By Kathryn G. Menu
The United States Supreme Court will not review an appellate court decision that struck down restrictions imposed by the East Hampton Town Board in 2015 on aircraft flying in and out of the East Hampton Airport.
Supervisor Larry Cantwell said the town board was informed of the decision early Monday morning.
“It is disappointing,” said Mr. Cantwell.
In March, town officials announced that its aviation attorneys, Kathleen Sullivan and David Cooper of Quinn Emanuel Urquhart and Sullivan, LLP, had petitioned the court in an effort to reinstate curfews knocked down by the appellate court decision. In November of 2016, the Second Circuit Court of Appeals ruled the town did not have the right to impose restrictions that did not comply with Federal Aviation Administration regulations, even if the town did not accept federal grants for the facility. Those restrictions included a limit on takeoffs and landings by aircraft defined as “noisy” by aviation standards and overnight curfews with greater restrictions imposed on “noisy” helicopters and planes.
While a once-a-week limit on takeoffs and landings for “noisy” aircraft was enjoined by an earlier court ruling, the remaining restrictions stayed in place until a suit was brought by aviation interests.
The basis for the town’s petition was its hope the Supreme Court would recognize the issue of whether local governments can regulate their own facilities when they do not accept federal grants to maintain them was one that applied to all municipally owned airports.
“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 Mr. Cantwell in a release issued Monday. “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.”
“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 Councilwoman Kathee Burke-Gonzalez, the town board’s liaison to the airport. “We will not and cannot 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.”
In an interview on Monday, Mr. Cantwell said the town would pursue a Congressional amendment to memorialize agreements made by the FAA, and reinforced in correspondence with then Congressman Tim Bishop, that stated the town could regulate the airport if it did not take federal funds for it. He added the town would also pursue the Part 161 process — in which it would request permission from the FAA to impose restrictions. Mr. Cantwell admitted that was a “lengthy and expensive process” and one that has not proved successful for most municipalities that have pursued it.
“Congressman Zeldin supports the town’s right to local control,” said Jennifer DiSiena, a spokesman for Congressman Lee Zeldin, in an email Wednesday morning. “This is an issue that Congressman Zeldin has been working on since taking office in 2015.”
Last Congress, noted Ms. DiSiena, Mr. Zeldin introduced an amendment in the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act of 2016, attempting to hold the FAA to its prior written commitment to not take negative action against East Hampton Town with regards to the enactment of aircraft noise restrictions. It passed the House of Representatives, but Ms. DiSiena said failed to gain the support from New York Senators Kirsten Gillibrand and Charles Schumer.
“Now that the Supreme Court has unfortunately chosen not to take this case, any solution going forward will require the work and cooperation of elected officials at all levels of government,” said Ms. DiSiena. “Congressman Zeldin will continue working closely with East Hampton Town regarding options moving forward at this point. Congressman Zeldin is a strong supporter of local control and solving the aircraft noise issue on the East End. He will continue to advocate for true all water routes and to call on the FAA to require aircraft bound for East Hampton to fly over the Atlantic Ocean.”
The non-profit group Say No to KHTO issued a press release Monday calling on the town board to close the airport.
“SCOTUS’s decision, learned today, leaves only one practical option to gain local control over the airport…by closing it,” said Barry Raebeck, co-founder of Say No to KHTO. Mr. Raebeck said that when the town’s grant obligations with the FAA expire in 2021, it should “shutter the airport once and for all.”
“The residents and taxpayers of the East End — as well as beleaguered people from NYC to Orient Point — need to have our voices heard, need to have our rights defended, need to have our air, groundwater, skies, and habitats protected — and need to close the hazardous waste dump that is East Hampton Airport,” said Mr. Raebeck.
On Monday, Mr. Cantwell said it was never the town board’s intention to shut down the East Hampton Airport.
“The current town board does not support closing the airport,” he said. “On balance, the airport is an asset to the community, but we also do believe the airport should be locally controlled by a governing body of this town representing the people of this community. Our goal in trying to make the airport a better neighbor has been with the vision of keeping the airport open. If the decision to regulate the airport was left to us locally, I believe we could work this out, find balance at the airport, and reduce the impacts it has had to the residents of East Hampton Town.”
In other airport news, on Monday, New York State Assemblyman Fred W. Thiele and New York State Senator Ken LaValle announced legislation had passed on the state level that makes any future grants sought by the town from New York State or the federal government for the airport subject to a permissive referendum.
The bill, which must be signed into law by Governor Andrew Cuomo, allows the town board to place a referendum on the ballot when considering state of federal assistance for the airport, but also gives residents the right to petition for a town-wide referendum.
“I am pleased the legislature approved this measure which puts some of the decision-making power back into the hands of the community,” said Assemblyman Thiele. “Town board members, who negotiate financing for the town airport, have terms that last only two years. Therefore, it’s important that voters also have a say on these abiding agreements that will impact them for years to come.”
“I fully support East Hampton’s efforts to make decisions concerning their own airport. Our legislation would enable the residents to decide by referendum whether to accept financial assistance from other levels of government,” said Senator LaValle. “The new decision-making ability would enable the community of East Hampton to chart their own course.”