Dueling Memos in Debate

       Memoranda from two attorneys specializing in airport matters are expected to be on forthcoming agendas of the East Hampton Town Board, but, with Town Supervisor Bill Wilkinson, Councilwoman Theresa Quigley, and Councilman Dominick Stanzione leaving office at the end of the year, a new board in January will be faced with making airport decisions. Mr. Stanzione, the town’s airport liaison, lost his bid for re-election on Tuesday.

       Town board members recently received a report outlining new federal policy regarding airports from Peter Kirsch, the town’s airport consultant, but it has not yet been discussed. Mr. Kirsch first prepared an advisory report in 2008. The ongoing debate is over how East Hampton might best address aircraft noise, and how the F.A.A.’s authority might be diminished or enforced.

       In another recent report, Sheila Jones, a lawyer hired by the local Committee to Stop Airport Expansion, responded to a study by still another attorney, David E. Schaffer, who was hired by the East Hampton Aviation Association and provided his opinions to the board in July.  

       Both agree that local government control is pre-empted by the federal government, and that various factors influence the ability of a town to successfully enact local restrictions, and, if necessary, defend them against an F.A.A. challenge.

       They disagree, however, as to the extent that freedom from F.A.A. “grant assurances” — contractual agreements with the federal agency that are attached when the town accepts F.A.A. grants — would or would not put the town on stronger ground in enforcing and maintaining such restrictions.

       In her memo to the board, Ms. Jones said that Mr. Schaffer “has not taken into account all of the relevant factors. . . .” She cited a Supreme Court case, New York City v. National Helicopter, which outlined the scope of local authority, which, she said, created a precedent applicable to East Hampton. She also referred to Mr. Kirsch’s 2008 memo, and said she agrees with his summary of that case: that the United States Court of Appeals for the Second Circuit held that “a local government can limit helicopter traffic in order to address local noise or environmental concerns.”

       In that case, the court upheld New York City ordinances that limit helicopter traffic to certain times of the day or week, limit overall numbers of helicopter traffic, and regulate helicopter noise directly.

       “Clearly, therefore, the Town of East Hampton has the power to impose limitations on the use of the airport in order to address noise,” Ms. Jones wrote. However, she also said, as have every consultant, that the limits must be “reasonable, nonarbitrary, and nondiscriminatory.”

       The Committee to Stop Airport Expansion, which she represents, holds that several F.A.A. grant assurances due to expire at the end of 2014 are “relevant to the scope of local authority to control noise.” This was confirmed by the F.A.A. in correspondence with Representative Tim Bishop about East Hampton Airport, Ms. Jones said.

       In the absence of the assurances, she wrote, East Hampton could exercise as much control over its airport as was upheld by the court in the National Helicopter case. The town could not attempt to control airborne aircraft, and it would have to treat “similarly noisy aircraft alike.”

       Contradicting what Mr. Schaffer said in his letter to the town, Ms. Jones said that should the town remain subject to all of the grant assurances, it would be “significantly limited . . . in its ability to impose restrictions” that would otherwise be permissible under the National Helicopter precedent.

 Ms. Jones wrote that Mr. Schaffer “is wrong” in his assertion that “accepting F.A.A. funding does not diminish the town’s authority to adopt reasonable and  nondiscriminatory restrictions. . . .”

       Specifically, she says, if the town is subject to F.A.A. grant assurances and seeks to impose an airport use restriction, the F.A.A. can mount an administrative proceeding to determine whether, in the agency’s view, the restriction complies with the grant assurances’ terms and conditions. If the F.A.A. says a town regulation violates these terms, the town would have to prove that the F.A.A. acted “unreasonably, arbitrarily, and capriciously” in making that decision. Ms. Jones wrote that federal courts defer to F.A.A. administrative decisions.

       Conversely, should the town be free of grant assurances and should the F.A.A. or a private party still assert that a restriction imposed by the town is unreasonable, the burden to prove that would be on the F.A.A. Mr. Schaffer, whose memo was described in these pages in the summer, wrote that that “does not address the role of the F.A.A. when a proprietor adopts a noise or access restriction, and thus fails to account for significant factor limiting the town’s authority.”

       Ms. Jones also claimed that Mr. Schaffer’s report does not address the import of another F.A.A. regulatory program, which specifies the procedure that airport proprietors who have accepted F.A.A. grants must follow when seeking to impose a noise or access restriction.

       Mr. Kirsch, she noted, had told the town in his 2008 memo that “case law and F.A.A. legal opinions . . . severely limit the ability of an owner of a federally-assisted airport [one that accepts grants] to impose use restrictions.”

       That, she said, is the Committee to Stop Airport Expansion’s point. “The ability of the town to impose use restrictions on its own airport will be significantly constrained if it applies to the F.A.A. for any additional airport planning and development funds. . . .”