Saturday, July 31, 2021

Federal Judge Blocks Town Ban On ‘Special VFR’ Flight Operations

An automated radio announcement that has been warning pilots all summer that no “Special VFR” operations are permitted at East Hampton Airport disappeared from the airwaves after a federal judge on Friday, July 30, ordered the Town of East Hampton and the controllers at the airport tower to suspend their unilateral policy barring the operations.

“Special VFR” is an option available to pilot across the country under federal aviation regulations that allows them to approach an airport and land when the ceiling and visibility are below Visual Flight Rules (VFR) minima, as long as the pilot can stay clear of clouds and visibility is at least one mile.

Declaring the procedure unsafe because it encourages pilots to fly low over populated areas on bad-weather days, Supervisor Peter Van Scoyoc announced in April that the town had instructed its FAA-approved and regulated control tower contractor, Robinson Aviation, not to grant special VFR clearance requests.

The announcement advising pilots of the ban was immediately added to the airport’s automated weather observation system, which continually broadcasts ceiling, visibility and other weather information for the airport.

It was gone by Saturday morning, July 31, following U.S. Eastern District of New York Judge Gary R. Brown’s decision to grant a temporary restraining order sought by Zip Aviation, a New York City helicopter tour operator. Zip argues in a suit filed against the town and Robinson Aviation on July 22 that the policy violates federal aviation law because it discriminates against the use of the airport by helicopter operators.

Judges may issue temporary restraining orders before ruling on the merits of a case when the plaintiff has a likelihood of success and the continuation of a contested policy is likely to cause the plaintiff financial harm.

Supporting Zip in the lawsuit are the National Business Aviation Association, the Eastern Region Helicopter Council and the Helicopter Association International.

The FAA’s acting eastern regional administrator, Marie Kennington- Gardiner, wrote airport director Jim Brundige in late June that “as a matter of law, HTO lacks the authority to deny all requests for special VFR clearances …”

She added that “to the extent that you are continuing to ban all Special VFR clearances at HTO” when the tower is operating, “you should remain aware that your decision is neither consistent with FAA policy nor federal law.”

She wrote that there are regulatory procedures for seeking permission to limit Special VFR operations at any particular airport but that the town had not followed them.

Mr. Brundige replied in a July 1 letter that “Special VFR clearances are not appropriate at HTO under any circumstances” when the tower is in operation. “I will be reviewing your letter with the East Hampton Town Board and our aviation counsel. Please be advised there will be no changes to the HTO Airport Operating Procedures at this time.”

The disappearance of the announcement warning pilots there is no “Special VFR” at the airport confirmed that the town’s Special VFR ban has been suspended in compliance with the TRO. The weather has been good since then, so there has been no reason for any pilots to request a Special VFR clearance to takeoff or land.

Seaplanes and helicopters arriving at East Hampton Airport in past seasons made regular use of the Special VFR option — which is much simpler and less time-consuming than obtaining an “Instrument Flight Rules” (IFR) clearance — when fog from the ocean rolls in over the south side of the airport or other conditions lower ceiling and visibility below the VFR minima of 3 miles visibility and a ceiling of 1,000 feet above ground level. Jet crews do not normally use the Special VFR option, opting instead to fly strictly controlled instrument approaches.

Until now, the ban on Special VFR reduced the frequency of low-flying seaplanes and helicopters on low-weather days this summer. Many of them are not equipped or certified for instrument approaches, making Special VFR their only option when ceilings are low and visibility is limited.

“The East Hampton Town Board and the airport manager have been opposed to the practice,” Mr. Van Scoyoc commented in the April press release announcing the ban, “as it [Special VFR] increasingly became standard operating procedure when the weather is overcast on the East End, resulting in flights at very low altitudes.”

“The safety of the residents of East Hampton Town and other communities under the flight paths cannot be compromised by East Hampton Airport users,” Mr. Van Scoyoc said.

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