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, DC 20036

epilsk@kaplankirsch.com

cvanheuven@kaplankirsch.com

Telephone: (202) 955-5600

Facsimile: (202) 955-5616
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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, nonaeronautical revenues, and landing 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 showed 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 into a corrective 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 that there is no current noncompliance, 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, 
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Complainants argue that the 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)

allegations of “unnamed forces” seeking to close the Airport in the hope of concocting a 

bogeyman they can attack, even though they acknowledge that the recently-enacted local laws 

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 the 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 old 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, acquisition 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 interim 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 Town 
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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 

past 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 Should Grant the Town’s Motion to Dismiss

The Town asked for dismissal on two issues where the Town has acknowledged a 

compliance issue, namely: (1) non-aeronautical revenues, including leases with the Maidstone 

Gun Club, the Hertz Corporation, the Town 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. to 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 the 
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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 steps 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. The 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 seeks 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 non-compliance should prevent FAA from engaging with an airport sponsor that seeks to 

address current compliance issues. Such a result would undermine the entire purpose of FAA’s 
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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 Misrepresent 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 Complainants 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 the result that 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 discussion. 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 the 
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months following the meeting with Complainants and before the date on which Complainants 

filed the Complaint:

 The Town hired an engineering firm in September 2014 to evaluate airport maintenance 

and to prioritize projects. Charlton Answer Dec. ¶ 10.

 The 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 known 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 allege. 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 cannot evade their obligation under Section 16.21 by failing to present issues for 

resolution.

Second, Complainants allege that the Town made “false representations” regarding past 

applications 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. The 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). The 
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Town never rescinded that application. At the time of the September 2014 meeting, the Town 

understood that the application was still pending before FAA. Id. ¶ 31. Further, the 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 Complainants’ strained attempt to make the Town look 

disingenuous lacks any factual support and in no way excuses Complainants from their precomplaint resolution obligations under Section 16.21.

Finally, the Part 16 decisions cited by Complainants are inapposite. In 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 sponsor told Complainant that 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 (Nov. 1, 2006) (Director’s Determination), also cited by 

Complainants, the Director specifically found that Complainant had made an “attempt to resolve 

the matters described in the Complaint.” Complainants here did not. Similarly, in Consolidated 

Services Engineers & 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 Complainant’s general 

discussion of the issues was sufficient. Here, in contrast, the pre-Complaint discussions were 

 

1 Complainants are incorrect to insist that entitlement 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).
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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-Complaint resolution process if complainants could ambush 

sponsors by raising some issues before filing a Complaint, but include in the Complaint 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, 2014 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 restrictions 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 is 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 2011 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 (runway data 

table). While Complainants may desire immediate restoration, neither the 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. The use restrictions are not an issue in this matter, 

and in fact were not adopted until seven months after the September meeting. See Reply Ex. 2 –

Reply Ex. 5 (Local Laws Nos. 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 decisions on potential use restrictions had been made as of 

September 4, 2014).
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Assurance 29 creates a deadline for action. In addition, there is no evidence of a violation of 

Grant Assurance 19. Both the main runway, Runway 10-28, and the other cross-wind runway, 

Runway 16-34, are operational. 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. 

There is, quite simply, no compliance issue with the current status of Runway 4-22.

Unsatisfied with 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. That allegation 

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 Determination Sept. 12, 2014). To the 

extent that Complainants’ vague assertions require a direct rebuttal, the Town emphatically 

denies 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. 

The Airport Engineer has recommended 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 ALP. See Charlton 

Answer Dec. Ex. 1 (ALP) at p. 3 (“Runway 16-34 to be converted to a taxiway”).
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confirm the desired runway configuration for the Airport before proceeding with full restoration 

of the Runway. Waibel Dec. ¶ 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 

represent 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

claimed 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 provide 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, Complainants 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. The 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 Hampton 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. 4
12

(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 that 

the 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, while 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. The Town is committed to implementing that 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 Impact 

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 – pre-construction

studies. The 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 from 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. Moreover, under the New 

York State Environmental Quality Act, the Town must examine potential noise impacts. That 

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, Complainants’ allegation that the Town has “suggested” that the Draft 

Master Plan was approved by FAA, Reply ¶ 28, is incorrect.. The Town has made no such 

statement.
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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 federal 

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 Complainants assert the Town must complete. Answer 

Br. pp. 30-36. Complainants’ continued rhetoric cannot mask the fact that the Town is doing 

precisely what is required under the FAA Compliance Program. E.g., Scott Meyer v. City of 

Cincinnati, FAA Docket No. 16-12-144 at 10-11 (FAA looks for current compliance and 

successful action to cure past violations).

1. Runway 16-34 is Safe

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. Complainants offer no evidence to the contrary. The fact that 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 patched.

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, the Town is 
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undertaking a comprehensive pavement analysis 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 and 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 

budgetary shortfalls or other contingencies simply fail to demonstrate that the Town has failed to 

meet its federal obligations.

2. The Lighting for Taxiway “A” Was Completed Before the Complaint 

Was Even Filed

Complainants’ belatedly concede that “the new lighting is 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.

3. The Automated Weather Observing System (“AWOS”) Was Planned 

Long Before the Complaint Was Filed and Will Be Operational This Year

Apparently conceding, as they must, that the Town is in compliance with its obligations 

regarding the AWOS, Complainants now change 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, this 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. Answer Br. at 10; Charlton 

Answer Dec. Ex. 15. Since 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 AWOS 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 

projects on a timely basis.” Reply ¶ 41.

4. The Town is Constructing a New Perimeter Fence

Implicitly 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 Engineer 

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’s 
16

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. Ultimately, Complainants once again fail to show that the Town is not in 

compliance with any federal obligation.

5. The Airport Engineer is Coordinating with FAA to Resolve Obstruction 

Issues

Complainants’ argument about obstructions is another example of their attempts to create 

a compliance issue where there is none. In its Answer Brief, the Town outlined its active plan 

for removing the obstructions. The Town has conducted a comprehensive review of potential 

obstructions. Answer Br. at p. 11. The Town has informed FAA that resolution would take time 

because of environmental requirements; FAA did not object. Id. The Town has proposed a 

visual glide slope mitigation plan in the interim to ensure safety. Id. The Town also has 

completed a comprehensive mapping project and TERPS analysis. Id. at 12.

As Complainants themselves admit, Reply ¶ 45, FAA has accepted the Town’s interim 

visual slope mitigation plan and has restored the instrument night approaches on Runway 10-28. 

Accordingly, the obstruction issues are not impairing those operations. The 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.
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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 irrelevant because the purpose of the FAA Compliance Program is to assure current

compliance, not punish past non-compliance. In any event, Complainants’ arguments are 

incorrect.

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 had previously 

acknowledged the issue as a factor in its comprehensive airport management plan and had 

included obstruction issues in the ACIP, which the Town approved in December 2013. Charlton 

Answer Dec. Ex. 8 (ACIP). Finally, Complainants’ suggestion that the Town’s “failure to take 

action 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.

6. The Town is Conducting a Comprehensive Airfield Pavement Evaluation 

Study That Will Be Used to Prepare a Compliant Pavement Maintenance 

Management Program

Town has acknowledged that it does not have a complete pavement maintenance program 

and has agreed to enter into a corrective action plan to address that issue and has independently 

committed 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 expose, 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 complete 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 results 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 

Town 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, the Town is aware of existing cracks and other issues with ramp and other 

pavement 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 emergency, temporary 

repairs. Charlton Rebuttal Dec. ¶ 13.

With respect to the cracks shown in the photographs attached to the Catarelli Affidavit, 

those are located on the main terminal ramp. They are the result of typical winter frost heaves. 

The Airport Director is aware of those cracks and has recently sought quotes on temporary 

repairs for those areas. Ultimately, the results of the comprehensive pavement survey will

determine the timing and nature of the permanent solution to the problem. 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 New 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 SelfSustainability

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 argue 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 decision 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 Assurance 

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 sufficient 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. Operations 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 (2013 
20

– 2015 operations data). Complainants do not, and cannot, cite any authority 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 want 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 assertions, none of which supports 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 federal funding makes 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 improvements 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 nonaeronautical users. Reply ¶ 56. As the Town has explained, most of the non-aeronautical 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, the Town is negotiating a new lease with Hertz at 

market rates. Charlton Rebuttal Dec. ¶ 27. The Town also has 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 already ordered appraisals for leases due to expire in 2016. Id. ¶ 26. 
21

Moreover, the 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 

address any 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 again, 

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 Cincinnati, 

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 argue 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 years 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 to 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 16, 2015. Charlton Rebuttal Dec. ¶ 17.

Fifth, Complainants make the contradictory argument that the Town’s Budget and 

Finance Advisory Committee (“BFAC”)7 was unable to conclude that the existing fee structure 

was adequate to meet expected expenses. Reply ¶ 58. Yet, if expenses exceed income, the 

logical solution is to increase 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. 

The Town has shown, without rebuttal, that the fuel flowage fees and landing fees were 

increased in 2014 to a reasonable level expected to meet most expenses and that traffic was not 

deterred by the new fees. Answer Br. at 41-44.

Finally, in addition to being unsupported by evidence and being internally inconsistent, 

Complainants wholly misconstrue the substance of the BFAC’s position. The 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 the 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 enable the Airport to be as 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 from NonAeronautical 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 remaining 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. This is just senseless. There 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 event, 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. Charlton 
24

Rebuttal Dec. Ex. 7 (Resolution 2008-271 and related documents). And since then, the Town 

has made annual payments to the Airport Fund 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, the parties concluded that the Maidstone Gun Club could 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 

revised. The solution going forward was to enter into new leases at fair market rents when those 

leases expired. Id. ¶ 24. And the Town has done just that. It has renewed leases at fair market 

rates as they expire, specifically including the Phoenix House and 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. And, a number of non-aeronautical 

leases are due to expire in 2016 and the Town has already obtained appraisals for those 

properties in order to set the new, fair market lease rates. Id. ¶ 26.

Moreover, as 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 back to 2002 is legally barred.

III. CONCLUSION

For the foregoing reasons, the Town respectfully requests that FAA dismiss the 

Complaint and find that the Town is in compliance with its sponsor obligations.

 

8 Complainants’ allegation that the Town renewed the Maidstone lease in 2012 without 

increasing rental rates, Reply ¶ 65, is simply incorrect. The lease was most recently amended in

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.