Judge: Curtis A. Kin, Case: 23STCP04538, Date: 2024-01-11 Tentative Ruling
Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.
Case Number: 23STCP04538 Hearing Date: January 11, 2024 Dept: 82
ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Date: 1/11/24
(1:30 PM)
Case: Sling Flying Club,
LLC v. City of Torrance et al. (23STCP04538)
TENTATIVE RULING:
Petitioner Sling Flying Club, LLC’s request for a
preliminary injunction is GRANTED.
Petitioner seeks a preliminary injunction enjoining
respondents City of Torrance and Sheila Poisson from taking any action to block
or prevent the business license renewal application of petitioner, from
declining to consider or rejecting such application(s), or from revoking
petitioner’s business license.
With respect to whether plaintiffs are entitled to a
preliminary injunction, “the question whether a preliminary injunction should
be granted involves two interrelated factors: (1) the likelihood that the
plaintiff will prevail on the merits, and (2) the relative balance of harms
that is likely to result from the granting or denial of interim injunctive
relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.)
I.
EVIDENTIARY MATTERS
Pursuant to petitioner’s request, the Court takes judicial
notice of the following:
Pursuant to respondents’ request, the Court takes judicial
notice of the following:
The Court declines to take judicial notice of the Findings
of Fact and Conclusions of Law related to the City Council’s denial of the
appeal filed by petitioner. The document is neither a regulation or legislative
enactment under Evidence Code § 452(b), an official act of the legislative
department of the United States or of any state of the United States under
Evidence Code § 452(c), nor not reasonably subject to dispute and capable of
immediate and accurate determination under Evidence Code § 452(h).
Petitioner’s objections to evidence in support of
respondent’s opposition are OVERRULED.
II.
LIKELIHOOD OF PREVAILING ON MERITS
A.
Federal Preemption
On October 25, 1977, the City Council of the City of
Torrance passed Resolution No. 77-215, which purported to limit the number of
flight schools at Torrance Municipal Airport (“Airport”) to six. (Pet. Ex. 1.)
The purpose of the limitation was to implement previously adopted policies to
abate aircraft noise, including by controlling the volume of flights from the
Airport. (Ibid.)
Citing City of Burbank v. Lockheed Air Terminal Inc. (1973)
411 U.S. 624, petitioner contends that the City is federally preempted from
limiting the number of flights schools as a means to regulate aircraft noise.
In City of Burbank, the U.S. Supreme Court held that the Federal
Aviation Act, which regulates the use of airspace in the United States, and the
Noise Control Act, which governs airplane noise, preempted an ordinance adopted
by the City of Burbank prohibiting jet aircraft from taking off from Burbank
Airport between 11:00 p.m. and 7:00 a.m. (City of Burbank, 411 U.S. at
625-29, 633-34.) In so doing, the Court
reasoned that upholding the Burbank ordinance would otherwise allow for other
municipalities to follow suit, leading to “fractionalized control of the timing
of takeoffs and landings [that] would severely the flexibility of FAA in
controlling air traffic flow.” (Id.
at 638.) Notably, however, the Court
made clear that its holding regarding preemption concerned state and local
governments’ ability to use their police powers to control aircraft noise by
regulating the flight of aircraft. The
Court noted its holding did not concern ordinances passed by a municipality as
the proprietor of an airport, stating explicitly: “We do not consider here what
limits, if any, apply to a municipality as proprietor.” (Id. at 635 & fn. 14.)
The U.S. Court of Appeals for the Ninth Circuit, however,
did subsequently address that issue. In Santa Monica Airport Ass’n v. City
of Santa Monica (1981) 659 F.2d 100, the Ninth Circuit held that the City
of Santa Monica, as a proprietor of its airport, could enact several
ordinances, including an ordinance prohibiting helicopter flight training, notwithstanding
the “comprehensive nature of federal control of civil aviation.” (Santa
Monica, 659 F.2d at 102-04.) The Court noted that “Congress intended that
municipal proprietors enact reasonable regulations to establish acceptable
noise levels for airfields and their environs.” (Id. at 104.) The Court
found that, as a means of reducing liability for “unreasonable airport use with
respect to neighboring lands,” “[t]he City of Santa Monica should be allowed
to…enact noise ordinances under the municipal-proprietor exemption if it has a
rational belief that the ordinance will…enhance the quality of the city's human
environment.” (Id. at 104, fn. 5.)
Petitioner does not meaningfully argue why the Court’s
reasoning in Santa Monica should not prevail here, but instead references
two letters from the Federal Aviation Administration in support of the
assertion that the City cannot regulate aircraft. (Pet. Ex. 20, 23.) In one of
those letters, however, the FAA recognized that “[s]tate and local governments
may protect their citizens through land use controls and other police power
measures that do not regulate airspace management or aircraft operations.”
(Pet. Ex. 20 at 2.) Here, the limit on flight schools is a ground-based measure
that is consistent with the City’s proprietary authority, as opposed to
dictating how aircraft may operate in the airspace. (See Pet. Ex. 23 at
2.)
Accordingly, because this Court finds that, as proprietor of
the Airport, the City of Torrance may limit the number of flight schools
operating at such Airport, any ordinance to that effect would not be preempted.
B.
Effectiveness of Ordinance
Torrance City Charter § 725, entitled “Ordinances; When
Required,” states: “Every act of the City Council…in any way restricting or
governing the use of property…shall be by ordinance.” Torrance City Charter §
726 states: “No ordinance shall become effective until thirty (30) days from
and after the date of its final passage, except an ordinance…for the immediate
preservation of the public peace, health, or safety, which contains a
declaration of facts constituting its urgency, and is passed by a five-sevenths
vote of the City Council.” (See also Gov. Code § 36937(b) [“An
ordinance takes effect immediately, if it is an ordinance…(b) For the immediate
preservation of the public peace, health or safety, containing a declaration of
the facts constituting the urgency, and is passed by a four-fifths vote of the
city council”].)
“[T]he charter represents the supreme law of the City,
subject only to conflicting provisions in the federal and state constitutions
and to preemptive state law.” (Domar Electric, Inc. v. City of Los Angeles
(1994) 9 Cal.4th 161, 170.) “[I]t is well settled that a chartered city may not
act in conflict with its charter,” and “[a]ny act that is violative of or not
in compliance with the charter is void.” (Id. at 171.)
It is undisputed that, prior to December 19, 2023,
Resolution No. 77-215 remained uncodified in any ordinance. The Resolution
restricted the use of land, i.e., real property, at the Airport. Accordingly,
under City Charter § 725, the City can only restrict or govern the use of the land
at the Airport through ordinance. Resolution No. 77-215, standing alone, is
insufficient to restrict the number of flight schools at the Airport.
On December 19, 2023, the City enacted Urgency Ordinance No.
3929, purporting to enact Torrance Municipal Code § 31.1.10 and limit the
number of active business licenses for flight schools in the City to six.
(Resp. Ex. A.) The Court finds that this Urgency Ordinance was ineffective when
enacted because no facts constituting an urgency were set forth in the
ordinance.
The Urgency Ordinance states its purpose is “to codify long
standing restrictions on the number of flight schools in the City to provide
for the health, safety and welfare of City of Torrance citizens, and ensure
that the restriction on the number of businesses licenses [is] codified prior to
January 1, 2024, the date when business licenses are eligible to be renewed.” (Resp.
Ex. A.) The Urgency Ordinance states that, at the time of passage, ten flight
schools were operating at the Airport pursuant to business licenses renewable
annually, four more than the allowable maximum. (Resp. Ex. A.) The Urgency
Ordinance also states that, “[a]lthough not required by the City's Charter,
this Urgency Ordinance is enacted to reinforce the City's 1977 determination
that only six flight school business licenses may be active at the Airport at
any given time.” (Resp. Ex. A.)
“‘[T]he mere declaration of the council ... that the
ordinance is passed for the immediate preservation of the public health is
neither conclusive nor yet sufficient.’ [Citation.]” (Crown Motors v. City
of Redding (1991) 232 Cal.App.3d 173, 179.) “[W]hether the recited facts
may be held to constitute an urgency is a legal question.” (California
Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362,
369.) “[T]the urgency clause…must state relevant and persuasive facts
necessitating the legislative action.” (Parr v. Municipal Court (1971) 3
Cal.3d 861, 865.)
As stated in the Urgency Ordinance, Resolution No. 77-215,
which limited the number of flight schools at the Airport, was enacted on
October 25, 1977. (Resp. Ex. A.) The City allowed the Resolution to
remain uncodified for 46 years. That four more flight schools were subject to
imminent renewal of their business licenses (including petitioner) at the time
of the passing of the Urgency Ordinance does not constitute an urgency. Indeed,
since at least 2013, petitioner has operated a flight school, as the seventh
flight school. (Liknaitzky Decl. ¶ 3; Pet. Ex. 12.) (As an aside, Petitioner’s
assertion that Rolling Hills Aviation, the first flight school, is not a flight
school is contradicted by the business license issued to Rolling Hills Aviation
for “Aircraft Instruction” for the 2024 year [Resp. Ex. F].) Petitioner’s ten
years of operation as a flight school belies any contention from the City that
renewal of petitioner’s business license posed an imminent threat to public
health or safety. Therefore, because no urgency was set forth in the Urgency
Ordinance, the Urgency Ordinance could not take effect immediately; rather, it
does not became effective until 30 days after its passage, i.e., January
18, 2024. (Torrance City Charter § 726; see Morgan v. City of Long
Beach (1922) 57 Cal.App. 134, 140.)
Respondents also contend that an ordinance identical to the
Urgency Ordinance will be enacted on January 9, 2024. (Opp. at 19:7-8; Resp.
Ex. B.) Even if true, as admitted by respondents, such ordinance cannot be
effective until 30 days after passage. (Gov. Code § 36937.)
Thus, as of the date of the instant hearing, no valid
ordinance limiting the number of flight schools at the Airport to six is
operative.
C.
Vested Right
Petitioner also contends that, through its substantial
investment in its business, it has a vested right in the renewal of its
business license. Under the common law doctrine of vested rights with respect
to land use law, “a property owner who, in good faith reliance on a government
permit, has performed substantial work and incurred substantial liabilities has
a vested right to…use the premises as the permit allows.” (Communities for a
Better Environment v. South Coast Air Quality Management Dist. (2010) 48
Cal.4th 310, 323.) Petitioner presents evidence that it has incurred at least
$25 million in its operations as a flight school at the Airport. (Liknaitsky
Decl. ¶ 10 & Ex. 11.)
Respondents contend that any vested right petitioner may
have in its business license would be limited by the expiration date of
December 31, 2023 on the license. (Pet. Ex. 6.) “Any vested rights the members
may have had in their permits were limited by their permits’ terms and
conditions, including the one-year expiration dates.” (South Lake Tahoe
Property Owners Group v. City of South Lake Tahoe (2023) 92 Cal.App.5th
735, 748, citing Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th
311, 325-26.) While the terms of the license concerning expiration might
otherwise control, Torrance Municipal Code § 31.4.1 provides that the License
Supervisor “shall . . . issue” a business license upon the payment of the
prescribed business tax, “except as otherwise provided” by the Code. TMC § 31.7.4(c)
otherwise provides that the License Review Board shall deny a license if the
applicant is unfit for the business, based on whether the applicant committed fraud,
has been convicted of a crime, or has violated a law or regulation relevant to
the business for which the application is made.
TMC § 31.7.4(c) also provides that the License Review Board
may deny a permit if it reasonably determines that the business activity of the
applicant “will violate any law, or lawful regulation of the City of Torrance,
the State of California, the United States or any agency thereof; or will
constitute a public nuisance; or by reason of the nature of the activity or
subject of the business or the proposed location, can reasonably be expected to
be substantially detrimental to the health or safety of the public.”
Even though petitioner’s business license was subject to
expiration on December 31, 2023, petitioner TMC §§ 31.4.1 and 31.7.4(c)
essentially provide that an applicant for a business license shall automatically
obtain the license upon payment of the business tax, unless the License Review
Board finds the applicant unfit for the business, or if the Board finds that
the business violates a law or regulation, will constitute a public nuisance,
or if the business will be detrimental to public health or safety. It is
undisputed that petitioner paid the required fee. (Liknaitzsky Decl. ¶ 11.) Additionally,
after the City refused petitioner’s attempt to renew its license, petitioner
submitted a new application for a license. (Supp. Liknaitsky Decl. ¶¶ 8, 9.) The
City has not presented any evidence that petitioner is unfit to operate a
flight school or that allowing petitioner to operate would constitute a public
nuisance or be substantially detrimental to public health or safety.
Absent any currently valid ordinance implementing a limit of
six flight schools at the Airport, pursuant to TMC §§ 31.4.1 and 31.7.4(c),
petitioner appears to have been entitled to a renewal of its license in 2023
for the year 2024.
In South Lake Tahoe and Hobbs, the Courts of
Appeal found that the one-year expiration date of the permits limited any
vested rights that the plaintiff applicants had. (South Lake Tahoe, 92
Cal.App.5th at 748; Hobbs, 85 Cal.App.5th at 325.) In South Lake
Tahoe, the applicable ordinance provided that the permit at issue was a
revocable license and that the permits do not provide property rights or vested
interests. (South Lake Tahoe, 92 Cal.App.5th at 749.) In Hobbs,
the city enacted an ordinance limiting the number of short-term rental licenses
to 250 and established a density cap of 15% per block. (Hobbs, 85
Cal.App.5th at 279, 285.)
Here, by contrast, for the reasons stated above, no
ordinance limiting the number of flight schools at the Airport is currently
operative. Considering that petitioner has annually received renewal notices
for its business license in December and, consistent with the Torrance
Municipal Code, been issued a renewed license upon paying its renewal fee (Supp.
Liknaitsky Decl. ¶¶ 5-6), petitioner had a right to renewal of its business
license for 2024.
With respect to 2025, however, the City is not prohibited
from enforcing validly enacted regulations of noise levels at the Airport,
including through a limit of the number of flight schools. It appears that the
Urgency Ordinance will become effective on January 18, 2024. Accordingly, insofar
as the Urgency Ordinance is still in effect upon the expiration of petitioner’s
2024 license, it potentially may bar petitioner from renewing its business
license.
Petitioner contends that, under 49 U.S.C. § 40103(e), the
City may not restrict the number of flight schools at the Airport. (49 U.S.C. §
40103(e) [“A person does not have an exclusive right to use an air navigation
facility on which Government money has been expended”].) Regardless of whether
federal money has been expended on the Airport, “The term ‘exclusive right’ in
[49 U.S.C. § 40103(e)] was ‘intended to describe a power, privilege, or other
right excluding or debarring another or others from enjoying or exercising a
like power, privilege, or right.’” (J. Andrew Lange, Inc. v. F.A.A. (2d
Cir. 2000) 208 F.3d 389, 393, quoting City of Pompano Beach v. FAA (11th
Cir. 1985) 774 F.2d 1529, 1541.) As of January 18, 2024, up to six flight
schools may have a business license to operate at the Airport. No one flight
school has any exclusive right or opportunity to operate at the Airport. “The
airport sponsor is not required to accept all qualified service providers
without limitation.” (FAA Order 5190.6B, § 8.9(b).)
For the foregoing reasons, petitioner demonstrates a
likelihood of prevailing on its contention that it is entitled to renewal of
its flight school business license for 2024.
III.
BALANCE OF HARMS
Because petitioner appears to be entitled to renewal of its
flight school business license, petitioner would suffer harm absent the
granting of the preliminary injunction, including adverse effects upon its
employees, students, and existing contracts with the FAA and SkyWest Airlines.
The City does not meaningfully dispute the harms petitioner would suffer from
the sudden and immediate loss of its business license. Instead, the City focus on the purported harm
it would suffer from allowing petitioner to operate with a license during the
pendency of this case. While a public
agency may have an interest in enforcing its laws for the benefit of the public
(Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554, 578), no
law restricting petitioner from operating its flight school is currently
operative. Further, considering that petitioner has already been operating for
ten years, any noise impacts from petitioner’s flight school is outweighed by
petitioner’s apparent right to renewal of its license for the current 2024 year
and harm it would suffer in the absence of such license.
IV.
CONCLUSION
Petitioner’s request for a preliminary injunction is
GRANTED.