In 1977, the County Board of Legislators, created an Airport Advisory Board. (See s. 277.221, Chapter 227, Laws of Westchester County). The Advisory Board was set up in part to make suggestions on Airport noise problems. In March or April, 1981, the Advisory Board, by a majority of its members, voted to suggest to both the County Executive and the Board of Legislators that a total curfew would not be in the best interests of the County, and that the noise problem should be resolved in ways short of a total mandatory curfew.

On or about August 27, 1981, prior to the enactment of the legislation imposing the curfew, the Committee on Community Health & Hospitalization and the Budget Committee of the County Board of Legislators met with representatives of the FAA who at that time advised the County representatives in attendance that:

FAA/DOT and the Congress have stated that the "curfew" alternative to noise reduction is an option to be considered in Noise Abatement Planning. However, what we need to make clear at this time is that we consider this curfew option as an action of last resort; an action appropriate only when all other noise reduction techniques have been found to be inadequate and after an appropriate public hearing process.

I would like to take this opportunity to suggest that action on a nighttime curfew be tabled to allow time to further develop and implement less severe but potentially equally effective operational controls. At the same time and prior to a curfew decision, I would request that an economic/noise cost-benefit analysis be accomplished to provide you (the County) with the critical economic cost data needed in this important decision.

The Commissioner of Public Works, Mr. Bohlander, was not asked by the County Board of Legislators for his opinion concerning the imposition of a curfew although several members of the County Board of Legislators appear to have asked Mr. Bohlander informally about his opinion concerning the curfew at the Airport. He recommended against a total ban on flight operations, as did the Airport Manager, Scott Piper, of Pan American World Services.

At no time from the conclusion of the 1978 Study until the imposition of the curfew did the County itself conduct or publish, or ask the FAA to conduct, any analysis or study considering the potential impact of the curfew: (1) on local or national flight safety; (2) on the greater New York City metropolitan area airport system; (3) on the national airport system; (4) on diversions of local or itinerant operations at the Airport; (5) on the flow of interstate commerce in the New York City metropolitan area or in the nation; or (6) in terms of economic burdens, on airport users. Furthermore, from the time of the publication of the ANCLUC Study until the present, the County has not asked the FAA to initiate a preferential runway system at the Airport.

From the time of the passage of Resolution 225-A of 1980 by the County Board of Legislators, until the implementation of the curfew legislation on October 1, 1981, the County did not conduct any study of any kind to determine the location of noise-impacted areas, or quantify the level of noise from any source in, around or over such areas. Furthermore, the County did not, at any time prior to the passage of Act 54-1981, analyze the Airport complaint log in any detailed way to establish the noise-impacted areas in and around the Airport, or to determine a quantified noise level in those areas.

F. The Curfew

On or about September 1, 1981, the County Board of Legislators enacted Act 54-1981 amending the Rules and Regulations for the Airport. The legislation provides as follows:

Implement a mandatory curfew. No aircraft shall arrive or depart from Westchester County Airport between the hours of 12:00 midnight and 7:00 a.m. except in case of emergency.

The curfew prohibits the arrival or departure on a non-emergency basis of any aircraft between the hours of 12:00 midnight and 7:00 a.m. It applies to all aircraft regardless of the noise emission level or degree of noise produced. Violation of the curfew is an offense punishable upon conviction by a fine not to exceed $100.00 or by imprisonment not to exceed thirty (30) days, or both.

The County has not enacted any regulations specifying procedures by which an aircraft approaching or departing the Airport between the hours of 12:00 midnight and 7:00 a.m. is to obtain clearance to land or depart in case of an emergency, or from whom emergency clearance is to be obtained. In addition, the County has not enacted regulations or standards to establish what conditions constitute an emergency. Nor has the County defined what constitutes an emergency under the curfew legislation. The decision as to what constitutes an emergency is made by Commissioner Bohlander on a case-by-case basis.

Pursuant to a stipulation and order filed in the instant litigation on January 19, 1982, the County has permitted aircraft operations by Panorama Flight Services, Inc., between the hours of 12:00 midnight and 7:00 a.m. This stipulation was superseded by a preliminary injunction issued by this Court on July 18, 1983. In addition, the County stipulated on May 11, 1983 to waive any enforcement of the curfew between the hours of 6:30 a.m. and 7:00 a.m. during the pendency of these actions.

G. Post-Curfew Noise Data

As noted above, the County Board of Legislators passed Act 54-1981 on September 1, 1981 without conducting any analyses or studies. Although the County Board of Legislators' principal concern in enacting the curfew was noise, they neither commissioned a noise study nor had before them any noise data when they enacted the curfew.

Subsequent to enactment of the curfew, the County retained the consulting firm of Bolt, Beranek & Newman ("BBN") to design a temporary noise monitoring program at the Airport in accordance with a stipulation entered into between the parties to this litigation. The stipulation provided that the parties would cooperate in a 60-day nighttime operation test period allowing arrivals between midnight and 6:30 a.m. of aircraft that did not exceed certain noise limits. The County also directed BBN to design and conduct a survey of community response to the associated changes in nighttime noise exposure comparing the pre-test period and the test period. The study was conducted in 1982. In the course of the BBN study, noise level monitors were positioned at various locations in communities around the Airport to record all noise events which exceeded a preset level. The level was set at 60 to 65 decibels, as low as possible so as to record all aircraft noise events while excluding other noise events. The techniques and methodology employed in the BBN 1982 Study were available and had been utilized prior to August, 1981.

The results of the BBN 1982 Study were published as Report No. 5083 entitled "Evaluation of Noise Exposure and Community Response due to Temporary Reinstitution of Night Landings at Westchester County Airport, Spring, 1982." The BBN 1982 Report concluded that "the overall pattern of findings did not support an inference of substantial community reaction to the operational changes at HPN [Westchester County Airport]." The persons who conducted the Study confirmed in the Report their belief that the sample sizes were sufficient to detect any appreciable changes in annoyance, sleep interference and other effects associated with potential changes in aircraft noise exposure.

The community survey conducted by BBN did not demonstrate any correlation between the resumption of night flight operations during the test period and the annoyance level of residents in communities surrounding the Airport; in two instances annoyance levels went up when night flights were resumed, and in two instances annoyance levels went down. The complaints received during the hours of the nighttime test period were reviewed by BBN. The BBN 1982 Report stated that the results of the review "support the concern that some complainants are confusing operations unrelated to HPN [Westchester County Airport] with aircraft using the airport," and that a majority (61-62%) of the complaints received between midnight and 6:30 a.m. during the test period were from non-Airport operations.

The BBN 1982 Report did not find evidence of a higher sensitivity to noise among residents who live around the Airport or under airways from the Airport; rather, it concluded that "no unusual sensitivity to general environmental noise was apparent in the responses to Questionnaire Item 2 in any of the interviewing areas." The Report's comparison between the test period and the period prior to the test revealed: (1) that in two out of five instances, the nighttime noise level (night Leq) declined during the test period when flights were resumed at night; and (2) that in three out of five instances, the average 24-hour sound level (Ldn) decreased during the test period when flights were resumed at night.

The Ldn measured by BBN both before and during the test period included not only noise from aircraft using the Airport but all noise occurring in the area of the noise monitor above a specified threshold, including all overflights, flights en route to and from other area airports, police sirens, and the like. The community survey conducted by BBN did not demonstrate any correlation between the actual increase in night flight operations during the test period and the number of survey respondents who noticed more aircraft noise during the test period.

During the course of the BBN study, aircraft based at the Airport were allowed to land during curfew hours within defined noise limitations: unlimited if the FAA Advisory Circular 36-3B ("AC 36-3B") approach noise level was 76 dBA or less, and a maximum of two per hour with a weekly average of six per night if the demonstrated or the AC 36-3B approach noise level was between 77 dBA and 87 dBA with a plus or minus 2 dBA meter tolerance for demonstrations. The AOPA analysis of the general aviation fleet shows that over 95% of the general aviation fleet has an approach noise level of 76 dBA or less, and that over 70% of the fleet based at the Airport has an approach noise level of 76 dBA or less. Of the business aircraft participating in the test, each and every operation fell within the defined noise limitations, either by virtue of meeting published advisory circular numbers, or by demonstrated ability to operate at or below those numbers. The business aircraft are part of the general aviation fleet. The AOPA study demonstrates that about 87-90% of the general aviation fleet at the Airport has an approach level of 87-89 dBA. Noise levels of no greater than 55 A-weighted decibels in the home, or 72 A-weighted decibels outside the home, cause little or no disruption of sleep, i.e. less than 10% of the population would be annoyed or disrupted.

Noise contours prepared by the FAA's Office of Environment and Energy based upon its computer-based integrated noise model, show that certain aircraft can operate at night without annoying or interfering with the sleep of residents around the Airport. The specific aircraft studied included single engine propeller driven airplanes, twin engine propeller driven airplanes, twin engine turbo propeller driven airplanes, and some turbo jet airplanes. The noise contours show the geographical area in and around the Airport within which approaching and landing aircraft, which are operating at maximum gross weight and a maximum noise, will equal or exceed 72 A-weighted decibels and therefore may disrupt sleep, and outside of which such aircraft will probably not cause annoyance or disrupt sleep. In most cases, the 72 A-weighted decibel contours fell over lightly populated or non-populated areas.

Moreover, the noise contours show the geographic area in and around the Airport in which approaching and landing aircraft, operating at maximum gross weight and speed, will equal 77 A-weighted decibels. Operations approaching and meeting the 77 A-weighted decibel noise level may or may not disrupt sleep. In most cases, the 77 contours did not extend over or encompass any residential areas in the vicinity of the Airport, and were confined to the Airport itself. The noise contours referred to above were developed pursuant to FAA regulations set out in 14 C.F.R. Part 36, which prescribe that for aircraft certification purposes, aircraft noise is measured at specifically designated locations under prescribed operating and operational conditions, e.g., 6,500 meters from the start of roll for takeoff and 2,000 meters from the runway threshold for approach. Both the data and technology utilized by the FAA's Office of Environment and Energy in the preparation of the noise contours were available prior to August, 1981.

As an alternative to imposing a curfew, there are a number of other means of mitigating and reducing noise from aircraft in and around an airport, including (1) use of reduced power on take-off and landing; (2) preferential runway systems; (3) imposition of noise-level restrictions; (4) altitude restrictions; and (5) designation of arrival and departure routes over less populated areas.

In order to formulate a valid noise compatibility or abatement plan at an airport, it is necessary to monitor noise at the airport for one year, or at the very least, to sample for lesser periods of perhaps 10 days, four times annually, in order to provide a statistically valid sample.

AOPA's analysis of the general aviation aircraft fleet indicates that over 90% of that fleet has a noise level of 75 decibels or less at the FAA prescribed measurement point for takeoff and approach. A more particularized analysis of the aircraft based at the Airport indicates that approximately 90% of these aircraft have a noise level of 75 decibels or less at the FAA prescribed measurement point for takeoff and approximately 70% of them have a noise level of 75 decibels or less at the FAA prescribed measurement point for approach. The weight of the credible evidence presented at trial demonstrates that some aircraft can operate into and out of the Airport without producing noise levels which would interfere with the sleep of the residents in communities in the vicinity of the Airport.

H. Results of the Curfew

The total ban on flight operations at the Airport between midnight and 7:00 a.m. prevents flights which would have operated during that time period from doing so. Prior to imposition of the curfew on October 1, 1981, the total number of operations at the Airport from 6 a.m. to 7 a.m. was 188 and from 7 a.m. to 8 a.m. was 611. In October, 1981, subsequent to imposition of the curfew banning flight operations from 6 a.m. to 7 a.m., there were 0 flight operations during that hour and 732 flight operations from 7 a.m. to 8 a.m. The County's imposition of a curfew has resulted in delays in departures at the Airport, as well as at LGA, JFK, and EWR, and in congestion and delays along the Solberg route. These delays result from the limited capacity of the air traffic control system in the New York metropolitan area, separation requirements between aircraft, and the limited number of airways and airspace in the area. In short, the curfew has increased congestion and caused a loss of efficiency.

The curfew also caused the termination of contracts between Panorama and various customers in connection with the carriage of cancelled checks, primarily because Panorama was not able to assure its customers that it could continue to operate at night, due to the curfew. Panorama would be seriously financially impaired and affected in its ability to continue in business if the curfew remained in effect. Additionally, the curfew has caused many AOPA members to cancel trips or adjust travel plans, causing them increased expense and/or delay. Finally, the curfew has had an adverse effect on the corporate and business aircraft based at the Airport, causing the corporations which own and operate those aircraft economic harm, delays, disruption in business scheduling, reduced flexibility, and reduction in the corporations' ability to use aircraft as a business tool. These adverse effects pertain not only to large corporate aircraft owners, but to individual businessmen as well. Flights in and out of other airports are not an adequate substitute for the flexibility provided by business and corporate air flights in and out of the Airport.

A. Jurisdiction

The Court has jurisdiction over the subject matter of these actions pursuant to 28 U.S.C. 1331, 1337 and 1345.

B. Preemption

The FAA has been delegated exclusive responsibility by Congress for the safe and efficient management of the navigable airspace of the United States. See City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 626-27, 93 S.Ct. 1854, 1856, 36 L.Ed.2d 547 (1973).

The FAA has also been delegated exclusive responsibility for regulating aircraft noise pursuant to the Federal Aviation Act of 1958, 49 U.S.C. 1301 et seq., as amended by the Noise Control Act of 1972, 42 U.S.C. 4901 et seq., preempting state and local control. City of Burbank v. Lockheed Air Terminal, supra, 411 U.S. at 633, 93 S.Ct. at 1859.

C. Lawfulness of Curfew

Local airport proprietors such as the County are "vested only with the power to promulgate reasonable, nonarbitrary and non-discriminatory regulations that establish acceptable noise levels for the airport and its immediate environs." British Airways Bd. v. Port Authority of New York, 558 F.2d 75, 84 (2d Cir.1977) ("Concorde I"); see City of Burbank v. Lockheed Air Terminal, supra, 411 U.S. at 635, 93 S.Ct. at 1860.

The curfew on all night flight operations at Westchester County Airport imposed effective October 1, 1981 regardless of accompanying emitted noise is an unreasonable, arbitrary, discriminatory and overbroad exercise of power by the County. See United States v. State of New York, 552 F.Supp. 255 (N.D.N.Y.1982), aff'd, 708 F.2d 92 (2d Cir.1983); Concorde I, supra; Air Transport Ass'n of America v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975).

D. Burden on Interstate Commerce

The curfew has an adverse impact on the flow of interstate air commerce in that it interferes with and prevents the efficient use of the navigable airspace, resulting in a bunching of flights, delays in flights not only at Westchester County Airport but at LGA and other airports in the metropolitan area, and disruption in the flow of air traffic in the New York City metropolitan area. It also adversely affects the operation of the air transportation system in the New York metropolitan area, a system of which Westchester County Airport is a part. See City of Burbank v. Lockheed Air Terminal, supra; British Airways Bd. v. Port Authority of New York, 564 F.2d 1002 (2d Cir.1977) ("Concorde II"); Concorde I, supra, 558 F.2d at 83.

E. Exercise of Police Power

Furthermore, the curfew represents an unlawful exercise of local police power by the County. Air Transport Ass'n of America v. Crotti, supra, 389 F.Supp. at 65 ("provisions and regulations of noise levels which occur when an aircraft is in direct flight, and for the levying of criminal fines for violation, are a per se unlawful exercise of police power into the exclusive federal domain of control over aircraft flights and operation, and airspace management and utilization in interstate and foreign commerce").

F. Payment of Further Grant Monies

The FAA is responsible for the administration and management of the Federal Airport grant-in-aid program under the Airport and Airway Development Act of 1970, as amended, 49 U.S.C. 1701 et seq. (superseded by the Airport and Airway Improvement Act of 1982, 49 U.S.C. 2201 et seq.). State of New York v. FAA, 712 F.2d 806 (2d Cir.1983); City of Dallas, Texas v. Southwest Airlines Co., 494 F.2d 773 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974).

The County obligated itself by grant assurances to make the Airport available for public use on fair and reasonable terms, without unjust discrimination, 49 U.S.C. 1718(1), and at all times, 49 U.S.C. 1718(5). See, e.g., Concorde II, supra, 564 F.2d at 1011. Failure to comply with the conditions of a grant authorizes the FAA to suspend the grant and withhold further payments, 14 C.F.R. 152.503(a), and, in the event that corrective action is not taken by the sponsor, to then terminate the grant. 14 C.F.R. 152.505(a).

The curfew on flight operations at the Airport constitutes a breach of the terms, conditions, and assurances set forth in the grant-in-aid agreements between the County and FAA entered into pursuant to the Airport and Airway Development Act of 1970, as amended, 49 U.S.C. 1701 et seq. The FAA properly refused to pay further grant monies to the County after May, 1983 based on the County's failure to comply with grant conditions and assurances. 49 U.S.C. 2201 et seq.; 14 C.F.R. 152.503(a) and 152.505(a).

G. Relief

Permanent injunctive relief is appropriate where there is irreparable injury, no adequate remedy at law, and, where competing interests are present, the balance of the equities favors the party seeking the relief. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 1802-1803 (1982); Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954 (1959); Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944).

On the issue of irreparable harm, plaintiffs have demonstrated negative impact on the airspace in the New York City metropolitan area and beyond, which cannot be measured in monetary damages, as well as injury to business and private operations at the Airport. See National Aviation v. City of Hayward, Cal., 418 F.Supp. 417 (N.D.Cal.1976). There exists no adequate remedy at law for plaintiffs to redress the impact of the curfew on the federally controlled airspace, or the business operations of the corporations using the Airport, or those private individuals who utilize the Airport. City of Burbank v. Lockheed Air Terminal, supra; United States v. State of New York, supra. Finally, the balance of the equities favors granting plaintiffs the relief they seek. Plaintiffs have demonstrated that defendants engaged in no quantification of the nature or extent of a noise problem at the Airport prior to the passage of the subject legislation, nor in any studies prior to enactment indicating that the legislation at issue would specifically address the needs of the residents of the communities in and around the Airport.

A permanent injunction is warranted here inasmuch as the subject legislation falls within an area preempted by Congress, unduly burdens interstate commerce, and is unreasonable, arbitrary, discriminatory and overbroad. City of Burbank v. Lockheed Air Terminal, supra; Concorde I & II, supra; United States v. State of New York, supra.

The County's counterclaim against the United States is dismissed.

The foregoing constitutes the Court's findings of fact and conclusions of law in accordance with Rule 52(a), Fed.R.Civ.P.

Settle permanent injunction on notice.