Supreme Court Demands Aviation Interests File Opposing Brief

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By Kathryn G. Menu

The United States Supreme Court has ordered the Friends of the East Hampton Airport and others who successfully challenged the town’s right to impose curfews at the Wainscott facility to file a brief opposing the town’s petition to overturn the appellate court ruling that stripped the town of its ability to regulate the airport. The opposing brief must be filed by May 19, said East Hampton town attorney Michael Sendlenski.

According to Councilwoman Kathee Burke-Gonzalez, the town board’s liaison to the airport, the town will be provided the opportunity to file its own brief in reply two weeks after the opposition brief is delivered to the court.

In March, town officials announced their aviation attorneys, Kathleen Sullivan and David Cooper of Quinn Emanuel Urquhart and Sullivan, LLP, had petitioned the Supreme Court to reinstate curfews at the airport that were imposed by the town board in 2015 in a bid to reduce noise complaints. In November, the Second Circuit Court of Appeals ruled that the town did not have the right to impose restrictions at the airport that did not comply with Federal Aviation Administration (FAA) regulations, even if it had not accepted federal grants.

At a town board meeting on Tuesday, Mr. Sendlenski said opposing briefs could have been filed within 30 days of the town’s petition to the Supreme Court, but were not. The town has had briefs filed in support of its case by the City of New York and the Town of Southold, with the International Municipal Lawyers Association filing a joint brief with the Committee to Stop Airport Expansion. That support, he noted, goes “a long way in showing the breadth of this problem and the impact the Second Circuit Court of Appeals decision has on airports and local control over them, not only in our community but in communities across the country.”

After that filing, said Mr. Sendlenski, the court ordered the opposition to make their own brief — a sign, he said, that the court is taking the town’s petition “seriously.”

While the town board had hoped to hear whether or not the court would formally take up its case in May, on Wednesday, Mr. Sendlenski said the court’s request for an opposition brief would likely push that decision back to July.

“Although it is possible with delays with the court and the briefing it could be pushed back as late as the fall,” he added.

“We are pleased that the Supreme Court is taking a serious look at our petition,” said Ms. Burke-Gonzalez in a press release issued late Wednesday afternoon. “The town welcomes the opportunity to be further heard by the filing of a reply brief, on the drastic impacts that the Second Circuit’s decision will have on our airport and airports across the country. The court’s order is a positive step in our march to regain local control of East Hampton Airport.”

On Tuesday, the town board also received an update from consultants Ted Baldwin and Adam Scholten of the Massachusetts-based Harris Miller Miller & Hansen Inc. about airport complaints — and the success of the curfews imposed by the town in 2015 and 2016.

According to Mr. Baldwin’s data, while overall activity at the airport only increased by 71 operations, noise complaints about air traffic coming in and out of the airport increased by more than 27 percent in 2016 compared to 2015. A total of 24,309 complaints were filed between the PlaneNoise system, which the town contracts to use, and the AirNoiseReport.com, a website launched last June by airport noise regulation advocates in Nassau County and Queens, between June 30 and September 30. That is up from 19,099 in 2015 and 17,437 in 2014.

According to Mr. Baldwin, the user-friendly nature of AirNoiseReport.com may have resulted in the surge in complaints. On the site, residents can simply click on an offending aircraft, shown on a real-time map on Long Island and Connecticut.

According to data from both firms, helicopters remain the source of over 50 percent of complaints, with 13,214 in 2016, compared to 7,060 complaints for planes and an additional 2,616 complaints for seaplane activity.

The Sikorsky S76, a helicopter defined as “noisy” by the town, had the most complaints, with 1,453 filed about that model of aircraft alone. The Cessna Caravan Seaplane had the second most complaints in 2016, followed by the Bell B407 helicopter. Similarly, those three models had the most flights in and out of the airport in 2016, said Mr. Baldwin.

“So it is important to note it is not just the noise level of an aircraft, but its frequency, that results in complaints,” he said.

Despite the increase in complaints, according to Mr. Baldwin, while in effect, the town’s curfews on air traffic in and out of the airport had their intended result — reducing flights in the early morning hours and late at night.

“There was a shift of noisy aircraft out of the restricted hours, which was exactly what we wanted them to do,” said Mr. Baldwin, noting almost no flights logged between 11 p.m. and 7 a.m., and an overall decrease in the number of flights coming in between 8 p.m. and 8 a.m. when comparing 2014, before curfews were imposed, to 2016.

Supervisor Larry Cantwell said he was struck by the fact that while there was no noticeable increase in helicopter traffic in and out of the airport in 2016, there were significant complaints — almost four times what were logged for other kinds of aircraft.

Mr. Baldwin said that was typical, noting that while technology has made jets quieter, the same cannot be said for helicopters.

“We are seeing a rise in helicopter complaints everywhere,” he said.

According to Jeff Smith, with the Eastern Region Helicopter Council, that body remains committed to working with elected officials, operators and community members on noise abatement. Transition routes were developed in 2016 to help mitigate noise impacts on the North Fork, he said. For 2017, routes have been developed that bypass areas like Sag Harbor, Shelter Island and Mattituck, which, he said, are considered highly sensitive noise complaint areas.

Mr. Smith said providers are also encouraged to use altitudes of between 3,500 and 4,000 feet.

“That is 1,500 to 2,000 feet higher than the most aggressive altitude routes in the country, which is over Naples, Florida,” he said.

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