Benjamin H. Klein

LAW OFFICES OF PAUL A. LANGE, LLC

80 Ferry Boulevard

Stratford, CT 06615

Phone: (203) 375-7724

Fax: (203) 375-9397

bhk@lopal.com

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Pro-Flight Aviation, Inc.

Complainant,

v. Docket No. 16-15-03

City of Renton, Washington

Respondent.

/

PRO-FLIGHT AVIATION, INC.’S REPLY TO RESPONDENT’S ANSWER

Complainant Pro-Flight Aviation, Inc. (“PFA”), by and through the undersigned counsel, 

and pursuant to 14 C.F.R. § 16.23(e) and the FAA’s August 13, 2015 Order granting an 

extension of time, hereby files this Reply to Respondent City of Renton, Washington’s (“City” or 

“Respondent”) Answer to the Complaint (“Answer”), and in support thereof, states as follows: 

INTRODUCTION

In January 2015, PFA filed a Part 16 Complaint (“Complaint”), alleging that Respondent 

violated several of its grant assurance obligations when it misled PFA about the availability of a 

parcel adjacent to its FBO – the 760 Parcel – in order to ensure that it was leased to the Boeing 

Company (“Boeing”), a non-aeronautical, through the fence operator at the Renton Municipal 

Airport (“RNT” or “Airport”). Specifically, PFA has asserted that in April and May of 2013,

Respondent intentionally concealed from PFA, the sole full-service FBO on the field, that the 
2

760 Parcel was available for lease and that Boeing was negotiating with the Airport for its lease, 

despite the fact that PFA had, since January 2011, repeatedly expressed its interest in leasing the 

parcel once it became available. In June 2013, after PFA discovered that the 760 Parcel was, 

contrary to Respondent’s representations, available and that Boeing had in fact already submitted 

a lease application for both the 760 and 770 Parcels, PFA announced its intention to submit its 

own application. In response, PFA was told by the Airport manager not to bother submitting an 

application, and that the City had already decided to award the lease to Boeing.

Based on these facts alone, Respondent’s actions violate its grant assurance obligations

and would be sufficient to warrant not only corrective action by the FAA, but also other relief, 

under common law tort principles, in the courts of Washington State. Respondent’s conduct is 

made all the more egregious, however, by the fact that: (1) the 760 Parcel is specifically 

designated as “General Aviation” on the Airport Layout Plan; (2) Boeing – a through the fence 

operator that manufacturers 737 aircraft offsite and tows them onto the Airport for storage before 

departing for Boeing Field – is not engaged in general aviation or aeronautical activity at the 

Airport, and unlike PFA, provides no aeronautical services to general aviation operators at the 

Airport; and (3) by the City’s own admission, the Airport is largely built out, and there are no 

other parcels that are currently available for an aeronautical user or service provider to lease.

In response to the Complaint, on April 17, 2015, Respondent filed a Motion for Summary 

Judgment (“MSJ”), seeking judgment as a matter of law on all claims brought by PFA. PFA filed 

a detailed Answer to the MSJ on June 4, 2015 (“MSJ Answer”).

1 By Order dated July 17, 2015 

 

1 Given the extensive briefing that occurred during the motion for summary judgment phase of this matter, 

the parties have had the opportunity to articulate both the legal and factual basis for their respective positions, and 

Complainant will not waste the Director’s time simply restating the arguments as to fact and law that have already 

been made. Accordingly, PFA hereby incorporates the entirety of the MSJ Answer herein, and will summarize and 

refer to specific portions thereof where necessary. 
3

(“MSJ Order”), the FAA denied Respondent’s MSJ, as well as Respondent’s motion seeking 

leave to file a reply brief, finding, among other things, that “Respondent failed to persuade there 

is no genuine issue as to whether Boeing’s use under its lease is an aeronautical use as 

determined by the FAA,” or “whether the disputed parcels ...are the only airport property 

available to meet the public’s interest and aeronautical needs of the airport.” MSJ Order, pg. 2.

The MSJ Order directed Respondent to file an answer by July 27, 2015, which was extended 

without opposition from Complainant until August 7, 2015.

Respondent offers no evidence in its Answer that should persuade the FAA that Boeing is 

engaged in aeronautical activity, or that the needs of aeronautical users and service providers are 

being met at the Airport. In fact, Respondent takes much the same approach in its Answer as it 

employed in its MSJ. It continues to insist, incredibly, that not only is Boeing engaged in 

aeronautical activity at RNT, but that this activity falls under the classification of “General 

Aviation.” Indeed, Respondent ups the ante in its Answer, and takes the position, for the first 

time, that Boeing actually provides aeronautical services at the Airport – an assertion that 

Respondent does not even attempt to support with evidence. None exists. 

The Answer provides no evidentiary support for Respondent’s other justification for 

denying PFA the lease – that other suitable space was available to PFA – and this claim is belied 

by Respondent’s own statements on this point. Although the City suggested that PFA could lease 

the 820 Parcel in 2011, it was not offered again until after the Complaint was filed, and after it 

had already promised to Boeing. Fact Statement of Respondent in Support of Answer 
4

(“Respondent Statement”) ¶¶ 28, 29. Even if the offer in March 2015 was sincere2, the 820 

Parcel is completely impractical for PFA with Boeing’s occupation of 760/770, since there is no 

way to transport PFA customers across those parcels (Boeing will close them off) to its FBO on 

750. The only “alternative” site that PFA was legitimately offered is, by the admission of the 

City, the site of a former restaurant, which is outside the Airport fence, over 650 yards from 

PFA’s facility, and has yet to be developed. Respondent Statement ¶ 26. Thus, since it was 

rejected for the lease of the 760/770 Parcels in 2013, PFA has been offered no credible 

alternative site to house its flight school or transient aircraft.

In addition, Respondent still does not provide any evidence to refute the timeframe and 

record documentary evidence supplied by PFA surrounding the application process for the 

760/770 Parcels – evidence that unequivocally demonstrates that the City behaved in an unjustly 

discriminatory manner when it negotiated with Boeing for the space while representing to PFA 

that it was not available for lease. Instead, Respondent simply states that the Airport manager at 

the time, Ryan Zulauf, is no longer in the City’s employ, and so Respondent is not in the position 

to offer any evidence in response to PFA’s allegations other than by issuing unsupported, 

conclusory denials. PFA respectfully submits that conclusory denials should be insufficient to 

defeat PFA’s claims of willful misrepresentation and unfair discrimination, which are supported

by both documentary evidence, and sworn declarations. 

The City also continues to insist that Boeing was awarded the lease for the 760 Parcel 

because it was determined to be in the “best interest of the City,” and points to, among other 

 

2

It was not: as Boeing claims in a declaration submitted in support of the Answer it requires, and in fact 

will be leasing, the 820 Parcel through 2019. See Declaration of David K. Shineman, dated August 7, 2015 

(“Shineman Dec. ¶ 9). Boeing claims that it requires 7 spots for 737MAX parking, and that the only way to secure 

these 7 spots is by leasing 760/770/820. Id. (“Since Boeing estimate[s] a need for 7 new spaces, the loss of any one 

parcel, or the substitution of another property for either 760 or 770, jeopardizes Boeing’s ability to deliver its 737 

model airplanes on time.”).
5

justifications, PFA’s alleged request for a “long-term lease,” which was not as attractive as 

Boeing’s proposal for a “short-term lease.” A review of PFA’s application undermines this posthoc justification for PFA’s denial: PFA did not seek a “long-term lease” in its application (see

Complaint, ex. 7), but only mentioned a long-term lease as a demand during pre-complaint 

negotiations in August 2014, over a year after Boeing had been awarded the lease for the 

760/770 Parcels. Moreover, PFA later, and in writing, backed away from this demand 

significantly in the hope of resolving this matter before the Complaint was filed. All it requested 

was the ability to retain its 9 tie-down spots on the 760 Parcel; it was willing to cede the 

remainder to Boeing. Complaint, Ex. 6h, pg. 3. The City, however, was unable to deliver. 

A new approach taken by Respondent in the Answer, but perhaps not a surprising one, is 

its decision to: (1) play a technical game of legal “gotcha” in order to incorrectly suggest that 

PFA now lacks standing to bring its Complaint; and (2) distort facts in order undermine PFA’s 

very real status as the sole FBO on the field providing full services to general aviation aircraft 

and operators. First, even if Respondent succeeds in stripping PFA of its operating permit in 

retaliation for bringing the Complaint, PFA will still very much have standing (all the more so, in 

fact) to bring these claims, as PFA is “directly and substantially” affected by Respondent’s 

continuing and ever increasing non-compliance. Second, despite Respondent’s clear desire to 

have the FAA believe that there are other operators on the field that provide the same services as 

PFA, and that therefore, all is well for aeronautical users of the Airport, there are not and it is 

not. If PFA were forced to leave the field tomorrow, general aviation activity at the field would 

come to a grinding halt. There would be no one supplying fuel, no place to purchase charts and 

pilot supplies, and nowhere to park a jet and have it serviced.
6

Finally, Respondent continues to assert with one breath that Boeing is engaged in general 

aviation activity at the Airport and thus, its lease of the 760/770/820 Parcels does not violate the 

ALP, and with the next, implies that if the FAA disagrees, Respondent can simply amend the 

Airport Layout Plan, as needed. This would defeat the very purpose having an Airport Layout 

Plan, which, “reflects the agreement between the FAA and the sponsor regarding the proposed 

allocation of airport areas to specific operational and support functions.” and is a pre-requisite 

for receiving federal money for airport development projects. FAA Order 5190.6B § 7.18 

Presumably, the FAA and the local ADO, which is aware of Boeing’s presence on the field, 

carefully reviewed the ALP, which was updated with federal funds in 2009, to ensure that 

Respondent was allocating sufficient space to actual aeronautical users of the Airport, as opposed 

to over-designating space for “aircraft manufacturing,” a clear, unequivocal reference on the 

ALP to Boeing. Thus, if the FAA determines that Boeing is not engaged in general aviation 

activity, the solution is not, as the City suggests, merely to take out the eraser and insert “aircraft 

manufacturing” in the place of “general aviation.” 

In sum, and as further detailed below, in its Complaint, and in its MSJ Answer, PFA has 

provided reliable, probative, and uncontroverted evidence proving Respondent’s grant assurance 

violations. Accordingly, Complainant respectfully submits that the FAA should issue an order 

granting the relief requested in the Complaint, or, in the alternative, commence an investigation 

of PFA’s claims pursuant to 14 C.F.R. 16.29.

I. Boeing is Not Engaged in Aeronautical Activity and Does Not Provide 

Aeronautical Services

“The basic federal obligation of the sponsor is to make public landing and aircraft 

parking areas available to the public.” FAA Order 5190.6B, Airport Compliance Requirements, 

September 30, 2009 (“FAA Order 5190.6B”), ¶ 12.2(b). “The Airport Compliance Program is 
7

designed to protect the public interest in civil aviation. Grants [] are in exchange for binding 

commitments (federal obligations) designed to ensure that the public interest in civil aviation 

will be served.” Id. at ¶1.5. 

The parties have already fully briefed their respective positions on whether Boeing’s 

operation3at RNT constitutes “aeronautical activity” for the purposes of complying with grant 

assurance obligations, and Complainant respectfully refers the Director to Section II.A of the 

MSJ Answer, for its argument on this point. To reiterate, the FAA does not consider, nor should 

it consider, aircraft manufacturing to constitute aeronautical activity. Ashton v. City of Concord, 

FAA Docket No. 16-99-09 (January 28, 2000) (Director’s Determination), 2000 FAA LEXIS 

150, *41 (“The FAA notes that the construction of aircraft is not an aeronautical activity.”); BMI 

Salvage Corporation & Blueside Services, Inc. v. Miami-Dade County, FL; FAA Docket No. 16-

05-16 (April 15, 2011) (Final Decision and Order on Remand), at 23.

In apparent recognition of this stumbling block, Respondent points to Appendix Z of 

FAA Order 5190.6B, which lists activities such as aircraft storage and aircraft maintenance as 

constituting “aeronautical activity,” and argues that since Boeing is allegedly engaged in these 

activities at RNT, it should be considered an aeronautical user. While it is true that aircraft 

storage, Boeing’s primary activity on the Airport, may be considered “aeronautical” under 

certain circumstances, the definitions contained in Appendix Z should not be allowed to cloak 

explicitly non-aeronautical activities, such as aircraft manufacturing, in aeronautical clothing

merely because some activities ancillary to aircraft manufacturing are found in Appendix Z. In 

 

3 Through the fence operations for aeronautical businesses offering no services to the public are 

discouraged by the FAA. See FAA Order 5190.6B §12-7(d)(2). “If the FAA regional airports division determines 

that such an agreement lessens the public benefit for which the airport was developed, the FAA regional airports 

division will notify the sponsor that the airport may be in violation of its federal obligations.” Id. § 12-7(e).
8

other words, if the FAA does not consider aircraft manufacturing to constitute aeronautical 

activity, then aircraft storage that is directly related to a manufacturing operation should also be 

considered “non-aeronautical.”4 And, as Respondent readily admits, “Boeing’s activities at the 

Airport are, of necessity, tied directly to the manufacturing operations going on at its plant across 

the River...” Declaration of Jonathan Wilson, dated April 17, 2015 (“Wilson Dec.” ¶ 19).

In a new twist, Respondent alleges throughout the Answer that Boeing is, in addition to 

being engaged in aeronautical activity, also providing aeronautical services to the public at RNT. 

Answer ¶¶ 2, 47, 51, 56, 67, 68. Respondent does not provide a shred of evidence in support of 

this claim. Again, while Respondent may argue that the manufacture of commercial airline 

transport aircraft constitutes providing aeronautical services to “the world at large,” it does not 

qualify as such when judged against an individual airport’s grant assurance obligations. The 

flying public that utilizes RNT, a general aviation reliever airport, is not looking to purchase a 

737 when they visit or base their aircraft at RNT. They require fuel, oxygen, lavatory servicing, 

temporary parking – aeronautical services that neither Boeing nor any other operator at the 

Airport other than PFA currently provides. By leasing the 760 Parcel to Boeing instead of PFA, 

under the guise that the former is engaged in aeronautical activity (and of the general aviation 

kind, no less) and is providing aeronautical services to the public, Respondent is not “servicing 

the public interest in civil aviation” at RNT.

 

4

In further illustration of this point, unlike those engaged in aeronautical activities at the Airport itself, 

Boeing, is primarily a through the fence operator whose only real need at the Airport is access to the runway. Other 

than runway use, all of Boeing’s activities related to manufacturing, including aircraft storage, could and should 

occur at its facility off-airport. Presumably the issue is that Boeing does not have enough room there; but the 

problems caused by Boeing’s space constraints should not be shifted onto the aeronautical users of a federally 

obligated airport, and Boeing should certainly not be granted preferential treatment over aeronautical service 

providers such as PFA.
9

It is not surprising then that Respondent attempts to downplay the damage that Boeing’s 

occupation of the Airport has done to general aviation, by falsely suggesting that there are many 

other aeronautical service providers on the field providing the same, or similar services to PFA. 

Declaration of Jonathan Wilson in Support of Renton’s Answer, dated August 6, 2015 (“Wilson

Answer Dec.”) ¶¶ 2, 6, 21. Rainier Flight Services, LLC (“Rainier”), which Respondent attempts 

to prop up as a competing “FBO,” only provides flight training and very limited maintenance 

services for piston aircraft. Declaration of Bernard A. Paholke in Support of Reply, dated 

September 3, 2015 (“Paholke Dec.”) ¶ 2. It does not, as Respondent incorrectly states, “provide 

all FBO-type services provided by PFA...with the exception of aircraft fueling.” Wilson Dec. ¶ 

6. Rainier does not provide transient parking for anything other than small aircraft, it provides 

no services to turbine aircraft, and although it is primarily a flight school, it does not even have a 

pilot shop; it sends its students to PFA for supplies. Paholke Reply Dec. ¶ 2. 

Respondent admits that Rainier provides no fueling services, despite the fact that its 

agreement with the airport requires it to do so.

5

PFA is the only entity listed as an FBO on 

airnav.com; if a transient aircraft lands at RNT, it is directed to PFA, as no other entity is 

equipped to provide transient aircraft with services. PFA is the only airport service provider that

provides: fuel, oxygen, nitrogen, rental cars, pilot store, lavatory services, catering, a GPU, and a 

pilot lounge. Paholke Reply Dec. ¶ 3. Respondent apparently hopes that by merely pointing to 

other spots on the Airport where tie-downs can be accommodated, or where flight instruction can 

be obtained, it can convince the FAA that GA is thriving at RNT, and would be fine without PFA 

 

5 Rainier has allegedly been negotiating with the prior tenant and lien holder to acquire the tanks that were 

abandoned over three years ago, and have been sitting on its parcel, with fuel inside, unused and uninspected. See

Wilson Answer Dec. ¶ 2. However, it will likely be many more months before Rainier, essentially a flight training 

operation, has the ability to run a fueling operation, despite the fact that its agreement with the Airport requires them 

to do so – a contractual provision the Respondent appears willing to overlook.
10

on the field. Wilson Answer Dec. ¶ 21. It is not, and GA operations at RNT would be 

significantly diminished, and aeronautical users severely impacted, if PFA departed the Airport 

today. 

II. Respondent Provides No Evidence in Its Answer to Refute PFA’s Allegation 

That It Was Intentionally Misled Regarding the Availability of the 760 

Parcel

The facts surrounding Respondent’s unfairly discriminatory treatment of PFA with regard 

to the latter’s oft-stated interest in leasing the 760 Parcel are detailed in the Complaint, and are 

also addressed in the MSJ Answer. See generally, Complaint ¶¶ 22-30, 43-54; MSJ Answer, 

Section 1.A. These facts include, but are not limited to, the following:

 From 2011 through 2013, PFA’s management repeatedly expressed its interest in 

leasing the 760 Parcel, which is adjacent to PFA’s current leasehold, and which 

has been designated on the Airport Layout Plan for General Aviation. Complaint 

¶ 22.6

 Boeing expressed an interest in leasing the 760/770 Parcels as early as February 

28, 2012, to accommodate production for the 737MAX. Wilson Dec. ¶ 20.

 The previous occupant of the 760 Parcel defaulted on its lease in or about April 

2013, at which point PFA reiterated its interest to Airport management. 

Complaint ¶ 23.

 On April 15, 2013, PFA wrote to Airport Manager Ryan Zulauf asking for a 

meeting concerning the 760 Parcel. Complaint, Ex. #6a.

 

6 The fact that PFA repeatedly expressed interest in the 760 Parcel beginning in 2011 is not in dispute. 

Answer ¶ 22, Respondent Statement ¶ 12.
11

 On April 17, 2013, Respondent sent Boeing a letter stating that the 760/770 

Parcels were available for lease and Respondent met with Boeing on that same 

day to discuss the matter. At that meeting, Boeing reiterated its interest is 

securing the lease for the 760/770 Parcels. Complaint, Ex. 15, pg. 2-3.

 In response to PFA’s inquiry of April 15th, Mr. Zulauf that the 760 Parcel would 

not be available for lease until a storm drain pipe could be replaced. Complaint ¶ 

23. Mr. Zulauf did not indicate to PFA that the Airport was engaged in lease 

negotiations with Boeing over the 760/770 Parcels. See Declaration of Bernard 

A. Paholke (“Paholke Dec.”), ¶ 5, attached to the MSJ Answer as Exhibit A.

 By email dated April 18, 2013, Boeing said that it was securing internal approvals 

and hoped to begin lease discussions for those parcels “in the next 2-3 weeks.” 

Id.

 On May 5, 2013, Boeing submitted an application for the lease of the 760/770 

Parcels. Answer ¶ 25.

 Despite being aware of PFA’s longstanding interest in leasing the 760 Parcel, 

Respondent did not make PFA aware that the 760 Parcel was in fact available 

and that Boeing had submitted an application for its lease. Complaint ¶ 25.

 In early-June 2013, PFA again inquired about the availability of the 760 Parcel. 

PFA was informed, for the first time, that the 760 Parcel was available, but that 

Boeing had already submitted a lease application for both it and the 770 Parcel. 

PFA was also informed by Mr. Zulauf that the City had already decided to lease 
12

the space to Boeing, and he discouraged PFA from submitting an application. 

Complaint ¶ 25; Paholke Dec. ¶ 6.

 On June 6, 2013, PFA submitted a lease application for the 760/770 Parcels. 

Complaint ¶ 26.

 On July 24, 2013, Respondent sent PFA a letter informing it that its application 

had been rejected in favor of Boeing’s. Complaint ¶ 27, Complaint, Ex. 10.

 On July 25, 2013, the Transportation Committee of the City Council met to 

“deliberate” on a decision that had clearly already been made. Complaint ¶ 28.

 On July 25, 2013, the Transportation Committee voted to approve the Boeing 

lease application. Id.

 On August 5, 2013, the City Council approved the Boeing lease application 

without further discussion. Complaint ¶ 29.

PFA’s factual assertions (and Respondent’s admissions) in this regard unequivocally 

demonstrate: (1) that Respondent actively concealed from PFA that the 760 Parcel was available 

for lease and that Boeing had submitted a lease application before Respondent even 

acknowledged to PFA that the 760 Parcel was available; and (2) that Respondent decided to 

grant Boeing the lease before its governing bodies had officially considered PFA’s competing 

application.

7

 

7

PFA has also asserted, and provided record evidence proving, that the City violated its own leasing 

policies when it covertly arranged for the lease of the 760/770 Parcels to be awarded to Boeing, and used a process 

that was anything but “fair, transparent, and uniformly applied.” Complaint ¶18-20. In response, Respondent has 

tepidly suggested that the leasing policies provide nothing but “guidance,” and that PFA inaccurately quoted the 

policies. Answer ¶19. Respondent, however, provides no examples of PFA’s alleged misquotations. 
13

Respondent offers no evidence to refute the first point. Instead, it simply offers a 

conclusory denial and states that since Mr. Zulauf is no longer employed by the Airport, it has no 

information about Complainant’s allegations in this regard. Answer ¶¶ 22-25. However, current 

Airport employees, including Airport Manager Jonathan Wilson, were employees at the times

relevant to these allegations; in fact, Mr. Wilson served as Mr. Zulauf’s assistant. Wilson Dec. ¶ 

1. It is surprising then, to say the least, that Mr. Wilson would have no insight into Mr. Zulauf’s 

interactions with PFA during this time period, PFA’s oft-expressed interest in leasing the 760 

Parcel once available, or the City’s surreptitious negotiations with Boeing. 

In contrast to Respondent’s complete lack of evidence to refute PFA’s allegations of 

deceitful and misleading conduct, PFA has provided a sworn declaration and detailed facts 

regarding Mr. Zulauf’s statements and omissions. See e.g., Complaint ¶¶ 22-29; Paholke Dec. ¶¶ 

3-7. If the FAA finds this evidence insufficient to meet PFA’s burden of proof on the question

of unfair discrimination and disparate treatment, Complainant respectfully requests that the FAA 

exercise its authority to interview Mr. Zulauf and gather additional evidence pursuant to 14 

C.F.R. 16.29(b)(2).

On the second point – that the City decided to award Boeing the lease for the 760/770

Parcels before its governing bodies officially voted on the matter – the City is unable to explain 

away the rejection letter dated July 24, 2013, which was provided to PFA the day before the 

Transportation Committee met to vote on the lease applications. Complaint, Ex. 10. Respondent 

suggests that the letter only contains a “recommendation” that Boeing be awarded the lease, but 

the letter does not use that word, nor does it suggest that the City’s decision was anything other 

than what the letter purported it to be – final. Answer ¶ 27. 
14

Though Respondent steadfastly clings to the argument that the Transportation 

Committee, which met on July 25, 2013 (the day after the rejection letter was delivered to PFA)

actually considered both applications, again, the record, unbiased evidence suggests otherwise. 

On July 23, 2013, the day before Mr. Zulauf delivered PFA the rejection letter, PFA wrote Mr. 

Zulauf to ensure that PFA’s lease application would actually be “on the table for discussion,” 

since the City’s website only listed the Boeing lease application on the Transportation 

Committee’s agenda. Complaint, Ex. 6c.

In sum, the material facts as alleged by PFA surrounding Respondent’s unjustly 

discriminatory conduct toward PFA provide evidence to prove that PFA was never even 

considered by Respondent for the lease of the 760/770 Parcels (and was in fact, actively misled 

about such), and thus, unjustly discriminated against in favor of Boeing. PFA’s factual 

allegations in this regard are not controverted by Respondent with anything other than 

conclusory denials; thus, PFA’s allegations and the evidence in support thereof are more than 

sufficient to form the basis for a violation of Grant Assurance 22.8

III. Respondent Has Invented Post Hoc Justifications for its Decision to Award 

the Lease to Boeing

A common theme of Respondent’s, throughout both the MSJ and the Answer, is that its 

decision award the lease of 760/770 to Boeing instead of PFA was reasoned and considered, and 

ultimately, in the City’s best interest. While it is understandable the City would always want to 

act to further its interests9, the reasons it now provides to justify its decision to award the lease to 

 

8

PFA has also alleged and maintains its claim that Respondent violated Grant Assurance 22 when it failed 

to make the Airport and its facilities available for public use. See MSJ Answer, Section II.B.

9 Of course, the City’s “interests” and its obligations as the sponsor of a federally-obligated airport may not 

always align. A federally-obligated airport exists to serve the flying public, and not necessarily to maximize city 

revenues or serve as a source of job creation.
15

Boeing were concocted by Respondent after the fact, and in response to the Complaint, in order

to occlude the one obvious and understandable explanation for why the City went with Boeing: it 

is the largest airport tenant and the single largest employer in Renton. While the City alludes to 

this fact, it knows that this alone cannot serve as its justification for awarding Boeing the lease 

for the 760/770 Parcels, given its federal grant assurance obligations. Therefore, it invents two 

reasons for awarding Boeing the lease: (1) Boeing requested a short-term lease, whereas PFA 

demanded a long-term lease; and (2) there are other suitable spots on the field for PFA (implying 

the PFA is just being picky), whereas Boeing requires both the 760 and 770 Parcels for its 

operations. Both are without basis in fact.

Despite the City’s misrepresentation otherwise, PFA did not request a long-term lease 

when it submitted its application for the lease of the 760/770 Parcels. See Complaint, Ex.7 (PFA 

Lease Application). Cf. Respondent Statement ¶ 16 (“PFA sought a long-term lease to coincide 

with the terms of the RGC 35-year lease on the 750 Parcel”); MSJ at 2 (“[PFA] submitted an 

application for a long-term lease for both parcels 760 and 770”). Although PFA did state, as part 

of an October 2014 settlement demand, that it required a long-term lease for the 760 Parcel to 

correspond with its lease for the 750 Parcel, it made no such request as part of its application; 

thus, Respondent’s claim that PFA’s “long-term” requirement played any role its decision to 

award the lease to Boeing in July 2013 is disingenuous and factually impossible. Cf. MSJ at 3 

(“[T]he selection of Boeing for a short-term lease of both Parcels 760 and 770 over a long-term 

lease to PFA was a logical and reasonable business decision under the circumstances...”). 

Moreover, even though PFA demanded a long-term lease for 760 in October 2014, it dropped 
16

that demand in December 2014, and stated that it would be willing to settle if it could keep only 

the 9 tie-downs that it leased on the 760 Parcel.10 See Complaint, Ex. 6h, pg 3. 

Respondent further attempts to justify its decision by arguing that other suitable spaces 

were available to PFA, but that PFA unreasonably rejected them. That is incorrect. As even 

Respondent admits, at most there were only two alternative parcels offered to PFA: the 820 

Parcel, and the Old Restaurant site. Wilson Dec.¶ 14. Both supposed alternatives do not, as 

Respondent well knows, address PFA’s needs, or the needs of aeronautical users of the Airport.

Although the City states that PFA rejected the 820 Parcel on two occasions, it was only 

offered it in 2011 after PFA initially broached its need for additional space. 11 Wilson Dec., Ex. 

JW-1. Cf. Answer ¶ 36. The other alleged “rejection” of 820 by PFA occurred in March 2015, 

after the Complaint had been filed, and after Boeing had submitted an application for the 820 

Parcel, which had been preliminarily approved. Jacobson Dec., Ex. DJ-3. Given that the 820 

Parcel is over 300 yards away from the PFA building, is inaccessible from the Perimeter Road, 

and has no restrooms, it was not unreasonable for PFA, in 2011, to determine that the parcel was 

not a good fit, and to wait for something more suitable. 

 

10 The City misleadingly insinuates that PFA is responsible for the failure to resolve this matter prior to 

filing the Complaint. Answer ¶ 38. That is incorrect. PFA agreed to accept only the 9 tie-sown spots on 760, but

Respondent was apparently unable to deliver on this proposed resolution, as it has abdicated its rights and powers to 

Boeing. After PFA agreed to settle the matter for the 9 tie-down spots, it never heard from the City again prior to 

the filing of the Complaint. Complaint, Ex. 6h, pg. 1. 

11 Whether the 820 Parcel was ever available to PFA after 2011 is an open question. In sworn declarations 

submitted in support of the MSJ, Respondent alleges that as of August 2014, the Airport intended to enter into a 

lease with Boeing for the 820 Parcel. Declaration of Doug Jacobson, dated April 16, 2015 (“Jacobson Dec.”) ¶ 8. 

Airport staff agreed to recommend approval of the application. Respondent Statement ¶ 28. Boeing, in sworn 

declarations, has said that it requires the 820 Parcel, along with 760/770 in order to store its 737MAX aircraft. See

Declaration of David K. Shineman, dated August 7, 2015 (“Shineman Dec.”) ¶ 9. Now, the City claims that it has 

decided to lease the 820 Parcel to Rainier, the other alleged “FBO” on the field, but that Rainier has conveniently 

agreed to lease the spot back to Boeing until May 31, 2019. Respondent Statement ¶ 29. This newly announced 

arrangement appears designed to appease the FAA and lessen the unseemly appearance created by Boeing’s 

occupation of all available general aviation parcels at the Airport for the next four years, despite the fact that all have 

been designated for, and are sorely needed by, actual aeronautical users. 
17

In 2015, after Boeing had been awarded the leases to the 760/770 Parcels, the 820 Parcel 

became even more unsuitable for PFA’s operation. Since there is still no access to the 820 Parcel 

from the Perimeter Road, and because Boeing will seal off the 760 and 770 Parcels completely 

once it occupies them, there is no safe, reasonable way to transport customers or flight training 

students the 300 yards to and from PFA’s building. See Paholke Dec. ¶¶ 15-17.

An even less suitable alternative is the Old Restaurant site. It is not now, nor was it in 

2013 when the City “deliberated” on the lease applications, available to PFA or any other 

aeronautical user. Wilson Dec. ¶ 12. It is an unpaved city park, located outside the Airport 

fence, and is 670 yards from the PFA building. Paholke Dec. ¶ 18; Paholke Reply Dec. ¶ 4. 

Even if it were available (and it is not), it does not constitute a reasonable alternative for PFA to 

house flight training or transient aircraft since there is no practicable and safe way to transport 

customers to this location. If the City believes that the Old Restaurant site constitutes a suitable 

alternative to the 760 Parcel for PFA, it does not understand (or willfully ignores) the nature and 

requirements of general aviation requirements at RNT.

In sum, the City’s justifications for awarding Boeing the lease of the 760/770 Parcels –

that a short-term lease was preferable to a long-term one, and that PFA was offered other suitable 

alternatives – are premised on a distortion of the facts and the record evidence. Respondent

awarded the lease to Boeing because it claimed it required it for the 737MAX program, which 

would bring innumerable jobs and benefits to the City.12 Shineman Dec. ¶ 12. While 

 

12 Perhaps the City was also motivated by the type of implicit threats that are contained in the declaration 

that Boeing submitted in support of Respondent’s Answer. Boeing claims that in developing the production schedule 

for the 737MAX, it relied on the availability of the 760 and 770 Parcels, and that if it is not allowed to occupy the 

parcels, “hundreds” of employees may be eliminated, losses could reach in the tens of millions of dollars, and 

airlines will be forced to fly less fuel efficient aircraft, thereby contributing to global warming. Shineman Dec. ¶¶ 

12-13. In other words, the City may have been directly responsible for calamities associated with global warming if 

it had rejected Boeing’s lease application for 760/770 – a heavy burden indeed.
18

understandable, Respondent’s grant assurance obligations require it to address other 

considerations, such as providing access to aeronautical users, and promoting civil aviation at the 

Airport – requirements that were violated in the City’s quest to acquiesce to all of Boeing’s 

alleged needs. 

IV. PFA Has Standing to Bring Its Complaint

Renton Gateway Center, LLC (“RGC”), a sister company of PFA, is both authorized and 

contractually obligated to provide certain FBO services at the Airport. Complaint, Ex. 1, Section 

8, pg. 8. It meets this obligation through a sub-lease to PFA, which in turn obligates PFA to 

perform the FBO services. Complaint ¶ 6, Ex. 3. Because PFA is not a direct Airport tenant, but 

rather a sub-lessee, it is required to obtain an Operating Permit in order to provide FBO services. 

The initial term of PFA’s Operating Permit ended July 31, 2015, but is extendable upon written 

notice to the Airport ninety (90) days before the termination date. Complaint, Ex. 2, Section 4.2. 

Due to an oversight, PFA did not inform the Airport of its wish to extend the term of its

Operating Permit ninety (90) days before July 31, 2015. Paholke Reply Dec. ¶ 5. However, as 

soon as the oversight was discovered, it notified the Airport of its obvious intention to renew the 

Operating Permit. Paholke Reply Dec. ¶ 6. Although the City could have easily waived the

ninety (90) day requirement (in the same manner it has waived the requirement for Rainier to 

provide fuel services), and simply accepted PFA’s written notice of its intention to renew, 

Respondent is instead, and presumably in retaliation for PFA’s filing of the Complaint, requiring 

that PFA submit a new application for an Operating Permit, and has stated that the approval 
19

process will take at least three months, and that the outcome is uncertain. Id. at 8. In the 

meantime, Respondent has allowed PFA to continue operating without the permit.13 Id. at 11-12. 

“A person directly and substantially affected by any noncompliance” may file a Part 16 

Complaint. 14 C.F.R. 16.23(a). As of the date of this Reply, PFA is operating as an FBO on the 

Airport; thus, it clearly is directly and substantially affected by Respondent’s noncompliance and

has standing to bring the Complaint. Moreover, even if Respondent succeeds in denying PFA an 

Operating Permit and kicking it off the Airport, PFA will not lack standing to bring suit, as it will 

be directly and even more substantially affected by Respondent’s non-compliance, and one does 

not need to be an airport tenant or operator in order to bring a Part 16 Complaint. See Martyn v. 

Port of Anacortes, Washington, FAA Docket No. 16-02-03 (April 14, 2013) (Director’s 

Determination), 2003 WL 21002099, *34 (rejecting Respondent’s contention the Complainant 

lacked standing because it was not a current airport tenant: “[T]he fact that Complainant is not 

currently paying fees or rentals to the [] Airport does not preclude him from being directly and 

substantially affected by any alleged noncompliance.”). Accordingly, Respondent’s affirmative 

defense that PFA somehow lacks standing due to the City’s threat not to renew PFA’s Operating 

Permit (see Wilson Answer Dec. ¶ 15) should be rejected out of hand. 

V. Respondent is Not Complying With the FAA-Approved Airport Layout Plan

The 760/770/820 Parcels, all of which Boeing intends to occupy through at least 2019, 

are designated on the ALP for General Aviation. Complaint, Ex. 11. In its Answer, Respondent 

continues to maintain that Boeing is engaged in general aviation aeronautical activities at the 

Airport. Answer ¶ 28. This outlandish claim does not square with the fact that certain areas on 

 

13 It is also worth noting that Respondent allowed PFA to operate from July 7, 2011, through March 13, 

2013 without an Operating Permit, as it was not signed by the Mayor until the latter date. Complaint, Ex.2, pgs. 3 

and 22.
20

the ALP – areas that are, incidentally, all leased by Boeing – are designated for “aircraft 

manufacturing.”

Although absurd, Respondent’s decision to defend its position that Boeing is a general 

aviation aeronautical services provider is understandable; otherwise, it would be unable to get 

away with the decision to lease the only remaining parcels on the Airport designated for 

aeronautical use to an entity that is not involved in general aviation or aeronautical activity. See 

Martyn v. Port of Anacortes, Washington, 2003 WL 21002099, *28 (stating that an airport is 

obligated to give aeronautical users priority for airport premises, and the non-aeronautical 

business are not to displace potential aeronautical users at the airport); Asheville Jet, Inc. d/b/a 

Million Air Asheville v. Asheville Regional Airport Authority, FAA Docket No. 16-08-02, 

(October 1, 2009) (Director’s Determination), pg. 13 (“Airport projects funded with federal 

grants are expected to be for the benefit and use of the aviation public.”); United States 

Construction Corp. v. City of Pompano Beach, FAA Docket No. 16-00-12, (July 10, 2002) (Final 

Agency Decision) (“Operating the airport for aeronautical use is not a secondary obligation; it is 

the prime obligation. This prime obligation includes the opportunity for leaseholders to develop 

airport property for aeronautical use.”).

Prudently, the City hedges the “general aviation” argument, and states that if the FAA 

believes that the ALP needs to be amended to reflect Boeing’s use of those parcels, it can simply 

make changes to the ALP through the current amendment process. Answer ¶ 48; Respondent 

Statement ¶ 22. PFA will not restate herein the argument it made in response to Respondent’s 

misapprehension of its grant assurance obligations on this point; rather, it refers the Director to 

Section II.C of the MSJ Answer.
21

CONCLUSION

Based on the foregoing, Complainant respectfully requests that the FAA issue an order 

granting the relief sought in the Complaint, or that, in the alternative, the FAA commence an 

investigation of PFA’s claims pursuant to 14 C.F.R. 16.29.

Dated September 3, 2015.

Respectfully submitted,

 

 /s/___________________

 Benjamin H. Klein 

 LAW OFFICES OF PAUL A. LANGE, LLC

 80 Ferry Boulevard

 Stratford, CT 06615

 Phone: (203) 375-7724

 Fax: (203) 375-9397

 bhk@lopal.com

Attorney for Complainant
22

CERTIFICATE OF SERVICE

I hereby certify that I have this day caused the foregoing Reply to Respondent’s Answer

to be served electronically, with prior written consent, on the following:

Zanetta L. Fontes

Senior Assistant City Attorney

1055 South Grady Way

Renton, WA 98057

zfontes@rentonwa.gov

Dated September 3, 2015

 _/s/_________________________

Benjamin H. Klein