An attempt by the Committee to Stop Airport Expansion to obtain a temporary restraining order stopping East Hampton Town from accepting a Federal Aviation Administration grant for an airport fence project failed in New York State Supreme Court earlier this month. An appeal will be heard by a four-judge panel today.
The temporary restraining order would have stalled action until the court could rule on a motion for a preliminary injunction, which could also prevent the grant application from going forward. That decision, as well as a review of briefs in the Committee to Stop Airport Expansion’s underlying lawsuit, an Article 78 challenging the town’s adoption of its airport master plan, is scheduled for next week.
Justice John J.J. Jones Jr. denied an emergency request for a restraining order in December, but Jeffrey Bragman, an East Hampton attorney for the Committee to Stop Airport Expansion, and other counsel pursued an appeal, resulting in last week’s decision.
The issue of whether East Hampton Town should accept new federal grants from the F.A.A., thus binding the town to contractual obligations, or “grant assurances,” for a new 20-year period, has been central to discussions about the airport.
Based on an agreement between the committee and the F.A.A. settling an earlier lawsuit, several of the grant assurances now in effect will no longer be enforced after 2014. Those seeking greater local authority over the airport as a key to addressing noise disturbances to residents caused by aircraft argue that it will then be easier for the town to enact restrictions such as a night curfew.
Others, such as Save East Hampton Airport, an airport users group that has aligned with the town to fight the Article 78 lawsuit, note that underlying federal requirements, like a need to prove to the F.A.A. that any proposed airport restriction is “reasonable, nonarbitrary, and nondiscriminatory,” will remain in effect.
After consulting with Peter Kirsch, an aviation attorney hired by the town, the town board voted unanimously on Dec. 6 to proceed with a grant application to the F.A.A. for “funding the design of updated perimeter deer fencing at the town airport,” according to a legal notice.
This week, Councilwoman Theresa Quigley said that if steering clear of F.A.A. grants would give the town more leeway in enacting airport regulations that could help mitigate noise, she would reconsider accepting those grants.
“To me, the question comes down to, is there a difference — does the accepting of F.A.A. money impact our ability to control the airport? It was my understanding that it didn’t. If indeed it makes no difference, then why would I not take the money?”
In answers to questions submitted to the agency by Representative Tim Bishop, the Federal Aviation Administration recently stated that after 2014 it would not only cease enforcement of several of the grant assurances but would no longer hold the town to the federal Airport Noise and Capacity Act requiring airport operators seeking approval of local regulations to follow a particular procedure. Though any proposed regulations would still be measured against the “reasonable and nondiscriminatory” standard, airport noise control advocates hailed that information as supporting their stance that freedom from the ties that come with F.A.A. grants would put the town in a position to enact effective rules.
In her response to an e-mail from Antonia Pisciotta, a constituent who asked that the board rescind its vote to accept F.A.A. funding, Councilwoman Quigley said that in light of the agency’s responses, she would ask for further research into the issue.
However, she said Tuesday, “If it says that not taking F.A.A. money frees us to control our airspace, there’s a different question to be asked” — the cost to taxpayers of paying for upkeep of the airport without federal support.
The need for the fencing that is currently proposed and the town’s description of its project in the grant application has been questioned in two recent letters to the F.A.A.
In a Dec. 19 letter to Otto Suriani, the acting manager of the F.A.A.’s New York Airport District Office, and copied to Mr. Bishop, Daniel G. Voorhees, an attorney from Wainscott, pointed out that the town had not mentioned that there is an existing perimeter fence, between 9 and 10 feet tall, around the airport, which, he said, is in “excellent shape” except for several small holes. Where Industrial Road and Daniel’s Hole Road border the airport, Mr. Voorhees wrote, the perimeter fence is discontinued.
“A simple solution to control deer, which, after all, is the purpose of the fence, would be to install five cattle grates,” he wrote.
“The failure of the F.A.A. grant application to take into consideration the existing perimeter fence is, at best, disingenuous,” Mr. Voorhees wrote to the F.A.A. official. In addition, he said, “in my opinion, the town’s proposed fence consisting of seven feet in height with one additional foot of barbed wire would not accomplish deer control. Moreover, costs will probably approach over one million dollars!” His suggestions, he said, “would cost, I would guess, one-tenth of [the cost of] the town’s proposed fence.”
Another letter on the issue was sent to the agency in early February by Sheila D. Jones, a Washington, D.C., attorney assisting the Committee to Stop Airport Expansion on its case. She asserts that the town has submitted contradictory information to the F.A.A. and to the court in its descriptions of the fence project.
In its application to the agency, the town asks for an $80,499 “development grant,” she writes, which, according to federal law, Ms. Jones said in the letter, “will be funded only if they result in the complete preparation of plans and specifications for airport development work that has every expectation of beginning within two years.”
But in memos to the court, Ms. Jones told the F.A.A.’s New York deputy regional counsel, the town describes its intentions as solely “a planning effort to design a fence,” with a decision to be made later as to whether it would be built.
The procedural differences could affect whether the fence project is subject to immediate review under the State Environmental Quality Review Act, or whether it can proceed under the F.A.A.’s conditional approval of the town’s airport layout plan.
“Simply put, once again the town is mischaracterizing what is transpiring in order to support its legal position in state court,” Ms. Jones wrote to the F.A.A.