A judge last Wednesday declined to issue a temporary restraining order that would have prevented East Hampton Town officials from seeking and accepting money from the Federal Aviation Administration for a deer fencing project at East Hampton Airport.
But opponents of that action are continuing to press the issue. They say that the resulting 20-year obligation for the town to run the airport according to certain F.A.A. standards, or “grant assurances,” will prevent East Hampton from enacting restrictions that may be the only way to effectively control the aircraft noise bothering residents.
Jeffrey Bragman, an attorney for a group of airport noise-control advocates, said Tuesday that though the emergency request for a restraining order had been denied by Justice John J.J. Jones Jr. at State Supreme Court in Riverhead, the court is still to rule on a request for a preliminary injunction stopping the town from signing a new grant assurance agreement with the F.A.A. Information is due to be submitted to the court on that action in early January.
Meanwhile, Susan McGraw Keber, a member of the Quiet Skies Coalition, a newly formed East Hampton civic group with over 350 members concerned about aircraft noise and pollution, had gathered more than 177 signatures as of yesterday on a petition calling on the town board not to accept F.A.A. funding.
“I want the community and media to see how the people really feel,” Ms. McGraw Keber said in a press release.
After holding a hearing on Dec. 1 on the deer fencing proposal, the East Hampton Town Board voted on Dec. 6 to proceed with a grant application to the F.A.A. for fencing design and repair. The application was submitted immediately.
Thirty-six of 51 speakers at the hearing spoke in favor of accepting federal money for the airport, citing needed maintenance and repairs, and a desire to avoid burdening taxpayers with the full cost.
Of that 36, at least 28 were pilots or aviation businesspeople, many of whom said they believed that closing the airport, and not noise control, was the goal of those opposing F.A.A. funding. No speaker asserted that was his or her goal.
A number of residents who tried to attend the hearing were unable to get seats or find room to stand in the crowded Town Hall meeting room, but town officials declined to adjourn the hearing to a larger space.
A press release from town officials said that the court decision last week following the vote “clears the way for the town to end the 22-year controversy on how to properly maintain a safe and quiet airport for the benefit of East Hampton.”
“The court’s support for our bipartisan, unanimous town board decision advances the prospects for comprehensive management strategies that place a high value on safety, fiscal responsibility, and a much quieter airport,” Town Councilman Dominick Stanzione said in the release. “We are a step closer to really reducing the impact of aviation noise.”
Town officials have hired Peter Kirsch, an aviation attorney, to advise them and create a multi-faceted approach to mitigating airport noise. Last week, he presented the board with a template of actions that could be taken, even while accepting money from the F.A.A.
Whether the town will be able to go far enough in enacting airport regulations — a nighttime curfew, for instance, or limits on landings by certain planes — under its obligations to the F.A.A., and just how far it could go without those obligations, given other federal transportation system guidelines that apply to general aviation airports, is the subject of debate.
In its press release earlier this week the Quiet Skies Coalition said that “Given the chorus of voices and the legal history indicating the town has a better chance to achieve meaningful noise abatement by allowing key grant assurances to expire in 2014, waiting until then seems the most logical course of action.”
“We know it’s not about the deer fence,” Mr. Bragman said this week. “They’re just making a hundred-yard dash to try to cement F.A.A. funding.”
Mr. Bragman represents the Committee to Stop Airport Expansion and several individual plaintiffs (including David Gruber, an East Hampton resident long active in airport noise abatement effort) in a lawsuit brought last year against the town, seeking to overturn the board’s approval of an updated airport master plan.
The town board, that suit alleges, fell short in fulfilling State Environmental Quality Review Act, or SEQRA, requirements for a full review of possible environmental impacts, by not considering all the possible alternatives open to the town — including the effect of gaining more local control over the airport by spurning F.A.A. funds.
The lawsuit claims that the true impact of aircraft noise was not properly analyzed or taken into account.
Allowing the town to accept federal funding for the deer fence project, Mr. Bragman has argued in his request for an injunction, “will render moot the core issues under review” in the Article 78 lawsuit.
In the court action before Justice Jones last week, the town was represented by Eric Bregman, a former town attorney now in private practice, who worked on a number of controversial airport matters during his tenure in East Hampton. Save East Hampton Airport, a local association of which numerous pilots are members, was named as an “intervenor,” and represented by Anthony C. Pasca of Esseks, Hefter, and Angel of Riverhead.
A brief written by both attorneys pointed out that, in order to prove a restraining order or injunction is warranted, a plaintiff must demonstrate that they will suffer irreparable injury if the injunction is not issued and that their arguments on the underlying merits of the case are likely to prevail when later evaluated by the court.
The brief said that “there is no irreparable harm to [the] petitioners regarding F.A.A. funding because their alleged injury is speculative.”
There are a number of hypotheticals, the lawyers wrote: whether the F.A.A. will issue a grant to the town; whether even without grant obligations to the F.A.A., a future town board would make the policy decisions to limit helicopter access to the airport that the plaintiffs hope will be employed, and whether those actions would survive challenges by the F.A.A. or other lawsuits are all questions.
“If they go ahead and sign another grant agreement, and then the court looks at our SEQRA challenge and says, ‘by God, you’re right,’ that means they’re ending a remedy that we would have,” Mr. Bragman said Tuesday. Once the town is beholden to the F.A.A., after taking its money, there is no way to reverse that situation, he explained. “The real issue is local control, and we should be looking at that.”
The town argued last week that if an injunction is issued it could result in “irreparable financial harm,” should the town miss out on available F.A.A. funding, and that delaying the fencing project could compromise airport safety.
Since 1992, there have been 10 collisions with deer at the airport, none resulting in fatalities.
In an affidavit to the court submitted last week, Mr. Gruber questioned the urgency of the fence project. A cursory examination shows that most of the existing fence is fine, he said, though there are a number of small holes. “If deer are currently a problem,” he said, “a first step would be to close the gates in the existing fence and keep them closed.”
The real intent of applying for F.A.A. money for the fence, he claimed, is to undercut the Article 78 lawsuit.
The town has conducted “no survey of the condition of its deer fence, nor considered the possibility of making repairs to maintain the existing fence in serviceable condition as one would expect if its purpose were to secure the deer fence and not simply to obtain F.A.A. money and moot this proceeding,” Mr. Gruber said in the affidavit.