Grants, No Grants, No Difference

    A well-credentialed aviation law consultant hired by the East Hampton Aviation Association has issued a report mirroring the advice given East Hampton Town by its own aviation consultant — that, in order to enact rules restricting access to the airport in an effort to reduce noise, Federal Aviation Administration permission will be needed, even if the town ceases to accept new federal airport grants.

    East Hampton residents bothered by the noise of aircraft, particularly helicopters, have continually called on the town to work toward enacting binding rules that would restrict access to the airport. In response, the East Hampton Town Board earlier this year asked consultants to begin compiling the data that could be submitted to the F.A.A. to prove that there is a noise problem here and that some restrictions on airport use could be considered “reasonable” and “nondiscriminatory” under the agency’s definition.

    Airport noise-control advocates have argued that the town will have more leeway when several binding agreements with the F.A.A., called “grant assurances,” expire next year, provided the town does not enter into new agreements by taking new federal grants. However, both consultants have said that, while the grant assurances do have an effect, underlying federal law limiting what restrictions a proprietor (in this case, the town) can place on general aviation airports will remain in place. Those rules dictate the procedure by which the town could petition the F.A.A. to allow localized use limits. The first step is the data collection already under way.

    The East Hampton Aviation Association retained David E. Schaffer, an aviation law and government relations consultant, who served for 20 years as senior counsel and staff director of the United States House of Representatives Aviation Subcommittee and for six years as an attorney-adviser for the Civil Aeronautics Board, to weigh in regarding potential “restrictions to address helicopter noise at the East Hampton airport,” according to his report. 

    In a July 1 letter addressed to Gerard Boleis, the president of the aviation organization, he outlined several conclusions that in his professional opinion, he said, are supported by federal law.

    They dovetail with those provided to the East Hampton Town Board by Peter Kirsch, the consultant hired by the town.

    Mirroring what Mr. Kirsch told the town board, Mr. Schaffer said that under federal law and with or without grant assurances in effect, any restriction on helicopter operations must be “reasonable” and nondiscriminatory — that is, in Mr. Schaffer’s words, “not make unjustified distinctions between operators or types of aircraft.”

    To justify restrictions on helicopters, Mr. Schaffer said, the town should “undertake technical studies” such as those already under way, “to establish that East Hampton is a quiet community and that helicopters are noisier or more bothersome than fixed-wing aircraft.”

    If those studies “demonstrate a justification for restrictions,” Mr. Schaffer wrote, “curfews and limits on the number of flights could be upheld, even after taking F.A.A. funding and extending grant assurances.”

    In a presentation to the town board earlier this year, Mr. Kirsch said the difference between seeking more local control with or without grant assurances in effect is what type of action the F.A.A. could pursue against the town if it believes East Hampton has acted improperly in enacting flight restrictions. With grant assurances in effect, the federal agency could challenge the town in an administrative action, for breaching the agreement, or “contract,” between the town and the F.A.A. prescribed by the grant assurances.

    Without grant assurances in effect, Mr. Kirsch had explained to the town board, the town must still comply with federal aviation laws — but if the F.A.A. believes the town has overstepped, it would have to sue the town in federal court.

    In either case, before enacting curfews or other restrictions, the town must prove to the F.A.A. that the regulations are warranted and that they are fair, both attorneys said.

    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 the lawsuit settlement, the F.A.A. agreed that, as of 2014, it will no longer enforce 4 of the 39 grant assurances the town has agreed to.

    The four expiring agreements are “not just minor and insignificant,” Mr. Kirsch said during his earlier visit to East Hampton. One requirement that will be expiring in just over two years is that the town 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.

    Several airports across the country, some assisted by Mr. Kirsch, have petitioned Congress for exemption from federal rules, and a handful have succeeded. In his presentation, 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.”

    In his letter to the East Hampton Aviation Association, Mr. Schaffer concluded that, “in sum, rejecting F.A.A. funding does not enhance the ability of the town to regulate helicopters arriving at and departing from the East Hampton Airport. Conversely, accepting F.A.A. funding does not prevent the town from adopting restrictions on helicopters. With or without F.A.A. funding, the regulations must be reasonable and must not treat helicopters and other types of aircraft differently without justification.”