Local Control Not Easy

Since 1990 only two municipalities have tried it

    A longstanding debate about whether East Hampton Town should accept Federal Aviation Administration grants for repair and upkeep of its airport got an infusion of information on Tuesday, with a presentation to the town board by Peter Kirsch, an attorney specializing in aviation law.
    Those pressing the town to act decisively to curtail disturbances to residents from aircraft, particularly helicopters in recent years, have long advocated that the town stop taking F.A.A. money and allow existing agreements that accompany the money, called grant assurances, to expire in order to gain more local control over the airport. Those assurances proscribe certain aspects of airport operation.
    However, Mr. Kirsch, whom the town has retained, said that the strings attached to the federal money, which can pay up to 90 percent of the cost of capital improvements at the airport, mirror federal laws that would remain in effect even if East Hampton turns down the grants.
    “Almost all of the grant assurances, with a couple of insignificant exceptions, simply echo federal law,” he said. The 39 standard grant assurances, or conditions to which the town must agree in order to receive the federal cash, are simply provisions of the law included as contract provisions and remain in effect from 20 years after a grant is issued.
    That way, Mr. Kirsch said, should an airport owner violate the provisions, the F.A.A. can undertake an administrative action for a contract violation versus initiating a lawsuit in federal court, a more difficult undertaking.
    The possibility for the town to gain federal approval to enact restrictions on use of the airport, such as a curfew during certain hours, Mr. Kirsch said Tuesday, “will change slightly, but only slightly,” after the grant assurances expire. “If the town wants to restrict operations, if you take grants or don’t take grants, it’s not going to substantially affect your degree of success.”
    The procedure that must be followed is the same in both cases, said Mr. Kirsch.
    An airport proprietor would only be allowed to enact restrictions on use of the airport if it can meet federal and constitutional standards requiring them to first prove that the restrictions are reasonable, based on the airport’s particular circumstances. It must also show that the restrictions are carefully tailored to the local needs and community expectations, based upon data that support the need and rationale, and are not unduly restrictive of interstate commerce, he said.
    That process, Mr. Kirsch said, can be lengthy and costly. In addition, “Your chance of success at that is going to depend on how severe the restrictions are,” he said.    
    “I can tell you that it is in fact legally possible to impose use restrictions on the airport,” Mr. Kirsch said. “What I’ve also said is it may not be practical. And you can’t do it halfway. You’re in for a dollar, you’re in for several million dollars.”
    Since the adoption of new federal laws in 1990, only two municipalities have attempted to enact restrictions on airport use, such as curfews or outright bans of certain aircraft, and Mr. Kirsch’s firm, Kaplan, Kirsch & Rockwell of Denver, Washington, D.C., and New York, represented both.
    The city of Burbank, Calif., spent almost a decade and $8 million and failed to gain Federal Aviation Administration approval for its proposal.
    In Naples, Fla., the court upheld the right to ban the noisiest type of aircraft, called Stage I and Stage II, which includes helicopters, after a four-year fight against five lawsuits filed not only by the F.A.A. but by airport users and tenants, at a cost of $4.5 million.
    “Would that principle be able to be sustained in East Hampton?” Town Councilwoman Theresa Quigley asked. “Yes,” Mr. Kirsch said, “you would have a possibility of winning.”
    “Yes, it’s precedent-setting, but every lawyer will tell you that every case is based on different facts. It’s important to keep realistic,” he said.
    “Naples made the decision that they wanted to go to the ends of the earth on this,” he said.
    “So the F.A.A. doesn’t make it impossible — it just sets up the procedure,” Ms. Quigley said. “The federal law doesn’t in and of itself prevent a municipality from restricting aircraft.”
    The 1990 Airport Noise and Capacity Act was passed by Congress “with the purpose of making it enormously difficult to impose new restrictions,” Mr. Kirsch said.
    However, he said, while the act applies to airports that have taken F.A.A. money, the question of whether it applies to airports not beholden to grant assurances has not been addressed by the courts.
    New York City, which owns the East 34th Street Heliport, which was involved in a case (cited by airport noise control advocates) that upheld restrictions on flights, had never accepted F.A.A. money for the heliport, Mr. Kirsch said.
    A heliport in Southampton Town, where landing restrictions are imposed, is not part of the national air transportation system, as East Hampton Airport is, and so is not subject to the same federal laws, he said.
    Trying to impose restrictions on use of the airport is the “meat ax” approach, Mr. Kirsch said. A “scalpel approach,” to undertake a number of smaller measures could, he said, help the town achieve “75, 80, 90 percent” of the desired results. Among those might be strictly enforcing existing regulations such as noise ordinances, increasing pilots’ voluntary compliance with desired procedures by publishing the names of aircraft owners who flout a request not to land in the middle of the night, for instance, and installing an air traffic control tower, as is already planned.
    But, he told the board, “the policy problem is, you’re not going to see results overnight the way you would if you said, ‘We’re going to ban helicopters.’ It’s an incremental approach.”
    Advocates of airport noise control have pointed to an agreement between the F.A.A. and the Committee to Stop Airport Expansion as an opportunity for the town to enact stricter airport regulations. In a lawsuit settlement, the F.A.A. agreed that as of 2014 it will no longer enforce 4 of 39 grant assurances that the town has agreed to — most of which remain in effect until 2021.
    “Those four are important — they’re not just minor and insignificant,” Mr. Kirsch said Tuesday. One that will expire in just over two years is the requirement to have an up-to-date airport layout plan, or map showing existing conditions at the airport, on file with the F.A.A. The others that are expiring, he said, “essentially say you will not discriminate” regarding who can use the airport, or “impose restrictions on use that are unreasonable.”
    “That expires in 2014, but federal law doesn’t,” he said. So for instance, should the town attempt to enact a ban on helicopters without first following the required procedures to justify its actions, under the grant assurances the F.A.A. would likely file an administrative action against the town.
    If there were no grant assurances in effect, he said, the F.A.A. would have to sue the town in federal court for violation of the parallel federal laws, and would probably seek an injunction to prevent the town from enforcing the ban.
    But, he said, “if you have grant assurances . . . it’s a double gotcha,” allowing the F.A..A. to challenge a town action both administratively — for breaching the “contract” of the grant assurances — and in court.
    Kathleen Cunningham, a member of the Quiet Skies Coalition steering committee and former chairwoman of the town’s Airport Noise Abatement Advisory Committee, questioned Mr. Kirsch about whether the town could petition Congress for the airport to be exempted from the Airport Noise and Capacity Act rules, as that act was designed for application to larger airports.
    “Absolutely,” Mr. Kirsch said. In fact, about half a dozen airports in the country have successfully done so, he said, and his firm is making such an application for Burbank.
    Mr. Kirsch characterized the town’s options for how to address the airport noise problem as lying along a continuum.
    “Some restrictions are so hard to get — such as banning helicopters outright — that I would advise you’re wasting your time,” he said. Then, he said, there are “those that are so easy to get, I don’t know why you’re not already doing it.”
    Some airports, the attorney said, are developing “prophylactic rules” — regulations designed to prevent airport problems from getting worse — which he said are “somewhat easier to impose.”
    “I think we’re all on the same page, in that we all want an airport that doesn’t have an inordinate nuisance value attached to it. As a town, I don’t know that we’ve ever taken a considered approach,” Ms. Quigley said. “We’ve just been reacting to lawsuits.”
    She suggested starting with the “scalpel” approach,  “and simultaneously look at the larger approach and try to work toward resolution, such that we keep the airport and yet alleviate the most egregious issues that are affecting the community.”