UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

Friends of the East Hampton Airport, Inc. et al. ,

Complainants,

v. Town of East Hampton, NY

Respondent. FAA Docket No. 16

- 15

- 02

RESPONDENT TOWN OF EAST HAMPTON, NEW YORK’S REBUTTAL IN SUPPORT OF ITS MOTION TO DISMISS AND ANSWER TO THE COMPLAINT Designation of persons to receive service for the Town of East Hampton, New York:

Elizabeth Vail Town Attorney Town of East Hampton 159 Pantigo Road East Hampton, NY 11937 EVail@EHamptonNY.Gov W. Eric Pilsk Catherine van Heuven Kaplan Kirsch & Rockwell LLP 1001 Connecticut Ave., NW, Suite 800 Washington, D C 20036 epilsk@kaplankirsch.com cvanheuven@kaplankirsch.com Telephone: (202) 955

- 5600 Facsimile: (202) 955

- 56162

I. INTRODUCTION The Complaint alleged that the Town violated its grant obligations relating to pavement maintenance, the need for runway rehabilitation and other airport improvements, non

aeronautical revenues, and land ing fees. In its Answer and supporting papers, the Town showed that it is in the midst of a comprehensive program to address all of the maintenance and improvement issues raised by Complainants as well as other deferred maintenance items . The Town also s howed that it fully understands its obligations relating to non

- aeronautical revenues and is in the process of increasing rents from non

- aeronautical sources as quickly as the current leases allow . The Town further demonstrated that the landing and fuel flowage fees are reasonable and necessary to pay for the very improvements Complainants demand. In two areas

– a pavement maintenance program and non

- aeronautical lease revenues

– the Town acknowledged a potential compliance issue and offered to enter int o a c orrective action plan with FAA to address any concerns. In short, the Town demonstrated that it understands its federal obligations, has a plan to meet those obligations, and is actively implementing that plan with respect to every issue raised by Complainants. There is simply no compliance issue that requires further investigation or adjudication. Complainants’ Reply fails to raise any facts or legal principles that could demonstrate a current compliance issue. Unable to rebut the facts showing t hat there is no current non

compliance, Complainants attempt to dredge up past allegations of non

- compliance as evidence of a current compliance issue. Unable to show that recent airport improvement projects are inadequate, Complainants rest their case on speculative fears that construction may not have been adequate. Unable to present any financial analysis or data to show that the landing and fuel flowage fees are unreasonable given the need to finance the Airport improvements,3

Complainants argue that t he Town should accept federal grant funds even though Complainants acknowledge there is no legal duty for the Town to do so. Unable to present facts or law to support their claims, Complainants rely on rhetoric and sensational ( but unsubstantiated ) allega tions of “unnamed forces” seeking to close the Airport in the hope of concocting a bogeyman they can attack , even though the y acknowledge that the recently

- enacted l ocal l aws imposing use restrictions on the Airport are beyond the scope of this proceeding (and are the subject of separate, pending federal litigation)

. These allegations are simply inadequate to salvage the Complaint or show that there is any compliance issue that warrants investigation or adjudication. The unrebutted evidence shows that t he Town is aggressively taking steps to address maintenance, management, and financial issues at the Airport. The Town is continuing to address long

- standing issues relating
to non

- aeronautic leases by increasing rents from non

- aeronautic leases as soon as o ld leases expire. The Town issued almost $1.5 million in bonds in the last twelve months to fund several key projects, including lighting for Taxiway “A ,” repaving for the taxiway portion of Runway 4

- 22, design and planning for a new perimeter fence, acqu isition and construction of the Automated Weather Observing System (“ AWOS ”) , and preparation of surveys and design work for additional runway work and other capital improvements. The town continues to work with FAA to address obstruction issues. The Town has plans to perform additional work to address multiple pavement issues, obstruction issues, and other important projects

– all of which Complainants support

– over the next several years. In the interim, the Town has, and will continue to, perform inter im repairs on the pavement to address immediate safety issues (including repairing the terminal ramp pavement photographed by Complainants ). In order to address the maintenance issues , the Town4

has been required to increase landing and fuel flowage fees , a fact that Complainants refuse to accept for the self

- serving reason that they do not want to pay for the improvements they demand for their own benefit

. Complainants ’ rhetoric and vague conspiracy theories are simply insufficient to overcome the weight of the unrebutted facts and controlling legal principles. Fundamentally, Complainants ’ contradictory Complaint and unrestrained attempts to smear the Town based on
pas t conduct and policy matters that are beyond the scope of this proceeding simply expose the fact that Complainants are more interested in attacking the Town than in addressing compliance. This proceeding is not the forum for resolving those broader issues , however, and the Town’s deliberate and thorough plan to continue to meet its federal obligations proves that there is no current compliance issue that merits further investigation or adjudication. Accordingly , the Complaint should be dismissed.
II. ARGUMENT A. FAA S hould G rant the Town’s Motion to Dismiss The Town asked for dismissal on two issues where the Town has acknowledge d a compliance issue , namely : (1) n on - aeronautical revenues, including leases with the Maidstone Gun Club, the Hertz Corporation, the To wn Police Department and the East Hampton Fire Districts Training Facility, Inc. and the adequacy of reimbursements from the Town to the Airport Fund; and (2) preparation and implementation of a Pavement Maintenance Management Program. Mot. t o Dismiss at 2. Dismissal on these issues is warranted for the simple reason that there is nothing further for FAA to investigate. The Town has agreed to enter into a corrective action plan

– which is the very relief that Complainants seek. The Town acknowledges, of course, that final compliance depends on FAA approval of a corrective action plan and the Town’s completion of the5

obligations set forth in that corrective action plan

. However, further litigation on these points is unnecessary and a waste of FAA resources. The cases Complainants cite are not to the contrary, but simply stand for the general proposition that final dismissal of the proceeding depends on entering into and carrying out a corrective action plan

. Desert Wings Jet Center, L.L.C. et al

. , FAA Docket No. 16

- 09

- 07 , at 14 (Nov. 10, 2010) (Director’s Determination); 14 C.F.R . § 16.109(f). As Desert Wings emphasizes, however, “the FAA Compliance Program is designed to achieve voluntary compliance with federal obligations

. . . .” Desert Wings Jet Center at 14. Here, where the Town has agreed voluntarily to take the step s necessary to assure compliance , there is simply nothing left to adjudicate. See Air Transport Ass’n of America, et al . v. City of Los Angeles, Ca. , FAA Docket No. 13

- 95

- 05, at 53 (June 1, 2009 ) (Final Agency Decision) (noting that there is no need to issue a compliance order where sponsor has submitted a corrective action plan). Finally, Complainants’ attempt to argue that their allegations of past non

- compliance by the Town preclude dismissal here is baseless. T he current Town administration has demonstrated a clear commitment to improving the Airport and addressing any outstanding compliance issues. Declaration of Jemille R. Charlton in Support of the Rebuttal of the Town of East Hampton, New York, to the Complaint by FOEH (July 8, 2015) (“Charlton Rebuttal Dec.”) Ex. 1 and ¶¶ 18

- 29

. To accomplish that, the Town s eeks to engage directly with FAA, as the arbiter of compliance. Moreover , the purpose of the compliance program is to “achieve voluntary compliance , ” which is precisely what the Town seeks here. Nothing about any alleged past n on - compliance should prevent FAA from engaging with an airport sponsor that seeks to address current compliance issues. Such a resu lt would undermine the entire purpose of FAA’s6

Compliance Program. Complainants ’ arguments simply underscore that they are more interested in securing a pound of flesh from the Town than assuring current compliance.
B. Complainants Fundamentally M isrepresent the Nature of the Pre - Complaint Communications with the Town Complainants failed to make any attempt at pre

- complaint resolution of their claims regarding landing and fuel flowage fees, non

- aeronautical revenues, and other financial matters

– and they do not deny that

. Complainants further failed to follow

- up on the maintenance concerns they raised at the September 2014 meeting

. The result has been needless briefing on maintenance issues that the Town has, or will soon, complete , all of which Complainant s would have known had they simply done as the Town Supervisor requested

– participate in the process and continue a dialogue. Declaration of Jemille R. Charlton in Support of the Answer of the Town of East Hampton, New York, to the Complaint by FOEH (April 29, 2015) (“Charlton Answer Dec.”) Ex.19. Similarly, a frank discussion of the financial issues could have resulted in agreement that the Town was addressing the issues or , at a minimum , would have narrowed the issues ultimately raised in the Complaint. The result of Complainants’ failure to raise those issues before has simply been to waste the time and resources of not just the Town, but also
FAA , which is precisely t he result th at pre - complaint negotiations are intended to avoid. Complainants ’ vague excuses for failing to openly and honestly engage the Town lack any merit. First, Complainants claim that the Town failed to engage in any serious d iscussion. But in the one meeting between the parties , the Town did discuss the issues that Complainants raised and asked for additional follow up information to help prioritize capital projects

. The fact that further information was not yet available in September 2014 does not mean that the Town did not take the discussion seriously. In fact, the Town undertook substantive measures in the7

months following the meeting with Complainants and before the date on which Complainants filed the Complaint :

 The To wn hired an engineering firm in September 2014 to evaluate airport maintenance and to prioritize projects. Charlton Answer Dec. ¶ 10.

 T he Town issued an additional $350,000 in bonds for airport projects ( and it issued an additional $500,000 in April 2015 ) . Charlton Answer Dec. Ex. 9 (Bond Resolutions).

 The Town completed the rehabilitation of the lighting on Taxiway “A” before the Complaint was filed. Charlton Answer Dec. ¶ 11(f).

 And the Town completed environmental reviews and issued bonds for the completion of the AWOS project. Charlton Answer Dec. Ex. 9 (Bond Resolutions). Had Complainants engaged in serious discussions ( indeed, had they simply reviewed the publicly

- available Town meeting documents that were available prior to the date of the Complaint ) they would have know n that the Town was taking action on the very issues that were raised in the pre

- Complaint resolution meeting. This is far from the “no prospect for timely resolution” status that Complainants alleg e . See Reply ¶ 15. Section 16. 21 does not require agreement, but it does require a good faith attempt to resolve issues. Here, the Town asked for Complainants to prioritize their myriad safety concerns , but Complainants never responded. Complainants ca nnot evade th eir obligation under Section 16.21 by failing to present issues for resolution

. Second, Complainants allege that the Town made “false representations” regarding past application s for federal grants . This argument is a red

- herring and without merit. As a preliminary matter , and as Complainants admit, there is no federal obligation to seek or accept federal grant funds, so any discussions on that point are irrelevant. Complainants’ allegation is, in any event, incorrect. T he Town did submit a grant application in 2011 for $80,000 to conduct design work on the perimeter fence. Charlton Rebuttal Dec. Ex 8 (2011 grant application). The8

Town never rescinded that application

. At the time of the September 2014 meeting, the Town understood that t h e application was still pending before FAA

. Id. ¶ 31. Further, t he Town has never suggested that those grant funds would suffice to cover all needed Airport improvements. The Town simply responded accurately to Complainants ’ questions about pending grant applications . The Town also noted that even with entitlement and discretionary funding, it would not be possible to immediately address all $10 million of projected airport capital costs. Charlton Rebuttal Dec. ¶ 32. 1 Comp lainants’ strained attempt to make the Town look disingenuous lack s any factual support and in no way excuse s Complainants from their pre complaint resolution obligations under Section 16. 21

. Finally, the Part 16 decisions cited by Complainants are inappos ite. I n Martyn v. Port of Anacortes, Washington , FAA Docket No. 16

- 02

- 03, at 43 (April 14, 2003) (Director’s Determination), the Director noted that the pre

- complaint discussions had extended over many months and ended when the s ponsor told C omplainant th at it would not issue a lease without an order from FAA. Martyn in no way excuses Complainants’ failure to raise issues before filing their Complaint. Indeed, in R/T

- 182, LLC v. Portage County Regional Airport Authority , FAA Docket No. 16

- 05

- 14, at 6 (No v. 1, 2006) (Director’s Determination), also cited by Complainants, the Director specifically found that C omplainant had made an “attempt to resolve the matters described in the Complaint.” Complainants here did not. Similarly, in Consolidated
Services E

ngineers & Constructors, Inc. v. City of Palm Springs , FAA Docket No. 16

- 03

- 05, at 23 (June 10, 2004) (Director’s Determination), the Director found that the C omplainant’s general discussion of the issues was sufficient. Here, in contrast, the pre - Complaint discussions were

1 Complainants are incorrect to insist that e ntitlement funding is not limited to $150,000 per year. Reply ¶ 19. The statute is quite clear. 49 U.S.C. § 47114(d)(3)(A). See also Charlton Rebuttal Dec. Ex. 9 (FAA e

- mail acknowledging receipt of grant application and confirming that East Hampton Airport is eligible for up to $ 150,000 in entitlement funds).9

limited to maintenance issues, grant funding, and access restrictions; they failed entirely to raise concerns about landing and fuel flowage fees or non

- aeronautical revenues. It would undermine the entire purpose of the pre

- C omplaint resolution process if c omplainants could ambush

s ponsors by raising some issues before filing a C omplaint, but include in the C omplaint other unrelated issues. What is evident is that Complainants’ real issue is that they do not like the Town’s position on grant funding and airport use restrictions

. At the September 4, 201 4 meeting, they were clearly frustrated that the Town could not provide further details about the prospect of potential future use restrictions. But the question of use restri ctions is not at issue in this case. 2
This case is about maintenance, safety , and revenue issues, and the fact is that Complainants failed utterly to engage on good faith negotiations on these topics prior to filing a Part 16 Complaint. C. The Town i s Taking Steps to Reactivate Runway 4
- 22 , Consistent With the FAA
- Approved ALP and the Town - Approved Master Plan Despite Complainants’ strained arguments, the Town is implementing a thoughtful plan to reactivate Runway 4

- 22 that is entirely consistent with the 201 1 Airport Layout Plan (“ALP”) and the grant assurances

. The simple and undisputed fact is that the FAA

- approved airport depicts Runway 4

- 22 as currently “closed

. ” Charlton Answer Dec. Ex. 1 at p. 3 ( r unway data table). While Complainants may desire immediate restoration, neither t he ALP nor Grant

2 It is unclear why Complainants suggest that the Town was less than honest when the Town “denied that any decisions had been made about imposing restrictions at the Airport ” at the September 4, 2014 meeting. Reply ¶ 14. T he use restrictions are not an issue in this matter, and in fact were not adopt ed until seven months after the September meeting

. See Reply Ex. 2

– Reply Ex. 5 (Local Laws N o s . 3

- 5, adopted on April 16, 2015 , indicating, in the Whereas recitals, the extent of analysis that occurred throughout 2014 and 2015 before the laws were adopted and showing that no deci sions on potential use restrictions had been made as of September 4, 2014 )

.10

Assurance 29 creates a deadline for action. In addition, there is no evidence of a violation of Grant Assurance 19. B oth the main runway, Runway 10

- 28, and the other cross

- wind runway , Runway 16

- 34, are op erational. Safety and capacity at the Airport are not impaired by the current closure of Runway 4

- 22 , and Complainants have made no showing to the contrary.
T here is , quite simply, no compliance issue with the current status of Runway 4

- 22

. Unsatisfied w ith the reality presented by the facts, Complainants concoct a conspiracy theory that unnamed “Airport Opponents” are secretly plotting to keep Runway 4

- 22 closed as part of a larger scheme to close the Airport or reduce its capacity. Reply ¶ 31

. T ha t al legation lacks merit and is not supported by any facts . Complainants offer only vague and speculative assertions that cannot be afforded any weight in a Part 16 proceeding. Scott Meyer v. City of
Cincinnati , FAA Docket No. 16

- 12

- 14 at 25 (Director’s Dete rmination Sept. 12, 2014). To the
extent that Complainants’ vague assertion s require a direct rebuttal, the Town emphatically denie s them

. Charlton Rebuttal Dec. ¶ 7

. In fact, the Town is implementing a thoughtful and comprehensive plan for the reactivation of Runway 4

- 22

. The Town

- approved Master Plan and FAA

- approved ALP both call for the ultimate reactivation of Runway 4

- 22 , and the Town is committed to these plans. 3
Declaration of Michael J. Waibel in Support of the Rebuttal of the Town of East Hampton to the Complaint by FOEH (July 7 , 2015) (“Waibel Dec

. ”) ¶ 19; Charlton Rebuttal Dec. ¶ 14a. As described in its Answer, the Town has partially repaved Runway 4

- 22 for its current, temporary use as a taxiway with pavement built to full runway specifications. Charlton Answer Dec. ¶ 11c

. T he Airport Engineer has recommend ed that the Town conduct a runway utilization study to

3 The 2010 Master Plan calls for rehabilitating Runway 4

- 22 and converting Runway 16

- 34 to a permanent taxiway. These plans are reflected on FAA

- approved A LP. See Charlton Answer Dec. Ex. 1 (ALP) at p. 3 (“Runway 16

- 34 to be converted to a taxiway”).11

confirm the desired runway configuration for the Airport before proceeding with full restoration of the Runway

. Waibel D ec. ¶ 20; see also Reply Ex. 1 at p. 3. The Airport Engineer also is tasked with conducting a comprehensive airfield pavement evaluation study. Waibel Dec. ¶¶ 15 & 18 . These studies are necessary predicates for further work on Runway 4

- 22 , and they
repr esent a thoughtful, planned approach for the future of the Runway. Id . ¶¶ 19

- 21. Complainants offer no additional legal authority to support their theories . Rather, they spin rhetoric in an attempt to create issues where there are none. First, the Town has never claim ed that the repaving of Runway 4

- 22 for taxiing purposes is the equivalent of reactivating the Runway. The Town’s statement that the paving for the temporary taxiway was conducted to full runway specifications, Answer Br. at 35, was simply to rebut Complainants’ hollow argument that this work is “not easily reversed in order to ever again restore Runway 4

- 22 to operable condition.” Complaint ¶ 69. Although Complainants continue to raise questions about the quality of the pavement, they pro vide no proof that it is in any way inadequate. Mr. Charlton’s Rebuttal Declaration provides the bid specifications for the 2014 repaving work, Charlton Rebuttal Dec. Ex. 5, showing that the pavement was designed to runway specifications. Second , Complain ants allege that the Town’s 2010 Master Plan is “not an Airport Master Plan ... as that term is used by the FAA.” Reply ¶ 27. This is nothing but a meaningless word
game . T he Town prepared a Draft Master Plan in 2007 and completed an environmental review of the final Master Plan in 2010 as required by New York law. Charlton Answer Dec. Ex. 4 (Draft Master Plan) and Ex. 5 (Final Master Plan) . The fact that the final document is titled “Final Generic Environmental Impact Statement for the Town of East Hamp ton Airport Master Plan” does not make it any less of a master plan. The 2010 document is what the Town approved in 2010 as the Airport Master Plan Update. Charlton Rebuttal Dec. ¶ 14b & Ex. 412

(Resolution 2010

- 803). Contrary to Complainants’ convoluted argument, that document does demonstrate that the Town adopted a concrete plan for rehabilitating Runway 4

- 22. The fact t hat
t he Town elected not to seek FAA approval of the Master Plan is irrelevant; 4 Complainants admit that FAA approval of a Master Plan is not necessary. Reply ¶ 27 n. 4, citing FAA Advisory Circular 150/5070

- 6A ¶ 205. Nevertheless, w hile the Master Plan does not define the Town’s federal obligations, the reactivated Runway 4

- 22 is depicted on the FAA

- approved 2011
ALP as the future use for that Runway . T he Town is committed to implementing th at plan and is taking active steps to do so. In short , the Town is in full compliance with the obligations set forth in the ALP, and nothing in the approved Master Plan or Generic Environmental Im pact Statement is inconsistent with those obligations. Third, the Town has not bonded for full rehabilitation of the Runway

– yet. But this , too, is irrelevant. As stated above, the Town is first conducting

– and paying for

– p re - construction studies. T he Town is in no way obligated to pre

- bond for construction work before funds are needed for construction. It will issue the bonds when funds are needed for construction. Finally, Complainants infer that the Town’s stated intent to study noise impacts fro m the reactivated Runway 4

- 22 somehow shows an intent not to reactivate the Runway because “general aviation aircraft used Runway 4

- 22 for decades before those homes were built

. ” Reply at ¶ 35 . There is no evidence to support that inference, however. Mo reover, under the New York State Environmental Quality Act , the Town must examine potential noise impacts

. Th at analysis , as well as the design and engineering work scheduled for 2016 , are necessary to assure that the reactivated runway is built appropriately and lawfully . The simple fact is that

4 Furthermore, C omplainants’ allegation that the Town has “suggested” that the Dra ft Master Plan was approved by FAA, Reply ¶ 28, is incorrect. . The Town has made no such statement.13

reactivating the runway is a multi

- step process that will take time to complete. The Town is moving forward to complete the necessary tasks and is in full compliance with its fede ral obligations as it does so.
D. Complainants’ Other Maintenance Arguments Lack Merit As the Town proved in its Answer Brief, it has already completed, or will shortly complete, the maintenance projects that Complainant s assert the Town must complete. Answer Br. pp. 30

- 36. Complainants’ continued rhetoric cannot mask the fact that the Town is doing
pre cisely what is required under the FAA Compliance Program. E.g., Scott Meyer v. City of
Cincinnati , FAA Docket No. 16

- 1 2

- 144 at 10

- 11 (FAA looks for current compliance and successful action to cure past violations).

Runway 16
- 34 is Safe 1. Complainants’ sole evidence of “ maintenance problems ” with Runway 16

- 34 is that the Airport Facility Directory (“AFD”) still reports that Runway 16

- 34 is cracked and has vegetation growing through the pavement

. Reply Ex. 15. The fact is that the cracks were patched last

summer and there is no vegetation or standing water on the runway

. Answer Br. at 8 & Charlton Answer Dec. Ex. 10. Compl ainants offer no evidence to the contrary. The fact t hat the AFD was not accurately updated does not prove that the Town has failed to maintain the runway properly , and in no way disproves the sworn testimony of the Airport Director that the cracks

were p atched. Complainants ’ new argument that the Town needs to show that the money is available for full rehabilitation misses the mark entirely . There is no such requirement and Complainants cite

none. Pavement rehabilitation is provided for in the 2013 Airport Capital Improvement Plan (“ ACIP ”) and accompanying Airport Maintenance Plan (“ AMP ”) , which the Town is in the process of implementing. Charlton Answer Dec. ¶¶ 7

- 12. To prepare for that work, t he Town is14

undertaking a comprehensive pavement analys is that will guide future repair and rehabilitation work. Waibel Dec. ¶¶ 15

- 18; Reply Ex. 1 at 2 . In the meantime, the Town conducts daily pavement inspections and performs emergency repairs as needed. Charlton Answer Dec. ¶ 11d. Complainants do not an d cannot allege that Runway 16

- 34 is unsafe. The Town has demonstrated that it understands its pavement maintenance obligations, has a plan to meet those obligations, and is executing that plan. Complainants’ speculative fears of possible future budgetar y shortfalls or other contingencies simply fail to demonstrate that the Town has failed to meet its federal obligations.

The Lighting f

or Taxiway “A” Was Completed Before the Complaint 2. W as Even Filed Complainants’ belatedly concede that “ the new lighting i s working as it should

. ” Reply ¶ 41 . Coming over six months after the lights were installed and almost five months after alleging that the lighting was inadequate, Complaint ¶ 18, this statement only underscores the lack of merit to Complainants’ claims and the need to hold Complainants to their pre

- complaint resolution obligations. The unnecessary briefing on this issue would have been avoided if Complainants had made a bona fide attempt to resolve their concerns prior to filing the Complaint.
The Automated Weather Observing System (“A WOS ”) W as Planned

3. Long Before the Complaint W as Filed and W ill B e Operational This Year Apparently conceding, as they must, that the Town is in compliance with its obligations regarding the AWOS , Complainants now chang e their tune and assert that “ without the pressure and attention brought on the Respondent by this Complaint, the Respondent may have very well continued to ignore the need for current local weather reporting.” Reply ¶ 49. Aside from being irrelevant , th is self

- serving boast is incorrect.15

The AWOS has been planned for some time

– in fact, long before the Complaint was even filed. It was included in the 2014

- 2018 ACIP approved in December 2013 . Charlton Answer Dec. Ex. 8. The Town had already completed required environmental reviews and approved necessary bonds for the AWOS in December 2014

. Answe r Br. at 10; Charlton Answer Dec. Ex. 15. S ince January 2015 , the Town has continued to complete acquisition and installation of the AWOS by issuing bonds to pay for it, soliciting bids, and awarding a contract to furnish and deliver the equipment. Charlton Rebuttal Dec. ¶ 12 and Ex. 3 (Resolution 2015

- 588) ; Waibel Dec. ¶¶ 6. There is a relatively long lead time on some of the components for the sophisticated AWOS system the Town has to purchase . In addition, there is necessary lead time for the Town to secure a contractor for construction, and, finally, to secure necessary permits and certifications. Waibel Dec. ¶¶ 7

- 10. As a result, the new A WOS is expected to be operational by late fall or early winter. Id

. ¶ 10. None of this was in response to pressure from Complainants. Rather , as Complainants themselves concede, this is just an “example of [this Administration’s] ability to complete proj ects on a timely basis.” Reply ¶ 41.

The Town is Constructing a New Perimeter Fence 4. I mplicitly acknowledging that the Town is in compliance with its obligations regarding a new perimeter fence, the best argument that Complainants can muster is to allege that there is “no schedule for replacement

. ” Reply at p. 22. The assertion is false, as Complainants’ own evidence demonstrates. Complainants’ Reply Ex. 1 is a letter from the Town’s Airport E ngineer that provides a preliminary, planning

- level, capital improvement program; the letter states clearly that design and construction of the perimeter fence is planned for 2015

. Reply Ex. 1 at p. 2

. Funds for the design and planning for the perimeter fence are included in the half million dollar bond issue the Town completed earlier this year. Charlton Rebuttal Dec. ¶ 15. The Engineer’s16

letter also makes clear that the new fence will include “[p]owered gates to control access and enhance security of the Airport , ” Reply Ex. 1 at 2 , resolving Complainants’ tired allegations about unauthorized vehicles driving on the airfield in the past

. The Airport Engineer is actively coordinating with the Town’s Airport Management Advisory Committee and airport users. Waibel Dec. ¶ 11

- 13

. Ulti mately, Complainants once again fail to show that the Town is not in compliance with any federal obligation.

The Airport Engineer is Coordinating with FAA to Resolve Obstruction 5. Issues Complainants’ argument about obstructions is another example of their a ttempts to create a compliance issue where there is non e. In its Answer Brief, the Town outlined its active plan for removing the obstructions. T he Town has conducted a comprehensive review of potential obstructions. Answer Br. at p. 11

. The Town has i nformed FAA that resolution would take time because of environmental requirements ; FAA did not object

. Id. T he Town has proposed a visual glide slope mitigation plan in the interim to ensure safety. Id. The Town also has completed a comprehensive mappi ng project and TERPS analysis. Id. at 12. As Complainants themselves admit , Reply ¶ 45 , FAA has accepted the Town’s interi m visual slope mitigation plan and has restored the instrument night approaches on Runway 10

- 28. Accordingly, the obstruction issues are not impairing those operations. T he Airport Engineer is actively coordinating with FAA to understand whether recent agency policy changes may minimize the need for costly tree removals. Waibel Dec. ¶ 22. Fundamentally, the Town is fully engaged with the appropriate FAA offices to address the obstruction issues and mitigate interim impacts and is actively pursuing a plan to remove or mitigate obstructions. There is simply no compliance issue to address.17

Unable to attack the Town’s plan for potential obstructions, Complainants focus their reply argument on allegations regarding the Town’s past conduct. On its face, those arguments are irrel evant because the purpose of the FAA Compliance Program is to assure current compliance, not punish past non

- compliance. In any event, Complainants’ arguments are
in correct. For example, Complainants allege that the Town “ claimed it was not aware of the obstacles until it got the letter from FAA in 2013. ” Reply ¶ 42. Complainants offer no proof of that assertion, and there is none. In its Answer Brief, the Town simply stated that FAA identified obstructions in its May 2013 letter. Answer Br. at pp. 11, 32. In fact, the Town ha d previously acknowledged the issue as a factor in its comprehensive airport management plan and had included obstruction issue s in the ACIP , which the Town approved in December 2013

. Charlton Answer Dec. Ex. 8 (ACIP). Finally, Complainants’ suggestion t hat the Town’s “failure to take
act ion was intentional , ” Reply ¶ 43 , is utterly unsupported by evidence and cannot be credited. Scott Meyer v. City of Cincinnati , FAA Docket No. 16

- 12

- 14 at 25 (Director’s Determination Sept. 12, 2014)

. Complainants’ rhetorically

- charged allegations are legally immaterial , factually incorrect , and serve only to reemphasize their utter lack of evidence of non

- compliance.

The Town is Conducting a Comprehensive Airfield Pavement Evaluation 6. Study That Will Be Used t o Prepare a Compliant Pavement Maintenance Management Program Town has acknowledged that it does not have a complete pavement main tenance program and has agreed to enter into a corrective action plan to address that issue and has independently

com mitted to implement one. Answer Br. p. 12; Mot. to Dismiss at p. 2 . Having acknowledged that, there is nothing left for FAA to investigate or adjudicate, Complainants’ continued attempts to beat up the Town for that failure are irrelevant and simply expo se, yet again, that they are more interested in denigrating the Town than presenting meaningful compliance issues.18

First, the Town is undertaking a comprehensive pavement analysis to thoroughly evaluate all pavement issues on the airfield and develop a com plete rehabilitation program to address underlying pavement issues and not just surface cracks and failures. Waibel Dec

. ¶ 15; Reply Ex. 1 at 2. Work is scheduled to begin later this summer and will be complete by December 2015. Waibel Dec. ¶ 16. The r esults of this work will be used to prepare a compliant Pavement Maintenance Management Plan. Id . ¶ 17. Although it would have been preferable had that work been completed under prior administrations, the fact is that it is being done now. Again, the
To wn is aware of its obligations, has a plan to address its obligations, and is executing that plan. The Town is currently in compliance with its federal obligations. 5 Second, t he Town is aware of existing cracks and other issues with ramp and other
pavemen t and is actively addressing them. In the immediate term, the Town inspects all Airport pavement daily and closely monitors pavement conditions. Charlton Answer Dec. ¶ 11d. When necessary to assure continued safety, the Airport can and will perform emer gency, temporary repairs

. Charlton Rebuttal Dec. ¶ 13. With respect to the cracks shown in the phot o graphs attached to the Catarelli Affidavit , those are located on the main terminal ramp . They are the result of typical winter frost heave s . The Airport Director is aware of those cracks and has recently sought quotes on temporary repairs for those areas. Ultimately, t he results of the comprehensive pavement survey will determine the timing and nature of the permanent solution to the proble m. In the meantime, Airport staff continues to monitor the cracks and is prepared to perform emergency repairs as

5 The fact that the pavement repair items are in the AMP and not the ACIP is immaterial from a compliance perspective. As the Town explained, the AMP includes planned capital items that had not, as of December 2013, completed environmental review under Ne w York state law

. The Town is working through the necessary review for the projects on the AMP based on the projected timeline for completing the work. Answer Br. at pp. 6

- 7

. The Town reiterates here that it is committed to carrying out the projects on both the AMP and the ACIP. Id.19

warranted. It is important to note , however, that there have been no reported incidents due to pavement issues at the Airport

. Id

. E. The Town ’s Landing Fees are Reasonable and Necessary to Ensure Self
Sustainability Complainants’ attacks on the Airport’s fee structure lack any legal or factual coherence. Complainants assert that the fees are too high, Reply ¶ 52 , but just pages later , they arg ue that the fees are not high enough to meet projected capital and other needs, id. ¶¶ 61, 62; see also id . ¶ 3. Complainants acknowledge that there is no federal requirement that the Town accept federal grants, Complaint ¶ 37 , but argue that the Town’s d ecision not to take federal grants requires “investigation , ” Reply ¶¶ 51

- 53 . Complainants heap abuse on the Town for not spending more money faster to improve the airfield, e.g ., Reply ¶ 18 (“all overdue maintenance should be prioritized”) , but claim the fees needed to pay for those projects are too high, Reply ¶ 52

. Despite their revisionist history and contrived contradictions, Complainants fail to offer any factual rebuttal to the key points showing that the Airport fee structure complies with Assuranc e 24:

 The Town needs to spend over $10 million to pay for the improvements identified in the ACIP and AMP (improvements that Complainants agree need to be built) as well as meet other Airport operating expenses ;

 The existing fee structure and other income streams are not sufficien t to meet all expected expenses; and

 The Town is pursuing additional revenue sources, including increased non

- aeronautical revenues and non

- discriminatory fees to achieve complete self

- sustainability. The Airport’s fees may be high compared to other airports , but they reflect the legitimately high cost of operating and maintaining East Hampton Airport. Moreover, despite Complainants unsupported conspiracy theories, current fees have not depressed demand

. O perations in the 12

- month period following the fee increases (July 2014

– June 2015) increased as compared to the previous 12 month period (July 2013

– June 2014). Charlton Rebuttal Dec. ¶ 16 and Ex. 6 (201320

– 2015 operations data)

. Complainants do not, and cannot, cite any auth ority to support their argument that the fees are unreasonable in light of those uncontested facts. Stripped of its contradictions and bluster, Complainants ’ argument boils down to the bald proposition that they want a modern, rehabilitated airfield but w ant someone else to pay for it. It simply does not work that way , and Complainants do not and cannot cite any support for that proposition

. In a vain attempt to conjure an issue worthy of investigation, Complainants throw out a number of arguments and ass ertions, none of which support s a possible violation of Grant Assurance 24. First, Complainants attempt to avoid FAA’s policy not to investigate general aviation rates absent evidence of accumulating surpluses by arguing that the Town’s choice to forego f ederal funding make s it “virtually impossible to accumulate a surplus from aeronautical

revenues . . . ” Reply ¶ 52 . But that just proves the point that the fees are not unreasonable because they are not excessive in relation to Airport expenses. As Complainants concede, there is no federal obligation to accept federal grants and Complainants cannot conjure such an obligation by complaining about having to pay for Airport improv e ments they want. Second, Complainants argue that the Town’s alleged failure to charge fair market value rents for certain non

- aeronautical users is causing aeronautical users to subsidize non

aeronautical users. Reply ¶ 56 . As the Town has explained, most of the non

- aero nautical leases were executed many years ago and cannot be unilaterally amended by the Town. Charlton Answer Dec. ¶ 16

. As leases have expired over the past several years, the Town has entered into new leases at fair market rates. For example, t he Town is negotiating a new lease with Hertz at market rates

. Charlton Rebuttal Dec. ¶ 27. The Town also h as put in place policies and procedures to assure that non

- aeronautical leases will be renewed at fair market rates going forward , id . ¶ 28, and has alread y ordered appraisals for leases due to expire in 2016

. Id . ¶ 26.21

Moreover, t he Town has previously discussed those leases with FAA and agreed to replace them with fair market leases as and when leases expire

. Id . ¶ 24. The Town remains willing to addre ss an y remaining issues with FAA directly, e.g ., Mot. to Dismiss at p. 2, and in the meantime , is increasing non

- aeronautical rents to fair market rates as leases expire

. Charlton Rebuttal Dec. ¶

¶ 25

- 26 & 29. 6 Third, Complainants assert that the high fees “ serve [ s ] the interests of ‘certain forces’ that wish to either close or greatly reduce the activity at the Airport. ” Reply ¶ 57

. Yet a gain, however, Complainants offer no details or proof of who or what these unnamed “forces” are or how they have apparently manipulated Airport finances for decades in order to achieve their secret “goal” of closing the Airport . These unsubstantiated assertions and dark conspiracy theories deserve no serious discussion and prove nothing. Scott Meyer v. City of Cinc innati , FAA Docket No. 16

- 12

- 14 at 25 (Director’s Determination Sept. 12, 2014). In any event, the facts utterly expose that canard as false. Operations are up despite fee increases. Charlton Rebuttal Dec. ¶16. The Town has issued $1.5 million in bonds in the last year for a number of Airport projects that it would not pursue if there were a plan to close or starve the Airport. Like a child’s fears of a monster under the bed, Complainants ’ unnamed “forces” are entirely imaginary. Fourth, Complainants a rgue that the current landing fees are discriminatory because they assess different rates for aircraft of the same weight. Reply ¶ 54

. The Town acknowledges that through administrative inattention , the landing fee structure has been revised over the year s by Airport staff so that it no longer accurately reflects the landed weight of aircraft. Answer Br. at

6 Moreover, Complainants have not presented any financial analysis suggesting that increasing non

- aeronautical leases to fair market value would have off

- set the need for the 2014 fee increases or would otherwise be enough t o make the Airport self

- sustainable.22

p. 46 . The Town has just announced a corrected landing fee structure that addresses that problem and anticipates adoption on July 1 6 , 2015. Charlton Rebuttal Dec. ¶ 17. Fifth , Complainants make the contradictory argument that the Town’s B udget and Finance Advisory Committee (“B FAC ”) 7 was unable to conclude that the existing fee structure was adequate to meet expected expenses. Reply ¶ 58

. Yet, i f expenses exceed income , the logical solution is to increa s e income through increased fees or otherwise, not to lower fees as Complainants urge. Indeed, Complainants disprove their own flawed logic by acknowledging that the 2014 fuel flowage fee increases were too little and that the Town did not raise enough revenue to meet planned expenses. Id. ¶ 60 . Complainants expose the lack of merit to their argument by combining this illogical argument with another unsubstantiated allegation that the anti

- Airport “forces” engineered an increase in the fuel flowage fee solely to discourage use of the Airport, but not to raise needed revenue. Id. (“The Respondent is not concerned about the inability to raise the needed revenue, because it actually does not intend to do so.”)

. This is absurd. But in any event, none of this paranoid speculation is supported by a shred of evidence

. T he Town has shown, without rebuttal, that the fuel flowage fees and landing fees were increased in 2014 to a reasonable level expected t o meet most expenses and that traffic was not deterred by the new fees. Answer Br. at 41

- 44

. Finally, i n addition to being unsupported by evidence and being internally inconsistent, Complainants wholly misconstrue the substance of the BFAC’s position. Th e BFAC was asked in early 2015 to assess the impact of the four proposed use restrictions on Airport finances. Charlton Rebuttal Dec. ¶ 34 and Ex. 11 (BFAC Report to Town) . The BFAC concluded that it

7 On May 21, 2015, the Town dissolved the BFAC and created the new Airport Management Advisory Committee (“AMAC”) in its stead. Charlton Rebuttal Dec. ¶ 10 and Ex. 2 (Resolution 2015

- 582).23

could not do so because of the uncertainty as to how t he proposed use restrictions would affect the number of operations and thus landing and fuel flowage fee revenues. Id. That is far different than saying that the Airport is not, or will not be, self

- sustaining, or that the existing fee structure is unreasonably high. The bottom line is that the Town understands its obligation to implement a fee structure that will enabl e the Airport to be a s self

- sustaining as possible . The
Town

– through the combined efforts of the current Airport Management Advisory Committee , airport staff, the Budget Director , and the Town Board

– is actively monitoring Airport revenues and expenses to assure a self

- sustaining fee structure and is implementing measures to assure self

- sustainability, including increasing non

- aeronautical revenue. There is no compliance issue to investigate.
F. The Town Has Implemented Steps to Address Revenue f rom Non A eronautical Leases As noted above, Complainants’ claims of revenue diversion are effectively moot because the Town acknowledges that there have been revenue diversion issues and is willing to enter into a corrective action plan with FAA to address any rema ining concerns. Mot. to Dismiss at p. 2

. Complainants apparently refuse to take yes for an answer . Arguing that the Town cannot be trusted, they recommend that FAA continue adjudicating the issue in lieu of coordinating on a corrective action plan . Thi s is just senseless. T here is no issue to adjudicate; the only issue is the terms of a corrective action plan , which is what FAA would order if it were to adjudicate this

case . Further investigation and adjudication is unnecessary and wasteful. In any ev ent, Complainants’ claims of past violations and bad faith are both incorrect and legally irrelevant . The fact is that between 2002 and 2007, the Town met with FAA to address prior revenue diversion issues and reached an agreement. Under that agreement, the Town paid

over $ 230 ,000 to the Airport Fund to compensate for past revenue discrepancies

. Charlton24

Rebuttal Dec. Ex. 7 (Resolution 2008

- 271 and related documents )

. And since then, the Town has made annual payments to the Airport F und to reflect the difference between rent values and fair market values for the police and fire leases. Charlton Rebuttal Dec. ¶ 22. In addition, during the prior negotiations with FAA, t he parties concluded that t he Maidstone Gun Club c ould be considered a community use , which relieves the Town of the obligation to secure fair market value for the property

. Id

. ¶ 23. 8 Further, during those discussions, FAA acknowledged that
many non - aeronautical leases were for less than fair market value , but could not be readily revis ed . The solution going forward was to enter into new leases at fair market rents when those leases expire d

. Id. ¶ 24. And t he Town has done just that. It has renewed leases at fair market
rates as they expire, specifically including the Phoenix House a nd East Hampton Storage Company leases. Id

. ¶ 25 . The Town also is negotiating a new lease with Hertz at fair market rates, which should be executed in the near future

. Id. ¶ 27. A nd, a number of non

- aeronautical leases are due to expire in 2016 and the Town has already obtain ed appraisals for those properties in order to set the new, fair market lease rates. Id

. ¶ 26.
Moreover , a s a matter of law, the statute of limitations for revenue diversion limits recovery to the past six years. 49 U.S.C. § 47107(n)(7)

. Accordingly, Complainants request for reimbursements b ack to 2002 is legally barred.
III. CONCLUSION For the foregoing reasons, the Town respectfully requests that FAA dismiss the Comp laint and find that the Town is in compliance with its sponsor obligations.

8 Complainants’ allegation th at the Town renewed the Maidstone lease in 2012 without increasing rental rates, Reply ¶ 65 , is simply incorrect. The lease was most recently amended i n 1993 , see Reply Ex. 19, and that Amendment clearly provides that the term of the lease extends through October 2023. Id

. Only then can the Town renegotiate the rental rate

.