UPDATE: East Hampton Will Appeal Ruling That It Cannot Close Airport, Without Lengthy Federal Process

UPDATE:

The town said on Wednesday afternoon that it would ask the Appellate Division to allow it to appeal both of the recent rulings by the court that upheld an injunction against the town closing its airport and affirming contempt of court charges against the town.

ORIGINAL STORY:

A state appeals court has ruled that East Hampton Town may not close its airport — permanently or temporarily — without following a laborious, years-long federal application process.

In a ruling released last Wednesday, March 27, a four-judge panel of the New York State Supreme Court, Appellate Division, ruled that a lower court judge had been right in finding that the town was not legally capable of closing the airport without following the guidelines of the federal Airport Noise and Capacity Act, or ANCA, which lays out a specific application process that must be followed to close any public airport facility.

The latest ruling appears to shelve, probably for at least several years, the town’s plans to impose limitations on flights at the airport by closing it down temporarily and reopening it as a private facility that can limit flight traffic as it sees fit.

After the town had tried to unilaterally impose restrictions on flights at the airport in 2015, a federal court ruled in 2017 that the town could only impose restrictions on aircraft at the airport through the drawn-out federal application process — which town attorneys told lawmakers could take three to five years to complete and cost millions of dollars, and ultimately may not result in permission to make any changes at the airport.

But in early 2022, the town moved forward with its plans on the grounds that when 20-year assurances tied to federal grants for the airport expired in September 2021, it should have been able to simply close the airport if it wanted to.

Rather than permanently shuttering the facility, the town’s approach was to simply wait a matter of hours and “reopen” the airport, technically as a new facility, which it would declare to be a private airport, not a public one, that would only allow flights to come and go with permission from the operator.

The town said it would impose curfews on all flights, allow especially noisy aircraft like helicopters and all charter aircraft to make only one trip to the airport per day, and ban the largest private jets from using the airport entirely.

The approach was tacitly endorsed by the Federal Aviation Administration, which worked with town attorneys for months on the logistics and agreed to redesignate the reopened airport as private, issue new navigational guidance and change the airport’s call sign.

Airport users — led by the charter flight booking company Blade Urban Air Mobility Inc. and local pilots — sued to stop the town’s plans. Less than 24 hours before the scheduled temporary closure in May 2022, Suffolk County Supreme Court Justice Paul J. Baisley Jr. issued a temporary restraining order blocking the closure from taking place. The judge ruled that the town’s approach had not followed either state or federal rules.

The town appealed the ruling and, seizing on the judge’s findings regarding the state guidelines, embarked on an exhaustive new analysis of the potential impacts of the closure, in the hopes that if the appeals cleared the federal hurdle, the town would be able to move forward anew with the transition plan.

In its ruling this week, the Appellate Division panel focused solely on the federal matter, however, and said that despite the expiration of the grant assurances, the town, or any other public airport operator, must go through the ANCA-dictated process before it can close the airport.

“ANCA’s procedural mandates for local laws restricting noise and access to public airports apply to all public airport proprietors without regard to their eligibility for federal funding,” the Appellate Division judges wrote.

Town Supervisor Kathee Burke-Gonzalez’s office issued a reaction to the ruling on Thursday afternoon, March 28, saying the Town Board would be meeting with its legal counsel about its options going forward.

“The Town of East Hampton is deeply disappointed in the outcome of the appeals,” the statement reads. “The town proceeded in good faith to find a solution to address the long-standing noise and environmental impacts from the airport on the town and its surrounding communities and remains committed to that goal, as the status quo is not acceptable.”

The attorney for the plaintiffs in the case, James Catterson, said in a statement on Thursday that the court’s “unequivocal decision is consistent with every previous court decision which has denied the town motions and a reminder that the town has been held in contempt in its lawfare against this airport. Despite multiple attempts to appeal the state court’s decisions, the town has lost at every turn.”

The town has already spent more than $7 million on the fight to close the airport over the last few years — all of it paid for from the town’s dedicated airport fund, which is fed by revenues from fees charged to airport users.

Aviation interests, including the plaintiffs in the current lawsuits, have tried repeatedly to convince a court not to let the town use revenue from landing fees and fuel sales to pay for the soaring legal fees in the fight to restrict the airport. The FAA ruled in 2016 that airport funds may be used for legal fees and the state courts have repeatedly upheld that finding.

The Appellate Division did give the town a small victory last week. While it left in place the charges of contempt of court against the town that Baisley had issued, the appellate judges threw out the nearly $500,000 in fines that he had imposed against the town — a $250,000 sanction and $1,000 per day fines, totaling $239,000, for each day it ignored the provisions of the temporary restraining order — saying they had been applied improperly under civil contempt penalty guidelines.

They referred the contempt case back to the lower court — Baisley has since retired and the case is now being overseen by a different judge — for reconsideration.

The court also left the town responsible for the plaintiffs’ attorneys fees related to the contempt proceedings, which Catterson’s firm had claimed were more than $295,000, but Baisley had said last August could not be more than $177,000.

Catterson said that his clients hope the ruling will put an end, finally, to the town’s efforts to shutter the airport and bring it back to the negotiating table to work with pilots on ways to lessen noise impacts on residents who live beneath flight paths.

“I am confident that the aviation community hopes this latest court decision opens the door to the type of discussion that will lead to a prompt resolution of this long-running legal dispute,” he said.