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May 23, 2017 1:15 PMPublication: The Southampton Press

East Hampton Town Hires Law Firm That Earned California City The Right To Close Its Airport

May 30, 2017 11:36 AM

The East Hampton Town Board last week agreed to embark upon a laborious application to the Federal Aviation Administration for autonomous local control of the East Hampton Airport—a move that could, board members acknowledged, also give a future board the power to close the airport permanently.

As the town awaits word on whether the U.S. Supreme Court will hear its appeal of a federal court ruling that curfews on flights to the airport were not within the town’s power to impose, the board agreed on Thursday, May 18, to allocate $50,000 from airport revenues to hire an international law firm, Morrison Foerster. The firm is renowned for having won the City of Santa Monica the right to close down a small, town-owned airport there through a similar FAA application.

The vote in favor of hiring the firm was 4-1, with Councilman Fred Overton voting against it. But all five board members said that they do not support closing the airport.

The application, known as a Part 161 Study, could give the town the power to, as it sees fit, impose restrictions on flights, such as curfews, or on certain types of aircraft, like helicopters, to tamp down the effects of noise from airport traffic on residents living under its flight paths.

The restrictions couldn’t take effect until strings from past federal funding grants expire in 2022—Santa Monica won’t be able to close its airport until at least 2028 because of similar assurances. The Part 161 study could be expected to take several years, and several million dollars, to complete, anyway.

Nonetheless, board members noted that the possibility of closure comes with a Part 161 application, and Supervisor Larry Cantwell offered a warning to aviation groups that if something is not done to curb the noise impacts of the airport, political sentiment in the town may continue to slide toward closing it.

“If the aviation industry doesn’t come together and find a way to limit the noise that helicopters and jets are having on this community … then the pressure will only grow, and it will force this issue to a head, and the outcome of that could be closing the airport,” Mr. Cantwell said, noting that he will leave the board in January and not be a part of the long-term decision process.

“It’s not something I support,” he said. “But we owe it to the community to find a balance.”

Councilwoman Sylvia Overby called the airport an asset to the community and said she does not want to see it close, but added that “everything is on the table” when it comes to the town’s intentions for the Part 161 application.

The board had discussed late last year whether the firm that has handled the town’s legal approach to seeking restrictions on flight, Kaplan Kirsch, should be dropped in favor of another. The move had been pressed by anti-airport factions who felt that Kaplan Kirsch had dropped the ball on the curfew laws that were struck down by the federal Court of Appeals 2nd Circuit.

Mr. Overton said that he saw the Part 161 study as an avenue to the future closing of the airport and didn’t want his name linked to it years from now.

“In my mind, the only answer, the only way we’re going to solve the helicopter noise issue, to satisfy the noise affected community, is to close the airport,” Mr. Overton said. “I don’t think there’s anyone here who wants to close the airport. It may never happen. I hope it doesn’t happen. But if down the road somewhere we close the airport, I don’t want my name on this as the first step.”

Councilman Peter Van Scoyoc, who is seeking to succeed Mr. Cantwell as supervisor next year, acknowledged that the decision to pursue a Part 161 could “cause some alarm” for aviators but said that he wants to see the town have the authority to impose “reasonable restrictions” on aircraft traffic—not close the airport.

The Part 161 study could give the town the power to make its own decisions about how to manage the airport’s use, Councilwoman Kathee Burke-Gonzalez said, whatever they may be.

“It’s not my intention to close the airport,” said Ms. Burke-Gonzalez, who has been the board’s liaison to the airport and spearheaded the effort to craft restrictions on flights since being elected in 2013. She is seeking reelection to a second term this fall.

“I look favorably on Morrison Foerster because they have worked with the FAA to gain local control,” she said. “That’s the bottom line, to gain local control.”

Pilots advocate Kathryn Slye questioned the board’s motivations, noting that the resolution to hire Morrison Foerster specifically referenced the Santa Monica airport’s closure.

“There is a thing called legislative intent—you include words with specific meaning for a reason,” Ms. Slye said at the meeting on Thursday, May 18. “You could have left that paragraph out entirely. But you chose not to. You mentioned this law firm has a track record of closing airports.”

Board members said the paragraph had been put in only as a statement of the qualifications of Morrison Foerster, and later in the meeting resolved to amend the resolution to remove the portion that referenced the Santa Monica airport decision.

After the meeting, Ms. Burke-Gonzalez noted that the Part 161 application is not open-ended and would not allow the Town Board to close the airport unilaterally. The process would require that the town devise very specific regulations addressing a specific impact on the community. It would then have to convince the FAA that the regulations were reasonable.

Some municipalities, like the City of Burbank, California, have spent millions of dollars and many years laboring to convince the FAA to allow them to impose rules like curfews, only to be rejected.

“We will have to determine what type of restriction could be put in place that would be reasonable,” Ms. Burke-Gonzalez said. “Hopefully, this will bring the FAA and the aviation people to the table and something can be negotiated instead.”

Aviation industry advocates nonetheless leveled criticism at the board’s move, calling the decision a “policy shift” toward seeking the airport’s closure.

“While we sincerely appreciate all the hard work the Town Board has put into evaluating the airport noise issues, we are disappointed that several members of the Town Board now appear to be openly considering the closure of the East Hampton Airport in the event their unrealistic version of ‘local control’ is not achievable,” said Kent Feuerring, president of the East Hampton Aviation Association, a pilots’ advocacy group. “As board member Fred Overton correctly pointed out, the anti-airport group will not be satisfied with anything less than the full closure of the airport, and some members of the Town Board appear to be catering to this very small group rather than considering the best interests of the entire community.”

In early 2015, the town adopted a set of curfews that barred flights into and out of the airport overnight, and restricted noisy aircraft, like most helicopters, to using the airport only between 9 a.m. and 8 p.m. The town also had tried to impose limit the number of times an individual aircraft could use the airport in a given week, a step aimed at charter helicopter services that have driven a steep increase in helicopter traffic to the airport over the last 15 years.

The limit was stayed by a federal judge before it was implemented, and the two curfews were struck down last fall by the Court of Appeals after being in effect for two summers.

The town has asked the U.S. Supreme Court to hear its appeal, and a response is expected by the end of summer.

When they were in place, consultants said, the curfews achieved the sort of noise controls they had intended: essentially eliminating flights that were most disturbing to residents living under flight paths.

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