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. Docket No. 16-14-06 

City of Burlington, 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 of Burlington, 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 

staff explained to Complainant representatives many times, existing facilities that could be 

used for an FBO have not been 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 of proof on the question of "land banking", 

and that Mansfield has introduced no evidence to suggest that Heritage is not making full use 

of the 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 of its 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 of land banking. Rebuttal at 4, fn. 5 ("The City stands by 

its denial of the allegation. It is unfounded and untrue, and Complainant's proffered evidence 

- photographs without a foundation that are not representative of the 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 proof that 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 sub lessors for essentially all of the 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, "Heritage Aviation 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 of space 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 of the 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 KLEIN FIRM 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 Motion to Supplement to be 

served electronically on the following: 

City of Burlington 

Attn: Gregg Meyer 

Burlington City Attorney's Office 

149 Church Street 

Burlington, VT 05401 

gmeyer@burlingtonvt.gov 

William F. Ellis 

McNeil, Leddy & Sheahan P.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 A 
Location: 

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 $I 2 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; 1 140 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, Vermont 05401 

Information containea herein is believed to be accurate, but is not warranted. 
Exhibit B 
MINUTES SUBJECT TO CORRECTION BY THE BOARD OF AIRPORT COMMISSIONERS CHANGES, IF ANY, WILL 

BE RECORDED JN THE MiNUTES OF THE NEXT MEETING OF THE COMMiSSION. 

BURLINGTON INTERNATIONAL AffiPORT 

BOARD OF AIRPORT COMMISSIONERS 

MINUTES OF MEETING 

February 23, 2015 

MEMBERS PRESENT: JeffMunger [arrived224 PMJ 

Bill Keogh 

Pat Nowak 

DRAFT 

Alan Newman [arrived 2: 11 PM] 

Jeff Schulman (via teleconference) 

BTV STAFF PRESENT: Gene Richards, Director of Aviation (via teleconference) 

Nic Longo, Accounting Office Assistant 

Marie Friedman, Financial Advisor 

Erin Knapp, Marketing 

OTHERS PRESENT: Rich Goodwin, Assistant CAO, City of Burlington 

1.0 CALL TO ORDER 

Gregg Meyer, Assistant City Attorney, City of Burlington 

David Conger, Dubois & King 

Bill Keogh called the meeting to order at 2:10PM. Chairman Jeff Munger arrived later in 

the meeting. 

2.0 AGENDA 

There were no changes to the agenda. 

MOTION by Pat Nowak, SECOND by Jeff Schulman, to approve the agenda as 

presented. VOTING: unanimous (3-0)[Jeff Munger 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 of the fiscal year, and expenses are within $10,000 of what 

was spent last year for the same time period. 

• Trend Analysis for the first seven months of the fiscal year shows revenues are 

performing better than the prior year by approximately $100,000. 

• Trend for the debt coverage score for FY20 14 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 of the debt coverage score. 

• Debt coverage score in FY20 15 for the first seven months of the fiscal year is 

1.63 compared to 1.94 at the same time last year. A certain amount of debt is paid 

out of the PFC account and some debt has been retired so the debt load is $3.9 
BURLINGTON 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 of money the airport owes the city is $2.4 million (the city paid 

airport bills). At the end of the 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. 

Jeff Schulman asked if the refinance of debt 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. Jeff Schulman asked ifthe reduction in 

the score is a function of increased 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 staff overtime at the airport. 

Within a month there will be a better indication of what projects will have to be 

suspended. 

MOTION by Pat Nowak, SECOND by Jeff Munger, 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 of February 4, 2015 

MOTION by Pat Nowak, SECOND by Jeff Munger, to approve the consent agenda 

including the minutes of January 5, 2015, January 23, 2015, and February 4, 2015 as 

presented. VOTING: unanimous (5-0); motion carried. 

6.0 COMMUNICATIONS/DISCUSSION 

6.1 Environmental 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 of the fill by Marcelino. Krebs & Lansing Engineers 

developed a plan that sufficiently removes enough fill to allow access to the CWD 

pipe. Removal of the 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 airport 
BURLINGTON 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 Jeff Munger, 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 on the 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 staff is 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 

N ic Longo reported winter weather has had an impact on the airport. 

Cancellations were numerous (68) in January-February. Staff is tracking 

cancellations, seat cancellations, and load factors. Despite the weather the 

statistics show the airport is up 2.37% with relatively high load factors across the 

board. 

Gene Richards discussed meetings with United regarding their history of bumping 

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 of rental cars to go to other airports). Staff is 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. Staff has 

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. 

Jeff Munger 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 of their 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 of matters of mutual interest. 

• A consultant will be hired to update the mapping of current noise levels from the 

airport. A formula is needed to move forward with the military and FAA. 

Pat Nowak mentioned the committee is nearly assembled for the planning of the 

neighborhood once the houses are removed by the airport. Bill Keogh and Pat Nowak are 

part of the 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 of the committee, and hear the point of view of the 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 

8.1 Taxi Licensing Board Report 

There was discussion of the 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 the 
BURLINGTON 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. 

Jeff Munger commented on the lack of movement 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 staff shortage and 

upcoming reorganization of the Finance Office. Current staff is handling an 

increased workload until staff appointments are made. 

8.2 Miscellaneous 

Pat Nowak 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: MERiordan 
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<EChase 1784r2V,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