The East Hampton Town Board voted last Thursday to raise the cap on money it could pay the Cooley law firm, its outside consultants on matters relating to the town’s effort to enact restrictions at East Hampton Town Airport, to more than $3 million for fiscal year 2022.
The move came shortly after attorneys for three plaintiffs who have successfully prevented any such changes at the airport, petitioned New York State Supreme Court to compel Cooley and two other law firms to return to the town’s airport fund all fees they received for work performed after May 16. That was the date Justice Paul J. Baisley Jr. issued a temporary restraining order enjoining the town from briefly closing the public airport and reopening it as a private-use airport operating under a prior-permission-required framework.
James Catterson, an attorney for the plaintiff East End Hangars, which along with Blade Air Mobility and the Coalition to Keep East Hampton Airport Open sued in February to thwart the town’s plan, asked Justice Baisley to issue an order requiring Cooley L.L.P., Whiteman Osterman & Hanna L.L.P., and Rigano L.L.C. to return “to the airport fund any fees they received for work performed after May 16, 2022” and “granting such other and further relief as the Court deems just and proper.”
The board heard a recap of the legal battle and a suggested course of action from its consultants on Nov. 15. Last Thursday’s resolution, in which the town “determined that an increase in the cap on expenditures is now needed as matters are still pending” regarding the airport, raises the cap on payment to Cooley from $2.7 million to $3.15 million. The money is to be paid out of the town’s airport fund.
The plaintiffs argue that airport funds can only be used for airport operations. Mr. Catterson wrote in a Nov. 11 memorandum that Justice Baisley’s May 16 temporary restraining order stipulates that the town “is hereby prohibited and prevented from using any airport funds or revenues for anything other than ‘the capital or operating costs of the airport, the local airport system: or other local facilities owned or operated by the airport owner or operator and directly and substantially, related to the air transportation of passengers or property.’ “
Mr. Catterson added that the town, “in clear violation of the T.R.O.,” voted to increase the cap on fees payable to Cooley to $2.7 million on Sept. 1 and that its preliminary budget had estimated year-to-date costs for airport counsel at $2.17 million. “Any funds paid to airport counsel . . . after May 16, 2022, are plainly improper and must be returned to the airport fund.”
Consultants to the town previously argued that airport revenue was not restricted following the September 2021 expiration of federal grant assurances. Federal Aviation Administration guidance, they contend, makes clear that the town can use airport money to defend airport measures.
The town has further argued that the plaintiffs’ claim that it is violating the temporary restraining order is in fact an effort to sever the town from its attorneys.
In an Oct. 19 ruling, Justice Baisley issued a ruling prohibiting the town from enacting its plan pending an environmental review. He stated in that ruling that by planning to conduct an environmental impact statement after the airport’s closure and reopening, and not before, the town had acted beyond its legal abilities and in an arbitrary and capricious manner.
The town appealed that ruling on Nov. 9, but in the Nov. 15 presentation, Dan Ruzow, a consulting attorney, told the board that a draft generic environmental impact statement pursuant to the State Environmental Quality Review Act will be prepared.
The town had intended to gather “real-world” data last summer, when the restrictions were to be in place, on the impacts of enacting restrictions on aircraft operations, such as diversions of aircraft to other area airports and associated changes in road traffic. Instead, Supervisor Peter Van Scoyoc said on Nov. 15, “we will be doing that in a more theoretical way in compliance with the court.”
Members of the board, like many residents of the town as well as of municipalities from the South Fork to New York City, are frustrated by the plaintiffs’ success in preventing the implementation of any restrictions, which were to be based on curfews and the size, noise, and operator of aircraft.
Advocates for the airport often state a willingness to compromise with the imposition of restrictions they consider reasonable. Opponents counter that their actions, in the form of the parallel lawsuits that resulted in the temporary restraining order and the Oct. 19 ruling, demonstrate otherwise.