Can Town Win Airport Noise Fight?

Four regulations that would limit access to East Hampton Airport, primarily by helicopters, which have prompted waves of complaint from residents across the East End, will be discussed at an East Hampton Town Board work session on Tuesday, as the members review comments made at a March 12 public hearing.

If adopted, the new laws would establish a nighttime curfew on flights, with extended curfew hours for the noisiest craft, would ban helicopter flights from noon on Thursday to noon on Monday from May 1 to Sept. 30, and would subject aircraft defined as “noisy” to a once-a-week round-trip limit during the season.

The matter of airport regulation is complicated, with Federal Aviation Administration rules and guidelines to follow and a limited amount of local authority. Just what the town is facing, and its chances of success, came to light this week in an interview with Peter Kirsch, an attorney who has guided the town’s effort to define and address aircraft noise. In Mr. Kirsch’s opinion, East Hampton is in a better position than most airport owners to enact local regulations.

Mr. Kirsch of Kaplan, Kirsch and Rockwell of Denver, Washington, D.C., and New York is a nationally recognized attorney who specializes in aviation law and has represented several other airports in efforts to implement airport use restrictions to reduce problematic noise.

“There are very, very few airports that could do what East Hampton is doing,” Mr. Kirsch said this week, noting that several circumstances have cleared the way for town board action. The vast majority of airports in the country, probably 99 percent, have accepted money from the F.A.A. and are therefore subject to the 1990 Airport Noise and Capacity Act, called ANCA.

The act was passed by Congress “with the purpose of making it enormously difficult to impose new restrictions,” Mr. Kirsch said. Before then, it was relatively routine for airports to impose restrictions to reduce noise.

  The Federal Aviation Administration decided the law would apply to all airports that accept its grants, which tie airport owners to contractual agreements with the F.A.A., called grant assurances, regarding airport operation. A number of grant assurances are in effect in East Hampton, but, to settle a lawsuit filed by the Committee to Stop Airport Expansion, an East Hampton organization, the agency agreed not to enforce several of them after 2014. The town has subsequently eschewed new F.A.A. grants, and the remaining agreements will expire in 2021. “There are only a handful of airports in the country that are eligible to receive grants, but have chosen not to,” Mr. Kirsch said this week.

In a 2012 letter to former Representative Tim Bishop, the F.A.A. said that as of this year the town would not be required to comply with the requirements of the Airport Noise and Capacity Act. That freed the town from following required F.A.A. procedure before enacting airport regulations, although any rules enacted must comply with general F.A.A. guidelines or could be subject to legal challenge by the agency. In its letter the F.A.A. also said that it would not “initiate or commence an administrative grant enforcement proceeding in response to a complaint from aircraft operators. . . .”

Since the adoption of the federal act, only three airport proprietors subject to it have attempted to enact restrictions on airport use, such as curfews or outright bans of certain aircraft, Mr. Kirsch said. The Burbank-Glendale-Pasadena Airport Authority spent almost a decade and approximately $8 million on proposed restrictions, and failed to gain F.A.A. approval, he said. The F.A.A. also denied a bid to enact restrictions at Los Angeles International Airport, or LAX.

However, a court has upheld the right of Naples, Fla., to ban the noisiest type of aircraft, Stage I and Stage II, which includes helicopters, after a four-year fight against five lawsuits filed not only by the F.A.A. but by airport users and tenants. The effort cost approximately $4.5 million.

Mr. Kirsch said that although there may be others, he is aware of only one court case involving an airport not covered by the ANCA restrictions that was challenged after enacting operating rules designed to reduce aircraft noise. New York City prevailed in a case brought against it by the National Helicopter Corporation of America, and was able to maintain curfews and flight restrictions.

Other factors are likely to hold sway in the town’s bid to restrict airport access, the aviation attorney said. Because most of the noisy air traffic that could be restricted under East Hampton’s proposed rules comes from helicopters going to and from New York City, “the impacts of restriction on the national air system becomes much, much less,” he said. This is in contrast to restrictions on traffic at airports where the flights might be originating from or going to destinations much farther afield. “That’s an important distinction.” Mr. Kirsch also said the fact that East Hampton’s proposed laws will have more of an impact on helicopters than on other aircraft is significant.

Helicopter traffic is of concern nationally, he said. “The entire system is trying to deal with the recent increase of helicopter traffic,” which, he said, has a different impact on communities than that of fixed wing aircraft. “We are at the forefront of trying to find a meaningful solution,” he said. Two or three other airports — in California and in Florida — are also actively grappling with the helicopter issue, Mr. Kirsch said.

East Hampton also has an “unusual” level of support at the federal governmental level, the attorney said. Representative Lee Zeldin recently wrote to the F.A.A. asking the agency to address aircraft noise issues on the East End and to stand by the assurances in its 2012 letter to Mr. Bishop.

“I will support any reasonable restrictions that the Town of East Hampton pursues to improve the community,” he said in an email to the The Star this week.

“On these issues, Zeldin is far more powerful than Bishop,” Mr. Kirsch said. While Mr. Bishop sat on the House committee on transportation and infrastructure and its aviation subcommittee, Mr. Zeldin is its vice chair. And, as a Republican, he is a member of the majority party in the Senate.

In addition, the issue of aircraft noise over eastern Long Island, and development of solutions to it, has drawn the attention and support of Senator Charles Schumer, who may become the next Senate minority leader.

East Hampton Town is “trailblazing,” Mr. Kirsch said, in its compilation of data. The problem was analyzed and defined using a combination of records regarding “complaints, and noise data, and operations data,” he said, calling the method more pointed and refined than standard noise measurement metrics in decibels or other measures.

“The impacts of noise are not particularly well understood,” Mr. Kirsch said. “Helicopters are different from fixed wing,” and East Hampton, as a community with a particular baseline of quiet as well as of noise, is unique, he said.

A recent court ruling in a case brought by Helicopter Association International, regarding an F.A.A.-mandated helicopter route along Long Island’s north shore, upheld the use of noise complaints as a measure of community impacts. It was the first time the F.A.A. had acknowledged that evaluating the number of noise complaints was “appropriate and useful,” Mr. Kirsch said, calling it a “watershed moment” that could prove important for East Hampton.