Last Resort: Town Approves Measure To Allow FAA Suit

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Satellite image of John F. Kennedy International Airport (Photo source: Google Maps)

The Town of North Hempstead’s town board approved a measure allowing the town to take part in litigation against the Federal Aviation Administration (FAA) in conjunction with the area’s villages.

Residents in villages throughout the town have complained of excessive noise from aircraft flying over the area from out of LaGuardia Airport and John F. Kennedy International (JFK) Airport for years. In response, politicians at both the town and county level have attempted to parlay with the FAA on several occasions, but Town of North Hempstead Supervisor Judi Bosworth said in an official statement on the matter that the town approved the measure because those methods have proven ineffective.

“Aircraft noise and pollution has become a critical quality of life issue for many of our North Hempstead residents,” Bosworth said in a press release. “We have attempted to work with the FAA but we believe that they have consistently kicked the can down the road, or just ignored our requests entirely. It’s time to get their attention. The homeowners who live under their flight paths deserve no less.”

Town councilwoman Veronica Lurvey told the Roslyn News that the approval was the first step in a long process, and further steps like whether the municipalities will actually pursue litigation and how such a process would be funded still have yet to be determined.

“The vote was on entering into an agreement to work with the villages on something,” Lurvey said. “What that ‘something’ is needs to be worked out. We haven’t hired any attorneys yet, nobody’s been retained. We have to figure out what the best route forward would actually be.”

Both the villages of East Hills and Upper Brookville have signed a memorandum of understanding with the town that signals their desire to move forward with a lawsuit against the FAA. East Hills has been particularly hard hit by low-flying aircraft due to its location directly under flight paths leading into JFK. Records of inbound traffic to JFK obtained by the village showed that on one night in 2013 alone, 31 planes flew at an elevation of just 2,000 feet above the village from 4:30 to 6 a.m.

Studies from the International Civilian Aviation Organization’s Committee on Aviation Environmental Protection link continued exposure to noise from low-flying aircraft with sleep disturbance, cardiovascular issues and learning issues in impacted children.

Documents related to the FAA collected by the Village of East Hills (Photo by Mike Adams)

The earliest complaint about excessive plane noise on record with the Village of East Hills dates back to September 1996. In total, the Village of East Hills has received 1,695 petitions from residents complaining about excessive airplane noise and its detrimental effects.

Most recently, the FAA scrapped a new set of regulations developed in June in conjunction with air traffic controllers, local politicians and U.S. Congressman Tom Suozzi that were designed to mitigate the issues residents faced. 

“I am very frustrated with the FAA,” Suozzi said in a press release last month. “It is a failed bureaucracy that is unresponsive to the needs of my constituents. I recognize the preeminence of local safety concerns, however, the FAA in concert with the air traffic controllers had developed a plan to address safety and mitigate aircraft noise. That plan must now be implemented.”

Village of East Hills Mayor Michael Koblenz was able to secure $40,000 from the village to go toward potential litigation, but remarked he will not ask East Hills residents to bear the burden of suing the FAA unless they have support from the town and other villages. 

“It’s a major undertaking, and the village has been in the forefront for a long time, but we can’t do it by ourselves,” Koblenz said. “We have to have the town, and the town has had complaints from other areas, so hopefully the other mayors will come to the table and support it.”

In short, Koblenz said the village has no choice but to pursue a suit. Over the past 23 years, they’ve tried everything else.

“I’ve been dealing with this for over 10 years,” Koblenz said. “It’s not a brand new thing, it’s just that we’ve exhausted every remedy there is. We’ve gone to our elected officials, we’ve gone to the state, we’ve written letters. I’ve got petitions with thousands of names on them. They’re flying low, they’re not flying within the regulations. We’re basically done with letter writing.”

While Koblenz expressed hope that suing the FAA could help bring them to the bargaining table, former East Hills resident and director of Plane Sense 4 LI Jana Goldenberg remarked that her organization has not found a lawsuit they feel could be won.

“If there was a lawsuit that was sustainable, we would have done this years ago,” Goldenberg said. “You can’t just say ‘because I can’t take the planes.’ If there was a way to stop it, we would have done it.”

Successful suits against the FAA are few and far between, California-based aviation lawyer Steven Taber said, due to the nature of how the organization can be sued. There is no equivalent to the Clean Water Act or Clean Air Act for dealing with noise pollution. Federal law dictates that people and entities with “a substantial interest” in an order or decision issued by the FAA must appeal it within 60 days. This creates a roadblock on two fronts, Taber said, since most people don’t respond in time and appeals are routed directly to the United States Court of Appeals, which is not a trial court. 

“If there is simply a disagreement between a municipality and the FAA as to the level of noise or that sort of thing, it becomes much more difficult to take the FAA to court and win,” Taber, a partner with Leech Tishman, a law firm that operates throughout the country, said. “The big issue is that trying to get the FAA to divulge the information it has is very difficult, because you’re not dealing with a trial court.”

Once the FAA is brought into court, Taber said getting a ruling against the administration is further complicated by the fact that the courts tend to defer to the FAA as an expert on matters related to aviation, such as flight noise and the necessity for flying planes at low altitudes, despite the FAA’s methodology being considered outdated by international standards.

“The courts have said they’re the experts, so the courts will defer to them in their expertise,” Taber said. “Part of the problem that I’ve seen is that the FAA does not use a method of noise modeling in the community that is up to date, it’s 30 or 40 years old. It doesn’t comply with the standard for noise modeling used elsewhere in the world, the ASTM standards.”

Going to appeals court does allow for both sides to enter mediation, however, which he remarked could be a route toward getting the FAA to acquiesce to certain demands, like altering descent methods and flying planes at higher altitudes when they are above a residential area. 

None of the most recent decisions made by the FAA that concern the region, like the scrapping of regulations drafted by Suozzi and company, fall within the 60 day window for valid appeals. In a situation like this, Taber said the route to court involves forcing the FAA to make an appealable decision.

“You ask them directly ‘will you talk to us about adjusting the flight routes,’ and then when the FAA says ‘no’ you try to create some kind of decision point and then you take them to court on that,” Taber said. “It’s not something that you like to do, because it’s patently obvious what you’re doing. The courts don’t like it and the FAA doesn’t like it, but it’s what the law forces you to do in order to get the FAA to sit up and take notice of your complaints.”

Ultimately, Taber concluded that litigation should never be seen as the sole solution to issues a municipality has with the FAA, but rather as one of many tools.

“Litigation is something that ought to be always considered,” Taber said. “However, litigation as the only tool to get what you want is never a good idea. It has to be part of a suite of tools that you use in order to get the attention of the FAA and have some idea of what it is that you want the FAA to do.”

When contacted, media representatives for the FAA responded that “the FAA declined to comment on proposed litigation.”

—Additional reporting by Caroline Ryan

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