Letters to the Editor: Airport 12.15.16

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Close the Airport

East Hampton

December 12, 2016

Dear David,

With the recent decision of the Second Circuit Court of Appeals that stripped the town of its rightful ability to implement a standard curfew of any kind as other municipal airports have, I realize there is little to zero chance of the Supreme Court giving consideration to a petition as filed by the town. 

Very shortly the summer season will open the skies to far more aircraft than the East End has ever known before, as there are no restrictions in place. Already aircraft is heard from late to early morning hours by our family and neighbors afar. The residents of the South and North Forks have appealed to the aviation community to achieve a compromise but were refused by litigation and a baseless argument that was meant to steal our right to peace and quiet in our homes. Their position has always been to have unfettered access. Ridicule and hostile behavior have been the hallmarks of the aviation community and lobbyists, most of whom are not local aviation enthusiasts at all, but corporations whose only goal is to make a huge profit with no regard for our community members’ right to peace and quiet, clean water supply, lands, and wildlife. 

I have long advocated for the dismissal of Kaplan, Kirsch & Rockwell, as they have proven time and again that their real goal is to represent corporate aviation concerns and lobbyists, not the Town of East Hampton residents. It is ill-advised to retain the same attorneys who misled the last administration. It is patently absurd to continue with this firm, as their objective is not to provide us with meaningful solutions, but rather to make certain we have none. The court’s ruling makes this very clear. The results are the facts: Kaplan, Kirsch & Rockwell is the adversary of peace and quiet and of our environment as toxic chemicals are spewing from aircraft over our preserves and residences.

From the website of Peter Kirsch: “Town of East Hampton, New York. Represent proprietor of small resort airport in negotiations, litigation and policy initiatives designed to achieve a balance between community concerns over noise and need for helicopter service for high-net-worth individuals with weekend homes in the area.”

“High-net-worth individuals.” Those people are Mr. Kirsch’s real clients. His clients are not the taxpayers who live and work here and pay his fees. They are not the people who call the East End home. Actions, not words, speak the facts. Mr. Kirsch has acted in the favor of the “high-net-worth individuals” since the Wilkinson administration. 

There is but one choice now: Close the airport and make use of the land to serve the 99 percent. The other choice is to serve the 1 percent who don’t care about the community, the people, or the environment. 

As a result of the recent decision by the court, our family regrets there is no other alternative left but to join the newly formed group “Say No to KHTO.” Online, saynotokhto.com advocates the closure of the East Hampton Airport and transformation of the land to benefit all the residents. 

Continue to register aircraft noise complaints on the free-to-use website airnoisereport.com

SUSAN McGRAW KEBER

Rerouted to Montauk

Montauk

December 8, 2016

Dear Editor, 

I agree with the letter by the foursome London, Lowenstein, Kahn, and Creel (Dec. 1) regarding the possibility of a noise transfer from East Hampton Airport to the privately owned airport in Montauk. 

In my response on Sept. 17 to the questionnaire by Montauk United, and then in a letter to Concerned Citizens of Montauk on Nov. 10 with support, I stated my major concern with the possibility of helicopter and jet aircraft being rerouted to Montauk in the future.

This is a major concern of this taxpayer of 53 years and many other residents in our Montauk neighborhood. Where do we go from here? Locally we have our Concerned Citizens of Montauk to become involved in this important matter, while East Hampton Town government has had voter concern regarding the many households subjected to extraordinary airport noise, which was not a factor when they bought their homes. 

And now Montauk is confronted with a similar situation — an airport for small-prop aircraft to grow into a helicopter and jet terminal for the few.

Sincerely, 

JOHN G.  YOAKES

Transference of Grief

Montauk

December 12, 2016

To the Editor: 

In an effort to respond to a vocal segment of East Hampton’s population, the town board is spending over $2 million in legal fees in order to banish “noisy” aircraft from the East Hampton Airport. These types of aircraft are estimated to land within seconds of each other from early morning to well into the evening. Local citizen action groups have stated these types of aircraft are a major nuisance, medically harmful, physically dangerous, and, through the noise they create, make life all but unlivable for an affected population estimated to be anywhere from 300 to several thousand people. 

To rid itself of these problems the town board crafted three separate restrictive flight curfews. The third limited “noisy aircraft” to one-day-per-week landings, thereby hoping to eliminate the number of actual flights in any one day by over 85 percent. Commercial aviation firms and related trade associations countered with legal action, resulting in a court action permitting the first two but striking down the third one-landing-per-week restriction. The town board, in retaliation, countersued, resulting in a higher court not only upholding the original disapproval of the one-day-a-week ban but also reversing the first two. In attempting to regain the third airport regulation the town lost all three, and now found itself with no regulatory airport noise legislation appealing to the United States Supreme Court, thus explaining the $2 million expense.

Common logic and basic business sense indicate that if the town board wins its case, the aviation companies currently enjoying the profits from flights to and from East Hampton Airport will not simply disappear but search for alternate routes and local airports to make up the profit shortfall. There are only three local airports that fall into that category: Westhampton, South­ampton, and Montauk. 

Both Westhampton and Southampton are physically farther from the East Hampton airport and are the epicenter of the huge ground traffic problem, which makes alternate airline travel to the Hamptons so appealing. Montauk is far closer to the East Hampton airport, and its geographic positioning suffers no ground traffic issues as do the other two locations. In a recent Montauk United-sponsored telephone survey of Long Island aviation professionals and officials, it was a near unanimous agreement that the Montauk Airport would be the most favored destination of commercial aircraft if affected by an East Hampton Airport ban.

Montauk Airport is one of the smallest installations within the entire United States. Given its legal borders, it would be physically impossible to contain, manage, coordinate, and provide even the minimum level of safety measures required to adequately cope with the increased volume of aircraft traffic. Additionally, the site suffers from shifting wind patterns that require extra pilot time and effort during landing procedures, contributing to even more dense traffic backup, dangerous situation, and disaster potentialities. The facility has no emergency equipment, no permanent manned night lighting, and no staff to provide professional service if and when emergency situations occur.

Finally, Montauk Airport is a privately held business, and as such the East Hampton Town Board has no authority or inclination to meet or provide any physical upgrades, public services, or safely procedures that would be necessary at the minimal level of public responsibility.

The East Hampton Town Board’s response to the above concerns is based on three assumptions. 

1. During the only year in which the East Hampton Airport landing times and curfew restrictions were in effect, the Montauk Airport suffered no undue or serious increases in airport traffic volume, therefore it is logical to assume (by the town board) there will be no adverse effect if the third one-day-per-week flight limitation is implemented. The first two limitations deal strictly with daily time and curfew issues and had absolutely no effect on actual physical airport traffic volume. Simple corporate alterations in scheduling solved the problem. In actuality, a significant increase in total takeoffs and landings at the East Hampton facility was recorded. Montauk experienced no negative effect because there was no need for the airlines to alter their number of flights to the East Hampton destination. It was business as usual. A one-day-per-week limitation places 85 percent of weekly aircraft takeoff and landings (thousands, according to anti-East Hampton Airport citizen groups) looking for a new facility. 

2. The town board primarily defends its Montauk Airport position by consistently referring to a mysterious “diversity study” in which collected data, financed by the town board, indicate that if indeed the one-landing-per-week legislation were in effect, aircraft would favor airports other than Montauk. As of this date, and after numerous requests by the press, Montauk citizen groups and the public in general, the town board has refused to make this study available for scrutiny. Why?

3. The town board has pledged to be extraordinarily observant of any negative issues emerging from the results of an increase in Montauk aircraft traffic and is prepared to move rapidly to alter the situation. What is the plan? What does “rapidly” mean, in terms of time? Define increased traffic: double, triple, four times? Will the traffic be returned back to East Hampton Airport? Will the one-day-per-week East Hampton Airport access be increased to three, four, five days per week? If there is a viable, effective plan why not activate the plan now and provide immediate relief to all concerned?

The East Hampton Town Board has invested incredible political capital, time, and a huge portion of taxpayer money in an effort to limit traffic at its airport. While commendable, their strategy and goals are based on faulty logic, and represent not a solution to the problem but a diversionary ploy to move a problem away from one politically active and organized area to another less strategically organized location, which as of yet has not recognized the potential disaster that will occur. Experts agree that even if all the town board’s legal efforts are 100 percent realized, not one flight will be decreased. They will only be diverted, pushed down the road, and will continue to be every bit as troublesome, unhealthy, and obtrusive as in the past — the only difference being, a different and wholly innocent group will need to bear the burden. It is not a solution, but transference of grief from East Hampton to Montauk.

The anti-East Hampton Airport groups and individuals have placed an enormous effort in correcting an excruciating situation. They are indeed suffering. No one should have to go through the troubles, problems, and inconvenience caused by the airport issues they face on a daily basis. All of Montauk sympathizes with their condition, understands and supports their cause and efforts. We sincerely hope a solution can be found which will alleviate the situation. A true, fair, solution, but not a divergence, not a substitute. We wish you well, but not at the price of transforming your problem into a Montauk problem.

The East Hampton Town Board’s legal efforts will not provide a solution to the airport problem. They will only result in a transference, a shifting of the problem, an easy, less politically dangerous path, in the hope that once done, somehow the rest will take care of itself. To this strategy Montauk United responds: The current East Hampton Airport legislation, if approved, has the potential of causing unprecedented harm, and possibly irreplaceable damage, to every segment and category of the Montauk population. It will negatively affect civic groups, commercial enterprises, and private citizens throughout the entire Montauk geographical sphere — an area far larger, more economically diverse, and more densely populated than any of the East Hampton areas in question. 

Find a solution and we guarantee support. Use Montauk as an escape and there will be consequences. In the Montauk United 2015 Montauk Property Owners Survey, 99 percent of all 2,600-plus respondents stated their most precious civic possession is Montauk’s peace, quiet, and natural beauty. Real people, real taxpayers, real voters.

TOM BOGDAN

Montauk United

Hand With Four Aces

East Hampton

December 12, 2016

Dear David,

With all of the attention being paid to the presidential election, most have probably forgotten that four days earlier the Town of East Hampton managed to lose its case before the Second Circuit Court of Appeals to preserve local, democratic, town board control of noise restrictions at town-owned East Hampton Airport.

The case should never have been lost. The town was holding a hand with four aces:

1. The language of the statute, the federal Airport Noise and Capacity Act, was in favor of the town, because the only statutory consequence for adopting local airport restrictions without observing the ANCA process is to lose eligibility for Federal Aviation Administration airport grants that the town no longer intends to seek (and also the power to levy passenger facility charges that cannot be imposed at East Hampton in any case, because it does not serve scheduled air carriers). 

2. There was the prior favorable decision of the Second Circuit itself in National Helicopter v. City of New York (now effectively overruled), in which the city was allowed to impose restrictions on its own heliport despite the argument that it was pre-empted by ANCA. 

3. There was the legislative history that showed that Congress was concerned about uniformity of rules at airports serving airlines, not at local airports such as ours, and that the members of Congress clearly understood that they were not imposing an absolute prohibition on local rules, but using the carrot of federal money to induce local compliance.

4. Most important, the F.A.A. itself, both in its own regulations and in its letter to Congressman Bishop regarding East Hampton Airport, had the identical interpretation of the statute to that urged by the town, that no ANCA compliance was necessary if the town were willing to forgo federal subsidies. It is the longstanding rule of the U.S. Supreme Court that, where there is statutory ambiguity, the interpretation of the administrative agency must be given deference by the courts.

How then did the town manage to blow what should have been a winning hand? In my opinion, the primary responsibility lies with bungling by the town’s aviation counsel, Kaplan, Kirsch & Rockwell, in both its written and oral arguments to the courts and in failing properly to prepare appellate counsel on matters of aviation law.

Supervisor Cantwell and Councilwoman Burke-Gonzalez, the board’s airport liaison, also bear heavy responsibility for ignoring warnings, literally for years now, from both lawyers and non-lawyers knowledgeable about airport matters, that Kaplan, Kirsch & Rockwell had conflicts of interest and a long record of poor advice regarding our airport, rendering them unfit to represent us. 

Indeed, the conflicts of interest were so bad that the lawyers for the plaintiff helicopter companies repeatedly cited Kaplan, Kirsch to support their position against the town. Cantwell and Burke-Gonzalez were also warned repeatedly that this would happen and thus undermine the town’s case. They stubbornly refused to listen.

I could write pages about the mistakes made by Kaplan, Kirsch, but one matter stands out as so far beyond the pale that, when it came to light, Kaplan, Kirsch should have been dismissed instantly, save only for the tactical need to await the decision of the Second Circuit.

In their pleadings against the town, the helicopter company lawyers called to the court’s attention an email to the F.A.A. from Peter Kirsch, who was the town’s counsel at the time he wrote it. Kirsch’s email followed the publication of the very favorable letter from the F.A.A. to then-Congressman Bishop in which the F.A.A. confirmed that after 2014 it would no longer enforce grant assurances limiting the town’s ability to impose airport noise restrictions. The letter also acknowledged that the town need not comply with ANCA if it were willing to forgo future F.A.A. grants, as the statute itself says. It was a huge coup for the town that the Quiet Skies Coalition, working with Congressman Bishop, had obtained this letter, just what we needed to finally get control of airport noise.

What did Kirsch do? He wrote to the F.A.A. to express his “surprise” at the position taken by the agency, publicly disparaging the very favorable outcome obtained by and for his client, the town. This is like a criminal lawyer whose client has been acquitted getting up in public and expressing his surprise that his client managed to get off! Even non-lawyers will understand that such behavior is absolutely outlandish and a violation of the lawyer’s responsibility faithfully to represent the interests of his client. Worse yet, the Court of Appeals, in ruling against the town, cited in support of its opinion this communication by Kirsch that is contrary to the town’s legal position. 

Kirsch had no reason to say anything at all. He could have just kept his mouth shut. But if he did say anything, it should have been to praise the F.A.A. and express satisfaction with the “just outcome.” Whatever the criminal lawyer might think to himself, when his client gets off he stands up and tells the public that “justice has been served,” not that his client should have been convicted.

Could it possibly get any worse? Actually, yes. Because it was Kirsch’s firm that submitted Peter Kirsch’s gratuitous email to the F.A.A. as part of the court record, thereby declaring to the court that the town’s own counsel essentially agreed with the helicopter companies suing the town. But for Kirsch himself, no one would have known of the existence of his letter to the F.A.A. undermining the town’s legal position on the key point. 

The plaintiffs’ lawyers had to have been dancing on the tabletops when they saw Kirsch’s email to the F.A.A. in his court submissions. Stunning incompetence or outright betrayal? Does it matter? One lawyer I work with on non-airport matters says flatly that if anyone at his firm had done these things, they would have been shown the door immediately, as should Kirsch. 

There is no doubt that the loss at the Second Circuit, now being appealed by the town to the Supreme Court, renders control over airport noise much more difficult. But we still have alternatives we can pursue even if the road is now that much harder. One thing, however, is certain in my mind. We will never succeed, never, never, never, if the town continues to be represented by a faithless quisling of an attorney.

As reluctant as Supervisor Cantwell and Councilwoman Burke-Gonzalez may be to admit that they made a mistake in keeping Kirsch on this long, it is unconscionable in light of the revelation of Kirsch’s letter to the F.A.A. and the damage he has caused us that he continues to be employed by the town. He should be fired immediately. With the dust now settled on the court’s decision, Cantwell and Burke-Gonzalez have no further excuse for their continued inaction.

DAVID GRUBER