Inquiry: Noise study obscured
DHL: The authority balked at disclosing information at a public meeting, the report says.
By Michelle DeArmond and Kimbery Trone
/ The Press-Enterprise
Before the DHL cargo port was approved, a developer and top managers with the March Joint Powers Authority resisted releasing a
noise study that determined hundreds of Riverside residents could be
awakened each night by DHL planes, a new report shows.
Efforts to downplay the noise study's
findings are detailed in an independent investigation
that also concluded that one of the project's
developers, Greg Diodati, allowed an erroneous
flight-path map to be used in persuading the public
that DHL planes would not fly over their neighborhoods.
DHL began operations at March Air Reserve Base
in October, and its cargo planes actually are
flying over Riverside's Orangecrest and Mission
Grove neighborhoods.
"If there is another smoking gun in the whole report besides the false
flight path (map), it is the apparent deliberate withholding of the
information that all the residents were asking us for: whether they
were going to be woken up by planes," Riverside County Supervisor
Bob Buster said Thursday. Buster is also one of eight members on the
March Joint Powers Commission.
The results of the noise study were not disclosed at a public meeting
Sept. 22, 2004, although a representative of the firm that conducted
the study briefly mentioned it and said it would be available soon. The
commission voted to give initial approval to the project that night.
The commission ordered the investigation into whether inaccurate
flight-path maps were used to deliberately deceive the public. The
commission hired Los Angeles lawyer Leonard Gumport to conduct
the investigation.
The commission governs the authority, which oversees civilian reuse
of surplus military land at the joint-use air base.
According to testimony in the report, members of the authority's staff
handling the deal and at least one representative of the developer, GlobalPort, obscured the noise study because they feared its release
would delay or hurt their effort to seal the competitive air-cargo deal
with DHL.
The study focused on how loud a single aircraft would be during the
late night and early morning, when most people are sleeping. It
determined that about 5 percent of the people in the area of the
airport's departure route could be awakened by aircraft noise.
Attorney: No Legal Mandate
Rob Bower, a GlobalPort attorney, said the authority was not legally
required to release the noise study because the number of planes DHL
planned to fly was well within limits set in a previous environmental
study. The company plans to fly 10 planes daily at March when the
project is complete, and the previous review was based on about three
times as many flights.
The study was prepared to defend the project from a court challenge
brought by a coalition of homeowners and environmentalists who had"come out with all guns blazing," he said.
"We all believed their focus was not the (environmental-impact
reports); it was to stop the DHL project no matter what. You don't
want to give your opponents a bunch of issues to attack you on if you
don't have to," Bower said, adding that the inaccurate flight-path map was unrelated to the supplemental
noise study.
Testimony in the Gumport report
released Feb. 17 shows that the authority's executive
director, Philip Rizzo, and staff member Dan Fairbanks
opposed the advice of their attorneys, who urged
them to disclose the study to the public. Diodati,
a developer behind the DHL deal, also wanted the
document kept secret.
Steve Anderson, an attorney for
the March Joint Powers Authority, said in his
interview with the investigator that Diodati and
his attorney resisted releasing the study because
it showed people could be awakened overnight by
the planes.
Rizzo and his staff members said
they were not made aware of the draft study until
Sept. 22, 2004, the day of a rancorous public
hearing at which hundreds of area residents turned
out to protest the project.
"None of us had seen the study.
We resisted because we had not seen it and we
weren't sure it should be in there, and we did
not know what was in it," Rizzo said Tuesday.
But on Friday, Rizzo released a
written statement saying he did not resist when
his attorney said the noise study needed to be
made public.
"I agreed and had no hesitation that it should be made public," Rizzo said.
Fairbanks said in a written statement
Friday that the attorneys recommended he not review
the draft document Sept. 22, 2004.
Public Materials
At a meeting Oct. 6, 2004, the final written version of the study, along with a letter from Diodati that the March authority's attorneys called "cryptic," was inserted in a public packet of
materials.
Commissioners gave final approval to the project at that sparsely attended morning meeting.
Barrington Daltrey, a Mission Grove environmental
lawyer who filed an unsuccessful lawsuit challenging
the project in 2004, contends the authority's
staff and attorneys deliberately misled the public
about the project's impacts by obscuring the study.
"They slipped it in when nobody
was paying attention," Daltrey said. "This
is a public agency, and they have duties to the
public. It's not simply a developer trying to
get his own piece of property through the red
tape. This is use of public property for public
purposes."
Eric Garner of Best Best &
Krieger's Riverside office, which represents the
authority, said his firm's lawyers fought -- even
yelling at their clients at one point -- to make
sure the study was made public and insisted the
noise consultant make a presentation at the Sept.
22, 2004, hearing.
Garner said his firm's attorneys
overrode the initial objections of the developer
by insisting the noise study be put in public
documents at the Oct. 6, 2004, meeting and by
having the noise consultant mention it during
the Sept. 22, 2004, hearing.
"We were determined to make
sure that it was included in the public record,
and we moved heaven and earth to make it sure
that it was," he said.
One Orangecrest resident who supports
air traffic at March said he's not bothered by
which flight path the planes take, but he does
have concerns about the public being misled.
The developers should stick to
the initial flight plan they presented to the
public, said Charles Hopkins, who noted that he
doesn't hear the planes in his two-story home.
"Anytime you have people with
money, it seems they always have some piece of
wool they're trying to pull over the people's
eyes," Hopkins said. "Does it upset
me? Certainly, but that's politics."
Hopkins said he feels bad for the
people who purchased homes in that area and now
can't sleep because of the noise. But he wonders
how they could not expect air traffic when they
bought property near an air base.
Future Actions
Buster, the only commissioner to
vote against the DHL project in the fall of 2004,
wants the March commission to submit Gumport's
investigation to the state attorney general to
determine whether any laws were violated.
He also has called for a revision
of the noise study, taking into account the true
takeoff pattern of DHL planes. The study assumed
all DHL planes would stay on the same single path
during their departure.
The commission has not met to consider those options since Gumport released his report Feb. 17.
Buster also said he wants the State
Bar of California to review the case to see whether
there were any ethics violations by the Best Best
& Krieger attorneys representing the authority.
He said Best Best & Krieger
lawyer John Brown did not make the commission
aware of issues surrounding the noise study or
tell commissioners that the document had been
introduced into the public record.
Garner said the firm works directly
with the authority staff, not the commissioners,
except at commission meetings.
A coalition of homeowners and environmentalists
behind the failed 2004 lawsuit is considering
its options. In the suit, the group accused the
March authority and GlobalPort of failing to conduct
adequate environmental reviews and misrepresenting
the flight path.
"On the surface, there is an
implication that genuine fraud occurred. Whenever
there is fraud, you have the legal right to revisit
the litigation," said Daltrey, who represented
the residents.
But Moreno Valley Councilman Richard
Stewart, chairman of the commission, said the
DHL deal is in no jeopardy. Stewart said the commissioners
intend to meet with Best Best & Krieger lawyers
next week to settle how future communications
between legal counsel and commissioners should
be handled.
And Stewart said personnel issues
should not be played out in the press. The commission
intends to meet with Rizzo on Wednesday in a closed-door
meeting to assess his performance.
The DHL project is "a done
deal, not imperiled, not hurt. This had to do
with whether or not somebody intentionally drew
or misdrew a flight plan," Stewart said.
"Our biggest concern was whether our own
staff had done something wrong, and the report
says they did not know they were using a wrong
map."
Orangecrest resident Leslie Osburn said she is routinely awakened about 3 a.m. by departing DHL planes.
Many area residents knew all along that cargo
planes were going to fly overhead, she said. About
20,000 people live in the Orangecrest and Mission
Grove neighborhoods.
"There should be some sort
of disciplinary action. I don't know what that
should be, but we were lied to," Osburn said.
Redeveloping March
The commissioners -- elected officials from Riverside County and the cities of
Perris, Moreno Valley and Riverside -- approved the cargo port for German
shipping giant DHL in the fall of 2004.
In September 2005, the Federal Aviation Administration said false
information had been presented about the standard departure of commercial
planes from March.
The commission ordered the independent investigation by Gumport in
November to determine whether inaccurate maps were used to deliberately deceive the public about the flight
path of DHL commercial cargo planes leaving March.
The investigation, released Feb.
17, focused primarily on the flight-path maps
displayed at public hearings in September 2004.
The members of the authority's
staff have acknowledged a map they displayed,
which was provided by Diodati, did not reflect
the standard departure route of commercial planes.
The developer deemed the episode an "honest
mistake."
Earlier this month, a separate
study by an aviation consultant found that financial
projections provided by GlobalPort overestimated
by $16.5 million, or 64 percent, the amount of
landing fees DHL would pay to the March authority
over 20 years.
The report said developer GlobalPort's
July 2004 projections contained errors in spreadsheet
calculations and inaccurate airplane landing weights
and they overestimated the number of planes DHL
would operate at the joint-use military airfield.
The March commission has been working to redevelop the March base since it was downsized in 1996.
GlobalPort has contracted with the March authority
to develop about 400 acres near the military airfield
into a commercial cargo hub.
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