Town uses AIP to pay for Legal Fees to defend its Illegal Rules
FAA finds the use of AIP $ legal
But is it good policy
Snidely Whiplash of East Hampton
The Town of East Hampton owns the East Hampton Airport (HTO). Like many such facilities, the airport provides great value to some of the community and is a source of great annoyance to others. It qualifies as being an attractive nuisance.
Faced with what the Town Board must have considered to be a Hobbesian choice, they chose to enact laws in April 2015 that included curfews for noisy aircraft and trip limits on aircraft deemed to make excessive noise.
Not surprisingly that decision resulted in lengthy litigation which went all of the way to the Supreme Court, including stops at the US District Court and 2nd Circuit Court.
The fact that the Town decided to litigate the matter was not at issue. The fact that the legal fees amounted to almost $2,000,000 was not contested. NBAA filed a complaint with the FAA alleging
that the Town, as the airport sponsor, by deciding to charge those fees against HTO’s budget including AIP funds, violated its Assurances. It appeared quite inequitable for the Town to deduct the $2M legal charges from a facility with total revenues of $4,280,579, while the Town has an annual budget in excess of $30,000,000. By burdening the airport with the cost of litigation, the town’s assessment diminished its revenues by half; whereas, it the lawyers’ cost were attributed to the town, it would be a relatively small 6% of its budget.
If the airport owner paid lawyers to defend actions which were in support of its aviation uses, there would be no argument about such a use of federal dollars. The intended beneficiary of such a hypothetical legal action would be consistent with the mission of the airport. The reason why the FAA funds AIP dollars is must be consistent with the statute which was enacted.
Here, the Town decided that IT WAS IN THE BEST INTEREST OF SOME OF ITS CITIZENS to reduce operations at HTO. Not only did the town lose in court with its anti-airport tactic, but it decided to inflict further damage on the airport by placing the $2M burden on its budget.
The FAA does not have equity powers. What it may or may not do is defined in statute. While to deny the eligibility of these legal fees may make good policy sense, the FAA could find no basis to take that position in its Congressional powers. Thus, it allowed the Town one more time to kick its airport.
The Town appears bent on a long term strategy of diminishing the operations at HTO. That strategy is never well received by the FAA or the aviation community. There are steps along that negative path which involve the exercise of governmental discretion by the FAA. Hopefully, when deciding within that range of gray, the Administrator will remember the Snidely Whiplash of East Hampton move.
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