damaged by Mile-Hi’s skydiving operations as the evidence was insufficient to demonstrate Mile-Hi’s skydiving operations have caused any diminution in value of the Plaintiffs’ homes. Plaintiffs’ real estate expert, Mr. Myers, claims that Plaintiffs’ home have not appreciated at the same rate as other homes but he concedes he does not know the causation of this and cannot find it is attributable specifically to Mile-Hi operations versus other airport noise or market factors. As such, Mr. Myers’ range of damages is based on speculation. Mr. Kamin, Mile-Hi’s real estate expert, found that there has been no measurable loss in value to any of the Plaintiffs’ homes as a result of Mile-Hi’s skydiving operations. The Court gives greater weight to Mr. Kamin’s testimony."
  • "The Court finds the Individual Plaintiffs have not met their burden of proof to establish that Mile-Hi’s operations rise to a nuisance level and therefore denies the Individual Plaintiffs’ nuisance claim."
  • "The Court recognizes that this case has produced tension among community members. Many citizens of our community observed all or part of the trial and conducted themselves in a dignified and respectful manner. It is the Court’s hope that following a week-long trial, in which both parties were given an opportunity to present their evidence, that the parties, as well as the community members, will accept the ruling of the Court and move forward in a manner that demonstrates courtesy, respect, and consideration for one another."

Mind you, Kimberly Gibbs and CQS aren't going away quietly.

She/CQS is reported to be looking at a possible appeal and is also attempting to use an upcoming City Hearing to seek new noise restrictions against the airport and the Skydiving Center, despite the fact that the recent Judge's ruling allegedly calls such efforts outside the ability of the City to undertake (according to the Judge's ruling, "State and local attempts to implement noise regulations, flight-pattern controls, restrictions on night operations, and air safety regulations are all implied preempted by the Federal Aviation Act. See Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 697 (7th Cir. 2005) (collecting cases)".

The Judge also noted that, "The City is prohibited by federal law from imposing limitations on aircraft operations for the purposes of controlling noise without FAA approval. Therefore the Court finds the Longmont Code § 10.20.100 and 10.20.110 were not intended to protect against the type of injuries Plaintiffs alleged to have suffered. Because the Longmont Code § 10.20.100 and 10.20.110 cannot be applied to regulate aviation noise, the Longmont Code does not apply to Mile-Hi’s skydiving operations. The Court accordingly denies Plaintiffs’ negligence per se claim."

Other proponents of the CQS initiative have publicly advocated additional taxes on the Skydiving operation in order to force it to shut down or curtail operations and a number of other options... including the shutdown of the business, altogether, as even the shutdown of the airport itself. There is an interesting attitude espoused by many in the vociferous anti-airport community... pretty much stating/concluding that aviation is an offensive activity that harms others...

A recent Facebook post castigated our industry by stating that, "... it appears that so many aviation proponents believe they are entitled to fly whenever they want to, in whatever craft they choose, at any time, day or night---and without thought to the disruption to others or to the environment that is caused by their actions.. Without acknowledging the suffering your noisy and polluting hobby causes, you continue in ignorance, not seeking a reasonable solution--- believing (sic) always that your (sic) HAVE THE RIGHT."

Dispassionate observers of this kind of invective note the over-riding, restrictive/dictatorial, tone that the anti-aviation hype espouses... That aviation must admit to causing the suffering of others... that we must make extensive compromises to deal with their demands and that we (by their own rhetoric) comprise an unreasonable industry that never seeks to compromise or allow proper solutions (by their standards). To many observers, the only possible solution that will mollify such anti-aviation sentiments is our complete surrender, to ground all our aircraft, and give up our dreams, jobs and businesses... so that they may declare victory and move on to their next target where they can dictate to their next targets how they wish them to live...

It's an increasingly vicious circle... one that fails to recognize the efforts aviation makes to be a good neighbor, the R&D efforts made by airframers and powerplant manufacturers to lower our noise signatures/impacts, the regs that we all work under each and every day to make sure we are safe and offer negligible impact to those around us... and of course; the big elephant in the room -- the over-riding fact that hundreds of thousands (OK, millions) of people all over the world owe their lives to the contributions airplanes, airports, helicopters and other aviation wonders make to their lives each and every day -- and that to hundreds of thousands of others, aviation represents a joyous, pleasing and enriching undertaking... one fully supported (even mandated) by our Bill of Rights.

In the meantime, Mile-Hi Skydiving has been vilified by the anti-aviation proponents (one of whom reportedly logged 850 solo complaints, in 2014, alone), forced to mount an expensive and demoralizing legal defense against people who would seem to wish them to lose their right to make a living and/or enjoy their sport, and there seems to be little, to no, end in sight. I have no idea what this has really cost them... but I admire their guts in fighting it -- and winning.

Hmmm.... Maybe they need to set up a skydiving center in Santa Monica...

ANN will keep an eye for more news on this story, as well as the upcoming City Hearing that Gibbs and CQS hope will result in noise restrictions that will aid them in doing what the court refused them. And yes, we fear there is far more news to follow...




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