### Benjamin H. Klein THE KLEIN FIRM

### LLC 61 Broadway, Suite 2125 New York, NY 10006 Phone: (212) 658-1219 Fax: (646) 368-8401 bklein@thekleinfirm.com UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC


### Mansfield Heliflight, Inc. Complainant, v. 

### DocketNo. 16-14-06 City ofBurlington, Vermont Respondent. 

### I MOTION TO SUPPLEMENT 

### Complainant Mansfield Heliflight, Inc. ("Mansfield"), by and through the undersigned counsel, and pursuant to 14 C.F.R. § 

### 16.19, hereby files this Motion to Supplement. Mansfield respectfully requests that the FAA include in the record certain material information that is relevant to this Part 16 proceeding and which only came to light after all briefs were submitted. In support thereof, Mansfield states as follows: Mansfield has alleged that the Respondent, City ofBurlington, Vermont ("City"), in violation of its grant assurance obligations, has allowed Heritage Aviation, Inc., to "land bank" valuable leaseholds at the Burlington International Airport ("Airport") in order to prevent competition

- i.e., a second FBO

- from gaining a foothold at the Airport. Complaint ,-[ 3, 6, 38, 120; Reply at 26-27, 34, fn.5.

### The City has not denied that it has consistently taken the position that there are no facilities available at the Airport that are suitable for an FBO since all are being leased by the existing FBO. 

### See e.g.,

**Answer~~** 

### 4, 39; Motion for Summary Judgement at 33 ("As Airport staffexplained to Complainant representatives many times, existing facilities that could be used for an FBO have notbeen and, in the foreseeable future, will not be, available.") Instead, the City has argued, including in support of its Motion for Summary Judgment, that Mansfield has not met its burden ofproofon the question of"land banking", and that Mansfield has introduced no evidence to suggest that Heritage is not making full use ofthe properties that it is leasing from the City, despite the fact that Mansfield appended to its Complaint photographs of a number of Heritage's empty facilitates. 

### See Motion for Summary Judgment at 42 ("While it is true that Heritage is leasing the facilities that are suitable for FBO operations, Complainant does not plead sufficient facts and the record evidence does not support a finding that Heritage is not utilizing all ofits current space."). In its Rebuttal, the City again strenuously denied Mansfield's evidence in this regard, ' 

### arguing that Complainant had introduced "no evidence" in support of what it called an "unfounded and untrue" allegation ofland banking. Rebuttal at 4, fn. 5 ("The City stands by its denial ofthe allegation. It 

### is unfounded and untrue, and Complainant's proffered evidence

- photographs without a foundation that are not representative ofthe overall space - does not change these facts."); Rebuttal at 15 ("Since the North Hanger and the Valley Hanger reverted to the City on May 8, 2014, there has been no indication, and Complainant provides
no reliable evidence, that Heritage is not utilizing the remaining property in a productive manner.").

2

### Although Mansfield believes that the allegations in the Complaint, as well as the record evidence attached thereto, is more than sufficient to meet its burden on the question of Heritage's "land banking," newly created documents provide additional proofthat Heritage is not utilizing the space it is leasing from the City- space that is not only suitable for, but was specifically designed for a FBO. Attached hereto as Exhibit A is a flyer from VT Commercial, a Real Estate Business Brokerage located in Burlington, Vermont. The flyer seeks sublessors for essentially all ofthe non-hanger space located in what has been referred to in this proceeding as the ASH Hanger, and includes photos of the empty lobby and reception desk in the ASH Hanger. Critically, in the comments section, the flyer states the following, "HeritageAviation recently consolidated their operations into one building 

### and is now offering these exceptional office lease opportunities." Notably, Heritage does not appear to be targeting or requiring sublessees for the ASH Hanger to be aeronautical service providers. The City seems to have been operating under the mistaken assumption that Heritage would make this empty space available to Mansfield. See 

### Minutes of Burlington Board of Airport Commissioners dated February 23, 2015 at 7.0 attached hereto as Exhibit B ("Space to lease at Heritage (notifying parties suing the city for lack ofspace availability that there is space to lease)"). However, after Mansfield inquired about leasing the available space in the ASH Hanger and made it clear that it would be looking to provide aeronautical services therefrom, Heritage informed Mansfield that it was not interested in granting it a sublease. See 

### Email from Dave Stiller to Eric Chase, dated March 26, 2015, attached hereto as Exhibit 

## c.

3

### Accordingly, Mansfield respectfully submits that the newly discovered evidence attached hereto provides additional evidence ofthe fact that: (a) the City continues to allow Heritage to lease facilities it does not require for its operations

- the only existing facilities
on the Airport suitable for FBO operations

- and; (b) Heritage is using its control over all facilities suitable for a FBO to prevent competitors such as Mansfield from gaining access to the Airport. CONCLUSION Based on the foregoing, and good cause having been shown, Complaint respectfully requests that it Motion to Supplement be granted, and that the evidence attached hereto be admitted to the record pursuant to 14 CFR 16.19 and 16.230). Dated April 7, 2015. Respectfully submitted, Benjamin H. Klein THE KLEINFIRM

### LLC 61 Broadway, Suite 2125 New York, NY 10006 Phone: (212) 658-1219 Fax: (646) 368-8401 bklein@thekleinfirm.com Attorney for Complainant

4

### CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Motionto Supplement to be served electronically onthe following: City ofBurlington Attn: Gregg Meyer Burlington City Attorney's Office 149 Church Street Burlington, VT 05401 gmeyer@burlingtonvt.gov William F. Ellis McNeil, Leddy & SheahanP.C. 271 South Union Street Burlington, VT,05401 wellis@ncneilvt.com Pablo 0.Niiesch Spiegel &McDiarmid LLP 1875 Eye Street, NW Suite 700 Washington, DC 20006 pablo.nuesch@spiegelmcd.com

Dated April 7, 2015

## ~·· Benjamin H. Klein

5

# Exhibit ALocation: Use: Size: Comments: 

# Class A Office Suites! 228 

## & 265 

## Aviation Avenue Burlington International Airport South Burlington, VT Easy Access to Williston Available: Immediately. Road. Class A office space. Parking: On site parking included!! From 650 to 8400 st: Rent: Only $I2 psf Absolute Gross!

• Professional setting with expansive Vermont views. • Five distinctive suite sizes are available, tit up and ready tor immediate occupancy! • Choose trom 650 st; 1140 st; 2075 st; 3775 sf or 8400sf! • Additional urban chic open spaces of 1625 st; 3635 sf or 5260 sf are also available, ready for your

business tit up requirements with rent starting at $10 psf Absolute Gross, depending on tit up specifications. • Landlord is GREEN conscientious and on site with property management support. • The only extra cost are communications and internet services of your choice. • Heat, air conditioning, electric, parking, trash all included in these below market rents! • Heritage Aviation recently consolidated their operations into one building and is now offering

these exceptional office lease opportunities. Call Today for More Information! Contact: Brad Worthen

802-864-2000 X 16 bradw@vtcommercial.com www.vtcommercial.com 186 College Street, Burlington, Vermont05401 Information containea herein is believed to be accurate, but is not warranted.

## Exhibit BM I NUTES SU BJECTTO CORRECTIONBYT H

E BOARD OFAI RPORT COMM I SSI ONERS CHANGES, I FANY , W ILL BERECORDED JN T H

E M iNUTES OF T H

ENEXTMEETING OF T H

E COMM iSSI ON. 

### BURLINGTON INTERNATIONAL AffiPORT

BOARD OFAIRPORT COMMISSIONERS MINUTES OF MEETING February 23, 2015 MEMBERS PRESENT: JeffMunger [arrived224 PMJ Bill Keogh PatNowak DRAFT

Alan Newman [arrived 2:11 PM] JeffSchulman (via teleconference) 

### BTV STAFF PRESENT: Gene Richards, Director ofAviation (via teleconf erence) Nic Longo, Accounting Office Assistant Marie Friedman, Financial Advisor Erin Knapp, Marketing 

### OTHERS PRESENT: Rich Goodwin, Assistant CAO, City ofBurlington



### 1.0 CALL TO ORDER Gregg Meyer, Assistant City Attorney, City ofBurlington David Conger, Dubois & King
Bill Keogh called the meeting to order at 2: 10PM
. Chairman JeffMunger arrived later in the meeting
. 

### 2.0 AGENDA There were no changes to the agenda
. 

### MOTION by Pat Nowak, SECOND by JeffSchulman, to approve the agenda as presented. VOTING: unanimous (3-0)[JeffMunger and Alan Newman not present for the vote]; motion carried. 3.0 PUBLIC FORUM There were no comments from the public
. 

### 4.0 FINANCIAL PACKAGE Rich Goodwin reported: • Per the Profit & Loss Statement revenues are up $100,000 over the prior year for the first seven months ofthe fiscal year, and expenses are within $10,000 ofwhat was spent last year for the same time period
. • Trend Analysis for the first seven months ofthe fiscal year shows revenues are performing better than the prior year by approximately $100,000
. • Trend for the debt coverage score for FY2014 shows continued decrease due to enplanement revenue and total flights revenue. Scores are the highest in December and January
. Debt load and total debt in 2014 was $3
.4 million
. Debt load is a major driver ofthe debt coverage score. • Debt coverage score in FY20 15 for the first seven months ofthe fiscal year is 1.63 compared to 1.94 at the same time last year. A certain amount ofdebt is paid out ofthe PFC account and some debt has been retired so the debt load is $3
.9BURLINGTON BOARD OF AIRPORT COMMISSIONERS

- 2/23/15 PAGE2 million which drives the debt coverage score. There are five months remaining in the fiscal year and Moody's wants a score of 1.50 or higher so expenses and revenues need to be closely monitored
. • The amount ofmoney the airport owes the city is $2
.4 million (the city paid airport bills)
. At the end ofthe year that number needs to be zero. A strong balance sheet for FY20 15 is needed
. Actual cash the airport has in the bank for reserves for the bonds is $13
.9 million
. A separate account was created for Customer Facility Charges (CFC) and there is $1.8 million in that account to date
. Money can be pulled from the CFC account to help make the city whole and after the fiscal year ends the money can be returned to the CFC account for tracking
. JeffSchulman asked ifthe refinance ofdebt is fully shown
. Rich Goodwin explained the refinance resulted in decreased debt load which will help improve the debt score moving forward, but the benefit will not occur until2016
. JeffSchulman asked ifthe reduction in the score is a function ofincreased principle and interest payments. Mr
. Goodwin stated principle and interest in FY 14 was $3,400,000 and in FY 15 was $3,956,000 which results in a major difference in debt coverage score. Gene Richards stated some airport projects are on hold
. The financials are being further evaluated because the numbers say the airport is up 2%, but weather delays and cancellations are at historical highs and there has been much staffovertime at the airport. Within a month there will be a better indication ofwhat projects will have to be suspended
. 

### MOTION by PatNowak, SECOND by JeffMunger, to accept the financial report for January 2015 and place the information on file. VOTING: unanimous (5-0); motion carried. 5.0 CONSENT AGENDA 5
. 1 Minutes ofJanuary 5, 2015 5.2 Minutes ofJanuary 23 , 2015 5
.3 Minutes ofFebruary 4, 2015 

### MOTION by Pat Nowak, SECOND by JeffMunger, to approve the consent agenda including the minutes ofJanuary 5, 2015, January 23, 2015, and February 4, 2015 as presented. VOTING: unanimous (5-0); motion carried. 6.0 COMMUNICATIONS/DISCUSSION 6
. 1Environmental Action- Marcelino Settlement Attorney Gregg Meyer briefed the Airport Commission on the illegal filling of land on airport property by the abutting property owner, Marcelino
. The illegal filling went on for years and eventually covered over a Champlain Water District pipe which restricted access. Action was brought against Marcelino in 2012
.The court ordered removal ofthe fill by Marcelino
. Krebs & Lansing Engineers developed a plan that sufficiently removes enough fill to allow access to the CWD pipe
. Removal ofthe material will be overseen by the engineers and testing will be done on the soil. Clean fill can be deposited in the airport quarry (the airportBURLINGTON BOARD OF AIRPORT COMMISSIONERS

- 2/23/15 PAGE3 will secure the permits)
. All state authorities on contaminated soils must sign off on the plan
. Historically there has not been good cooperation by Marcelino so a contingency plan is being drafted
. There are many liens on the property and Marcelino has very few assets. 6.2 Accounts Receivables Review Nic Longo reported work continues on collecting outstanding receivables
_ For some companies the paperwork process is protracted so closure on the account is taking longer. MOTION 

### by JeffMunger, SECOND 

### by Pat Nowak, to accept the Invoice Aging Report and place the information on file. VOTING: unanimous (5-0); motion carried. 6
.3 Marketing Update Erin Knapp briefed the Airport Commission onthe marketing effort to date
_ Advertising is being done in the terminal including video advertising at the baggage claim area. There are creative ads displayed in Florida to target the
"snowbirds". Gene Richards added staffis critiquing the video advertising system at the airport
. Eventually there will be a network. Each screen can be managed separately and separately generate revenue. 6.4 Passenger and Operational Statistics 6.4
.a Economic Impacts ofWeather Nic Longo reported winter weather has had an impact onthe airport
. Cancellations were numerous (68) in January-February. Staffis tracking cancellations, seat cancellations, and load factors. Despite the weather the statistics showthe airport is up 2
.37% with relatively high load factors across the board
. Gene Richards discussed meetings with United regarding their history ofbumping passengers due to overbooked flights and overweight (fuel heavy) planes
. Ten to 15 passengers are being bumped per flight which is having a significant impact on the airport (the airport is not being compensated and passengers are depleting the supply ofrental cars to go to other airports)
. Staffis working with United to make changes. Gene Richards also mentioned the Canadian exchange rate may have an impact as well. Larger planes and more Atlanta or Toronto flights are needed
. Staffhas also being working hard on the airline leases and an acceptable formula. The car rental leases are as challenging as the leases with the airlines
. JeffMunger announced there is talk in Washington, DC about regulating the airline industry again because the airlines abused the free system. Alan Newman said the airlines should have to pay a tax on the fees they impose
.BURLINGTON BOARD OF AIRPORT COMMISSIONERS- 2/23/15 PAGE4 6
.5 Fare Comparison Nic Longo pointed out the two month outlook shows Burlington fares are equal with Canada's fares
. 

### 7.0 DIRECTOR'S REPORT Gene Richards reported: • Erin Knapp has established a strong marketing relationship with Johnson Woolen Mill. The company will provide their signature coats to all Airport Ambassadors as part oftheir advertising campaign at the airport
. (Alan Newman suggested a kiosk be offered to the company to display and sell merchandise
.) • Heritage Flight is replacing their director, Tim Shea, who has been promoted within the company. • Regularly held Tuesday morning meetings cover legal matters involving the airport
. Current issues being discussed include: o Lease negotiations for the airport and car washes o Marcelino litigation o Other property owners illegally using airport property o Ongoing tax litigation o Litigation with the FAA in Washington, DC brought by Mansfield Heliflight o Space to lease at Heritage (notifying parties suing the city for lack of space availability that there is space to lease) o RFP for the north hangar o New carwash facility o House removal program (removal will being in April) and continued communication and transparency with residents and South Burlington City Council/ Administration • A meeting was held with the Winooski Mayor and City Manager for general discussion ofmatters ofmutual interest. • A consultant will be hired to update the mapping ofcurrent noise levels from the airport
. A formula is needed to move forward with the military and FAA
. PatNowak mentioned the committee is nearly assembled for the planning ofthe neighborhood once the houses are removed by the airport. Bill Keogh and Pat Nowak are part ofthe 15 member group that includes residents. The first meeting will be to organize the committee, discuss the rules, be informed about the open meeting law, focus on the mission ofthe committee, and hear the point ofview ofthe airport and South Burlington
. Gene Richards stressed the 2030 plan is the guide with the focus being how to work together and coexist. 

### 8.0 COMMISSIONERS' ITEMS 8
. 1Taxi Licensing Board Report There was discussion ofthe status ofUber taxi service in Burlington
. Gregg Meyer reported the city and Uber are negotiating a potential operating agreement. The city's position is Uber needs to be regulated as a vehicle-for-hire company, but recognizes Uber is already operating and an arrangement is needed so theBURLINGTON BOARD OF AIRPORT COMMISSIONERS

- 2/23/15 PAGES drivers do not continue to be ticketed by police for an unlicensed service
. The city believes common ground can be found
. JeffMunger commented on the lack ofmovement by the City in relocating the taxi administration downtown which was to occur by January 1, 2015
. Rich Goodwin said action on the taxi issue is impacted by the staffshortage and upcoming reorganization ofthe Finance Office
. Current staffis handling an increased workload until staffappointments are made
. 8.2 Miscellaneous PatNowak recognized the contribution by the Air Guard firefighting division that was first on the scene at the recent bam fire in So
. Burlington and literally saved the farm
. The Air Guard provides mutual aid to the surrounding communities and contributes in other ways as well. The public at large needs to be made aware of what the Air Guard does for the community
. 9.0 ADJOURNMENT Next regular meeting: March 30, 2015 at 4 PM
. With no further business the meeting was adjourned at 3:27PM
. RScty: MERior dan

# Exhibit C

### From: Dave Stiller <Dave.Stiller(cV,FL

### YHERITAGE.COivi> Date: Thu, 26 Mar 2015 15:34:32 -0400 

### To: EChase 1784(cvaol.com<EChase1784r 2V,aol.com> Subject: RE: (no subject) Eric, Thank you for your patience. Heritage is only seeking subtenants for commercial office space. Since you desire to utilize the premises for a variety of other uses it does not make sense for us to continue our discussions. All the best, Dave From: EChase1784@aol.com [mailto :EChase1784@aol.com] Sent: Tuesday, March 24, 2015 4:02PM To: Dave Stiller Subject: (no subject) Dave I understand by your last email that your attorney returned to Burlington yesterday. Given , that time is of the essence and I am trying to make decisions based on your in put, please advise my by tomorrow what your decision is regarding my request. I look forward to hearing from you then, Thank you Eric Chase

1