exercise of power by the County." Id. at 797.
Plaintiff relies upon Westchester as support for the proposition that curfews are presumptively invalid because they fail to target the loudest aircraft or times of airport operations. This reading of Westchester, however, cannot survive the Second Circuit's determination in Global that municipalities can elect to reduce overall noise levels, as opposed to peak noise levels. The better interpretation of Westchester -- the interpretation with continued vitality -- is that a proprietor's noise based regulations, of whatever type, must be reasonably formulated to ameliorate identified noise related problems. From this vantage, the Westchester holding was certainly correct. Because the county had no evidence either of unacceptable noise levels at its airport -- at night or during the day -- or of substantial benefits flowing from the enforcement of the curfew, the county could not proceed with that curfew.
In contrast to the circumstances confronting the Court in Westchester, the EIS in this matter provides ample empirical support for the City's decision to impose a curfew upon both weekday and weekend Heliport operations. By monitoring noise levels from several nearby receptor sites, it was determined that decibel levels from the Heliport exceeded desired levels, as referenced from various regulatory standards, in a densely populated neighboring community. Specifically, the data reveals "significant noise impacts" associated with the Heliport during both "peak" and "average" hours of operation. (Model Aff. Ex. G at S-7, III.E). Even when examined on a "single-event basis" (e.g., an individual helicopter arrival, or departure), intrusive noise levels are apparent in connection with Heliport operations. (Id. at III.E-21, 23). In view of the considerable noise associated with the Heliport, the Court considers it reasonable for the City to enforce a curfew tailored to preserving relative tranquility during that portion of the day typically reserved for relaxation and for sleep. (Id. at III.E-3 (describing accepted regulatory guidelines penalizing noise during usual sleep hours)); see also Concorde II, 564 F.2d at 1006 (endorsing noise analysis which "penalized flights scheduled during normal sleeping hours").
National insists that the EIS should be disregarded as support for the curfew because it proceeds upon the mistaken premise that all Heliport operations have historically occurred between 7 a.m. and 7 p.m.
The Court is not persuaded, however, by National's argument that the EIS therefore provides no basis for concluding that unrestricted nighttime operations at the facility would generate significant noise levels. As an initial matter, the City could not be expected to gather data reflecting unrestricted operations occurring between 11 p.m. and 7 a.m.; by agreement between the parties, there have been no operations, aside from emergency flights, during that period since 1989. (McGann Aff. P 25). In any event, there can be no real doubt that unrestricted nighttime and morning operations would create disturbances in the vicinity of the Heliport. After all, a "single-event" is all that is required to give rise to intrusive noise levels. (Model Aff. Ex. G at E-21, E-23). Moreover, plaintiff's president insists that nighttime and early morning flights, even with the present 11 p.m. to 7 a.m. restriction, are not isolated events; National claims to have extensive operations after 7 p.m. and before 8 a.m. (Third McGann Aff. PP's 4,5).
In sum, the Court believes that it is reasonable for the City to interpolate from existing data, and on the basis of National's own representations, that unrestricted operations during the period designated for the proposed curfew, would impose at least some significant burden upon the community neighboring the Heliport. Moreover, a nighttime and morning hour curfew represents a sensible compromise between National's interests in maintaining a viable business, and the interests of area residents in being free from noise and related annoyances. Therefore, in light of the generally high noise levels associated with the Heliport, and recognizing that it is the City's prerogative to regulate noise without necessarily targeting only the loudest hours of operation, this Court views the City's curfew as a "reasonable, nonarbitrary, and non-discriminatory" exercise of its proprietary rights in connection with operations at the Heliport. See Concorde I 558 F.2d at 84.
ii) Mandatory 47% Reduction In Operations
In support of its decision to reduce existing Heliport operations by 47%, the City again relies principally upon its EIS. As already noted, that document confirms that there are noise problems associated with the Heliport; the facility generates "significant" noise levels during both peak and average hours of operation, and single-events give rise to "intrusive" noise levels, as well. (Model Aff. Ex. G at S-7, III.E-21, 23). The EIS further indicates that a 47% reduction in operations would result in reduced noise levels at the facility, and that other City heliports could absorb any traffic diverted from the Heliport without visiting any significant noise or environmental problems upon neighboring communities. (Id. at S-7, E-23, E-27). The City, however, offers no satisfactory explanation for the scope of its proposed reduction.
The City argues that the near halving of operations at the Heliport is justified as a means of reducing Heliport noise levels by redistributing helicopter traffic to other City controlled facilities in the New York metropolitan area. In support of its position, the City relies upon the decision in Western Air Lines, 658 F. Supp. 952. In that action, the Court upheld the Port Authority's decision to revise, from 2000 miles to 1500 miles, an existing "perimeter rule" prohibiting airlines from operating long distance nonstop routes out of LaGuardia airport. Id. at 953. The Port Authority "grandfathered" existing services, permitting continued operations outside of the 1500 mile radius by those airlines already providing such services at the time of the enactment. Id. The plaintiff in Western was new to the facility, having obtained a slot for operations at LaGuardia only after the new rule became effective, and was simply denied the opportunity to commence services to a location outside of the designated 1500 mile area. Id. at 953-54. The Court allowed the Port Authority to enforce its modified perimeter rule, with the anticipated effect of redistributing area flights to other facilities, specifically on the basis of "careful study" and considerable evidence that ground congestion was likely to impede operations at the airport. Id. at 960.
The 47% reduction in operations at the Heliport is more severe than the perimeter rule upheld by the Court in Western, and it is not supported by the sort of "careful study" undertaken by the Port Authority in that action. In contrast to the plaintiff in Western, who had obtained slots to operate at LaGuardia only after the institution of the new restrictions, National and other users have been providing services at the Heliport for over twenty years. The Resolution would not merely deny National the opportunity to provide additional services, or even freeze existing levels of service, but would slash current operations at the Heliport nearly in half.
As for the empirical support for the measure, there is no evidence in the record that the 47% reduction set out in the Resolution is in any way calibrated to achieve any particular noise based result. Indeed, the EIS does not evaluate the relative noise levels that could be expected to result from a lesser percentage reduction in operations. With respect to the 47% reduction that the City has settled upon, the EIS reports simply that the provision will result in "peak day conditions producing noise levels smaller in magnitude and with significant impacts for less hours." (Model Aff. Ex. G at III.E-23). In other words, the report verifies -- predictably enough -- that less Heliport activity will mean less Heliport noise. What the report does not do is evaluate the specific impact that a blanket 47% reduction in operations can be expected to have on noise levels during those hours of operation still permitted under the terms of the Resolution as it now exists. Indeed, the EIS operates on the presumption that the 47% reduction in operations will be achieved by the elimination of weekday sightseeing services -- a proposed limitation not ultimately incorporated into the Resolution. Thus, the EIS assesses the likely consequences of a 47% reduction in services, but does not assess the consequences of the particular 47% reduction now mandated by the Resolution.
With respect to the ability of other area heliports to absorb diverted traffic, the EIS analysis is cursory. Without explanation, the EIS assumes that other City heliports would employ the AStar helicopter to service additional tourist customers, a model "considerably quieter than the S-58T which is currently used for approximately half of the sightseeing operations at the East 34th Street Heliport." (Model Aff. Ex. G at III.E-26). It is perhaps not surprising, given this most convenient premise, that the EIS concludes that noise levels at the City's other heliports will remain at acceptable levels. It also concerns the Court that the EIS does not account for the fact, as represented by the City in its RFP, that the future of one of the two heliports designated by the EIS to absorb diverted traffic is "in doubt." (Model Aff. Ex. Q at 3-4). In short, the City does not demonstrate that those operations effected by the 47% reduction in services can be accommodated by other area facilities; they may well be lost completely. This result would "inhibit the accomplishment of legitimate national goals," -- namely, the encouragement of air commerce and the provision of efficient transportation. See Concorde II, 564 F.2d at 1011.
The gaps in the City's noise based explanation for the 47% reduction in services highlights the extent to which that particular reduction was not actually devised on the basis of any noise based considerations. Instead, the proposed 47% reduction in services was settled upon based simply upon a calculation of the impact that eliminating all weekday sightseeing flights could be expected to have upon total operations at the facility. (Model Aff. Ex. K, G at II.B-7). The City provides no documented explanation for this initial determination, since abandoned, to eliminate weekday tourist services. Thus, to the extent the City now insists that the reduction in operations mandated under the Resolution will garner a significant improvement in noise levels at the facility, it is relying upon a post hoc justification for a decision which was conceived on a basis seemingly unrelated to any appropriate proprietary considerations. Thus, even if the proposed reduction in operations resulted in a reduction in noise levels at the Heliport, the Court remains concerned that this measure grew out of considerations unrelated to noise, and perhaps more "parochial" in nature. See Concorde II, 564 F.2d at 1011.
In sum, the proposed 47% reduction in Heliport operations raises a difficult question. On the one hand, the evidence demonstrates that there is too much noise at the Heliport, and the EIS confirms that a reduction in services will result in a reduction in noise levels. Of more importance to the Court, however, the near halving of operations at the facility is an especially severe restriction, originally settled upon for seemingly arbitrary reasons, and now defended on an incomplete and imperfect record. For these reasons, the measure cannot be deemed "reasonable, nonarbitrary and non-discriminatory," and the Court cannot permit the City to proceed with its proposed 47% reduction in Heliport operations. See Concorde I, 558 F.2d at 84.
iii) elimination of weekend operations
The City's plan to eliminate weekend operations at the Heliport was not founded upon any scientific analysis of the likely impact of the measure. In fact, the final EIS contemplated the virtual opposite of this approach; it operated upon the presumption that weekday sightseeing operations -- not all weekend operations -- would be eliminated. (Model Aff. Ex. G at S-I). Not surprisingly, then, the final EIS devotes no particular attention to the extent or noise impact of weekend operations, and therefore provides no basis for evaluating the likely impact -- cumulative or otherwise -- of the elimination of weekend services. Moreover, neither the EDC nor the CPC proposed or considered the elimination of weekend services. It was not until the City Council's final review of the Application, the EIS, and the community comments that it reversed course and settled upon the complete elimination of weekend services as a condition to the grant of the special permit. In light of Concorde's concern with the "appearance of whim or caprice," this Court cannot permit the City to eliminate all weekend operations at the Heliport on the basis of a last minute, and seemingly subjective, determination. See Concorde II, 564 F.2d at 1005.
b) Prohibition on Certain Helicopters
The Second Circuit's decisions in the Concorde cases are especially informative for purposes of assessing the City's determination to eliminate sightseeing operations by Sikorsky S-58T, and other craft of similar size. The Concorde decisions, after all, were addressed specifically to the adequacy of the New York Port Authority's treatment of a particular aircraft -- i.e., Britain's Concorde supersonic aircraft. By its repeated delays in granting airport access, and ultimate inaction, the Port Authority effectively excluded the Concorde from New York area airports. As finally determined by the Second Circuit in Concorde II, these delays were unwarranted in light of the fact that the Concorde satisfied the same noise criteria as applied to other craft permitted to operate in the region. See Concorde II, 564 F.2d at 1012. Because objective noise criteria provided no satisfactory basis for excluding the Concorde, the Court acted to guard against the possibility that other, impermissible, considerations animated the Port Authority's inaction. The Court lifted the ban on Concorde flights. Id.
It is fundamental to the Concorde decisions, and to basic common sense, that a purported noise regulation cannot bar aircraft "on a basis other than noise." See County of San Francisco, 942 F.2d at 1398 (analyzing the Second Circuit's Concorde decisions). Such a plain failure of a regulation to be "fitted" to its ostensible, and permissible, purpose would necessarily run afoul of the requirement that a proprietor's regulations be reasonable and non-discriminatory. It is for this reason that the Court cannot accept the City's decision to eliminate operations by "Sikorsky S-58T helicopters or helicopters of similar or larger size which are devoted to sightseeing operations."
As is apparent on the face of Resolution 1558, the City has targeted the Sikorsky S-58T -- and, potentially, other large craft -- for its size and for the nature of the operations to which it is put. While the evidence indicates that the Sikorsky is a loud craft, it appears that it is not substantially -- if at all -- louder in its operations than the Agusta A109. (Second Johnson Aff. P 13; Ex. A to Plaintiff's Reply To Defendants' Affidavit Containing Citations To The Record at Tab 36). Moreover, the Resolution language barring craft of "similar size" -- as opposed, for instance, to "craft operating at similar decibel levels" -- belies the extent to which the restriction is actually founded upon "a basis other than noise." See County of San Francisco, 942 F.2d at 1398. If a craft is large enough, the Resolution excludes it from the Heliport no matter how quiet its operations. This represents the antithesis of a "nondiscriminatory noise regulation that all aircraft are afforded an equal opportunity to meet." Concorde II, 564 F.2d at 1005.
Though an airport proprietor enjoys flexibility in crafting its noise regulations, those regulations must reflect noise based considerations, and they must do so in an "even-handed" manner. See Concorde II, 564 F.2d at 1012. To the extent that a restriction is meant to limit the operations of particularly loud craft, then, it is likely more advisable for a proprietor municipality simply to exclude craft unable to meet a particular, reasonable, noise criteria -- perhaps based on decibel levels -- than to select a particular craft for exclusion. See, e.g., Arrow Air Inc. v. Port Authority, 602 F. Supp. 314, 316 (S.D.N.Y. 1985) (upholding prohibition on DC-8 aircraft equipment at New York's John F. Kennedy Airport; the prohibition was based upon federal regulatory standards grouping craft "by noise characteristics"). The relative wisdom of such an approach is fully evident on the facts of this case. Though the EIS demonstrates that the Sikorsky S-58T is a noisy craft, the empirical support for a restriction applying solely to its operations is underwhelming; the S-58T appears no louder -- on most criteria -- than the A109. Thus, with only mixed factual support, the City is left with a restriction which targets a particular make and model of a particular manufacturer's craft, and only when it is put to a particular use. This approach is not "even-handed," and it smacks of "whim and caprice." 564 F.2d at 1005, 1011. Accordingly, it cannot be upheld.
c) Restrictions on Sightseeing Routes
The City's regulation of routes -- specifically, the prohibition against tourist flights using the Second Avenue corridor, and the restriction of north-south sightseeing flights to the East and Hudson rivers -- must be rejected. The Court in Concorde I recognized that safety and efficiency dictate that "exclusive control of airspace management be concentrated at the national level." Concorde I, 558 F.2d at 83; see also Northwest Airlines Inc. v. Minnesota, 322 U.S. 292, 303, 88 L. Ed. 1283, 64 S. Ct. 950 (1944) (explaining the imperative for a uniform federal aviation system insuring that "planes . . . not wander about the sky like vagrant clouds."). Otherwise, the possibility of "multiple, inconsistent rules," would create the prospect that "the rule applied [would] come literally to depend on which way the wind was blowing." 558 F.2d at 83. The Second Circuit avoided the risks inherent in such confusion by holding that airport proprietors are "vested only with the power to promulgate reasonable, nonarbitrary and non-discriminatory regulations . . . for the airport and its immediate environs." Id. at 84 (emphasis added). Concorde II reiterated this important proposition: Congress must have "exclusive" responsibility for regulating "planes in flight"; airport proprietors play no part in this arena, but may exercise only a limited role in protecting the "local population from airport noise." Concorde II, 564 F.2d at 1010. In other words, a proprietor's right to regulate activities at an airport is just that, a right to regulate activities at the airport; it is not a right to regulate in the air.
Simply put, the City has no proper role, as the Heliport proprietor or otherwise, in designating the routes to be flown by aircraft engaged in particular operations.
d) Markings Requirement