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Town Board Calls On Elected Officials To Support Local Control Of East Hampton Airport

July 14, 2017
In The News

EAST HAMPTON, NY — The East Hampton town board asked for the support of East End elected officials this week to keep local control of East Hampton's airport.

East Hampton Town Supervisor Larry Cantwell sent a letter to members of the East End Supervisors and Mayors Association, asking that their respective municipalities reach out to Representative Lee Zeldin and U.S. Senators Chuck Schumer and Kirsten Gillibrand in support of an amendment to be included in the FAA Reauthorization legislation currently pending in Congress.

The town’s proposed language was drafted to simply codify the FAA’s original intent in the 2005 Settlement Agreement, East Hampton officials said.

The purpose of the language, the town said, is to clarify the effect of the Settlement Agreement, entered into by the FAA in 2005 with regard to the East Hampton Airport, as expressed to then-Congressman Tim Bishop.

The amendment is necessary, the town board said, "because the FAA’s authority to enter into this Settlement Agreement, and the FAA’s interpretation of the effect of the Settlement Agreement has been challenged in federal litigation and in a pending Part 16 administrative proceeding filed by the National Business Aviation Association."

The intent is to simplify the language to state that as of Dec. 14, 2014, East Hampton Town will no longer be subject to sponsor assurances; unless the sponsor of the airport wants to remain eligible for future federal grants or funding under the Airport Improvement Program, the sponsor is no longer required to comply with the requirements under the 1990 Airport Noise and Capacity Act in proposing new airport noise and access restrictions; and the sponsor will not be in violation of the prohibitions against exclusive rights . . . by adopting any such new airport noise and access restriction."

“The East End Supervisors and Mayors Association is designed to address issues of regional importance. Regaining local control of East Hampton Airport and allowing our local community to put in place common sense noise abatement measures is something the entire East End community supports," Cantwell said. "We look forward to working with our federal elected officials to secure this vitally important legislative amendment.”

Councilwoman Kathee Burke-Gonzalez, the town board’s liaison to the airport added, “The FAA Reauthorization Bill is the perfect opportunity to clarify the intent of the 2005 Settlement Agreement and establish once and for all that the Town of East Hampton has local control over their municipally-owned airport. We appreciate any and all efforts by our congressional delegation to that end."

"The buck stops with Schumer and Gillibrand"

Southold Town Supervisor Scott Russell said East Hampton has contacted the town. "We will contact both of our U.S. Senators to urge support of the amendment. Rep. Zeldin and his staff have stayed in regular contact with us and has been supportive every step of the way. The only option left is a political one now that all legal options have been eliminated by the recent refusal of SCOTUS to hear the case. The buck stops with Schumer and Gillibrand," he said.

Southampton Town Supervisor Jay Schneiderman said he supports local control. "I continue to support local control — but you can only go so far. As far as what the courts have said, there are limits to local control."

Schneiderman said he'd like to see the federal government give the green light to a noise study so East Hampton Town can implement "additional, reasonable restrictions."

Supreme Court denies East Hampton's petition

In June, the Supreme Court denied the Town of East Hampton’s petition for certiorari, which had asked the court to uphold the town’s three local laws limiting aircraft noise at East Hampton Airport and to overturn the decision of Second Circuit Court of Appeals that held the laws preempted by federal statute.

“The town board is deeply disappointed in the Supreme Court’s order not to review the Second Circuit decision, which strips municipal airports like East Hampton’s of their traditional proprietary powers to limit airport noise," said Cantwell. "Nonetheless, the Supreme Court gave serious consideration to our petition, ordering a response from the plaintiffs, as it does in only a small number of cases."

The denial of a petition for certiorari has no precedential force, and does not mean that the Supreme Court has taken any view on the correctness of the Second Circuit decision, he added.

“Despite the outcome of this litigation, the town board will continue its efforts to find solutions to the problem of airport noise in our community, both through our elected representatives in Congress and through the onerous FAA Part 161 process,” added Burke-Gonzalez. “We will not and can not stop fighting to regain local control of our municipal airport. The federal government, and in particular the FAA, is incapable of managing the airport in the best interests of our community. We need local control in order to bring the much needed relief from aircraft noise.”

The decision came after the Federal Aviation Administration in June dismissed Southold Town's petition regarding a decision to extend the North Shore helicopter route through 2020 that town officials believe is in violation of federal law.

The United States Supreme Court, in April, ordered the preparation and filing of additional briefing in the Town of East Hampton’s bid to overturn the appeals court decision.

The Supreme Court ordered that the respondents, led by commercial aviation interest group Friends of the East Hampton Airport, had until May 19 to submit a brief opposing the town’s petition for Supreme Court review, a release from the town said.

East Hampton Town was provided the additional opportunity to file a reply brief within two weeks of the filing of the respondents’ opposition, the release said.

Earlier that month, the Town of East Hampton’s petition to the United States Supreme Court to overturn an appeals court decision was endorsed when the City of New York also offered support, town officials said.

In a release from East Hampton Town, Cantwell said an amicus curiae, or “friend of the Court” brief, as well as two additional briefs, were filed on behalf of East Hampton Town.

The Committee to Stop Airport Expansion, an unincorporated association of residents living near the East Hampton Airport, and the International Municipal Lawyers Association, which represents more than 2,500
members composed of local government entities, filed a joint amicus brief, the release said.

The Town of Southold also supported East Hampton Town’s petition to challenge the Second Circuit Court of
Appeals decision, Cantwell said.

"We have been supportive of the efforts by East Hampton to assert its legal authority to regulate its own airport," Russell said at the time. "The efforts the town has made and the costs it has incurred to date demonstrates the deep commitment it has made to being a good neighbor."

“The City has a strong interest in ensuring the stability of its programs and in correcting the Second Circuit’s erroneous view that private parties may destabilize the long-held expectations of state and local governments by hijacking the FAA’s carefully calibrated role under ANCA and unleashing a torrent of private litigation under the statute,” wrote the Corporation Counsel for the City of New York.

The Airport Noise and Capacity Act, or ANCA, was adopted in 1990 with an eye toward creating a more comprehensive approach to handling aircraft noise nationwide.

The Court’s “fashioning of a private remedy to enforce ANCA is at odds with congressional intent, undermines the statute’s purpose, and violates constitutional limits on federal-court jurisdiction. Responsibility for protecting local residents from aviation noise has historically been shouldered primarily by local governmental airport proprietors," the Corporation Counsel for the City of New York added.

In the second brief submitted in support of the town, the Committee and IMLA assert, “. . . the
Second Circuit held that federal law preempts East Hampton’s reasonable restrictions on access
to its airport because the town did not follow procedures set forth in the Airport Noise and
Capacity Act of 1990 . . . when imposing those restrictions. Petitioner ably demonstrates
in its brief why the Second Circuit’s decision in this case conflicts with this court’s decision in
Armstrong v. Exceptional Child Center, Inc., why the court of appeals improperly invoked its
equity jurisdiction, how that court misinterpreted ANCA, and how its decision dramatically
expands federal regulation of local airports beyond Congress’s intention.”

In November, the Second U.S. Circuit Court of Appeals ruled in favor of the Friends of East Hampton Airport, Inc. regarding access restrictions at East Hampton Airport.

The restrictions, proposed by Burke-Gonzalez in 2015, included a mandatory nighttime curfew from 11 p.m. to 7 a.m.; an extended curfew on noisy aircraft from 8 p.m. to 9 a.m.; and a limit on operations by noisy aircraft of one trip (one arrival and one departure) per week during the summer season — the third restriction was enjoined in 2015.

Communities crying out for relief

For years, East End residents have been crying out about aircraft noise that's shattered their bucolic quality of life.

With an eye toward providing those impacted by aircraft noise "meaningful and deserved relief," East Hampton Town adopted the three local laws in April, 2015 imposing use restrictions.

Back in 2015, opponents, including The Friends of East Hampton Airport, sued in federal court to enjoin the local laws; in late June, 2015, Federal District Court Judge Joanna Seybert enjoined one of the laws that restricted noisy aircraft to one round trip per week.

The other two curfew laws have been in effect and enforced since July 2, 2015, the town said.

"The town board vigorously defended its enactment of these three reasonable local laws at both the District and Circuit Court of Appeals levels in attempt to effectuate the solutions arrived at through the deliberative process of the town board," East Hampton Town officials said.

Officials in East Hampton added that over the past two summer seasons of implementation, the town saw over 99 percent compliance with the curfew regulations.

When the restrictions were first enacted, the Friends of East Hampton Airport Coalition voiced opposition.

In a statement from spokesman Loren Riegelhaupt, the group claims they were "forced to consider legal action to remedy this unfortunate situation.”

The court's decision, written by Judge Reena Raggi, said that all three local laws were preempted by ANCA.

Locally, elected officials were seeing red over the news in November.

"I am terribly disappointed in the court's decision to enjoin East Hampton's local laws that help mitigate the noise the region has to contend with from loud aircraft coming and going to East Hampton's municipally owned airport," said Southold Town Councilman Bob Ghosio, who serves as liaison to the town's helicopter noise abatement committee.

Of the decision, Russell responded, "I would like to bypass Sen. Chuck Schumer, bypass the courts and post the names of the members of the Friends Of The East Hampton Airport on the town's website so we can take our complaints right to them."

Others, however, applauded the decision. According to a press release, The National Business Aviation Association lauded the decision by U.S. Court of Appeals for the Second Circuit, "which agreed with the argument made on appeal by NBAA and other aviation interests that the Airport Noise and Capacity Act of 1990 continues to apply to New York’s East Hampton Airport, making the town’s adoption of noise and access restrictions at HTO a violation of federal law."

In addition, the ruling, "which sets an important precedent for airports nationwide, holds that ANCA continues to apply to HTO, despite the town’s stated intent to no longer accept federal Airport Improvement Program grants," the release said.

“NBAA has long advocated against unlawful and unreasonable restrictions being imposed at East Hampton Airport,” said NBAA President and CEO Ed Bolen. “We are gratified that the Second Circuit agrees that East Hampton remains bound by ANCA and related FAA policy and regulations.”

ANCA requires airports to engage in a detailed study and obtain FAA approval for noise-based access restrictions before they can be implemented, the release said.