Plan for the Airport
December 19, 2016
Given the recent Second Circuit Court of Appeals decision to place the East Hampton airport under federal control, preventing the town from placing access limits or other restrictions affording at least minor noise relief to residents, one cannot but question the legal advice provided by the town aviation attorney, Peter Kirsch. His counsel may have misguided the town board on some legal options, but whether it did or did not, one thing is clear: The town board would do well to explain its reasons for continuing to retain the services of Mr. Kirsch and his firm.
Kirsch was, after all, the attorney for the former town board led by Supervisor Wilkinson, who, together with Dominick Stanzione and the recently re-appointed airport manager, Jim Brundige, steadfastly supported the commercial aviation interests over the residents’.
One cannot but ask: Where is the airport headed? Before the coming election year begins, the town needs to make clear to all what its plan for the airport really is.
A Pair of Deuces
December 19, 2016
To the Editor:
In his long letter to the editor titled “Hand With Four Aces” and dated Dec. 12, Mister David Gruber, as is his usual style, blames everybody but himself about the problems of our “town controlled, East Hampton Airport.” The obvious guilty culprits include our supervisor, Larry Cantwell, Councilwoman Burke-Gonzalez, and Peter Kirsch. They are all specifically named in the letter.
I am now quoting David Gruber, verbatim, himself: (Letter to the Editor July 7, 2013, as published in The East Hampton Star): “Accordingly, contrary to Mr. Oshrin, there is no question that the town will be free from F.A.A. control and able to regulate helicopter use once it allows the assurances to expire on Dec. 31, 2014, and will not be free of F.A.A. control or of ANCA if it accepts more F.A.A. money in the future.”
Dec 31, 2014, came and went (Happy New Year!). But the town never was free from Federal Aviation Administration control. And David Gruber’s little back-room “settlement” with the F.A.A., back in 2005, still did not have a leg to stand on. The assurances never “expired.” Even the F.A.A. cannot change the law.
As for the Airport Noise and Capacity Act, the town did indeed not accept any further federal grants, this in spite of a unanimous town board vote to do so about three years ago (mindboggling, isn’t it?). Nevertheless, it turns out that ANCA did not go away. And during all this time, with David Gruber and his cohort blocking, retarding, repeatedly suing (and consistently losing), but nevertheless delaying, our municipal airport was in a slow decay, for lack of almost anything getting done.
There were other possible options. The East Hampton Aviation Association of which I was the president at the time, introduced Mr. Schaffer, a renowned and respected aviation attorney from Vienna, Va., to the town board. I remember him well, I was piloting the airplane as the pilot in charge when we landed in KHTO, with no damage to the aircraft in spite of the then already obvious disrepair of the runways, taxiways, and the rest of it.
I now quote Joanne Pilgrim (The East Hampton Star, July 11, 2013), who correctly reported: “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.’ ”
Another letter by Mr. Schaffer was addressed to the town board directly (Oct. 25, 2013), and indeed pretty much predicted in detail how the situation might unfold in the next two years. David Gruber did not like the idea, and I quote again: “He is nothing but a hired gun for the East Hampton A. A., he is not impartial, he cannot be trusted.”
I know. I witnessed it personally at Town Hall. In any event, once again, David Gruber convinced the town board. And the town board said, in essence, thanks but no thanks, goodbye, Mr. Schaffer.
The rest is painful history, and now the United States Court of Appeals for the Second Circuit finally, and justly, put the last nail into the coffin of David Gruber’s flawed theories, if not into their sad and expensive consequences. David Gruber has been consistently wrong about whatever he said, wrote, or initiated on airport matters, and this over almost 20 years. He now blames everybody else for the fiasco except himself.
Is it not time for the town to reconsider? Change both the strategy and the tactic? Because, let us face it, while the metaphor in the title “Hand With Four Aces” is amusing, it is also totally erroneous. In this game, the town barely ever had a pair of deuces, with David Gruber dealing the cards from a biased deck and airport revenues funding the pot.
December 19, 2016
A couple of nights ago, I had dinner in Southampton with a friend, a lawyer with no direct knowledge of East Hampton Airport affairs. I told her the story of the astonishing behavior of Peter Kirsch and his law firm, Kaplan, Kirsch & Rockwell, who purportedly represent the Town of East Hampton (I have my doubts) on airport matters. Perhaps I should say that Kirsch and his firm get paid hundreds of thousands of dollars by the Town of East Hampton to represent it on airport matters. Whether they actually do so is the problem.
You may recall from my letter of last week that the Quiet Skies Coalition and Congressman Bishop obtained some time ago an opinion letter from the Federal Aviation Administration that was highly favorable to the town in its efforts to control East Hampton Airport noise.
The federal Airport Noise and Capacity Act imposes heavy procedural burdens on an airport that seeks to restrict the access of helicopters and jets to control noise. In its letter to Mr. Bishop, the F.A.A. expressed its view that East Hampton, in common with all other airports, need not comply with the airport noise act if it did not seek any longer to obtain F.A.A. airport grants, and the town has said it will not do so. It was a huge victory for airport noise control that the F.A.A. had said the town need not comply with the airport noise act.
In response, Kirsch, who was at that time already the town’s aviation counsel, wrote to the F.A.A. to express his “surprise” at the F.A.A.’s view, publicly disparaging the highly favorable outcome obtained by and for his client, the town. As I said in my letter a week ago, this is like a criminal lawyer whose client has been acquitted publicly expressing his surprise that his client got off. Absurd!
Fast-forward, the town has now lost a lawsuit brought by the New Jersey helicopter operators on this very issue. The Second Circuit Court of Appeals has ruled that, regardless of whether it wants to remain eligible for F.A.A. grants, the Town of East Hampton must comply with the airport noise act in order to impose restrictions on helicopters and jets. The court has therefore thrown out the airport access restrictions adopted by the town in 2015.
The town’s legal position was the same as that taken by the F.A.A. in its letter to Bishop. But, in ruling against the town, the court relied in part on the gratuitous correspondence from the town’s own lawyer, Peter Kirsch, con rary to the legal position of the town, his client, and the F.A.A.
And how did the court know about Kirsch’s gratuitous letter undermining his own client’s position? Because, bizarrely, Kirsch submitted his own offensive letter to the court as part of his papers supposedly arguing the town’s position. Needless to say, the lawyers for the helicopter companies, no doubt stunned at their good fortune, read Kirsch’s letter and were sure to call it to the attention of the court. The court took notice.
At the conclusion of my story to my lawyer friend, I explained that I had just written to The Star expressing my opinion that Kirsch and his firm should be dismissed by the town, indeed should have been dismissed as soon as his letter to the F.A.A. came to light. Her incredulous response, “You mean he hasn’t already been fired?” Every lawyer to whom I have ever told this story is similarly incredulous, both as to Kirsch’s behavior as a legal advocate and as to the fact that he is still in the employ of the town.
The way the town board works these days, most decisions are de facto made by the supervisor and whichever board member is the board’s designated “liaison” on that subject. For the airport, the designated liaison is Councilwoman Kathee Burke-Gonzalez. Thus, in the first instance, the responsibility for continuing to employ Kirsch in spite of his faithless acts lies with Cantwell and Burke-Gonzalez. What justification can they offer for the mysterious Kirsch, to whom they appear to have greater loyalty than they do to the people they were elected to serve?
That said, we have five board members, each independently elected and each with an equal vote. Where are Councilmembers Peter Van Scoyoc, Sylvia Overby, and Fred Overton? In the case of Councilwoman Overby, we have an answer. She has in the past voted against the reauthorization of Kirsch’s retention as counsel. Councilmen Van Scoyoc and Overton voted in favor and have said nothing publicly to justify their votes.
Perhaps Van Scoyoc and Overton think that the “two board member system” created by Supervisor Cantwell (itself a worthy subject of discussion, but for another day) insulates them from political responsibility for the decision of Cantwell and Burke-Gonzalez thus far to retain Kirsch. I don’t think it does insulate them, and I don’t believe the East Hampton voters think so either. We vote separately for five town board members. We expect each of them to exercise independent judgment and take responsibility for their votes. They are not there as rubber stamps.
And so, Councilman Van Scoyoc and Councilman Overton, what do you have to say to the public about the disastrous representation by Peter Kirsch and his firm? What do you have to say to the many people who have struggled for so long to achieve a solution to the airport noise problem, about the fact Peter Kirsch is still being paid hundreds of thousands of dollars by the East Hampton taxpayers despite his actions undermining the town’s ability to succeed?
December 19, 2016
There is so much to read about the airport, and much of it is weighted with complicated steps, so here are two suggestions for untangling the mess we now find our communities in, due to the court’s recent decision to lift all restrictions on our local airport:
1. Fire the legal counsel of Mr. Kirsch immediately.
2. Close East Hampton Airport the following week. (Meigs Field in Chicago-style comes to mind.)
Wishing everyone on the South and North Forks a peaceful holiday season devoid of aircraft noise pollution and toxic chemicals in our waters and beautiful preserved lands.
SUSAN McGRAW KEBER