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Aerobatics club files suit over airport rules

Federal case argues FAA regulations supersede any local ordinances

Published: Thursday, June 20, 2013 8:23 a.m. CST

The city of Morris, its airport manager, and a local pilot are all named in a federal case filed by the local chapter of International Aerobatics Club and one of its pilots.

The city and IAC Chapter 1 have been trying to work out numerous disagreements stemming from an aerobatics box the Federal Aviation Administration granted last summer and to which the city has objected.

These attempts have come to halt, it seems, with Chapter 1’s latest action.

The chapter and member Nicholas Scholtes of Shorewood have filed the federal case against the city, Airport Manager Jeff Vogen, and local pilot Sid Nelson, who is identified in the case as a consultant for the city, but is also a former manager of the airport and a stunt pilot himself.

“The IAC (Chapter 1) and Mr. Scholtes have filed a complaint to invalidate rules and regulations for the Morris airport approved by the Morris City Council in 1999,” City Attorney Scott Belt explained.

The city previously filed a complaint against Scholtes for violating the city’s airport-related ordinances. In addition, it is fighting the IAC and the FAA by contending the aerobatic box should not have been approved in the first place.

“A copy of the (federal) complaint has been forwarded to the city’s insurance carrier, which is expected to defend the city’s interest,” Belt continued.

The IAC chapter argues the city has no authority over the air — only the FAA does — and that Scholtes did not violate any FAA regulations.

The city says its ordinances follow state statute. The Illinois Municipal Code authorizes municipalities to adopt rules and regulations for municipally owned airports.

“The corporate authorities of a specified municipality may make all reasonable rules and regulations for air traffic and airport or landing field conduct, and for the management and control of the municipality’s airport or landing field and other air navigation facilities and property under their control,” states the statute.

The IAC chapter says the FAA already investigated Scholtes and found he did nothing wrong. The FAA said the city’s claims are without merit and closed the investigation, said Bruce Ballew, director of the Mid-America Region of the IAC.

“The city is yanking Mr. Scholtes around and it is a big deal to him to have this hanging over his head, and it is a financial burden for him,” Ballew said.

The city filed its own complaint against Scholtes for violation of city ordinance after the FAA said its complaints were not valid.

In December, the city and the chapter made a deal — if the IAC applied for a second box further from the airport, the city would drop the case against Scholtes.

Ballew said the IAC chapter has applied and it’s going through the FAA’s process for approval. But the city has not held up its end of the deal.

The city indicated this case would be dropped in January, he said, once the second box was applied for. This still has not been done, so the chapter and Scholtes decided it was time to fight back and filed a federal lawsuit.

“It has been well more than a year and the city continues to ask for extensions on this because we feel it’s fairly clear they will lose in court,” he said.

City Attorney Belt said the complaint has not been dropped because the application process is taking longer than any of the parties expected. Ballew said he believed the FAA is taking more time with the second box application due to Morris’ previous complaints.

“It has not occurred in the time frame discussed back in December,” he said. “This is a tentative agreement with the IAC to relocate the box in the interest of safety.”

THE FEUD

The feud between the city and Chapter 1 of the IAC began over their aerobatic box approved by the FAA last summer. The city said the box was a safety concern and that Chapter 1 applied for the box under false information.

The box is too close to the Morris Municipal Airport for the city’s comfort. It is 3,600 feet by 3,600 feet and extends from ground level to an altitude of 5,000 feet just northwest of the airport, and is used by pilots to practice aerobatic maneuvers.

The city has maintained it is not against the box, just the location. The box is in the flight pattern of the approach to the airport’s runway and in the approach of Midway and O’Hare airports, according to city officials, and therefore causes safety concerns with aerobatic pilots and other pilots also using the airspace.

The council had asked the FAA to move the box about a mile and a half. When the FAA would not agree to the move, the city started the administrative review process with the FAA and then went through an appeal process to argue that the IAC included inaccurate information on its application for the box when it stated it had city approval, said Belt previously.

The parties had appeared to come to a compromise in December in a meeting with each other and the FAA. The IAC agreed to file an application with the FAA for a new box at the southeast corner of the airport. If the application is approved, the IAC will terminate its current box, which is located in the northwest corner.

In return, Ballew said the city agreed to drop its complaint against Scholtes for allegedly performing aerobatics without following procedure.

The complaint stated Scholtes was operating an aircraft in aerobatic flight on Dec. 26, 2011, in violation of the Morris City Code and Rules and Regulations of the Morris Municipal Airport. The flight was in violation because the aerobatic box that permits this was not opened.

The second box is currently in the public comment stage of the FAA’s process, said Belt, but it has not been approved.

THE FEDERAL CASE

The case file argues the FAA preempts the city’s ordinances and that aerobatic flight is allowed in any area not specifically excluded by the FAA.

“Plaintiffs seek to protect and vindicate their right to fly in the national airspace without being subjected to an unconstitutional and preempted barrier established and enforced by a local municipality,” the suit says.

The chapter and Scholtes want a declaratory judgment declaring the challenged ordinances and regulations invalid.

Chapter 1 and Scholtes also allege in the case file that Vogen and Nelson have harassed, threatened and displayed animosity against their members “for no reason other than out of sheer malice.”

Vogen and Nelson have both been vocal with the city on safety concerns when it comes to the aerobatic box. Earlier this year, they spoke to the council’s Airport Committee regarding a near-collision in the air when they say an IAC member in the box barely missed another pilot approaching the box.

The case also claims there have been other confrontations between Vogen and Nelson and IAC members.

Vogen said he was unable to comment on the case at this time. Nelson could not be reached.

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