Sweet Dreams as Overnight Curfew Begins

East Hampton Airport will shut down tonight at 8 to helicopters and other aircraft that create enough racket to be included in a “noisy aircraft” category, and to all air traffic at 11 p.m., as a contested overnight curfew goes into effect.

Takeoffs and landings of noisy aircraft can resume at 9 a.m. each morning, and at 7 a.m. for others. The East Hampton Town Board approved the year-round restriction in April, but it was put on hold after opponents sued to prevent it, pending a judge’s decision.

Judge Joanna Seybert of Federal District Court in Central Islip agreed on Friday that the town could institute the nighttime curfew, but red-lighted a tougher restriction that would have limited summertime takeoffs and landings by noisy aircraft to a single back-and-forth per week.

Planes that will be subject to the extended curfew are those that have been designated as having a measured “effective perceived noise in decibels” (EPNdb) approach level of 91 or greater, according to a measure used by the Federal Aviation Administration, based on an “annoyance level.” The category includes various types of helicopters, which have engendered a large number of noise complaints from residents across the East End.

 East Hampton Town has published a list of noisy-aircraft types and a guide for aircraft owners, “How Do I Tell If an Aircraft is Noisy,” at a website dedicated to airport matters, at htoplanning.com. (HTO is the airport’s official code.)

The new town laws were challenged by a coalition including several air carriers, as well as a group calling itself the Friends of the East Hampton Airport, a nonprofit corporation which, according to court documents, “represents the interests of those who seek to keep the airport open to all types, kinds, and classes of aircraft activities and flying services.”

The plaintiffs include the Associated Aircraft Group and HeliFlite Shares, which provide helicopter charter services and offer fractional aircraft ownership programs; Eleventh Street Aviation, and the Analar Corporation. Also, the Helicopter Association International, a Delaware trade association, and Sound Aircraft Services, which leases property at East Hampton Airport from the town and provides fuel and other services to aircraft operators and passengers.

In issuing the injunction against theonce-a-week limit on noisy aircraft, Judge Seybert agreed that “at least some” of the plaintiffs’ businesses would suffer “irreparable harm” should the law take effect, and called it “drastic, considering the effect it poses on some of plaintiffs’ businesses . . . There is no indication that a less restrictive measure would not also satisfactorily alleviate the airport’s noise problem,” she wrote.

“The majority of the aircrafts that many of the plaintiffs use for their charter services to the airport are subject to the town laws’ noisy aircraft definition,” Judge Seybert noted.

According to the president of the Analar Corporation, flights to and from East Hampton Airport account for 55 percent of the company’s revenue, and 65 percent of its flights would be prohibited under the town’s restriction. And the president of the Associated Aircraft Group reported, as the judge wrote, that “its prospective fractional owners have delayed purchasing shares and some of its existing fractional owners have delayed renewing their shares pending the outcome of this matter.”

“Additionally, Judge Seybert wrote, “some plaintiffs believe that they will have to reduce their fleets and terminate many of their employees, including highly skilled pilots.”

The town laws “undoubtedly will impose on some of the plaintiffs substantial business losses, major operational disruptions, and losses of good will that could be difficult to quantify,” she wrote. However, Judge Seybert wrote, “the ultimate question of whether the town may impose access restrictions to the airport could still be resolved on the merits in the town’s favor.”

She affirmed the right of East Hampton Town to adopt restrictions to address excessive airport noise, noting that “it cannot be argued that the town lacked the data to support a finding of a noise problem at the airport.”

The plaintiffs argued that the town justified its restrictions using “deeply flawed data” that did not comply with federal requirements, and that the “noisy aircraft” standard was “arbitrary and discriminatory.”

But, said the judge, in adopting the laws “the town considered formal complaints submitted through the airport’s formal complaint log, which yielded over 23,000 complaints. The court recognizes that a large portion of these complaints came from a small number of households, but it cannot be argued that the town lacked data to support a finding of a noise problem at the airport, particularly given the large increase in helicopter traffic in recent years.”

According to the town, helicopter traffic was up 50 percent last year over the year before.

Judge Seybert called the aviation groups’ assertion that the overnight curfew was unsafe, as it could cause pilots to make ill-advised decisions or divert them to airports unable to handle the increased traffic “purely speculative.”

“We’re pleased the judge has acknowledged that the town was justified in adopting restrictions to provide relief to the growing number of people who are negatively affected by aircraft noise,” East Hampton Town Supervisor Larry Cantwell said in a release.

“Although we regret that one of the key laws cannot be enforced for the time being, we are gratified that the court recognized that the law allows the kind of restrictions that are essential to protect the residents of this town.” After Judge Seybert heard oral arguments on May 18, the town agreed to postpone enforcement of the airport laws pending her decision on the requested injunction.

The Federal Aviation Administration supported the injunction request, saying that it needed time to examine the legality and impact of the laws.

In her 45-page decision, the judge reviewed various applicable federal laws and constitutional principles raised by the plaintiffs, among them a number of F.A.A. regulations.

The plaintiffs argued that the town laws were invalid, as they are pre-empted by federal aviation law, and that they violated the commerce clause of the Constitution by restraining interstate commerce. They claimed the restrictions also raised questions about compliance with the federal Airport Noise and Capacity Act of 1990 and the Airport and Airway Improvement Act of 1982.

The town has said that neither federal statute preempts its authority, as the airport proprietor, to adopt and enforce use restrictions.

Regardless, Judge Seybert ruled, those questions are a matter between federal authorities and the town, and not subject to a lawsuit by outside interests.

The court reserved judgment on another of the plaintiffs’ requests, that their suit against the town and one filed a little earlier against the F.A.A. be consolidated. In the latter lawsuit, the plaintiffs claim that the F.A.A. must continue to enforce a contractual agreement with the town regarding airport operations, despite agreeing, following the 2005 settlement of a private lawsuit, to suspend its enforcement at the end of 2014.

It requires an “airport sponsor to ‘make the airport available as an airport for public use on reasonable terms,’ ” according to the court files.

The suspension of that agreement, or “grant assurance” (an obligation to the F.A.A. regarding airport operations, put into effect when federal airport grants are accepted), set the groundwork for the town to enact its new restrictions, claiming more local control of the airport. A memo from the F.A.A. to former Representative Tim Bishop, addressing adherence to federal airport laws and how much local control the town might claim, is also at issue.

Judge Seybert said she was “sorely tempted to issue a ruling” that the F.A.A. was legally obligated to enforce the grant assurance, despite agreeing not to in 2005. She said, however, that she would not make any ruling before the F.A.A. submits a response in the present lawsuit. It is due on Wednesday.

“We are gratified that the court enjoined the one-trip limit, finding it to be drastic and unreasonable. We are carefully reviewing the decision and appellate options regarding the curfews,” Loren Riegelhaupt, a spokesman for Friends of the East Hampton Airport, said in an email last week.

“The court’s decision today is an important first step, but we must recognize that our opponents are well funded and will not give up easily,” said Councilwoman Kathee Burke-Gonzalez, the town’s airport liaison, in the town’s release. “In light of today’s ruling, however, we encourage our opponents to rethink their strategy. It’s time to do what’s best for the town and adapt aircraft operations to fit our reasonable restrictions.”

Violations of the new airport laws are deemed criminal offenses, with a sliding scale of fines for the first three violations, from $1,000 to $4,000, and then $10,000, and prohibition from the airport for a period of up to two years for a fourth. The town may also seek court injunctions, restraining orders, and monetary fines against any person or entity with an ownership interest in a violating aircraft.

The East Hampton-based Quiet Skies Coalition, a citizens group that has advocated for use restrictions at the airport to ameliorate aircraft noise, said on Twitter, “With today’s disappointing ruling by the judge, she has permitted businesses to prevail while East Enders suffer.”

East Hampton Town is represented in the lawsuit by Peter Kirsch, an attorney with Kaplan Kirsch & Rockwell of Denver, who has served as the town’s aviation law specialist, and by Eric Bregman, a former town attorney now affiliated with Farrell Fritz in Water Mill.