A Mecklenburg County judge on Thursday shifted the battleground for control of Charlotte Douglas International Airport to the federal arena, ruling that no transfer to a new, independent commission can occur until approved by the Federal Aviation Administration.
The city of Charlotte had sought an injunction to block the creation of the independent commission, which was ordered in a bill the N.C. General Assembly passed last week.
Superior Court Judge Robert Ervin ruled that the commission can’t be implemented until the FAA clarifies whether the airport’s operating certificate would be valid under the new law, or issues a new certificate.
That means the creation of an airport commission must await the FAA’s decision. And former aviation director Jerry Orr – whose job would be restored under the airport commission bill – is waiting to see if he’ll get his old job back.
It wasn’t clear Thursday how long it will take to get a ruling from the FAA.
“That’s up to the FAA,” Orr said. “We just need to make an application.” Days or weeks could be a reasonable timeframe, he said.
Former Charlotte Mayor Richard Vinroot said that Orr has been talking with the FAA, and a transfer could be quick. He compared the city’s concerns to Chicken Little’s “The sky is falling!” refrain and the story of the “boy who cried wolf.”
“I think what they’ve decided to do is hang on whatever thread they can,” Vinroot said of the city’s efforts to block the commission.
But Vinroot also said he’s worried the city will seek to “game the system” and get the FAA to slow or block any ruling on transferring airport control. “We want them to work with us to resolve things with the FAA,” said Vinroot.
Charlotte City Attorney Bob Hagemann disputed a statement from Vinroot that Orr had been speaking to the FAA and that a certificate transfer would be imminent.
“That’s not what my sources at the FAA have said,” Hagemann said. He said he was told that recent airport transfers in Connecticut – in which the state willingly transferred the airports to an authority – took a year and a half to process.
The city’s role in the application process isn’t clear. The commission legally would be an agent of the city, but Hagemann said the city would not be a willing partner on a new certificate.
“Given the instructions that council has given me, it would be highly unlikely they would be willing to cooperate,” Hagemann said.
Former Charlotte Mayor Anthony Foxx – who advocated for maintaining city control of the airport – is now the U.S. Secretary of Transportation, which oversees the FAA. Foxx has officially recused himself from the airport issue, and has said he won’t comment on Charlotte-related matters.
If the FAA decides the airport’s existing operating certificate will remain valid, the process would be shorter and simpler.
Lawyers for the commission argued that the FAA doesn’t need to transfer the airport’s operating certificate, since the city wouldn’t actually be transferring ownership of the airport to the new commission.
If the FAA requires a new certificate, the process would be much longer and more complicated. The commission would have to show it is “legally, financially, and otherwise able” to run the airport, as well as fulfilling a list of other requirements such as developing a transition plan the FAA approves, according to a letter from the agency.
The FAA declined to offer any sort of timeline Thursday for how long a transfer approval might take.
“The Federal Aviation Administration is reviewing the legislation according to the process it uses for all similar airport transfer requests,” said spokeswoman Kathleen Bergen, in a statement.
Lawyers for the city and the airport commission argued in court for several hours Thursday morning about whether the new law should take effect or not.
Under the law the General Assembly passed last week, control of the airport would pass to a new, 13-member commission, with seven members appointed by the mayor and city council. The remainder would be appointed by Mecklenburg and surrounding counties.
The commission would control day-to-day operations, including personnel decisions, finances and expansion plans, and Orr would be its initial director. The city would retain ownership of the airport and its land, along with the power of eminent domain and custody of the airport’s revenue bonds.
Vinroot, who said he is billing the airport commission and not the city for his legal services, said it’s essential Orr be reinstalled as the airport’s director to continue Charlotte Douglas’ success.
“You’re darn right it’s been well-managed,” he said of the airport, pointing towards Orr. “It’s been well-managed by the best airport director in the world.”
Judge Ervin replied with a deadpan quip. “Well, there is a parking issue,” he said of the airport’s recent parking construction crunch, eliciting laughter from the courtroom.
In Thursday’s hearing, the city pushed its legal argument along two fronts: That the legislature’s action was unconstitutional, and should have been a general bill signed by the governor, not a local law, and that the law violated FAA rules by transferring control of the airport without FAA approval.
The city said Charlotte Douglas could be exposed to fines, penalties, the loss of airport grant money and even putting the airport’s operation itself in danger if the commission went ahead without the FAA’s support.
In the end, Ervin said he didn’t find the city’s first argument compelling. But he said the FAA argument made sense.
“Why’s it worth taking the risk the FAA says, ‘The commission needs their own permit, and you ain’t got one?’” Ervin said.
The FAA expressed “concerns” about whether the new commission would conform to federal standards in a July 29 letter to the city and airport commission. Hagemann said he did not ask the FAA to write the letter, which played a key role in Thursday’s hearing.
He said he called the FAA on July 18 after the first airport bill was approved by the General Assembly. He said he first spoke with FAA officials days later, and was told that the agency was already writing a letter to both sides to share its concerns.
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