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FAA Dismisses Town's Petition Regarding North Shore Helicopter Route

June 1, 2017
In The News

SOUTHOLD, NY — The Federal Aviation Administration has dismissed a petition by the Town of Southold regarding a decision to extend the North Shore helicopter route through 2020 that the town believes is in violation of federal law.

In a letter to Southold Town Supervisor Scott Russell dated May 16, Gary Norek, deputy director, airspace services, wrote: "The FAA finds that Southold's petition does not justify the FAA taking the actions Southold suggested. Therefore, the FAA is dismissing Southold's petition for rulemaking."

The decision also states that the FAA prioritizes its rulemaking projects each year "based on issues that are crucial to the safety of the aviation community and the traveling public to ensure the FAA delivers the most value to the aviation system. Because your petition does not raise an immediate safety or security concern, the FAA finds that the actions requested in your petition cannot be addressed at this time due to other priorities and resource constraints in the agency."

Southold Town filed the petition in November, 2016, stating noise concerns and proposing that the South Shore route be mandated and the North Shore route terminated.

In addition, the FAA said, Southold asked that, in addition to foregoing the North Shore Route, "the FAA adopt a special air traffic rule requiring helicopters departing from or landing at any location in New York City, or traversing airspace over New York City, and landing or departing from Gabreski Airport, East Hampton Airport, Southampton Heliport, Montauk Airport and any other airports
located on the South Fork to use a mandated 'over water' SSR, and no other route."

Southold, the FAA said, asked to minimize flight time over land.

However, the rule would have allowed departing and arriving helicopters to transition from a specified route when necessary for safety and weather conditions, the FAA said.

Southold Town has maintained that the decision to extend the North Shore route for four years denied the public of their right to notice and opportunity to be heard, violating the direction of a Presidential Executive Order, which required the FAA to consult with officials of Southold before extending the NSR; and was "arbitrary and capricious."

Of the dismissal, Russell said, "We are dismayed that the FAA found that it was excluded from federal law and that the opinions of the public aren't important enough to hear.We have discussed the issue with Rep. Lee Zeldin who has been a zealous advocate on our behalf and, hopefully, the decision can be reversed."

Zeldin spoke out Thursday about the dismissal: "I continue to stand by the Town of Southold and strongly support their petition opposing and calling for a public comment period on the closed decision to extend the North Shore route. The FAA has not handled this matter properly at all."

I have also always supported the implementation of an all water Atlantic Ocean Route that would keep this air traffic off the north shore altogether. The people of the North Fork of Long Island continue to have their quality of life, property values, and local economy unacceptably impacted by aircraft noise and poor decisions of the FAA.”

Added Suffolk County Legislator Bridget Fleming: "We are seeing a consistent, and very disturbing, trend in recent years. Localities are being hamstrung by the federal government in their efforts to regulate this critical economic and quality of life issue."

On February 13, 2017, James D. Harmon, Jr. the attorney representing the Town of Southold,
met with the FAA and presented Southold's petition for rulemaking in person.

"The FAA recognizes the concerns residential communities, such as Southold, have about
helicopter noise. However, after carefully reviewing the information provided in Southold's
petition for rulemaking, the FAA has determined that the petition does not identify an immediate
safety or security concern that would be resolved by eliminating the NSR and mandating the
SSR. In fact, the FAA finds that terminating the NSR and mandating the SSR, as Southold suggested, may not be in the interest of aviation safety," the FAA's decision said.

The extension of the North Shore route had elected officials and the public seeing red, with Rep. Lee Zeldin stating that the "FAA quietly announced a four year extension of the North Shore Route against the will of the people and without a transparent process or public comment period; an unacceptable example of incompetence and arrogance on the part of faceless, unelected and unaccountable federal bureaucrats."

Teresa McCaskie of Mattituck, who serves on the Southold Town helicopter noise committee, blasted the FAA's denial of the petition.

"The FAA recognizes and yet continues to ignore that they are also equally responsible to protect 'those on the ground,' which are hardworking, tax-paying residents that are impacted by incessant helicopter noise and along the entire North Shore and North Fork. The FAA gets a "F" for failure to protect noise affected residents."

In November, surrounded by elected officials representing the entire East End in a show of solidarity, Russell announced plans to take action after the FAA ruled to extend the North Shore helicopter route four years in July.

"Our position is that the FAA acted in bad faith in the action it took to extend the North Shore route," Russell said. "Further, we believe that the decision of that agency was legally defective," he said at the time.

Russell outlined what actions Southold would take "to ensure that our objections are heard and acted on. Every governmental agency has rules and policies it must abide by. The FAA is no exception and has to be held accountable."

Harmon, who serves as special counsel to the Southold town board, spoke and said the town had opted to give the FAA a "second chance" before taking them to federal court.

"We're saying the FAA made a mistake," Harmon said.

If the FAA refused to act on the opportunity, Russell and Harmon said, last November, that the town could then pursue legal avenues.

In July, after the FAA ruled to extend the north shore helicopter route for four years, Southold Town suggested it would explore legal action.

Russell said the basis of the town's petition for rule was that the FAA's action was "unlawful" and "deprives Southold and the public" the opportunity to be heard. The FAA's action, he continued was "arbitrary and capricious" and violated the direction of Presidential Executive Order.

Harmon said the FAA's actions were "unlawful" and said Southold had a right to be heard, with their views considered. Southold, he said, had specifically asked to weigh in, only to have the "FAA proceed arbitrarily without giving Southold the chance to say there was no reason" or basis for the extension of the North Shore route.
The petition was filed and available for review on the town's website.

"Southold believes that a review of these issues by the United States Court of Appeals for the District of Columbia Circuit would produce a favorable outcome for Southold on each issue. Nonetheless, by this petition, Southold offers the FAA something rarely found in life. . . a second chance. Our Town urges the FAA to reconsider its ill-advised uninformed rule and, this time, do the right and proper thing with all deliberate speed," the petition read.

Fleming said she appreciated the opportunity to join with Southold Town. "It's critically important that folks on the federal level understand we are united to protect our communities our quality of life." She added, "We have a bumper sticker, that the official bird of Noyac is the helicopter. We get this. We're here with you."

Southold Town Councilman Bill Ruland added, "We want to be heard."

"We are seeing a trend with the FAA and the federal court eroding the authority of home rule," New York State Assemblyman Fred Thiele said, at a November press event; most recently, that was witnessed when the federal court enjoined Town of East Hampton in regard to local legislation the town board adopted regarding curfews and helicopter noise, he said.

"The FAA was not even willing to listen to local government before perpetrating this ruling on all of us," he said. "I think what Southold is doing is extremely important to re-establish home rule powers," and protect residents from public health and safety concerns regarding excessive helicopter noise, he said.

He added that he and Fleming both turned out to support Southold Town because, "I don't think there is any question that monied interests that support helicopter interests would like to buy community against community . . . divide and conquer." The East End, he said, stands united to protect constituents.

New York State Assemblyman Tony Palumbo said, of the FAA's decision, and helicopter noise: "These are the problems that really outrage people. It's important to remember that we are somewhat of a small voice individually but collectively we have finally gotten a coalition together among towns. . .it just coalesced. When we have a collective voice, we're heard."

"The FAA is broken," said Riverhead Town Supervisor Sean Walter in November, adding that the solution can come either through going to federal court, with a judge fixing the matter so local control will prevail, or by through action of Congress.

The formal petition does not preclude Southold from taking legal steps moving forward.

The FAA declined to comment.