News

Taking county to court over aircraft noise

Small claims court finds county responsible for airport noise

Airplane noise makes Adam Ullman a little bit crazy.

Not the noise of all airplanes, but the noise of a particular plane, the Pilatus PC-12 turboprop, which is the plane that commuter airline Surf Air flies in and out of the San Carlos Airport up to 45 times a day, quite often directly over the North Fair Oaks home where Mr. Ullman, his wife and two young children live.

In April, Mr. Ullman, a non-practicing attorney, did something about it. He filed a lawsuit in small claims court, claiming the county owned him $5,000 because it had failed "to mitigate the continuous public nuisance of very loud aircraft flying over my home."

In June, Judge Pro Tem Dale Major awarded Mr. Ullman $1,000 plus his $65 court filing fee. He'd won.

"I haven't been that happy since passing the bar," says Mr. Ullman, who went to law school but is not licensed to practice in California. "It felt good to be vindicated. I'm in the right here. I've known that from day one."

Although $1,000 is probably not even a rounding error in the county's legal budget, the county is taking the lawsuit quite seriously. Although neither side can be represented by an attorney in small claims court, Mr. Ullman says the county sent a number of heavy hitters to the May hearing, including Public Works Director Jim Porter and Airport Manager Gretchen Kelly.

On June 29, the county appealed the small claims judgement. The matter is now scheduled to be heard on Aug. 26 at 9 a.m. in San Mateo County Superior Court. Mr. Ullman says he will serve as his own attorney for the appeal.

In the meantime, at least three other people have taken the first step toward small claims court lawsuits. They've filed claims against the county with the same allegations: the county failed to mitigate a continuing nuisance. They are asking for damages ranging from $5,000 to $10,000.

County's response

Soon after the small claims court decision was announced in the Ullman case, Supervisor Don Horsley said in an interview that the county will appeal it and "so will the FAA." "We're not going to let that stand," he said.

If residents could win lawsuits claiming local governments have a responsibility to stop nuisance noise from airports, "you'd have people constantly suing you," Mr. Horsley said. "They'd end up shutting (all airports) down."

Local government, he said, does not have authority over airport noise. "The only thing we can control is the land."

Mr. Horsley, who has worked closely with Mr. Ullman on the issues of noise from Surf Air and the San Carlos Airport, said he does not fault him. "He's got to prod us," he said. "I keep telling him: don't worry, we're prodded."

The county has other legal liabilities to worry about with the airport, including the possibility that Surf Air, which has received at least $18.8 million in venture capital funding, will sue the county if airport changes affect the airline's business.

He said the county, which is in the midst of a study of the San Carlos Airport, is working on the airport noise issue in a "methodical and thoughtful and appropriate way" so the county doesn't end up risking major lawsuits.

"We have to be responsible to all the taxpayers," Mr. Horsley said. "We can't jeopardize them."

"I have no desire to harm the company," he said, referring to Surf Air, "but I want to be able to control" it as much as possible on the ground, he said.

Mr. Ullman said he believes the county could also be worried about lawsuits from pilots and businesses over changes in airport operations.

San Mateo County Deputy County Counsel Brian Wong will probably represent the county in the appeal against Mr. Ullman's nuisance claim. "We don't think it's the right outcome," he said, adding that the county believes working with the Federal Aviation Authority is the "best way to resolve these ongoing issues."

"It's not as simple as saying I have noise at my house and therefore there's a nuisance claim," Mr. Wong said. There must be proof, he said, that the noise is "substantially interfering with your use of your property."

"Obviously airports are allowed to exist and they're allowed to have planes flying to them," he said.

"We don't think there's a nuisance here as defined by California law."

Hoping it will spread

Whatever happens with the appeal, Mr. Ullman hopes others will follow his lead. He is part of a citizen's group called CalmTheSkies, which recently posted on its website information that others can use to file their own nuisance suits against the county.

CalmTheSkies.org now contains step-by-step instructions on how to file a small claims lawsuit against the county, complete with downloadable forms.

"County officials, despite almost 1,000 signatures on our petition and thousands of noise complaints, have done nothing to abate the noise from the flights operating at the San Carlos Airport," the website says.

"Unless the County is pushed financially, they will continue to ignore our requests. For this reason, just like they successfully did in the early 80's at SFO, we have started to initiate small claims actions against the County," the website says.

--

"Public nuisance" defined

In his small claims court filing, Adam Ullman says San Mateo County is violating state law by not doing more to control noisy plane flights, which the suit says are a public nuisance.

That law defines a "nuisance" in this way:

"Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (California Civil Code, Section 3479.)

A public nuisance is defined as "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (California Civil Code, Section 3480.)

--

Related stories:

• Airport noise: Mass filings of of small claims lawsuits have won concessions in the past.

• Surf Air planes still overhead despite OK to fly Bay route.

• Atherton meeting set on San Carlos Airport noise issues.

Comments

9 people like this
Posted by Amy
a resident of Menlo Park: Fair Oaks
on Aug 9, 2016 at 4:44 pm

Before commenting, I'd suggest you also read the additional article in today's Almanac. These two articles inform one another in valuable ways.
"Surf Air planes still overhead, despite OK to fly Bay route"


2 people like this
Posted by Menlo Voter.
a resident of Menlo Park: other
on Aug 9, 2016 at 6:03 pm

Menlo Voter. is a registered user.

This is an incorrect decision by the judge. The county has no say over air traffic patterns. Only the FAA controls flight paths. I'm betting this will eventually be overturned.


17 people like this
Posted by Adam Ullman
a resident of Menlo Park: Fair Oaks
on Aug 9, 2016 at 8:54 pm

Menlo Voter, it seems that you believe the judge was incorrect because you don't like his decision. How about a fact and one piece of case law.
1) The FAA Policy Manual 5190.6B states "Airport sponsors are primarily responsible for planning and implementing action designed to reduce the effect of noise on residents of the surrounding area. Such actions include...restrictions on airport use that do not unjustly discriminate against any user, impede the federal interest in safety and management of the air navigation system, or unreasonably interfere with interstate or foreign commerce."
2) The California Supreme Court in Baker v. Burbank held "Airport proprietors have a duty under state law to reduce airport noise."

I will give you that the FAA does control flight patterns. The County, however, has control over how it's airport is used as long as it's not discriminatory per the statement above.

-Adam


Like this comment
Posted by Menlo Voter.
a resident of Menlo Park: other
on Aug 10, 2016 at 7:29 am

Menlo Voter. is a registered user.

Adam:

They've already taken steps to mitigate. That's why this decision is incorrect. It will be overturned on appeal.


17 people like this
Posted by Adam Ullman
a resident of Menlo Park: Fair Oaks
on Aug 10, 2016 at 9:55 am

Menlo Voter:
1) It's voluntary. Nothing compels anyone to fly this route.
2) It's a test. In six months the FAA can remove this as an option.
3) It only helps during perfect weather conditions and even then they are not always flying it.
4) Nothing prevents a competitor from coming in and starting us back at square one.
5) The peace and quiet of a community should not be sacrificed for a business.

State law is state law and the County has failed to mitigate noise by leaving a voluntary noise abatement procedure in place. I have full confidence that the decision will be upheld, but we will have to wait and see.

Adam


17 people like this
Posted by Tired of Cronyism
a resident of another community
on Aug 10, 2016 at 4:48 pm

Adam Ullman:

You are to be commended. Hoping millions affected follow your lead. Money is all this industry appears to care about and elected officials are overall looking out for industry profits and their political careers and not the common good. Congress has enabled the aviation industry to utterly trample our most basic human rights, and the FAA is their battering ram. Wishing you success in your fight!


Like this comment
Posted by Menlo Voter.
a resident of Menlo Park: other
on Aug 10, 2016 at 6:54 pm

Menlo Voter. is a registered user.

Adam:

guess what? Bottom line, you bought a home in the approach path of a known airport. Things change. It's like you moved in next to a pig farm, knowing it was there, and now want to complain about the smell. Sorry. Airports are all over the Bay Area. This will be overturned on appeal.


16 people like this
Posted by Joe Grass
a resident of Menlo Park: Felton Gables
on Aug 10, 2016 at 8:51 pm

Menlo Voter:

I bought my house 20 years ago near a small farm. One barn. 10 pigs. Very little smell.

Suddenly, a big company has set up a large industrialized pig farm with thousands of pigs, and large cesspools of waste, creating large amounts of methane gas wafting over multiple neighborhoods, making people sick.

What to do?

Fortunately, we own the land the farm is on. It's county land. And the law says the county must protect our health.

Joe


19 people like this
Posted by Adam Ullman
a resident of Menlo Park: Fair Oaks
on Aug 10, 2016 at 9:13 pm

Menlo Voter,

I understand you are in shock and that it is alarming for you to realize that FAA is not all powerful. The misconception that nothing can be done is why the County has not acted yet.

Here's another fact for you:
California Title 21 Section 5002 (Division of Aeronautics) states "This subchapter shall be liberally construed and applied to promote its underlying purposes which are to protect the public from noise and to resolve incompatibilities between airports and their surrounding neighbors."

Again, my goal is not to shut down the airport, but a 300% increase in air traffic over our neighborhood (since 2012) is not acceptable.

Cheers,
Adam


9 people like this
Posted by Caroline V.
a resident of Portola Valley: Central Portola Valley
on Aug 11, 2016 at 1:22 pm

Thank you for this excellent reporting.
I hope Supervisor Horsley and all district officials read our comments. I find Supervisor Horsley's statement: "the county will appeal it and "so will the FAA." "We're not going to let that stand," unacceptable.

I am among PV residents who have been fighting the “airplane noise pollution” since 2009. First under the leadership of former PV Mayor Steven Tobin, later in 2014 under the leadership of Dr. Tina Nuygen, Jim Lyons Vic Schachter, the Californians for Quiet Skies,formally known as Ad Hoc Committee for Noise Abatement in the South Bay.
We will continue to support constituents of all Bay Area neighborhoods; therefore I applaud Mr. Ullman for his efforts through the courts, just like the Ad Hoc Committee did.

We went to the "round table meetings" for years. Supervisor Pine was part of the round table meeting efforts at the time. These meetings are time consuming and literally wasteful tax payers money, because nothing gets done. The FAA blamed the airport, the airport blamed the FAA, and the airline industry replied they complied with FAA and Airport regulations. We wrote and requested the help of our representatives on multiple occasions without any results. Congresswoman Eshoo achieved a written agreement in 2008 confirming that airplanes would fly at a minimum altitude of 8000 feet, but the FAA, the airport, and the airline industry ignore that agreement. On numerous occasions they have tried to convince us there is no safety hazard, no noise nuisance, and no health risks; all using manipulated data. Nothing corresponds with what we, constituents, experience and witness Despite the documented and detailed evidence, our allegations are dismissed.
Now 8 years later ....still nothing is being done…

Supervisor Horsley states on his website:
" There are obvious challenges facing San Mateo County, but we must not lose sight of the fact that we live in a remarkable area with tremendous resources. The negatives do not outweigh the positives in this county. Certainly our budget dilemmas must be addressed, local social safety nets must be protected and a clear-eyed view of the path forward must be followed. I know that our communities are diverse, vibrant and have enthusiasm for the future. It is my sincere goal to bring an equally enthusiastic approach to my role in county government"

Yes indeed we live in a remarkable area with tremendous resources, but our communities and our lives are being destroyed by the airline industry, the airport, and the FAA. There is a 2008 agreement - It is time that all 4 parties (the airline industry, the airport, the FAA, and our elected officials) fulfill their responsibilities and their promises. It is time the parties respects our noise ordinances, public health regulation, and safe flying altitudes. Our airline industry is one of the biggest air polluters. It is time that they are not allowed to offset their carbon dioxide emissions. It is time that our officials ensure the safety and well being of their constituents and preserve the beauty and natural resources of San Mateo County, instead of using our tax payers money to fund the public entities that destroy this remarkable area.



9 people like this
Posted by Tired of Cronyism
a resident of another community
on Aug 11, 2016 at 3:52 pm

Menlo Voter's pig farm analogy for what's happening in our skies across the entire country fails by nature and degree. A pig farm, like a road or factory etc, is a fixed location though the more offensive it becomes the greater impact it will have on its neighboring communities, and with pollution's potential to transmit through land, air, and water the impact could be significant to citizens nowhere near it. However, there would be ample opportunities for its unwilling victims to escape the impact, particularly in a country as large as ours. Whereas the why-don't-you-move refrain has no relevance with aircraft pollution post NextGen. Entire communities in effect are living on an airport. Such is the utter upending by NextGen procedures of former noise abatement standards.

The Congress legislated FAA NextGen program unleashed in 2012 and slated for implementation through 2025 is an entirely different situation. Move where? There is no escaping the sky. And anyone who thinks they are uniquely burdened by the now 24/7 low altitude barrage of aircraft is not doing their homework (and if it hasn't hit yet, don't worry, aviation's goal of unfettered capacity expansion will ensure it will sooner or later). It is not only nationwide BTW, it is a global phenomenon because the aviation industry is global and elected officials in our country and throughout the world are overall doing its bidding. Surf Air is but one example of aviation flexing its power over communities. Commercial, general aviation, cargo, air-tourism, air-recreation, flight schools, you name it are getting pumped with public funds, HEAVILY HEAVILY subsidized (not taking into account the monetary value of public officials acting like employees and in-house counsel for this industry). And we wonder why public transportation is underfunded, allowed to rot? For this industry's expansion goals and ever increasing profits our skies have been turned into a noise, air, and visual pollution dumpsite. (Drones are the next blight in our skies...)

To get a picture of what Congress has been up to for this industry, these concise articles might help:

Regulatory: FAA Reauthorization Act exempts next-gen airspace redesign projects from environmental review
Claims the exemptions are to streamline and reduce waste
By Barbara Lichman March 21, 2012
Web Link


Regulatory: When it comes to airport noise regulation, "Big Brother" is watching you
Local airport operators have few options when regulating noise
By Barbara Lichman April 4, 2012
Web Link


6 people like this
Posted by Michael G. Stogner
a resident of another community
on Aug 11, 2016 at 4:13 pm

Michael G. Stogner is a registered user.

What Supervisor Don Horsley fails to address is the Quality of Life Issues for those who have lived here for awhile.

The Quality of Life has changed for the worse.


2 people like this
Posted by Tired of Cronyism
a resident of another community
on Aug 11, 2016 at 4:36 pm

Atherton 'town hall' meeting set on San Carlos Airport noise issues
Original post made on Aug 10, 2016
Web Link

Read the full story posted Tuesday, August 9, 2016:
Tuesday: County holds Atherton meeting on San Carlos Airport noise issues
Web Link

"Supervisor Don Horsley will host the meeting..." People attending should keep in mind Horsley’s tone and position as demonstrated in this article.


Like this comment
Posted by Matt
a resident of Woodside: Mountain Home Road
on Aug 11, 2016 at 8:23 pm

Those readers criticizing Commissioner Horsley should check their facts. He has been very sympathetic to the anti-airplane crowd -- overly sympathetic in my view. Earlier this year he actually voted to approve a "study" of air traffic in our area, spending our tax dollars in the process.

Now, he is faced with the consequences of his grandstanding -- a flood of lawsuits from entitled residents with nothing better to do except complain about living in paradise.

Sadly, the folks here are so hysterical and overemotional that they can't even recall who is on their side!


4 people like this
Posted by Realist
a resident of another community
on Aug 12, 2016 at 8:53 am

Matt,
A study? I would agree that is a waste of money, but not because Horsley is being "sympathetic to the anti-airplane crowd". We don't need studies. The affects of airplane noise are well known. What we need is meaningful controls on that noise. These studies are simply delay tactics meant to wear down those who are fighting against the aviation industry to stop them from unilaterally degrading the health of our communities and the environment.


Like this comment
Posted by Matt
a resident of Woodside: Mountain Home Road
on Aug 12, 2016 at 8:12 pm

Realist:

You're missing the point. Read Mr. Horsley's public record regarding air travel and you'll find you have a big ally there. I gave you one of many examples.

Speaking of "Realists", I think the entire debate here is simply illogical and unrealistic. We live in one of the most special, successful areas on America. Many people want to live and work here. We are not going to magically "stop" planes and trains and economic growth. That's the reality.

So instead of complaining about who's on your side, and who is conspiring to "get" us, why not take a proactive, constructive position on how to work with the FAA, politicians, and businesses to come up with better flight plans?

Oh wait, Surf Air already did that.


8 people like this
Posted by Member
a resident of another community
on Aug 12, 2016 at 9:45 pm

So, Menlo Voter, is it your belief that Capitola, Soquel, Santa Cruz, Scott Valley, Los Gatos, Los Altos and other residence under the SFO SERFR RNAV arrival who never, ever, ever, experienced noise impingement prior to March 4, 2015 have no right to claim about noise issues after that date? Under the BSR arrival track, 1 complaint. SERFR complains approach 400,000. I'm one of those complaining and I'm a retired airline pilot who purchased a home 50 miles from SFO and now experience aircraft sometimes as low as 8,000', at 250 knots with cruise thrust. That my fine feathered friend is an FAA, airport issue. The only reason we have not brought legal action is because the FAA is still talking with us about a resolution. But if it continues, SFO, the FAA and airlines will have to answer why aircraft are flying as they are. Those aircraft are also flying outside SFO Class B protected airspace mixing with small civil aircraft. That my fine feathered friend is a safety of flight issue.

YOU ARE Wrong. PEOPLE do have a right to seek relief from unplanned noise impingement. SURF AIR is a new operation begun after 99% of Bay Area people bought they homes, The Pilatus is by design loud, disturbs us on its MRY, SQL track. We ask nicely they move their arrival track. They did.


Like this comment
Posted by Menlo Voter.
a resident of Menlo Park: other
on Aug 13, 2016 at 7:55 am

Menlo Voter. is a registered user.

"We ask nicely they move their arrival track. They did."

And people still complain. Telling me it really wasn't about the noise to begin with.


Like this comment
Posted by Adam Ullman
a resident of Menlo Park: Fair Oaks
on Aug 16, 2016 at 4:31 pm

Menlo Voter,

Did you ever consider the concept that it hasn't fixed the issue? Read the related article "Surf Air planes still overhead despite OK to fly Bay route" and you will learn more. This is ONLY about the noise.

Adam


Like this comment
Posted by Menlo Voter.
a resident of Menlo Park: other
on Aug 16, 2016 at 5:30 pm

Menlo Voter. is a registered user.

"Surf Air planes still overhead despite OK to fly Bay route""

Because sometimes they have to.


2 people like this
Posted by Kerry
a resident of another community
on Aug 23, 2016 at 6:44 am

Last night on my evening stroll in Palo Altoi noticed a SUPER loud plane. It was a Surf Air P C 12 turbo prop, louder than some of the large jetliners on their route into SFO. Our usual and customary enjoyment of life has been upended by Surf Air, and the airline industry as a whole. They put profits above all else. Adam, good luck with your case. Maybe you can get a job as citizen attorney to help us citizens take back our (2 years ago) quality and enjoyment of life.


Sorry, but further commenting on this topic has been closed.

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