Charlotte Wins Control of Airport

by | October 14, 2014

By Ely Portillo

A Superior Court judge sided with the city of Charlotte in a ruling issued Monday that bars the Charlotte Airport Commission from running the city's airport without prior approval from the Federal Aviation Administration.

Judge Robert Ervin issued a permanent injunction blocking the commission from operating Charlotte Douglas International Airport, as the city had requested. He also denied the state's motion to dismiss the city's lawsuit -- though he did leave the door open for the FAA to intervene and ultimately put the commission in charge of Charlotte Douglas.

The N.C. Attorney General's office, which is representing the commission, can appeal the ruling to a higher state court. Spokeswoman Noelle Talley said Monday no decision has been made yet on whether to appeal.

Charlotte Airport Commission Chairman Robert Stolz, a Charlotte business executive, was out of the country Monday and not available for comment.

City officials said they were happy with the ruling.

"We have consistently stated from the beginning of this conflict that the attempted transfer was both unnecessary and poorly designed," said Charlotte City Attorney Bob Hagemann, in a statement. "While the Court's permanent injunction leaves open the possibility of FAA approval, the governance and management structures established by the legislation are unacceptably confusing and -- in our analysis -- unworkable under FAA standards."

Mayor Dan Clodfelter said he hoped the ruling might finish the long-running argument over who should control Charlotte Douglas International Airport.

"We hope that this ruling will lead to the end of this legal dispute so that we can continue to focus our efforts on the operations and prosperity of the airport," said Clodfelter.

Gov. Pat McCrory said Monday that he still thinks the issue of airport control should be decided locally.

"It sounds like the judge kicked the ball down the field," said McCrory. He let the fight play out in the legislature without intervening but said afterward that the city should retain control. McCrory had been in talks with former Charlotte Mayor Patrick Cannon -- who is set to be sentenced on federal corruption charges Tuesday -- and said the two were close to a compromise.

"I thought we were very close to an agreement, and I hope we can get to that point again," said McCrory.

Control disputed since July 2013

The airport battle has stretched on for more than a year, since the N.C. General Assembly passed a bill creating the commission to take control of Charlotte Douglas in July 2013. Republican-led state legislators said the move was needed to protect the airport from meddling by the city, while city officials called the move a power grab.

The commissioners have met regularly since the group's creation, learning about and discussing the airport's operations. Former Aviation Director Jerry Orr, who was also the commission's executive director, retired at the end of last year after 24 years of running Charlotte Douglas. One of the only powers the commission has been able to exercise was that of choosing Orr's successor. They picked Brent Cagle, who is currently also the city's interim aviation director.

Ervin's ruling followed the latest hearing in the case on Friday, when lawyers for the commission and the city presented their case. The 13-member commission has been blocked from actually running the airport since last year, when Ervin issued a temporary injunction against the group. His ruling Monday made that temporary injunction permanent.

But Ervin did leave a path for the commission to eventually run the airport. According to the order, Ervin's injunction will remain in place, blocking the commission, "Until it obtains the necessary (airport) operating certificate from the Federal Aviation Administration or a declaration from the Federal Aviation Administration that the commission is permitted to operate the airport in reliance on the City's operating certificate."

That means the FAA could still decide that the commission should be in charge of the airport instead of Charlotte City Council.

Victory for the commission?

In a sign of how convoluted the dispute has become, State Sen. Bob Rucho, a Republican from Matthews, said the judge's ruling is actually a victory for the commission. Rucho, who was one of the commission's main advocates, said Ervin's ruling means FAA approval is now the only thing standing in the commission's way.

"I'm very happy with it," said Rucho. "The commission can operate the airport."

But getting the go-ahead from the FAA could be tough. The FAA has shown no inclination to make a ruling on the case, despite several entreaties from the commission and its supporters. The agency said in a letter last month that it would not consider the commission's request until the city of Charlotte asks it to do so. An FAA official said the agency's position hasn't changed.

Since the city of Charlotte is seeking to permanently block the commission, that's unlikely to occur.

Rucho pointed to a section of the law passed by the General Assembly that says city would have to "obtain a determination from the FAA that the Commission may operate the airport."

"The city, under the law, is required to help the commission," said Rucho. "How can you avoid following the law?"

Rucho has previously accused former Charlotte Mayor Anthony Foxx of meddling behind the scenes in the airport fight from his position as U.S. Secretary of Transportation. The FAA falls under Foxx's authority as an agency of the Department of Transportation. But on Monday, Rucho said he's not concerned Foxx or the FAA will block the commission.

"The FAA really has no choice but to issue a certificate," Rucho said. "Is Secretary Foxx above the law? Nobody is above the law."

Charlotte spokeswoman Sandy D'Elosua declined to comment on whether the city would have to help the commission.

Ervin also ruled that the commission should pay the costs of the lawsuit. Attorneys' fees for outside counsel hired by the city and commission have topped $1 million, but Hagemann said those would not be included in the costs taxed by the judge. Instead, such costs consist of filing fees and other minor court-mandated expenses.

The city's fees for outside attorneys total more than $550,000, while a source close to the commission has said its attorney fees are about $500,000. It's unclear where the commission will ultimately get money to pay its fees. Under the law, the commission is technically an agency of the city, but the judge's injunction bars the commission from spending money.

Former State Sen. Malcolm Graham, a Charlotte Democrat who strongly opposed the commission, said Monday that he hopes this will be the end of the fight.

"The airport belongs to the citizens of Charlotte," he said. "It's time for this issue to come to an end. No one has won but the lawyers involved in this." Staff writer Jim Morrill contributed.

(c)2014 The Charlotte Observer (Charlotte, N.C.)