. ' Commonwealth

### ofMassachusetts

Mark P. Ryan, Vice Chairman Kevin J

. Shaughnessy, Clerk

May 8, 2015 Office ofthe ChiefCounsel NORWOOD AIRPORT COMMISSION Hylie Hutchens Leslie W. LeBlanc

Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Ave., S

.W

. Washington, D.C

. 20591 Martin E

. Odstrchel Paul V. Shaughnessy, Jr. Michael Sheehan

RE: Part 16 Complaint: Boston Executive Helicopters v. Town ofNorwood, Massachusetts and Norwood Airport Commission; Docket No. 16-15-05 Dear Sir or Madam: Pursuant to 14 C.F.R. Part 16 1

, please accept this correspondence as the Answer by the Respondents, Town ofNorwood, Massachusetts ("Town" or "Town ofNorwood") and Norwood Airport Commission ("NAC" or "Airport Commission") to the Part 16 Complaint (also referred to as the "Complaint") filed by the Complainant, Boston Executive Helicopters ("BEH"). For the reasons discussed below,the Town and NAC (collectively, "Respondents") respectfully request that the Federal Aviation Administration ("FAA"): (1) dismiss the Complaint; (2) decline to investigate the Complaint; (3) determine that the Respondents have complied withthe FAA's Grant Assurances; and (4) take no further action in the above-referenced matter.2

1BEH claims in its 14 C.F.R. § 16.21 Certification that "substantial and good faith efforts to resolve this matter informally were made priorto filing this Complaint, and that there is no reasonable prospectfor timely resolution." However, as explained herein, BEH has not submitted the required financial information or scheduled a mandatory final inspection ofits fueling facility by the Norwood Fire Department, and therefore BEH's claims are premature as BEH has not demonstrated compliance with mandatory conditions to operate as a full-scale fixed-based operator. Additionally, as described herein, BEH voluntarily withdrew its Part 13 Complaint in November2014---eventhough Part 13 is recognized as a mechanism for satisfying the 14 C.F.R. § 16.21. See Alca, the Cylinder Shop/Wayman Aviation, Suncoast Aviation, and National Aviation, v. Miami-Dade County, Florida,FAA DocketNo

. 16-08-05, Director's Determination (Aug

. 31 , 2010)

. 2 In the interests ofconvenience,the exhibits referenced below are contained in the enclosed DVD and identified in Appendix A. Please let us know ifwe should provide a hard copy of these exhibits. 125 Access Road, Norwood, MA 02062 849320v2 PH: (781) 255-5616 FAX: (781) 255-56172

------- ·--------**---~--- --~---------~----·--------------------,**  SUMMARY Since May 12, 2010, when BEH President Christopher Donovan ("Mr. Donovan") first went before the NAC in connection with his company's initial commercial permit application, the NAC has placed BEH on its monthlymeeting agenda approximatelythirty (30) times, usually to accommodate one (1) ormore requests by BEH to meet with the NAC. These BEH appearances havebeen scheduled bythe NAC for a number ofreasons, and haveprimarily included, but not been limited to: 1. Allowing BEH to communicate and/or coordinate its sublease interests on a parcel ofland (Lot F) located on the Boston Metropolitan Airport, Inc. ("BMA") long-term leasehold; 2. Updating the Airport Commission on BEH's construction involving a hangar and fuel storage/dispensing facility; 3. Working with BEH toward its interest in a full-service fixed based operator ("FBO") commercial permit; and/or 4. Discussing leasehold opportunities on the Norwood Memorial Airport's ("'Norwood Airport" or "Airport") West Apron. These meetings do not include all ofthe separate meetings that members ofthe Airport Commission and Norwood Airport management3 have had with Mr. Donovan, either at the NAC offices orout at BEH's sublease on Lot F ofthe Norwood Airport. Nor do these meetings include the countless telephone and email conversations that the NAC and Norwood Airport management had with the FAA on behalfofBEH, as well as a meeting with the FAA's New England Regional Office. In addition to these meetings, Norwood Airport management provided direct support for BEH as BEH has proceeded through its various construction phases. This support has included, but not been limited to, several time-sensitive repairs to Security Gate 3 adjacent to Lot F, as well as coordination with othermunicipal departments in the Town-all designed to help BEH maintain the critical path in its construction schedule. Itcannotbe underscored enough that, from the outset, the Airport Commission and Norwood Airport managementhave been very supportive ofMr. Donovan and BEH'splans, as has the Town, which is a verypro-business community. By that same token, the Airport Commission and Norwood Airport management have insisted that BEH complywith all applicable requirements, to ensure that requirements are imposed consistently, uniformly, and for the benefit and protection ofthe public.4

3 "Airportmanagement" refers to the Airport Commission and/or Airport Manager. 4 BEH attempts to refer to settlement discussions with various Town officials between August 2014 and October2014-eventhough the Airport Commission is the permitting and leasing authority for the Airport under Massachusetts General Laws Chapter 90. While these settlement

R49320v23

In the aforementioned bulleted list, encompassing four (4) major areas where BEH needed support, support was providedbythe Airport Commission and Norwood Airport management. This support from the Airport Commission and Norwood Airportmanagementhas not wavered, even as BEH's business interests have broadened in the face oflimitations imposed by: federal standards; land area constraints onthe sublease lot where BEH has propertyrights (i.e., Norwood Airport Lot F); and thepropertyrights ofan abutting lot (i.e., Norwood Airport Lot G) not under BEH's control. The Airport Commission's efforts have even included working with the FAA and the Massachusetts Department ofTransportation ("MassDOT") several years ago to constructhelipads on Norwood Airport's northeast quadrant-as well as implementing a provisional helicopter operating area adjacent to FlightLevel Aviation a/kla FlightLevel Norwood, LLC's ("FlightLevel") maintenance hangar-all to support BEH'sburgeoning helicopterbusiness interests. Since 2010, acting on behalfofhis company, BEH, Mr. Donovanhas made a number of broad and unfounded allegations against the NAC-all ofwhichwere devoid offactual and/or legal merit. For example, Mr. Donovanhas stated thathe believes he is being discriminated against, claimingthat the Airport Commissionhas applied federal standards only against him and his company, while ignoring otherbusinesses at the Norwood Airport. This supposition could not be farther from the truth. In countless communications and public meetings-some ofwhich have included legal representation byboth sides-theNAC and/orthe Norwood Airport Managerhave tried to explain what the Town's obligations are, whetherthe issue at hand was tied to a federal standard, a local regulation, land use and leasehold constraints, on-airport bestmanagementpractices, safety concerns, and/or otherappropriate considerations. With thepassage oftime, wehave determined Mr. Donovan to beless receptive to workingwith Airportmanagement and complying with applicablerequirements-andmore oppositional, accusatory and litigious inhis company's posture. What follows is a comprehensive document responding to the unmeritorious allegations in BEH's Complaint, along with the supporting documentation necessaryto fully explain our efforts-and ourchallenges-withrespect to BEH. While we have streamlined ourresponse, please let us know ifthereis additional information or documentation that would assist your office in its review ofthe Part 16 Complaint.

discussions should be considered private and inadmissible, the BEH has failed to include the October30, 2014 correspondence from Norwood General Manager, which is cross-referenced in Exhibit 38 to BEH's Part 16 Complaint. In any event, the Town discontinued further discussions because ofthe excessive nature ofBEH's proposed "term sheet"; for example, the "term sheet" conflicted with the TOFArestrictions imposedbythe FAA.

849320v24 

### FACTUAL BACKGROUND Byway ofbackground, in the spring of2010, Mr. Donovan approached Norwood Airport Manager, Russ Maguire ("Mr. Maguire"). Mr. Donovan sought Mr. Maguire's assistance, as well as the Airport Commission's support, to realize his interest in starting a commercial business onthe Norwood Airport. Mr. Donovan also expressed to Mr. Maguirehis interest in "turning overa new leaf," orwords to that effect. At the time, Mr. Maguire's understanding ofMr. Donovan's statement was that it was in reference to multiple controversies at the Norwood Airport that had directly involved Mr. Donovan either: (1) prior to his departure from the Norwood Airport in March 2008, to pursue other career interests; or (2) after Mr. Donovan had alreadyleft his employment at the Norwood Airport. The first ofthese controversies was documented by a November 21,2007 Norwood Police Departmentreport filed bythen FBO Manager, Leonard Carroll ("Mr. Carroll"), Eastern Air Center, Inc.'s ("Eastern Air Center") facility manager. This report alleged an assault and batterybyMr. Donovan, and included a record ofthe event generated and filed byMr. Carroll. See Exhibit 1. At that time, Eastern Air Centerwas the only full-service FBO operating at the Norwood Airport, and was the predecessor to FlightLevel, which is the current full-service service FBO at the Norwood Airport. Mr. Maguire became aware ofthis incident because Mr. Carroll spoke to him after reporting it to the Norwood Police Department. In the second ofthese controversies, an administrative complaint was filed against Mr. Donovan's former employer, Helicopters, Inc. (United States Department ofLabor, Office of Administrative Law Judges Docket No. 2010-AIR-00004, Scott Shactman v. Helicopters, Inc.). This administrative complaint involved a claim for whistleblowerprotectionby Scott Shactman ("Mr. Shactman") under the employee protection provisions ofSection 519 ofthe Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. §42121. Mr. Donovan participated in this administrativematter against Helicopters, Inc., abusiness that continues to operate on the Norwood Airport to this day. Mr. Donovan'sparticipation in the legal complaint is documented in the hearingtranscript. See Exhibit 2. Relative to this administrativehearing, by2008, Mr. Donovan had already left his Helicopters Inc. employment at the Norwood Airport, to pursue otherpiloting interests with Boston Med Flight. However, as noted in Exhibit 2, Mr. Donovan was still influencingthe business environment at Norwood Airport, and in fact, according to Administrative Law Judge Colleen Geraghty ("Judge Geraghty"), Mr. Donovan had helped to incite the problems between Scott Shactman and Mr. Donovan's former employer, Helicopters, Inc. even though Mr. Donovan was no longer employed at the Norwood Airportbythat time. (Judge Geraghty's decision was not published until April 12, 2011, after BEH had already received its first commercial permit to operate at the Norwood Airport.) Ofparticularnote in Judge Geraghty's Decision and Order Dismissing Complaint are the references to Mr. Donovan, as appearing on the following pages ofExhibit 2: page 10, paragraph 2; page 11, paragraph 4; page 14, final paragraph; pages 18 and 19; page 20, footnote 16; page

849320v25 34, paragraphs 2 and 4; page 43, paragraph 2 and footnote 30. Regarding the last reference from this Decision and Order Dismissing Complaint (page43, footnote 30), Judge Geraghty states: Donovan's demeanor at hearing was sarcastic, arrogant and combative. His responses to questions regarding whether ornot Shactman provided him copies of the two e-mail complaints, as well as the FAA complaint for commentpriorto sendingthem to Helicopters and the FAA, and whetherhe was communicating with the [sic] Shactman about the events both before and afterthe two conference calls Helicopters held in an effort to respond to the Shactman's complaints, were equivocal. Finally, it is undisputed that Donovan is hostile to Helicopters. For thesereasons, I do not find him a persuasive witness. See Exhibit 2. As noted in Judge Geraghty's decision, Mr. Donovan's actions, even though he was no longer employed at the Norwood Airport, helped to provokethe controversy leading to the Shactman v. Helicopters, Inc. matter. Bythe spring of2010, when Mr. Donovan approached Mr. Maguire with an interest in "turning over a new leaf' at the Norwood Airport, Mr. Donovan was also communicating his interest inpursuinghis own commercial business. Shortly after asking for Mr. Maguire's assistance, Mr. Donovan puthis commercial business interest in writing on April 8, 2010, seeking an "initial Airport Commercial Operators permit." See Exhibit 3. Mr. Donovan was then placed on the agenda for the Airport Commission's May 12, 2010 meeting. Relative to the May 12, 2010 meeting, Exhibit 4 shows Mr. Donovan's introductoryletter to the Airport Commission, as well as a packet ofinformation that he submitted to the Airport Commission as required bythe Norwood Airport Minimum Standards. In his letter (Exhibit 4, Paragraph 1), Mr. Donovan states: "Ourultimate goal is to become an Executive Helicopteron demand charter operation here at Norwood Airport." (Emphasis added). This representation directly contradicts BEH's assertion in its Part 16 Complaint ofa longstanding interest in becoming a full-service FBO-as Mr. Donovan clearly explained that he sought permission for BEH to provide limited services at the Norwood Airport.

stated:

849320v2Similarly, in the section ofBEH'sbusiness plan marked "Introduction," Mr. Donovan

Boston Executive Helicopters LLC was formed as a private companyoffering executive Helicopter charter services to Boston and New England. Ourmission is to provide safe reliable helicopter charter services to the public. We will concentrate on the Executive who values safety and needs prompt reliable transportation. We will also providehelicopter services under FAR Part 91 as well as FAR Part 135. We will provide helicopter sightseeingtours ofBoston and New England as well as otherrequested services. We will repair ourown Helicopters and provide limited Helicoptermaintenance services to the Helicopter community.See Exhibit 4. Mr. Donovan added, inthe section ofBEH'sbusiness plan entitled 

### "The Company," that BEH would "operate

... in concert with Flight Level Aviation Services to meet the needs ofourclients." See id. (emphasis added). In the section marked Financial Considerations (line 5 onpage 3 ofExhibit 4), Mr. Donovan stated: 6

Webelieve ourpartnership with [FBO] Flight Level Aviation will enhance our operations and look forward to utilizing Flight Level Aviation services for our fuel needs. (Emphasis added). On May 12,2010,based on BEH'sletter ofinterest and submitted documents, BEH's presentationbefore the Airport Commission, and BEH's commercial permit application (Exhibit 5), the Airport Commission issued BEH its first commercial permit, for Fiscal Year 2010 (Exhibit 5, page 3).5 The level ofeffort byMr. Maguire to assist Mr. Donovan inbeginninghis commercial venture is captured in a May 12, 2010 email from Mr. Donovan to Mr. Maguire, following the Airport Commission meeting, in which Mr. Donovan states: "Russ, Thank you for all yourhelp," followed byMr. Maguire's response. See Exhibit 10. Also supporting BEH's commercial permit application was Peter Eichleay ("Mr. Eichleay"), the President ofFlightLevel, Norwood Airport's full-service FBO. See Exhibit 11. Mr. Eichleay specifically stated that he was serving as a business reference for BEH, and referred to the business that FlightLevel had with Mr. Donovan for years. See id. Mr. Eichleay also inquired whetherthere was anything that FlightLevel could do to assist with BEH's commercial permittingprocess. See id. Yet only four (4) months into its first commercial permit to operate executivehelicopter services under Part 91 and Part 135, BEH began a pattern ofcommunications with the Airport Manager and Airport Commission, which contradicted orobfuscated the commercial interests that BEH made clearin its initial business plan submitted to the Airport Commission in May 2010. To illustrate:

• On September 24, 2010, Mr. Donovan sent an email to Mr. Maguire asking to add flight instruction and rental to BEH's commercial permit. See Exhibit 12.

• Three days later, on September 27, 2010, Mr. Donovan asked to beplaced onthe Airport Commission's next meeting agendato discuss the availability ofthe DC-3 ramp/apron ("DC-3 Apron") lease. See Exhibit 13.

• Seven (7) minutes later on the same day, September27, 2010, Mr. Donovan sent a second email to Mr. Maguire, this time asking for FlightLevel's fuel flowage information for thepreceding forty-eight (48) months, as well as a copyofthe

5 Forthe ensuing five (5) years and continuingto date, has held a commercial permit from the Airport Commission. See Exhibit 6, Exhibit 7, Exhibit 8 and Exhibit 9.

849320v2Airport Commission'shangar feasibility study and anyhangarplans or studies from the past five (5) to ten (10) years. See Exhibit 14.

• In an October 14,2010 email to Mr. Maguire, Mr. Donovan wrote, in part: "My desire down the road is to become a full service FBO here at Norwood Airport " See Exhibit 15, Paragraph 5. This email runs counterto BEH's claim that it wished to be an FBO at Norwood Airport from the outset, an aspiration that furthermore is entirely separate and fails to address consider BEH's suitability and preparedness to operate an FBO, in compliance with the Norwood Airport Minimum Standards, northe Airport Commission's interest in a second FBO, based on the fact that the Airport Commissionhad never advertised for a second FBO, nor was BEH qualified as an FBO at the time. Onlytwo (2) months later, on December21, 2010, Mr. Maguirereceived a forwarded email from FAA New England Region Compliance Officer/ Airports Program Specialist, Donna R. Witte ("Ms. Witte"), which itselfcontained emails forwarded from FAA Headquarters in Washington, D.C. and Mr. Donovan, both dated December20,2010. See Exhibit 16. The underlying December20, 2010 email from Mr. Donovan suggested a formal Part 16 complaint was sent byMr. Donovan to Deandra Brooks at the FAA Headquarters. See id. 7

In the foregoing December20, 2010 email, Mr. Donovan alleges "restrictive and discriminatoryrules changes which would single out 'helicopter' operations

...." Mr. Donovan concluded his email by stating: "I feel that members ofthe Airport Commission, the Airport Manager and the Monopoly FBO [i.e., FlightLevel] are conspiringto discriminate against helicopters and our operation here at Norwood Airport." See id. Also ofnote in this December 20, 2010 email from Mr. Donovan to FAA Headquarters are the following words from Mr. Donovan: "Norwoodhas had a part 16 complaint with a negative finding bythe FAA inTown OfNorwood V. Boston Air Charter. TheTownhas been found in violation ofseveral grant assurances." Seeid. Itis clear from this December20, 2010 email that Mr. Donovan was attemptingto bolster a discrimination pleathat lacked meritbyinvoking a Part 16 complaint thathad alreadybeen resolved vis-a-vis the Airport Commission's Corrective Action Plan approved bythe FAA on January 27,2010, in FAA Docket Number 16-07-03, Boston Air Charterv. Norwood Airport Commission. See Exhibit 17. However, as the FAArecognized, "theTownhas taken the necessary and appropriate steps to comply with the FAA Order [in FAA Docket Number 16-07- 03]." See id. Among other findings, the FAA determined that the Airport "[e]nd[ed] the practice ofawarding long-term leases offederally funded ramps thathave the effect ofgranting one party control overthe majority oftheramps on the Airport; and [e]stablish[e]d a short-term ramp leasingpermit policy for the Airport to assert more control ofthe federally funded ramps." See id.

-- Mr. Donovan's December20,2010 email to FAA Headquarters was a result ofseveral admonitions from the Airport Manager, which tookplace soon after BEH received its first commercial permit from the Airport Commission on May 12,2010. These admonitions occurred directly as a result ofMr. Donovan's pilotage, which involved unauthorized helicopter

849320v2operations on the Norwood Airport. Specifically, rather than use the authorized heli-pads available to him and sanctioned bythe Norwood Airport General Regulations-as well as a provisionally designated area adjacent to his hangared aircraft (seebelow)-Mr. Donovan had begun to use the Norwood Airport's taxi-lanes for passengerpick-ups and drop-offs. Through the years, for safetyreasons, otherhelicopterpilots and businesses were similarly and consistentlyprohibited from such operations bythe Norwood Airport Manager. 8

Mr. Donovan's discriminationpleais curious, in and ofitself. This is so because, prior to becomingthe president ofBEH, Mr. Donovanhadbeen employed for a number ofyears at the Norwood Airportbyboth Wiggins Airways and Helicopters, Inc. Forboth ofthese companies, Mr. Donovan served as a helicopterpilot, flying routinelyin and out ofthe Norwood Airport. Accordingly, Mr. Donovan was fully aware ofthe helicopteroperations at Norwood Airport, to include where helicopters were authorized to take offand land, and where theywere prohibited from taking offand landing. Mr. Donovan complained about discrimination inhis December 20, 2010 email, even though Norwood Airport's otherhelicopter operators were required to follow the sameregulations and the same procedures that Mr. Donovanhad followed priorto being given a commercial permit for his own company (BEH). In effect, now that he was a commercial permit holder, Mr. Donovan took it uponhimselfto begin challengingthe regulations, seeking special exception from what was expected and required ofall helicopter operators at the Norwood Airport. When the regulations and procedures Mr. Donovan was intimatelyfamiliar with were enforced-astheyhad been against others-he claimed discrimination. It is equally ironic that, at the time ofMr. Donovan's December20,2010 email to FAA Headquarters, the Airport Commission and Airport Managerwere considering the amendment of an existing set ofNorwoodAirport General Regulations. This proposed amendment would have more permanently supported helicopter operations on an apron where these operations, up to that point, were onlybeing authorized provisionally. Bymeans ofbackground for this proposed amendment, due to the increase in based helicopter operators onthe Norwood Airport's north quadrant-to include BEH-theFlightLevel FBO had agreed to allow the provisional use ofits maintenancehangar apron for helicoptertake-offs and landings. This provisional use, sanctioned bythe Airport Commission and Airport Manager, actually supported BEH's operations and that ofa helicopter flight school, which also hangared its aircraft on the Norwood Airport's north quadrant. See Exhibit 17a. Therefore, patently false is Mr. Donovan's assertion that: "TheManagerhas 'offered' helicopter circles as our only alternative for helicopter operations." BEH was already operating to and from the provisionally approved FlightLevel apron. As stated, at the time ofMr. Donovan's December20, 2010 email, a revision ofthe Norwood Airport General Regulations was being considered. This would have changed the status ofFlightLevel's apron, from a provisionally authorized helicopter operating area, to full authorization as recognized in the Norwood Airport General Regulations. Full authorization was seen byNorwood Airport management as a measure ofsupport for the growinghelicopter presence on the Norwood Airport's north quadrant, which was exactlywhere BEH needed a

849320v2dedicated and authorized helicopter operating area closerto its hangar, as Mr. Donovan makes clear inhis December20, 2010 email. See Exhibit 16. The intent byAirport management to more permanently supporthelicopter operations is captured in a January 7, 2011 email from Mr. Maguire to Ms. Witte at the FAA New England Region Office, which Ms. Witte then forwarded to her incoming replacement in the FAA Airports Division, BarryJ. Hammer, P.E. ("Mr. Hammer"). See Exhibit 18. That email followed a January 6, 2011 meeting, convened byMr. Maguire and several members ofthe Airport Commission, for the benefit ofthe Norwood Airport's helicopter operators. In fact, Mr. Donovan attended that meeting, as noted in the January 7, 2011 email from Mr. Maguire. In his January 7, 2011 email, Mr. Maguire specifically states: On behalfofthe Norwood Airport Commission, Ireiterated the one and only intent ofourproposed procedures, which is to incorporate into ourregulations a helicopter operating area that-as ofright now-is onlyprovisionallyok'd for helo operations. See id. at 2.

-- On March 2, 2011, Mr. Maguire emailed Mr. Hammer and advised him that Airport management was, bythat time, mobilizing an effort to alter a planned project in orderto construct a number ofhelicopterparking/operating pads on the Norwood Airport's north quadrant adjacentto the north/south taxi-lane. So when, in the several months prior Mr. Donovan contacted FAA Headquarters to complain about purported discrimination, his claims were an unsupported overreaction to alleged Norwood Airport authority actions that had been designed to support, ironically, the based helicopter operators on the Airport's north quadrant. In spite ofMr. Donovan'sbaseless claims ofdiscrimination, this goodwill byAirport management continued, as evidenced bythe level ofeffort and diligence on the part ofthe Town as noted in Exhibit 18 (e.g., reflecting support from the Norwood Conservation Commission and Airport Commission) and the Airport's engineering firm, DuBois & King, Inc. ("DuBois & King") to build heli-pads expressly for north quadrant operators such as BEH. Just as importantly, only seven (7) months into his company's presence on the Norwood Airport, Mr. Donovan had alreadybegun a campaign ofbaseless discrimination claims against Airport management. 9

These unfounded discrimination claims byMr. Donovan continued in a more direct manner in June 2011, when AttorneyJoshua M. Fox ("Attorney Fox"), representing BEH, made the same claims against Airport management afterMr. Donovanhad once again been notified not to use the Norwood Airport's taxi-lanes for helicoptertake-offs and landings, giventhe paramount safety concerns. See Exhibit 19. Attorney Fox attempted to raise the specter ofgrant assurance compliance and defamation. However, Norwood Town Counsel responded to, and denied in full, BEH's allegations, noting that Airport management had acted consistent with the safe and efficient operation ofthe Airport-indeed, as expresslyrecognized byFAA Grant Assurance 22.h and the General

849320v210 Regulations ofthe Airport, whichhad been previously approved bythe former Massachusetts Aeronautics Commission. See Exhibit 20. It is significant that these legally-charged allegations from BEH were being levied concurrentwith the Airport Commission's efforts to accommodate BEH through the re-design and building ofheli-pads that were to support BEH, as noted in Exhibit 18. It should also benoted that Mr. Maguire, the Airport Manager, has beenmanaging Norwood Airport since December 1995. Mr. Maguire is a fully Accredited Airport Executive through the American Association ofAirport Executives (AAAE). Mr. Maguire also holds a Master's Degree in Aviation/Aerospace Management and is a licensed commercial pilot. While serving in the United States Army for thirteen (13) years, Mr. Maguire flew helicopters as a ChiefWarrant Officer. In May 1996, Mr. Maguirereceived a certificate ofappointment to act as an FAA Aviation Safety Counselor, through the FAA's then-program manager, Gary Lopez. Mr. Maguire continues in this capacity as a memberofthe FAA SafetyTeam ("FAAST"). Finally, Mr. Maguire has attended manyAAAE safety conferences, as well as the United States Army's Aviation Safety Officer's Course. So for many years now, based on this background and training, Mr. Maguirehas been very experienced in risk management and safety-of-flight issues, and he has drawn upon this experience in managingthe Norwood Airport. Morerecently, in spite ofthe additional heli-pads available to BEH, Mr. Donovan only continues to challengehis perceivedright to operate BEH'shelicopterto and from areas ofthe Norwood Airportthat are not authorized for this use. Exhibit 21 is a letter sentbythe Airport Managerto BEH on March 21, 2014, after BEH continued to defy Airportprocedures and regulations. For example, the March 21, 2014letterreferences video stills showingthat BEH operated its aircraft on March 1, 2014 in closeproximityto an electrical transformer, picnic tables, an Airport business's office, and t-hangars. See Exhibit 21. Approximately four (4) months later, BEH'shelicopter operations continued to present problems for othertenant operators and Airport management. Exhibit 21a is a copy ofthe Airport Commission'sAugust 13,2014meetingminutes. Onpage 3 ofExhibit 21a, the meeting minutes noted that FlightLevel received a complaint from Boston Air Charter ("BAC"), an Airport business, regarding helicopter operations on the north ramp. When Airport CommissionerMichael Sheehan asked who the complaint was against, Mr. Eichleay, FlightLevel President, stated that the helicopter number was assigned to BEH. See Exhibit 21a at 3. Overthe years, Airport managementhas similarly enforced the authorized helicopter procedures and operating areas for operators otherthan BEH. See, e.g. Exhibits 21b, 21c. Thus, Airport managementhas not singled out BEH for enforcement and BEH's suggestion to the contrary is unfounded. Time has shown that Mr. Donovan seeks to challenge and defythe Norwood Airport's regulations and procedures-all ofwhich he was intimately familiar with while operating as a linepilot for bothWiggins Airways and Helicopters, Inc. at Norwood Airport, in addition to his involvement with BEH. Indeed, earlyin his tenure as a commercial permitholder at the Airport, Mr. Donovan sent the Airport Manager an email in which he underscored his safety concerns about anothertenant business. See Exhibit 22. To that end, Exhibit 22 contains a September 24,

849320v22010 email to the Airport Manager, in which Mr. Donovan referenced the March 17,2010 unauthorized departure oftwo (2) Citationjet aircraft, operated byBAC, while the Airport was closed to fixed-wing aircraft due to flooding. Mr. Donovan writes: As a memberofthe General Public Ihave serious concerns about my safety as well as the safety ofthe public users ofNorwood Municipal Airport. 11

Along withhis questionable assertions ofpurported concerns, in this September24, 2010 email, Mr. Donovan was additionally making inquiries and a formal public records request regardingthe actions taken bythe FAA, and details about the FAA investigation relative to BAC. See id. Aside from showing a contradictory attitudetoward safety, this September24, 2010 email byMr. Donovan is also an earlyindication ofhis interest in undermining another tenant business on the Norwood Airport. See id.



### BEHSUBLEASEINTEREST In February2011, thehangar ofa Norwood Airport sublease tenant, Swift Aviation, Inc. ("Swift"), collapsed during an ice storm. This tenancy was situated on Lot Fatthe Airport, which is part ofthe long-term leasehold between the Town and BMA. See Exhibit 23. Swift was a sub-lessee to BMA, the latter ofwhich was the sub-lessee to the Town. Afterthehangar collapse, Mr. Donovan began negotiations with BMA, as he expressed an interest inhaving BEH assume theremaining sublease interest for Lot F and extendingthat sublease for an additional term. BEH and BMA crafted an Assignment, Assumption and Amendment ofLot F, seeking the approval ofthe Airport Commission. See Exhibit 31. However, page 2 ofthe Town ofNorwood/BMA Lease Agreement ("Master Lease") states as follows: (b) The subleases ofsaid parcel orportions thereofshall bereviewed priorto the executionbythe Massachusetts Aeronautics Commission [now MassDOT] and the Federal Aviation Administration, orthe successor agencies, and approved, in writing, bythe Norwood Airport Commission

.... See Exhibit 23. As required in this Master Lease, the Airport Commission directed BEH to send its draft document to both FAA and MassDOT for review, not approva1. 6 Neitherthe Airport

6 It should be noted that on the Town ofNorwood/BMA long-term leasehold, a similarlease term extension is being sought byFlightLevel for anotherpart ofthe Airport. Consistent with the Master Lease, however, the Airport Commissionhas directed FlightLevel to pursue the same course ofaction: obtain FAA/MassDOT sublease review.

849320v212

Commission northe Airport Manager attempted to delaythe FAA review ofthe proposed BMABEH Assignment, Assumption and Amendment ofLot F. In the process ofreviewing the proposed BMA-BEH Assignment, Assumption and Amendment ofLot F, the FAA began to question the length oftheproposed sublease term, citing the FAA's Compliance Manual as a supportingbasis. See Exhibit 24. The Airport Commission was especially sensitiveto this concern, given the federal grant assurance violations cited bythe FAA in 2008 in FAA DocketNumber 16-07-03 (Boston Air Charter v. Norwood Airport Commission), as a result ofthe original eighty (80) year maximum term Master Leasebetween the Town ofNorwood and BMA commencingin 1967. Mr. Hammer, acting on behalfofthe FAA, reviewed the proposed BMA-BEH Assignment, Assumption and Amendment ofLot F-anddid not indicate that the FAA policy was not to review such leases. See id. Indeed, Mr. Hammer stated that thereview was "performed as a courtesy" and that the FAA attempted "to identifypotential compliance issues," albeit subject to any compliance violations that could result from the terms ofa lease. See id. Notably, Mr. Hammer stated that "[w]hile I don't see any glaringproblems with most of the terms and conditions ofthe lease

... thejustification for the 39 yearterm is not sufficient." See id. Mr. Hammerobserved that "justification for a 39-yearterm wouldrequire an amortization schedule with reasonable rates and payments." See id. Accordingly, the Airport Commissiontried to mediate a solution that was satisfactoryto the FAA, while remaining supportive ofBEH and its interests. To that end, based on the FAA's input, the Airport Commissionrequested that BEH obtain an amortization schedule, tojustifythe long-term sublease it sought. In response, BEH provided correspondence from its accountant, suggestingthe need to amortize construction costs overthirty-nine (39) years, as well as an amortization schedulebased on financing. See Exhibit 25. A reflection ofthe Airport management's support is shown inthe August 2012 email exchange between Mr. Donovan and the FAA New England Region Office. See Exhibit 26. In an August 15, 2012 email to Ms. Witte, Mr. Donovan stated: Thetown is working diligently with us and understandablytrying to complywith the FAA guidance and order and insure we have a workable lease. We will be seeking formal FAA approval through the Town and Norwood Airport Commissionpriorto execution.

. . . TheNorwood Airport Commission, Airport Manager and Town Attorneyhave been extremely supportive

.... See id. at 3 (emphasis added). Moreover, in an August 20, 2012 email in response, Mr. Hammer advised Mr. Donovan "to continue the conversation you'rehaving with the airport as it appears by your email that everyone is working in good faith." See id. at I. However, only five (5) months later, on January 8, 2013, the Airport Managerreceived a disturbing phone call from MaryT. Walsh ("Ms. Walsh"), FAA Divisions Manager ofthe Airports Division for the New England Region. Exhibit 27 contains a copy ofthe Airport

849320v213 Manager's File Memo following his discussion with Ms. Walsh. Ms. Walsh specificallywarned Mr. Maguire about the actions and "bizarrebehavior" ofMr. Donovan, following a January 2, 2013 email byMr. Hammerconcerningthe FAA'srecommendations and caution about the proposed Lot F sublease for BEH. See Exhibit 27. Ms. Walsh indicated that she had "never seen anything like this" and noted, among other concerns, a string oftelephone calls and emai1s (approximatelytwenty-five (25) emails overan estimated twelve (12) hour) period. See id. According to the Airport Manager, following FAA's decision to alert its Security Division, Ms. Walsh was still opento ameeting with both the Airport Commission and BEH. See id. However, because Ms. Walsh felt compelled to report Mr. Donovan's behavior, the NAC did not consider a productivemeetingpossible. Ultimately, on January 30, 2013, the Airport Commission and Airport Manager met with the FAA's New England Region office to resolve the proposed Lot F sublease and BEH'srelated interest in it. On February 12, 2013, a thank you letter was sent onbehalfofthe Airport Commissionto the FAA, attention Mr. Hammer, who served as Compliance Officer. See Exhibit 28. The February 12,2013 letteris moreproofofthe Airport Commission's commitmentto BEH-in spite ofMr. Donovan's actions-as discussionpoints wereraised to support BEH's sublease term interests. See id. This lettermade specific reference to the FAA Compliance Manual, which states: "Mosttenant ground leases of30 to 35 years are sufficientto retire a tenant's initial financing and provide a reasonable return for the tenant's development ofmajor facilities." See id. In response to Mr. Hammer's prior suggestion that a thirty (30) to thirty-five (35) yearterm ofthe proposed Lot F sublease would not be considered excessive, Airport managementreached out to BMA to obtain information about BMA's existing subleases. See id. The February 12, 2013 letterprovided Mr. Hammerwith information about five (5) separate BMA lease lots that Airport management obtained from BMA, and the Airport Managernoted that the BEH sublease for Lot F, ifapproved would bethe shortest term on the BMA leasehold, thereby suggesting that such a lease term had in fact been supported byprecedent. See id. TheAirport Manager also provided Mr. Hammerwith a copyofan existing thirty-five (35) year lease at Westfield Barnes Airport for a companythat provided a level ofservice similar to what BEH proposed,justified bythat tenant's need to finance its hangar(s) and fuel farm investments. See id. This Westfield Barnes Airport was used bythe Airport Commission to demonstrate another example ofprecedent for the longer lease term soughtbyBEH. Seeid. As the Airport Manager explained inhis February 12, 2013 letter, the Airport Commission requested that the FAA consider BEH'sproposed thirty-one (31) year sublease ofLot F "to be fair and acceptable, and not excessive." See id. The FAA, in a February 20,2013 email from Mr. Hammer, recognized that "the information [the Norwood Airport Manager] recentlyprovided further documents the due diligence the commission is practicing in making its final decision on the assignment ofthe sublease." See Exhibit 29. Subsequently, the NAC approved BEH's Assignment, Assumption and Amendment ofLease for Lot F. Exhibit 30 contains a February 22,2013 letter from Mr. Maguire to BEH, noting the Airport Commission's approval ofthe BEH Assignment,

849320v214 Assumption and Amendment ofLease for Lot Fatits February 13,2013 meeting. Exhibit 31 is an executed copyofthe BEH Assignment, Assumption and Amendment ofLease.7 BEH attempts to contest the flowage fee underthe Assignment, Assumption and Amendment ofLease for Lot F. Yet, BEH's flowage fee for the Town is the same ($.06/gallon) as the flowage fee that FlightLevel is payingto the Town. 8 Yet, interestingly, after the Assignment, Assumption and Amendment ofLease for Lot F was executed, BEH changed its position and alleged that it no longer needed financing for construction on Lot F. Such a subsequent reversal is inconsistent withthe necessaryjustification for the long-term, thirty-one (31) year sublease required at the outsetunder the foregoing FAA guidance. Compare Exhibits 24, 25.

BEH BUSINESS DEVELOPMENT INTERESTS When BEH choseto build on its sublease for Lot F, the NAC was similarly cooperative and supportive. Exhibit 32 is a copyofthe December 12, 2012 Airport Commission meeting minutes. Mr. Donovanpresented a detailed plan drawing for a new building, fuel tank, and grounds construction. In response, the Airport Commission voted unanimouslyto send a letterto the Board ofSelectmen to approve the current design in its entirety, contingent upon a building permit, Fire Department approval, a Conservation Commission Order ofConditions, fuel permit approval from the Board ofSelectmen, a review ofthe fuel cabinet, discussion ofthegate valve on drainage, and incorporation ofengineering comments byme (as I also serve as Norwood Town Engineer). See Exhibit 32. Exhibit 33 is a December 14, 2012 letter from the Airport Commission to the Board of Selectmen. This December 14, 2012 letternotes the Airport Commission's conditional approval ofBEH's design for its hangar and fuel storage/dispensing system. The NAC did have concerns about the proposed location ofBEH's fuel farm, in particular, withrespect to the Security Gate 3 taxi-lane object-free area ("TOFA"). Therefore, Section 2 ofthe letter specifically states that BEH must: 2. Complywith all taxi-lane object-free area [i.e., TOFA] restrictions that apply to the siting ofBEH's fueling equipment; perthe airport's design standards, and clarifying guidance from the Federal Aviation Administration.

7 This Assignment, Assumption and Amendment ofLease for Lot F included the language that the FAA required for future leases, as contained in the Corrective Action Plan for FAA Docket Number 16-07-03 (Boston Air Charterv. Norwood Airport Commission). See Exhibit 31. 8 BEH separately and voluntarily agreed to the flowage fee that it is paying to BMA, which also charges a flowage fee to FlightLevel.

849320v2See Exhibit 33 (emphasis added). The NAC did not attempt to havethe Norwood Fire Department ("NFD") insert TOFA restrictions in the fueling permit, and instead, this was initiated bythe NFD directly. 15

In short, the Security Gate 3 TOFA considerations were expresslyidentified, communicated to BEH, and memorialized manymonths priorto BEH beginning its construction adjacent to Security Gate 3. See id. As a result oftheTOFA discussion, the Airport Commissiontasked its engineer, Jeffrey Adler, P.E. ("Mr. Adler") ofDuBois & King, to speak with FAA about this concern, specifically, BEH'sproposed fueling cabinet. Exhibit 34 is a copy ofMr. Adler's December 20, 2012 e-mail to the Airport Manager. Specifically, Mr. Adler stated: I spoke with FAA (both CliffVacircaand Lisa Lesperance) regarding the BEH request to place a fuel dispensing cabinet within the Gate 3 Taxilane OFA. Their initial response was that it is current FAA policyto not allow any new obstructions to be placed (sic) within any OFA areas regardless ofany existing obstructions. Thatbeing stated there are special circumstances when an exception maybepermitted. In this case ifthe issue was the (BEH) hangar only, it maybe allowed byFAA dueto the existing obstructions and being in the shadow ofthose obstructions. However, the concern from FAA is the use ofthecurrent taxilane (size and type ofaircraft) and how that would changeby allowing possible larger itinerant aircraft operating onthis taxilane late at night looking for fuel. Although there maynot be any documented incidents along this taxiway, that could change with itinerant aircraft operating in this area where the current taxilane does not meet OFA standards. See Exhibit 34 (emphasis added). This FAA concern was communicated to BEH. Exhibit 35 is a copy ofa covermemorandum, reference sheet, guidelines sheet, and contact information for the FAA and MassDOT, all ofwhichthe Airport Manager sent to Mr. Donovan onJanuary 28, 2013, to assist him in theprocess for on-Airport construction filings. Additionally, in 2013, with the support oftheAirport Commission, BEH was issued a licenseby the Norwood Board ofSelectmen (i.e., the licensing authority) ("Board ofSelectmen"), to pursue construction and, ultimately, storage and operation ofan aircraft fueling facility on theNorwood Airport. (Currently, Norwood Airport has onlyone fuel provider, FlightLevel.) Notably, the Assignment, Assumption and Amendment ofLease, which allowed BEH to sublease Lot F and was approved bythe Airport Commission, amended the Lot F subleaseto expressly allows BEH to store, use and sell fuel, and uses incidental and ancillary thereto, subject to the terms and conditions stated therein (including, but not limited to acquiring and maintaining applicable licenses, permits, approvals and other authorizations). See Exhibit 31. With the support ofthe Airport Commission, Mr. Donovan's company, BEH, subsequently constructed a hangar on Lot F. This hangar, along with the fuel farm, was part ofa plan that was evolving into BEH's goal ofattaining a full-service (FBO) commercial permit from the NAC. However, it should be noted that BEH spent manymonths insistingto the Airport Commission-commencingwith BEH's arrival at Norwood Airport in May 2010 and continuing

849320v216 through much ofthe Lot F development-thatits plan was to build a fueling facility to service its own aircraft only. Underthe Norwood Airport Minimum Standards, for a prospective FBO permit applicant, one (1) ofthe mandatory conditions is for the applicant to have fuel service capability. See Exhibit 36 at 31 (Definitions). Similarly, underthe Norwood Airport General Regulations, "[a ]ircraft fueling operations must be fully sanctioned bythe [Airport] Commission, the Norwood Board ofSelectmen, the Norwood Fire Department and the Commonwealth of Massachusetts Fire Marshal's office." See Exhibit I04 at 23. More recently, subject to the oversight from the NFD, BEH constructed a fuel storage/dispensing facility. However, to date, BEH has not, as required, notified the NFD ofits interest to undergo a final inspection ofthe fuel facility. This was recently confirmed again by the Town ofNorwood Fire Chief, Anthony Greeley, and this outstanding issue has been brought to Mr. Donovan's attention in thepastbythe Airport Commission. Because the mandatory inspection bythe NFD has not been requested (or completed), the Volatile Inflammable Fluids ("VIF") license that BEH requires for its fuel storage/dispensing facility has not been issued. To date, the VIF licenseremains in the hands ofthe Board of Selectmen, the local licensing authority. As a matter ofprocedure, the VIF license will not be released to BEH until the final inspection occurs and approval is granted by the Norwood Fire Prevention Bureau, along with a confirmatorywritten communication to the Board ofSelectmen. The unpreparedness on Mr. Donovan's part runs counterto his statements before the Airport Commission, in which he attests to the readiness ofBEH's fuel farm to undergo inspection:

849320v2• Exhibit 37 contains the May 14, 2014 meetingminutes for the Airport Commission. On page 1ofExhibit 37, Mr. Donovan reported that the fuel tanks should be finished byJune I, 2014, and he thought BEH would be operational within forty-five (45) days.

• Exhibit 38 contains the June 11, 2014 meeting minutes for the Airport Commission. This meeting was convened ten (10) days after Mr. Donovan's prior estimated completion date (i.e., June 1, 2014). Onpage 1ofExhibit 38, Mr. Donovan stated that BEH would be operational within twenty-one (21) to thirty (30) days. The minutes also stated: "Once all is complete, BEH will need final inspection and approval from the Norwood Fire Department." See Exhibit 38 at I.

• Exhibit 39 contains the July 30, 2014 meeting minutes for the Airport Commission. This meeting was convened almost two (2) months after Mr. Donovan stated, at the May 14, 2014 meeting, that the fuel tanks should be finished byJune 1, 2014. At this July 30, 2014 meeting, Mr. Donovan reported that the fuel tanks were complete and were waiting for final piping and approval from the NFD. See Exhibit 39 at I. Mr. Donovan also reported that, contingent17

on NFD approval, the Board ofSelectmenhad already granted approval, and that final inspections were expected to be completedbyAugust 9, 2014. See id. To date, the required final inspectionbyNFD, ofBEH's fuel farm, has not taken place. This remains the case approximately one (1) year since BEH first represented that the fuel tanks would be completed, and several months after BEH represented that the final inspection would be completed.

TAXI-LANE OBJECT-FREE AREA (TOFA)**--~--~~--------------** In its Part 16 Complaint, BEH charges that theTOFA issuehas undulybeen applied to BEH. As with BEH's other arguments, this allegation is entirelybaseless. Exhibit 40 is a copied excerpt showing the FAA airport design standard relative to TOFAs. Onthe Norwood Airport, which is a Category II-B airport, the TOFA width is 115 feet, or 57.5 feet from the taxi-lane centerline. This design standard applies to the Norwood Airport's north/south taxi-lane, the Security Gate 2 taxi-lane, and the Security Gate 3 taxi-lane. The Airport Commissionhas consulted with its airport engineering firm, DuBois & King, on this matterto ensurethat that the TOFA standard is beingunderstood fully, and properly applied on the Security Gate 3 taxi-lane since, in this particular case, the Security Gate 3 taxi-lane TOFA directly affects BEH. Accordingly, in the New England Region, FAA Engineer CliffVacircamade clearto DuBois & Kingthat the TOFA standard applies to all new construction, regardless ofnonstandard, existingconstruction. This, in tum, was communicated to BEH onmultiple occasions, both in writing and at NAC publicmeetings. The Security Gate 3 taxi-lane allows for the movement ofaircraft and vehicles to and from the aprons to the Norwood Airport taxiways. Priorto 2006, this was simply a gate lane without object-free area standards. 9 In 2006, priorto construction ofthe Security Gate 3 taxilane, which ultimatelyreceived federal, state and local funding, all three (3) ofthese levels of government performed an engineering design review that included existing conditions (i.e., hangars, fire hydrants, bollards, designated vehicle parking spaces, etc.). All three (3) levels of engineering signed offonthe work, and the taxi-lane was constructed. As we understand it, the Airport Commissionwas required to remove objects (hangars, fire hydrants, etc.) already in existence when this taxi-lane--formerly a gate lane--was created. With construction, the area became a taxi-lane object-free area. While the Norwood Airport's TOFAs for both Security Gate 2 and 3 havebeen deemed non-standard, the NAC and Norwood Airportmanagement have routinely communicated to

9 BEH's Exhibit 93 is a letterdated three (3) years priorto the construction ofthe Security Gate 3 taxi-lane, with the resultingTOFA. However, with Airport management's involvement, BAC didbegin to tow its aircraft for start-up on the Eastern Air Center, Inc. (now F1ightLevel) maintenance apron. Thatpractice continues to this day.

849320v218 Airport tenants about the need to keep aircraft and ground vehicles out ofthe object-free areas ("OFA") as much as possible. This, admittedly, has been a day-to-day challenge. Exacerbating this issue is the tight real estate at Norwood Airport (see stand-alone aerial photo, Security Gate 3 taxi-lane marked inred). As wehaverealized mature development onthe non-movement areas, and environmental constraints continue to impede further development, space on the Norwood Airporthas become quite limited. BEH complains about the marking ofthe taxi-lane in front ofBEH'shangarnear Security Gate 3. Yet, marking a taxi-lane is a design engineering standard, and this followed the Airport Improvement Program ("AlP") construction project, as a federal standard. Contraryto BEH's assertion, this taxi-lane goes to Security Gate 3, not to "nowhere," as BEH suggests. Security Gate 3 is also used as an emergency access way for Airport fire/rescue equipment and personnel respondingto an on-Airport emergency from the NFD. BEH is able to use its apron north ofthehangarto move aircraft in and out ofits hangar. However, the TOFA does applyto BEH and all otheroperators. Airportmanagement has attempted to enforcethese object-free standards, while fully aware ofthe tight real estate and the fact that manyofthe hangars arejust adjacentto the Security Gate 2 and Security Gate 3 TOFAs. Today, Norwood Airport is thehomebaseto ten (10) commercial businesses, along with many corporate flight departments. Norwood Airport contains one (1) ofthehighest based aircraft counts in the MassDOT inventory ofairports. Accordingly, Norwood Airport is effectivelyland-poor-with a burgeoning aircraft/tenant population. As noted in the accompanying stand-alone aerial photo, eight (8) hangars are situatedjust abeam OFAs for the Security Gate 2 and 3 taxi-lanes. Certainhangars are actuallyinthe 57.5 foot TOFA set-back, so that aircraft ground-handled from thesehangars move directly into the TOFAs. Similarly, when the aircraft hangars need to be "stacked orre-stacked," the hangar keepers oftenhave no choicebut to use thetaxi-lane as a staging area while aircraft aremoved into and out ofthe hangars. Given the challenges oftight real estate, and thejuxtapositionofbothhangars and aircraft parking apronsjustoffthe TOFAs, as much as possible the Airport Commission and Norwood Airportmanagement have tried to use common sense and fairness in observance ofthe TOFAs. This includes urging Airport tenants to minimize the amount oftime aircraft are allowed to park, unattended, in the TOFA. Wheneverpossible, wehave also moved objects out ofthe TOFAs (e.g., vehicle parking, dumpsters). Finally, the Airport Commissionhas filed an update, which is carried inthe FAA's Airport/Facility Directory, noting aircraft wingspan restrictions for both the Security Gate 2 and 3 taxi-lanes. See Exhibit42. The actions ofthe Airport Commission and Norwood Airport management are consistent with FAA standards, includingTOFAs, which recognize that these are "area[s] onthe ground that [are] to remain free ofobjects not needed for airnavigation or aircraft ground maneuvering purposes." Platinum Aviation and Platinum Jet CenterBMI v.

849320v2Bloomington-Normal Airport Authority, FAA Docket No. 16-06-09, Final Decision and Order (Nov. 28, 2007). 19

As noted in its Part 16 Complaint, BEH charges that the TOFA issuehas undulybeen applied to BEH. Yet the greatest TOFA impacts have not been experienced byBEH. Exhibit 43 is an excerpt from the 2007 Norwood Airport Master Plan Update Final -Phase II ("2007 Master Plan Update"). 10 The creation ofthis AlP-funded document was theresult ofa combined financial/planning interestbythe FAA, MassDOT and the Town ofNorwood. The work was overseen and reviewed by all three (3) ofthese levels ofgovernment. In this 2007 Master Plan Update, pages 3-10 through 3-11 discuss the Norwood Airport's TaxiwayB (now designated as the north/south taxi-lane) OFA. This TaxiwayB OFA involves the same federal standards now being applied to the Norwood Airport's Gate 3 taxi-lane, adjacent to the location ofBEH's hangar and fuel farm. BEH incorrectly challenges the change ofdesignation for Taxiway B. The decision to change the designation from "taxiway" to taxi-lane" was madebythe FAA. The decision to change the northernmost section ofthe north/south taxi-lane (formerlyTaxiway B) to ramp was requested bythe NAC and approved bythe FAA---and this was done to create ahelicopter operating area to support BEH. Thus far, the most profoundly felt TOFA impacts are, ironically, being felt bythe Town ofNorwood and FlightLevel, not BEH. As the 2007 Master Plan Update excerpt states, adjacent to the north/south taxi-lane, "[t]he Airport lost about 47,500 SF [square feet] ofbased aircraft parking apron area with the potential to accommodate up to 79 aircraft. The economic loss from these 79 spaces represents $8,690 permonth in tie-down fees, or $105,000 per year in income (FY05 rates)." See Exhibit 43 at 3-11. Therefore, observance ofthese federal standards has equated to a loss ofpotentiallytens ofthousands ofdollars in income each year-likelyeven more so because the 2007 Master Plan Update used Fiscal Year2005 rates. These are direct or indirect losses eitherto the Town ofNorwood, or, to FlightLevel, another airport business, which holds the abutting leaseholds affected bythese OFA federal standards. So Mr. Donovan's claim-thatthe federal OFA standards similarly applied on the Security Gate 3 taxi-lane discriminate against Mr. Donovan's company, BEH-areinaccurate. BEH's allegations ofdiscrimination relative to the TOFA include accusations that others are able to park in the Security Gate 3 TOFA. BEH's complaints include FlightLevel, which has vehicle parking spacesjustnorth ofits condo hangar complex. This facility is right at the southern edge ofthe Security Gate 3 TOFA. Exhibit 44 shows FlightLevel's condo hangar lease

10 BEH's Exhibit 61 refers to a State mandate mentioned in an excerpt from the Airport Master Plan Update- Phase I. This scenario is a hypothetical, based onthat 2004 Norwood Airport Master Plan, Phase I, and references a Massachusetts airport securityregulation thathad beenput in place approximatelytwo (2) years prior in response to the September 11, 2001 terrorist attacks. This hypothetical in question was a what-ifscenario that, in fact, never cameto pass. There was no follow-up regulation preventing vehicles from entering the Airport, which would have required Airport management to at least consideroutside-the-fence vehicle parkingin support ofpatrons doing business on the Airport's north quadrant.

849320v220 (entitled the "Office Agreement"). This condo hangar lease was executed onJune 15, 1996, some ten (10) years priorto the construction ofthe SecurityGate 3 taxi-lane and the resulting establishment ofthe Security Gate 3 TOFA. Page 2, Section 3 ofthe condo hangar lease, under CommonAreas, specifically states: "The LESSEE (Including without limitation its employees and invitees), shall have the right ofuse ofthe exterior common areas and facilities at the Property in common with others entitled thereto (including, without limitation, parking spaces

....)" See Exhibit44 (emphasis added). Accordingly, the parking spaces were in effect established and thereby protected from TOFA enforcementpriorto the Security Gate 3 taxi-lane construction in 2006 and establishment ofthe resulting Security Gate 3 TOFA. Overthe years, Airport managementhas routinely spoken to users ofthe Airport about the parking ofvehicles or aircraft for extended periods oftime in eitherthe Security Gate 2 or 3 TOFAs orthe north/south taxi-lane TOFA. In the past, a verbal request was all that was required, without the need for record-keeping to demonstrate the TOFA enforcement. However, the Assistant Airport Manager, Mark Raymond ("Mr. Raymond"), did make a notation in a work journal in 2008, after speaking with another company, HAC-specifically, BAC employees Stu Piasecki and JohnDiMaggio-aboutthe need to keep BAC'sparked aircraft out ofthe nonmovement TaxiwayB (now north/south taxi-lane) TOFA. See Exhibit 45. Swift was not subject to the TOFA for much ofits tenure on the Norwood Airport because the Security Gate 3 TOFA did not come into beinguntil 2006, when the taxi-lane was constructed. By2011, Swift was no longer a viablebusiness on the Norwood Airport. Parking and fueling in the TOFA, whetherit bethe Security Gate 2 TOFA, Security Gate 3 TOFA, or north/south taxi-lane TOFA, was enforceable, and enforced, once the object-free areamovement surface was constructed. While Airport management has consistently, and without prejudice, tried to keep the Security Gates 2 and 3 and the north/south taxi-lane TOFAs clear, it has done so sometimes informally or one-on-one, while at othertimes, throughreminders that have been sent outin general distribution. See Exhibit 46. However, it has been reported to Airport management that BEH, ironically, has attempted to draw FlightLevel employees and their fueling operations into the TOFA. See Exhibits 47-49. Airport managementbelieves that BEH maybedoingthis in order to have FlightLevel cited for TOFA violations, or, to show Airport management's inconsistent enforcement ofTOFA standards. BEH apparently contests an orderbyMr. Raymond to order BEH employee Robert Silva ("Mr. Silva") to remove the BEH fuel truck parked in the SecurityGate 3 TOFA. This argument is based onthe faulty suggestion by BEH that it is the onlyentity on the Norwood Airport ever approached byAirport management to remove a vehicle or aircraft left for an extendedperiod in the TOFA. This is untrue. Airport management has similarly approached FlightLevel, Bach Aviation, East Coast Aero Club, BAC, and any number ofindividual pilots, even a former airport commissioner. BEH also makes a claim ofmultiple vehicles similarlyparked in the TOFA, but not approached byAirport management. The vehicles in BEH's Exhibit 104 are parked on spaces

849320v221

authorized for parkingper a lease (attached Respondents' Exhibit 44) alreadyin existenceprior to the Security Gate 3 taxi-lane and subsequent TOFA. In its Exhibit 94, BEH includes photos that misrepresent the actual object-free areas at the Norwood Airport. First, Security Gate 1has no corresponding TOFA. In 1997, as part ofan AlP-funded apron project (AlP# 3-25-0037-14), the Security Gate 1threshold was paved. There was never a taxi-lane centered on, orleadingto orfrom Security Gate 1. Forthis reason, taxilane OFA set-backs were never applied. As for the TOFAs applicable to Security Gate 2 and Security Gate 3 taxi-lanes, there were existing encroachments (e.g., hangars, fire hydrant, authorized parking spaces, securitycamerapole, etc.) at the time that both ofthese taxi-lanes were constructed. Accordingto the FAA, the TOFA standard applies to all new construction, regardless of non-standard, existing construction. This is a point that BEH has determined to be thebasis for discrimination. Furthermore, whatthe BEH photos fail to demonstrate are the number oftimes that BEH has parked its own aircraft for fueling, or, its personal vehicles, within the Security Gate 3 TOFA. Exhibit I05 contains photographs demonstrating BEH parking its own aircraft for fueling orits personal vehicles within the Security Gate 3 TOFA. Withrespect to the Security Gate 2 TOFA, Flight Level's fuel box was, and is, an attempt to help keep the object-free area clear offuel trucks and the aircraft being fueled.

BEH LAND CONSTRAINTS/AIRPORT COMMISSION CONCERNS 11 Lot F is approximately 30,000 square feet in size. On this leasehold, BEH chose to develop, with its hangar and fuel farm comprising approximately 21,875 square feet in size. Much ofthe remaining lot is constrainedbywetlands (to the south), and National Fire Protection Association ("NFPA") 407 fueling setbacks, bywhich all airport hangarkeepers must abide. BEH is additionally constrained bya culvert (to the west), and the Security Gate 3 TOFA (to the north). To the east, BEH's Lot F leasehold abuts Lot G. It should be noted that, when questioned previously about its fueling/land use plan, BEH asserted that it had operating rights to Lot G, which, it turns out, was not the case-FlightLevelhas asserted rights as the controlling sublessee ofLot G. See Exhibit 50. In short, while BEH was expanding its business interests, BEH did not in advance properly assess its own land constraints. Exhibit 51 is a June 17,2013 memorandum from the Norwood Airport Managerto the Airport Commission, expressing concerns about "the availability ofspace for BEH to establish and conduct fueling operations at, orbeyond, the [NFPA] aircraft fueling setbacks, while also remaining outside the gate 3 TOFA." Forreference, Exhibit 51a is the applicable NFPA 407 Standard for Aircraft Aviation Fuel Servicing (2007 Edition)-Section 5.10.2 recommends a minimum twenty-five (25) foot setback between aircraft fuel system vents orfuel tank openings

11 BEH's Exhibit 63 refers to the purchase ofland in the Runway 10 RPZ. This has been on the Airport Commission's capital improvementplan for some time. However, the masterplan itself is a planning document only.

849320v222

to any terminal building, hangar, servicebuilding, orenclosedpassenger concourse otherthan a loading walkway. Mr. Maguiremakes the following observation clearinhis June 17, 2013 memorandum: "[T]here's not enoughreal estate available to currently complywithboth standards," and he encouraged the NAC to consider applicable lease opportunities. See Exhibit 51. Also, as noted earlier in this same June 17, 2013 memorandum, the NAC's airport engineer, Mr. Adler, had approached FAA to consider a TOFA modification to standard-similarto what the NAC had pursued on the northeast quadrant ofthe north/southtaxi-lane 12 -whichmighthave given BEH the room needed to fuel aircraft but would nothave violated TOFA standards. See id. In this particular case, the FAA was reluctant to consider a modification to standardbecause it involved a fueling station, and the possibilityofitinerant aircraft, perhaps not familiar with obstructions adjacent to the non-standard Security Gate 3 TOFA, taxiing down that taxi-lane at night looking for fuel. See Exhibits 34, 51. Exhibit 52 is aJune 24, 2013 letter from the Norwood Airport Manager's office to Mr. Donovan, following the Airport Commission'sJune 2013 meeting during which the Airport Commission expressed concern regarding the still unresolved Gate 3 taxi-lane TOFA issue and BEH'sproposed fuel farm withinthe OFA. This June 24,2013 letter againreferenced the FAA'sresponse, which had been shared with Mr. Donovan in December2012, that current FAA policydoes not allow new obstructions to beplaced within any OFA areas regardless ofexisting obstructions. See Exhibit 52. To help resolve this issue, the Norwood Airport Manager coordinated ameetingthat was held onJune 27, 2013, withrepresentatives from the FAA New England Region (Lisa Lesperance and CliffVacirca), MassDOT (Aeronautics Division Administrator Christopher Willenborg and Drew Mihaly), the Norwood Fire Department, the Airport Commission, Norwood Airport engineerJeffreyAdler, BEH, and BEH'slawyers. Seeid. As noted inthe final paragraph ofthat June 24,2013 letter, given the closeproximityofBEH'sproposed fuel farm to the Security Gate 3 taxi-lane, the Airport Commissionwanted to ensure that aircraft fueling and fuel delivery operations-pendinga satisfactoryreview bythe FAA-wouldnot impede orobstruct the public way, orviolate federal standards. The NAC therefore asked for BEH's fueling plan. Norwood Airport management alreadyhad on file FlightLevel's fueling plan. In fact, Norwood Airport managementhas worked for manyyears supervising FlightLevel's fueling operation through monthly inspections, spill preventiontraining, and oversight.

12 In BEH's Part 16 Complaint, BEH apparently argues for access to the apron adjacent to its hangar for parking and fueling aircraft. BEH additionallyindicates that a similartaxi-lane near FlightLevel'shangar was eliminated at FlightLevel's request. Neither ofthese allegations is accurate. Therequest to the FAA actually came from the NAC, in response to concerns from BEH and otherhelicopter operators on the Airport's north quadrant, requesting more space. The NAC made this request, which the FAA ultimately supported, in orderto convert that portion of the north/south taxi-lane to apron, thus allowing for the construction offour (4) he1i-pads without OFA concerns-again, an accommodation made for thebenefit ofBEH.

849320v223

Exhibit 53 is a July 12, 2013 memorandum from the Norwood Airport Manager's office to Mr. Donovan, notifying him ofan upcoming NAC meeting and reiterating the need for BEH to submit a fueling plan. The Airport Managerindicated that the Airport Commission still needed to know at that point in time, perthe BEH fueling plan, about BEH's fuel loading/unloadingprocedures, proposed fueling location(s), etc., noting that some ofthese issues were discussed at the on-site June 27, 2013 meetingthat was attendedby, among others, the FAA's Lisa Lesperance ("Ms. Lesperance"). See Exhibit 53 at 2. Itwas at this June 27,2013 meeting that Mr. Donovan agreed to perform fuel loading/dispensingprocedures outside the Security Gate 3 taxi-lane OFA. Moreover, the Airport Managernoted that BEH should provide reasonable specificityin its fueling plan to address the Airport Commission's concern that BEH fueling would be conducted in a manner consistent withregulations, standards and best management practices, with minimal impact to otherAirport tenants and users. See id. Airport management also sought to clarify BEH'sinterest in commercial fueling, as opposed to self-fueling, along with a proposed start date for commercial fueling operations, pending approval bythe Airport Commission and NFD. See id. Airport management also requested that BEH provide a statement indicatinghow much apron space BEH would be seeking, ifany, under a land lease with the NAC, ifBEH intended to operate a commercial fueling business. See id. Exhibit 54 contains a copy oftheJuly 17,2013 email from Ms. Lesperance to the Airport Manager, reiterating what BEH had agreed to at the June 27, 2013 on-sitemeeting, namely: [BEH f]uel trucks will park outside ofthe OFA (alongthe hangar side, somewhat between the 2 hangars)

.... Given this information, it is FAA's understanding that no trucks or aircraft will be in the OFA, therefore the [FAA] determination was a 'noobjection' to this activity. See Exhibit 54. In observance offederal TOFA and NFPA fueling set-backs, BEH'splan was to load/dispense fueljust east ofBEH's hangar, while remaining on BEH's subleaseproperty (Lot F). Exhibit 54ais a copy ofthe BEH fuel truck loading/unloading schematicprovided byMr. Donovan. However, Mr. Donovan furthermore contended that BEH had certainrights to fuel on an abutting and separate leasehold (Lot G). The use ofabutting Lot G was part ofthe discussion at the Airport Commission's July 17, 2013 meeting. See Exhibit 55a. As it turns out, BEH's fuel plan shows aircraft tie-down spots marked east ofBEH's facility, which is a misrepresentation ofa now-disputedproperty. Exhibit 55 is a copy ofthe Norwood Airport Manager's July 19, 2013 letter to BEH. This letterreiterates actions taken at the July 17, 2013 Airport Commissionmeeting, specifically that with Mr. Donovan and BEH's attorney, Attorney Fox, present at the meeting, Mr. Donovan:

849320v2agreed to an aircraft fueling restriction east ofits leasehold since this involves abutting leaseholds [i.e., Lot G]; and this restriction will remain in place untilsuch time that BEH can demonstrate to the Airport Commission that the property rights ofothers will not be violated. 24

See Exhibit 55. Based upon BEH'spresentation at that July 17, 2013 meeting, the Airport Commission approved the continuation ofBEH's hangar construction and fuel farm installation. See id. at 1. However, the Airport Commission noted that BEH still needed to submit additional documents and plans, which BEH had agreed to provide. See id. at 1-2. Exhibit 56 contains a letter from BEH's counsel, Attorney Fox, attempting to raise a dispute concerning the use ofthewesterly portion ofLot G for BEH'sbusiness operations. In contrast to BEH's position is a letter from FlightLevel's General Counsel, Nicholas Burlingham, disputing BEH'sright to use this portion ofLot G. See Exhibit 50. In short, and based upon the underlying real estate instruments, FlightLevel argued that with respect to its propertyrights on Lot G, which abuts BEH's Lot F, "BEH has no legal right to use the westerlyportion ofLot G" in connection with BEH's operation on Lot F. See id. Despite apparent attempts byBEH and FlightLevel to bring the Airport Commission into the Lot G dispute, the Airport Commissionhas declined to do so, because this is a private partydispute. See, e.g. Exhibit 57. The Airport Commission is aware that there is a lawsuit between BEH and FlightLevel concerning Lot G, which is pending in Norfolk Superior Court.

AIRPORT COMMISSION LEASE OFFERS

**~'**

**~~~·-** ---------·---- ..

**~~**..·--------- In light ofthe propertyrights now being contested byboth BEH and FlightLevel, to provide BEH with some remedy, at its February 12, 2014 meeting, the NAC voted in executive session to authorize the Norwood Airport Managerto send a letterto BEH that "the Norwood Airport Commission is willing to offer space on the west apron for fueling, provided BEH is able to secure the properpermits." See Exhibit 57. This condition included a successful final inspection ofBEH's fuel farm bythe Norwood Fire Department, an inspection which BEH has yet to schedule. Also, at this February 12, 2014 meeting, the NAC "noted that BEH still needs to deliver a businessplan." See id. Five (5) days before the NAC lease offer, at the NAC's March 12, 2014 meeting, BEH's counsel, Attorney Fox, requested all orpart ofthe West Apron. See Exhibit 58. However, the NAC's lease offer was thus consistent with BEH's request, particularly in light ofthe fact that BEH has not commenced operations as a full service FBO and therefore has not demonstrated a need for the entire West Apron. Indeed, as noted herein and as discussed below, BEH is seeking to utilize one ofthe few remaining available parcels at the land-restricted Airport, even as anotherpotential competitor-not FlightLevel-has similarlydemonstrated an interest. On March 17, 2014, the NAC offered such a lease to BEH, with square footage actually exceeding the area BEH asserted it had available on FlightLevel's Lot G (priorto FlightLevel's challenge to the attempted use ofLot G by BEH). See Exhibit 59. This lease offer encompassed approximately 6,889 square feet on the northeast comer ofthe Norwood Airport's West Apron. See id.

--

X49320v225

At the NAC's April 9, 2014 meeting, BEH refused the West Apron lease offer-contrary to BEH's assertion, this offer was not withdrawn bythe Airport Commission. See Exhibit 60. BEH stated instead it wanted the entire West Apron, even though BEH had notprovided a business plan (which the NAC had requested). Seeid. NAC Commissioner Kevin Shaughnessy offered BEH sound advice to accept the present offer and, ifthings worked out and BEH needed additional area, explained that the NAC would consider offeringmore area to BEH. However, BEH declined that offer and reiterated its desire for the entire West Apron. The NAC was reluctant to lease the entire West Apron for a number ofreasons, which included: 1. BEH had not demonstrated to the Airport Commission enoughbusiness to warrant leasing out the entire West Apron to BEH; 2. BEH had yet to submit a business plan, and when thatbusiness plan was submitted, the Airport Commission informed BEH that it would explore the possibilityofallocating more space onthe Airport; 3. The NAC's March 2014 lease offer actuallyincludedmore square footage than BEH had claimed it had fueling rights to on Lot G; and 4. Notwithstanding viable BEH business growthprojections and an identified need, leasing the entire West Apron to BEH would have required the NAC to terminate approximately seventeen (17) existing leases between the Airport Commission and individual aircraft owners. The Airport Commission, however, did take BEH's leaserequest under consideration. See id. Moreover, the Airport Commission explained to BEH that it would weigh this option once it had time to evaluate an updated BEH business plan and financials, which the Airport Commission and Airport Management had been requesting for several months. Seeid. In Advisory Circular 150/5190-7, the FAA highlyrecommends that airport sponsors adopt minimum standards for commercial aeronautical activities. These standards "ensure a safe, efficient and adequate level ofoperation and services is offered to the public." Advisory Circular 150/5190-7 § 1.1. An airport sponsoris entitled to deference in applying its minimum standards. See Boca Airport, Inc. v. Boca Raton Airport Authority, FAA Docket No. 16-00-10, Final Decision and Order (Mar. 20, 2003). Here, the Norwood Airport Minimum Standards specifically and expresslyrequire an applicant to submit a business plan. See Exhibit 36. In applying these Norwood Airport Minimum Standards, the NAC has repeatedlyrequested that BEH provide detailed financial records and a detailed business plan, both ofwhich BEH had failed to provide for some time. When BEH finally attempted to provide financial information on April 8, 2014, it did so via email, in a cursorymanner, identifyingthree (3) numerical line items for aircraft, equipment

849320v226

and supplies, and hangar, and a total for these assets, and statingthat there were zero liabilities. See Exhibit 61. However, BEH's financial information from this April 8, 2014 email conflicted with BEH'sjustificationto the Airport Commission three (3) years earlier, in 2011-which involved the Airport Commission's subsequent support ofBEH, to the FAA-that BEH needed a thirty-nine (39) year sublease term on Lot F. Such financial information was used in response to the concerns that had been raised bythe FAA at that time aboutjustifying a long-term lease. See Exhibit 24. In that regard, as noted above, in 2011 BEH provided correspondence from its accountant to address such concerns, thereby suggesting the need to amortize construction costs over thirty-nine (39) years, as well as an amortization schedule based on financing. See Exhibit 25. Thus, the April 8, 2014 financial information from BEH contradicted entirelythe argument that BEH communicated to both the NAC and to the FAA three years prior, which the NAC itselfhad supported in its own communications to the FAA. See Exhibit 28. To assist Mr. Donovan in understanding what specificallythe Airport Commission was looking for regarding BEH'sbusiness plan and financial information, on April30, 2014, the Airport Manager sent Mr. Donovan an email detailing the Airport Commission's request for information. See Exhibit 62. 13 The Airport Manager specificallyrequested, at a minimum, that BEH provide: (1) abalance sheet from BEH'smostrecent quarter, to include BEH's detailed assets, liabilities, and net worth; (2) an income statement that includes all BEH income and expense accounts for the priortwo (2) years; and (3) a cash flow analysis. 14 See id. At the May 14, 2014 NAC meeting, BEH reconsidered its position onthe West Apron lease offer, stating that it would now accept the 6,889 square foot ofWest Apron space offered bythe NAC back in March 2014. See Exhibit 64. However, because BEH had unequivocally turned down the WestApron lease offer at the April 9, 2014 NAC meeting, there was no lease offer for BEH to accept. See id. Since BEH'srejection ofthe lease offer, another Norwood Airportbusiness, BAC, came forward to express an interest in the West Apron. See Exhibit 63. Notably, the expression of interest from BAC was dated April 9, 2014, and coincided with the date oftheAirport Commission meeting at which BEH refused the West Apron offer. Seeid. Significantly, BAC

13 The Airport Commission's request for detailed financial information and aproperbusiness plan is consistent with the recognitionbythe FAA that "[c]ertainly, the airport sponsorhas discretion in what sort offinancial information it deems necessaryto review. In addition, airport sponsors customarilyrequire business plans and audited financial statements when considering FBO applicants." James Vernon Ricks, Jr. v. Millington Municipal Airport Authority, FAA Docket No. 16-98-19, Director's Determination (July 1, 1999) (emphasis added). 14 At the May 14, 2014 NAC meeting, BEH, through Attorney Fox, objected to providing financial information on thebasis that it was "personal and proprietary and not consideredpublic record

...." See Exhibit 64. AttorneyFox indicated that there was a balance sheet, butthis would not include an income statement. See id. However, the Airport Commission is subject to the Massachusetts Public Records Law, Massachusetts General Laws Chapter 66, Section 10, and its exemptions, which are contained in Massachusetts General Laws Chapter4, Section 7(26). These exemptions are restrictively and stringently interpreted. See Attorney General v. Assistant Commission ofthe Real Property Department ofBoston, 380 Mass. 623, 625 (1980).

849320v227 expresslyrepresented that, like BEH, it "remains interested in receiving any [requests for proposals] for the addition ofa second FBO at the Norwood Airport" and "has demonstrated interest in the past and anticipates the Norwood Airport Commission will issue a RFP in the same manner in which the DC-3 Ramp was leased." See id. BAC was the complainant in FAA Docket Number 16-07-03, which resulted in a Corrective Action Plan. BEH's outstanding lease issue was considered in executive session at the Airport Commission's May 14, 2014 meeting. See Exhibit 64. Duringthat executive session, in consideration ofa competing interest from BAC regarding the West Apron, the NAC voted to withhold making a decision to reoffer a lease to BEH (6,889 square feet ofWest Apron space) until a scoping plan and comprehensive masterplan for the development ofthe West Apron was completed and reviewed bythe NAC. See id. The NAC subsequentlytasked its engineer, DuBois & King, to prepare a scoping fee for a West Apron feasibility study, to research the land'sbest use, as well as a comprehensive master plan for the development ofthe West Apron and DC-3 Apron. See id. This was a paramount concern to the Airport Commission given the limited available space at Norwood Airport, which must be used in a manner compliant with the NAC's obligations as an airport sponsorunderthe FAA Grant Assurances. Itwas expected that this work, as a precursorto a request for proposals ("RFP"), would make available for lease the West Apron and potentiallythe DC-3 Apron-to one (1) or several Norwood Airport tenants. With regard to its interest in an FBO permit, BEH was subsequently informed that the financial information and business plan were deemed insufficient and irrelevant bythe Airport Commission. A revised business plan was finally submitted onThursday, July 3, 2014, subsequent to the filing ofBEH's Part 13 Complaint. See Exhibit 65. Upon receipt, BEH's revised business plan was circulated to all NAC Commissioners for review. The NAC sought to receive meaningful financial information from BEH for sometime. This revised financial information, along with the revised business plan, were needed to intelligently assess----consistent with the Norwood Airport Minimum Standards:

• BEH's financial health; • BEH'srecord ofperformance; and • BEH'sbusiness growth projections See Exhibit 36. To date, as explained herein, the NAC still has not received such meaningful financial information from BEH. OnJuly 10,2014, the Airport Commission filed its response to BEH's Part 13 Complaint. At this point in time, the Airport Commission continued to table BEH's FBO and lease interests pending the outcome ofBEH's Part 13 Complaint. The Airport Commission did not want to make a decision that might contradict final disposition ofBEH's Part 13 Complaint. While awaitingthe outcome, the Airport Commission continued to receive briefings from BEH onthe progress ofits facility and fuel farm. These updates were heard at the Airport Commission's monthlymeetings. The Airport Commission also continued to provisionally approve the extension ofBEH's FY 2014 permit to operate and provide previously approved commercial services (e.g., Part 135 operations).

849320v2

### 28

The decision bythe Airport Commission to table BEH's FBO and lease interests was consistent with FAA guidance. As the FAA has recognized, a complainant has a "rightto pursue complaints and protect theirinterest (however) it is the Respondent's right to protect itselffrom the possibilityoffuture costly and frivolous litigation." See Kent J. Ashton and Jacquelin R. Ashton v. CityofConcord, FAA Docket No. 16-02-01, Director's Determination (August 22, 2003), Final Agency Decision (February 27, 2004) (emphasis added). Additionally, an airport sponsor is "notobligated to expose itselfto future lawsuits byentering into a business agreement with" a complainant, and may consider an applicant's history ofFAA complaints and threats of future litigation. See id. Concurrent with the Airport Commission's spring and summer2014 meetings, it was evident, based on BEH's ownrepresentations, that the facility and fuel farm were not completed. As noted earlier in Exhibits 37 to 39, during the period from May 14, 2014 through July 30, 2014, Mr. Donovan reported the following: first, Mr. Donovan estimated that BEH's fuel tanks wouldbe finished byJune 1, 2014; at the July 30, 2014 meeting, Mr. Donovan stated that the fuel tanks were complete and waiting for final piping and approval from the NFD; and Mr. Donovan also reported that final inspections were expected to be completed byAugust 9, 2014. To date, the required final inspection byNFD, ofBEH's fuel farm, nevertook place. In November4, 2014, BEH withdrew its complaint without prejudice. See Exhibit 66. BEH did so unilaterally and on its own volition. On November 25, 2014, the Airport Commission entered into executive session to discuss a new lease offer with BEH. Unfortunately, as noted in the minutes ofthe December 18, 2014 Board ofSelectmen'smeeting, the Airport Commission unexpectedlyhad to adjourn the November 25, 2014 meeting early, after a newly appointed Airport Commissioner, Oulton Hues, Jr. ("Mr. Hues")-who had a business relationship with BEH-began screaming at me (as I was serving as ActingChairman ofthe Airport Commission), and using vulgar language in front of everyone in attendance, includingthe Airport Commission's recording secretary, Deborah Reddick ("Ms. Reddick"). See Exhibit 67. At onepoint, Ms. Reddick stood up and leaned overto ask Mr. Hues not to use such language in front ofher. As she tried to get Mr. Hues' attention, Ms. Reddick touched Mr. Hues on the shoulder. Mr. Hues did not dispute the November 25, 2014 incident. Seeid. Mr. Hues later attempted to file assault charges against Ms. Reddick-similarto the assault charges hehad also filed against former NAC Chairman Thomas Wynne-before finally beingremoved as an Airport Commissionerbythe Board ofSelectmen in December 2014. See id. In December2014, the Airport Commission was unable to meet due to the holidays and the unavailabilityofits members. In January 14, 2015, the Airport Commission convened and, in executive session, approved a lease offerto BEH for a portion ofthe West Apron. See Exhibit 101. Laterthat afternoon, BEH was notified ofthe NAC vote byemail. Following a draft and review process for preparing a draft lease and accompanyingplan ofthelease area, at its February 11, 2015 meeting, the Airport Commission voted to

849320v2conditionallyoffer BEH a lease for a portion ofthe West Apron (so-called Parcel A). See Exhibit 68. On February 12, 2015, the Airport Commission-through Norwood Town Counsel-formallyoffered BEH a lease parcel on the West Apron, this time for nearly double the amount ofland previouslyoffered in 2014: 11,786 square feet. See id. 29

However, this February 12, 2015leaseofferwas contingent on BEH providing specific financial information consistent with its stated intention ofoperating a commercial FBO business (contained in Tab B to the February 12, 2015letter). See id. The Airport Commission felt BEH had yet to provide detailed financial information, despitepriorrequests for such information, and therefore identified the information sought in Tab B. See id. While BEH apparently contests the information in Tab B to the February 12, 2015 lease offer, it is not necessary for specific required financial information to be spelled out in detail in an airport sponsor's minimum standards. SeeJames Vernon Ricks, Jr. v. Millington Municipal Airport Authority, FAA Docket No. 16-98-19, Director's Determination (July 1, 1999). Thus, in Ricks, the Director's Determination rejected the complainant's argumentthat the minimum standards did not specificallymandate the submission ofa business plan and audited financial statement, because the minimum standards required that an "applicantbe 'financiallyresponsible and able to providethe facilities and services proposed."' See id. Indeed, in Ricks, the FAA recognized that an airport sponsor "has discretion to define what types ofinformation need to be submitted. The actual types offinancial information need notbe actually stated in the standards, although it wouldbehelpful ifthey were to be included." Id. (emphasis added). Similarly, here, the Airport Commission sought detailed financial information from BEH consistent with the Norwood Airport Minimum Standards: "Forthe safe and efficient operation ofNorwood Memorial Airport, its minimum standards are intended to promote fair competition and to ensure that those who provide approved services are not exposed to unfairorirresponsible competition. Forthe public interest, the application ofminimum standards also discourages substandard, would-be enterprises from operating on the Airport -therebyprotecting established aeronautical activities and the Airport patrons." See Exhibit 36 at I. The information sought in Tab B to the February 12, 2015 lease offeris therefore tethered to the Norwood Airport Minimum Standards. TheAirport Commissionhas a "rightto protect itselffrom financial and/or litigation risk." See Flightline Aviation, Inc. v. CityofShreveport, FAA Docket No. 16-07-05, Director's Determination (Mar. 7, 2008) ("simply a way ofprotecting [the airport sponsor] and the aeronautical community operating onthe Airport from financial risk"). In fact, the FAAhas recognized that a new entrant maynotbe similarto such an established business and therefore maybe required to provide additional information underthe applicable minimum standards. See id. This FAA guidance is highlyrelevant to the Airport Commission's evaluation of

### BEHs requests. The information soughtbythe Airport Commission-in connection with a proposed lease ofone ofthe few remaining availableparcels on the Airport-was consistent with protectingthe Airport Commission and the public with the attendant financial risks from a new proposed full-scale FBO byBEH, which had not demonstrated a proven trackrecord of experience with an operation ofsuch a nature.

849320v230

When the Airport Commission previouslyreceived financial information from BEH, it was deemed to be insufficient and/or not what the Airport Commissionhad been requesting for manymonths, through both public meetings and emails. The Airport Commission provided BEH with thirty (30) days from acceptingthe lease officerto provide the detailed financial information, and further conditioned the leased offerupon approval bythe NAC. See id. On March 11,2015, BEH filed its Part 16 Complaint with FAA in the above-referenced matter. As required in the February 12, 2015 lease offer, BEH had until March 27, 2015 to provide the Airport Commission with the required detailed financial information (i.e., thirty (30) days from accepting the lease offer). At the Airport Commission's April 15,2015 meeting-well pastthe submittal deadline set forth in the February 12, 2015 lease offer-the Airport Commission voted to extend the lease offer to BEH until the May 2015 Airport Commission meeting. BEH agreed to submit the financial informationrequiredbythe Airport Commission in executive session-BEHhad yet to submit such information, however. In its Part 16 Complaint, BEH complains about the lease term for the portion ofthe West Apron offered to it. Yet, BEH was offered the same lease term offive (5) years that Papa Whisky1, LLC was offered for the DC-3 Apron 15

, and which FlightLevel was offered for Lots A,B,C. BEH made no capital investment onthe West Apron that mighthave warranted a longer lease term. The information soughtbythe Airport Commission is consistent with prior information requests for prospective FBOs at Norwood Airport. To that end, in 1988, through the Town of Norwood's then-airport management company, BMA, the Airport Commission solicited for a second FBO through an RFP. Atthat time, the Airport Commissionrequired all FBO applicants to submit financial information similarto what BEH is now beingrequired to submit. Exhibit 69 is the March 15, 1988 coverletter and RFP submittal to BMA President Howard E. Pendergast from Eastern AirCharter, Inc. ("Eastern AirCharter") Vice President, Allen L. Bishop ("Mr. Bishop"). Aside from thepro forma financial documents, in Appendix F ofproposal, the cover sheet notes that two (2) documents were submitted: (1) a balance sheet; and (2) a statement ofincome and retained earnings. See Exhibit 69. Eastern Air Charter also submitted a marketingprogram, financing/capital plan, and growthplan. See id. Six (6) years later, in a July 12, 1994 letterto then-Airport Commission Chairman, Lawrence Egan, Mr. Bishop voiced his concern that another airport business was being considered for an FBO permit without meetingthe same servicerequirements that Eastern Air Charterhad met perthe earlier RFP process. See Exhibit 70. Ofparticular note in that letteris paragraph 2, in which Bishop stated:

15 BEH's Exhibit 5 states that Mr. Eichleay is the lessee for the DC-3 Apron. This is incorrect. Papa Whisky1, LLC is the lessee for the DC-3 Apron. Similarly, BEH's Exhibit 96 is an aerial photo showing "Based Apron 2C," with FlightLevel as the lessee; again, this DC-3 Apron is leased to PapaWhisky1, LLC.

849320v2EAC responded to the RFP for a second FBO and was awarded it. Many criteria had to bemet with respect to the services we wererequired to provide and, in addition, full financial disclosure representing our ability to perform as an FBO. Itwouldbe discriminatorytojust 'give away' services through the (commercial) permitprocess without some kind ofqualifying at least equal to the RFP process through which EAC had to compete. See id. (emphasis added). Exhibit 71 is a July 28, 1994 letter from AttorneyJohn Updegraph ("Attorney Updegraph"), representing Eastern Air Center, ofwhich Eastern AirCharter was a division. (Eastern Air Center and Eastern Air Charter are referred to as "EAC"). In his letter, Attorney Updegraph reiterates Mr. Bishop's assertion that, perthe RFP process-whichhad a stated purpose offinding a "competent, qualified, and financially stable FBO for the Norwood Airport-EasternAir Charter was required to submit financial information, including a balance sheet (along with an operatingplan, three (3) yearbusiness plan, and growth plan, among other submittals). See Exhibit 71. Attorney Updegraph also observed that the applicant evaluation criteria included experience with similarbusiness enterprises, overall business strength, and quality ofthebusiness plan. See id. Exhibit 72 is yet another FBO submittal, from Kertzman's ofQuincy, Inc. 31

("Kertzman's"), also showingthe inclusion offinancial informationperthe 1988 RFP. Interestingly, Kertzman's RFP stated that "[i]n anybusiness venture, it is wiser to begin slowly with the things that you have and then expand as revenues are generated. Theperson who begins on a large scale bybuilding and incurringhigh costs is doomed to failure." See Exhibit 72. Kertzman's included a growth plan, three (3) year plan, a statement ofproposed income and costs, and a recent financial statement. Id. Finally, more recently, in 1999, the Airport Commissionrequired updated financial information from Eastern AirCenterowners Sid Fagelman and Anthony Prevett. See Exhibit 73). Such information was provided bythese individuals. See id. In effect, the requirement to provide financial information was established on orbefore 1988 bythe Airport Commission, when a formal RFP was issued for a second FBO at Norwood Airport. This contradicts BEH's claims ofeconomic discrimination and exclusiverights. See James Vernon Ricks, Jr. v. Millington Municipal Airport Authority, FAA Docket No. 16-98-19, Director's Determination (July 1, 1999) ("What matters here is that each applicant was required to provide similar information and that the type ofinformation required was reasonable."); see also Alca, the Cylinder Shop/Wayman Aviation, Suncoast Aviation, and National Aviation, v. Miami-Dade County, Florida, FAA Docket No. 16-08-05, Director's Determination (Aug. 31, 2010) (recognizingthatbusinesses that failed to submit sufficient businesses plans, financial documentation and/or financial statements had not "demonstrate[d] they were capable ofmaking the long term investments in the development ofairport propertythat wouldjustifylower lease rates and long term leases to amortize such investments" and were not similarto other such tenants in that regard).

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Moreover, BEH's allegations must beplaced in context. The Airport Commission is receptive to a second FBO at the Airport-as evidenced bythe Airport Commission accommodating BEH'srequests to beplaced on meeting agendas and receiving periodic updates from BEH ofitsprogress at its monthlymeetings. However, BEH, as noted above, drastically expanded its stated intentions to the Airport Commission from when it first arrived in 2010, as BEH first held itselfout as a helicopter-on-demand charteroperation, then expressed its sole interest in wanting to self-fuel its own aircraft, followed bydevelopingthe property on Lot F, while broadeningits commercial interests-from Part 135 and flight training-to a full-service FBO business with commercial fuel servicing. The Airport Commission neverissued an RFP for a second FBO at the Airport, yet it accommodated BEH and its stated intentions to become such a second FBO. This is the case even as at least one (1) otherestablished Airportbusiness, BAC, expressed its interest in becoming an FBO as recently as 2014. The Airport Commission neverhad an opportunityto put together and solicit an RFP for a second FBO-though, as stated above, it is not adverse to such a scenano. In now evaluating BEH's financial information, theAirport Commissionis furthermore using some discretion and due diligence because ofBEH'spast actions. These were detailed on pages 4 and 5 oftheAirport Commission'sJuly 10,2014response to the FAA New England Region, regarding BEH's since-withdrawn Part 13 Complaint, as excerptedbelow: Afterthe (Swift) hangar collapse, Mr. Donovan began negotiations with BMA, as he expressed an interest in having his company assumethe sublease interest for Lot F. BEHand BMA crafted an Assignment, Assumption and Amendment of Lot F, seeking the approval ofthe Airport Commission. However, page 2 ofthe Town ofNorwood!BMA Master Lease states: "The subleases ofsaid parcel orportions thereofshall bereviewed prior to the executionbythe Massachusetts Aeronautics Commission [now MassDOT] and the Federal Aviation Administration, orthe successor agencies, and approved, in writing, bythe Norwood Airport Commission

..." As required in this Master Lease, the NAC directed BEHto send its draft document to both FAA and MassDOT for review. In the process ofreviewing the BMAIBEHsub-lease, FAA began to question the length ofthe lease term. The Airport Commission was especially sensitive to this concern, given the federal grant assurance violations cited bythe FAA in 2008, as a result ofthe original eighty (80) year Master Lease entered into in 1967 between the Town of Norwood and BMA. Accordingly, the Airport Commission tried to mediate a solution that was satisfactoryto FAA, while being supportive ofBEH. To that end, the NAC requested that BEHobtain an amortization schedule, tojustifythe long-term

849320v2sublease it sought. In response, 

### BEHprovided correspondence from its accountant, suggestingthe need to amortize construction costs overthirty-nine (39) years, as well as an amortization schedulebased on financing. The Norwood Airport Manager separately sent a February 12,2013 to the FAA, attention Barry Hammer, P.E., Compliance Officer, to expressly support 

### BElfs requested long-term sublease ofLot F, including comparable long-term leases at otherairports. This February 12, 2013 letter made reference to the FAA Compliance Manual, which states: "Most tenant ground leases of30 to 35 years are sufficient to retire a tenant's initial financing and provide a reasonable return for thetenant's development ofmajor facilities." (Emphasis added). Interestingly, as noted below with respect to BEH's subsequent attempt to provide a business plan, afterthe Assignment, Assumption and Amendment ofLease for Lot F was executed, BEH changed its position and no longer needed financing for construction, which was the apparentjustification for the long-term sublease at the outset. 33

See Exhibit 96 at 5-6 (footnote and attachmentreferences omitted; emphasis added). 16 To the extent not otherwise discussed herein, the Respondents incorporate intheir entiretythe facts and legal arguments inresponse to BEH's withdrawn Part 13 Complaint. See generally Exhibit 96. The Airport Commission also feels that BEH has an unproven track record in the management and operation ofan FBO, and this is quite different from FlightLevel's experience. In 2007, when FlightLevel first approached the Airport Commission, FlightLevel was interested in acquiring an established FBO: Eastern AirCenter. FlightLevel in tumprovided a business plan and financial information, which the Airport Commission at that time deemed satisfactory. The Airport Commission previously considered the fact that FlightLevel (unlike BEH) was planningto retain much ofEastern AirCenter's seasoned management. Thus, through its acquisition, FlightLevel would havethe continuity ofproven senior level FBO managers, including FlightLevel's incoming General Manager, Mr. Carroll, who was a longtime FBO manager at the Norwood Airport with both Wiggins Airways and Eastern Air Center. Both of these FBOs-WigginsAirways and Eastern Air Center-were successful here at the Norwood Airport. Additionally, in comingto the Norwood Airport, FlightLevel'smanagement group alreadyhad years ofdirect and diversified aviation management experience elsewhere: in FBOs, air charters, corporate aviation, airport development and management, and airline management. This experience, coupled with FlightLevel's financial assets and projections, satisfied the Airport Commission, and the Airport Commission was confident ofFlightLevel's ability to professionally serve the aviation public.

16 It should be noted that on the Town ofNorwood/BMA long-term leasehold, a similarlease term extension was soughtby FlightLevel. However, the Airport Commission directed FlightLevel to pursue the same course ofaction: an FAA/MassDOT sub-leasereview.

849320v2

### OTHER LAND LEASE OPPORTUNITIES In its Part 16 Complaint, BEH makes accusations ofa monopolyon the Norwood Airport. These accusations similarlylack anymerit whatsoever. To date, even though FlightLevel is the only commerciallypermitted FBO onthe Norwood Airport, the Airport Commissionhas issued ten (10) business permits, with services ranging from Part 135 operations, to flight schools, to aircraft detailing and aerial photography. 17 34

"Thefact that a single business orenterprise mayprovide most or all ofthe on-airport aeronautical services is not, in itself, evidence ofan exclusive rights violation." See FAA Advisory Circular 150/5190-6 at 2 (January4, 2007); FAA Airport Compliance Manual Order 5190.68 at 8.6, 8.9.b (September 30, 2009). "Whatis an exclusive rights violation is the denial bythe airport sponsorto afford otherqualified parties an opportunityto be an on-airport aeronautical service provider." FAA Advisory Circular 150/5190-6 at 2 (January4, 2007) (emphasis added); FAA Airport Compliance Manual Order 5190.68 at 8.9.b (September 30, 2009). Exhibit 74 is a spreadsheet showing the Norwood Airport's five (5) land lease lots, and the dates when these leases took effect. Four (4) ofthe leases (Lots W,X,Y; Lot 6; Lot 7; and Lots A,B,C) were entered into between the NAC and FlightLevel. All four (4) ofthese FlightLevelleases were alreadyin effect and thus pre-dated the commencement ofBEH's commercial operation on the Norwood Airport in 2010. The fifth lease lot is under agreement to PapaWhiskyl, LLC-notFlightLevel-forthe DC-3 Apron. This is a short-term lease that was executed bythe NAC in 2013 and will remain in effect until2018. In 2014, a new five (5) year lease was executed bythe NAC and FlightLevel for Lots A,B,C following a writtenrequest for a new lease byFlightLevel on January 22, 2014, accompaniedbyajustification. See Exhibit 75. TheNAC was not required to issue an RFP for Lots A,B,C. This was not a renewal-itwas a new lease. Lots A,B,C are located on the south quadrant ofthe Airport, adjacent to FlightLevel's terminal and transientparking apron-not on the north quadrant where BEH is situated. As Exhibit 75 makes clear, FlightLevel supported the requested extensionthrough specific identified projects, with related significant investment in the Airport and as part ofa long-term commitment for capital upgrades. This lease best supported FlightLevel's business and, based onthe Airport Commission's experience with FlightLevel during the preceding five (5) years, FlightLevel hadbeen a responsible lessee for these lots. Ironically, subsequent to therequest ofMr. Donovan in 2010 (see Exhibit 15), the Airport Commissionpublicly advertised the availability ofthe DC-3 Apron for lease (see Exhibit 76) along with a published addendum adding clarification to the advertisement (see Exhibit 77)-to encourage competition. The DC-3 Apron is locatedjustwest ofRunway 17/35 and the asphalt surface and sub-surface were reconstructed in 2005. See Exhibit 76. TheDC-Apron includes four (4) aircraft tie-down spaces. See id. TheJanuary 3, 2006 DC-Apron as-built

17 In FY 2015 the commerciallypermittedbusinesses are: FlightLevel; BEH; BAC; Aerial Productions; Blue Hill Helicopters; Elite Aero Services; Horizon Aviation; East Coast Aero Club; Norwood Air Multi-Engine Training; and Kestrel Aviation.

849320v2drawings submitted to the Airport Commission, the FAA, and MassDOT expresslydesignated the DC-3 Apron as being used for an aircraft parking apron only. See Exhibit 78. 35

Priorto issuing the RFP for the DC-3 Apron, the Airport Commission determined that the most appropriate use was aircraftparking and aircraft ground handling only. Therelatively limited size ofthe DC-3 Apron was viewed as restricting its utility as a site for a full-scale FBO given paramount safety and efficiencyconcerns, along with the overarching concerns for the future development oftheAirport property. See FAA Grant Assurance 22(i) (allowing an airport sponsorto prohibit orrestrict aeronautical use in the interests ofsafety and efficiency; see also Aerodynamics ofReading, Inc. v. Reading Regional Airport Authority, FAA Docket No. 16-00- 03, Director's Determination (Dec. 22, 2000); FAA Order 5190.6B

**~~** 8.8.a, 14.1, 14.3. The Airport Commission also acted consistent with the FAA'srecognition ofthe authority ofan airport sponsorto exercise its proprietaryrights and powers and to engage in local planning to grow and develop an airport. See Monaco Coach Corp. v. Eugene Airport and City ofEugene, FAA Docket No. 16-03-17, Director's Determination (July 27, 2004); James Vernon Ricks, Jr. v. Greenwood-Leflore Airport/Airport Board, City ofGreenwood, Leflore County, Mississippi, FAA Docket No. 16-09-04 (Director's Determination, Jan. 24, 2011); Henrihetta and LindsayTulloch v. CityofHarlingen, Texas, FAA Docket No. 16-05-07, Director's Determination (Aug. 21, 2006); Robert Kihlstrom v. Port ofOrcas, Washington State, FAA Docket No. 16-02-07, Director's Determination (Sept. 1, 2004). "A sponsor is notrequired to develop any and all parcels oflandin a manner consistent with the wishes ofany one party, but rather may exercise its proprietaryrights and powers to develop and administer the airport's land in a manner consistent with thepublic's interest." See Thermco Aviation, Inc. and A-26 Co. v. CountyofLos Angeles, Los Angeles Board ofAirport Commissioners, and Los Angeles World Airports, FAA Docket No. 16-06-07, Director's Determination (June 21, 2007). Thus, the Airport Commission used the DC-Apron procurement to address the anticipated loss ofaircraft tie-down spaces on the West Apron. See Exhibit 78. The Airport Commission also accounted for the priorloss ofaircraft tie-down spaces from thereconstruction ofthe north/south taxi-lane. See id. BEH argues that the DC-3 Apron had a "newprohibition" on commercial services use. Yet, when BAC previouslyused the DC-3 Apron, consistent with therestrictions underthe RFP when it issued in 2013, BAC similarlycould onlypark its aircraft onthe DC-3 Apron. This also was the samerestriction that PapaWhisky1, LLC, which received the lease, accepted. The RFP did not preclude a commercial business from operating offthe DC-3 Apron-in fact, BAC had operated its Part 135 charterbusiness there. Perthe RFP, the DC-3 Apron couldjust as well have been used by a corporate flight department or aviation business. BEH was included in the distribution sent bythe Town ofNorwood Purchasing Agent, Catherine A. Carney ("Ms. Carney"). While BEH was aware ofthe advertisement, BEH did not submit a response. Yet after the lease was awarded to PapaWhisky1, LLC, Mr. Donovan accused the Airport Commission ofdiscrimination, among otherallegations. Ironically, this was at the exact

849320v236

same time that the NAC and Airport Managerwere working directly with the FAA, in support of BEH's interest in a long-term sublease extension for Lot F (see Exhibits 28-30), and one (1) month after the FAA Divisions Manager ofthe Airports Division for the New England Region, Ms. Walsh, contacted the Airport Manager (see Exhibit 27) warningboth him and the Airport Commission about Mr. Donovan. Regarding BEH's allegations (including discrimination) relative to the DC-3 Apron advertising and award, in response, Norwood Town Counsel-withback-up support from the Ms. Carney--drafted a March 14,2013 letter signed bythe Airport Commission Chairman and sent to BEH refuting Mr. Donovan's accusations. See Exhibit 78. Mr. Donovan did not respond to that letter. In the interests ofefficiency, the contents ofthe March 14, 2013 letter are incorporated herein in their entirety and demonstrate that theprocurement ofthe lease for the DC-3 Apron was consistent with the FAA Grant Assurances. See id. Among other issues, the Airport Commissionreferenced its efforts to assist BEH in establishing a largerpresence at the Airport, including approving the Assignment, Assumption and Amendment ofSublease for Lot F, to enable BEH to be in a position to further compete with FlightLevel (contrary to any suggestion ofan exclusive right orunjust discrimination). See id. Additionally, in BEH's Part 16 Complaint, BEH argues that the NAC has ignored its request for a pedestrian gate adjacent to Security Gate 3, which is currentlyused for motor vehicles only. Mr. Donovan states that the Town has denied this request without giving a reason. This is not correct. To the contrary, Mr. Donovan has brought this issue beforethe NAC on several occasions. Onbehalfofthe NAC, the Airport Managerhas met with Mr. Donovan on site, at Lot F, along with me (when I was serving as NAC Vice Chairman). At those times, Mr. Donovan expressed his interest and reasons for wantingto have a pedestrian gate installed adjacent to SecurityGate 3. The NAC has in tum explained to Mr. Donovanthat, at present, the NAC sees no reason to install a pedestrian gatethere. Many years ago, at Security Gate 1on the Norwood Airport's south quadrant, a pedestrian gate was installed because that gate was/is located adjacent to the municipal parking lot, and is therefore an easy-and safe-walkfrom the gate to that lot. However, Security Gate 3, is onthe north quadrant and opens directly onto Access Road, where there are no sidewalks and no municipal parking lot within an easy, safe walking distance. Both the security fence and Security Gate 3 are on the Town's right-of-way. It should be noted that the Norwood Airport's Security Gate 2 also has no pedestrian gate; this, for the samereason. Further, for manyyears, the Norwood Airport was home to two (2) FBOs: Wiggins Airways and EAC. EAC was located in close proximityto where BEH is now sited, onthe Norwood Airport's north quadrant. In all ofthe time that Norwood Airport had two (2) FBOs1ocated generally north and south on ourfacility---only one (1) pedestrian gate was ever included in the Airport's access control system: the one currently in operation by Security Gate 1, onthe Norwood Airport's south quadrant, adjacent to the municipal lot. At its January 14, 2015 meeting, the Airport Commission discussed issuing an RFP for the remaining area ofthe West Apron (i.e., so-called Parcel B). See Exhibit 101. Duringthe discussion, the Airport Commission considered precluding FlightLevel orits principals from

849320v237 submitting a proposal, in an orderto encourage competition. See id. When this RFP is issued, BEH, alongwith any other interestedproposer, will have an opportunityto submit a response in orderto obtain a lease ofParcel B on the West Apron.

SURPLUS LAND In its Part 16 Complaint, BEH makes reference to an existingAirport Commissionlease ofsurplus land for non-aeronautical purposes, inferringthat this automobile storage land could have beenused byBEH for aeronautical purposes ("Surplus Land"). This Surplus Land, however, is not suitable for aviation use, and Airportmanagement previously engaged the FAA in this sublease. The Surplus Land is segregated from the Airport properby a gas line, perimeter security fencing, abutting private interests, and federally protected wetlands. See Exhibit 88. Currently, the Surplus Land is used to store Verizon vehicles; Verizon's building is not located on the Surplus Land oron the Runway Protection Zone (contraryto the assertion in BEH's Exhibits 58 and 71) and instead is situated on private land. 18 On March 8, 2012, the Airport Commissionrequested the release ofthe Surplus Land for compatible, non-aeronautical land use. See id. This requestreferenced a history datingbackto March 15, 2010, when the Airport Managerhad declared the Airport Commission's intent to file a release with the FAA and met with Airports Division Manager Laverne Reid oftheFAA New England Region back in 2010, at which time ongoing flooding had highlighted how removed the Surplus Land was from Norwood Airport's aeronautical use, "insidethe fence" property. Seeid. Exhibits 89 through 92 show the email communications from 2012 to 2014 between the FAA (i.e., Mr. Barry Hammer and Ms. Walsh) and the Airport Manager as the Airport sponsor attempted to mitigate confusion regarding this request, and seek an FAA decision onthe matter. On January 9, 2015, nearlythree (3) years after the Airport Commission, through the Airport Manager, had requested a release ofthe Surplus Land for non-aeronautical use, the FAA responded to the Airport Commission. See Exhibit 93. In its response, FAA stated:

See id.

-- Before agreeing to release this parcel ofland, the FAA expects the Town of Norwood to make every effort to develop this parcel ofaeronautical property for the benefit ofcivil aviation, to address the lack ofavailable aircraftramp space at Norwood Memorial Airport.

Four (4) months priorto this January9, 2015 letter, on August 5, 2014 the Norwood Airport underwent a comprehensive land-use compliance inspection bythe FAA New England

18 BEH's Exhibit 58 includes an area marked as "FormerAccess to Verizon Ramp," although this area was never used as such and this has been communicated to BEH onnumerous occasions. Moreover, regarding the lightpoles, the lessee for the Surplus Land, David Spiegel, filed the appropriate Form 7460 (Notification ofConstruction orAlteration) withboththe FAA and MassDOT, and both agencies conducted an airspace study.

849320v238 Region's Compliance Officer, Thomas Vick ("Mr. Vick"). Exhibit 94 is a copy ofthe resulting FAA inspectionreport (dated September 16, 2014), which makes no mention ofthe nonaeronautical use Surplus Land in question, even though, at the time ofthe inspection, Mr. Vick asked to view the Surplus Land, was subsequentlydriven onto the Surplus Land bythe Airport Manager, was shown how segregated the Surplus Land was from the Norwood Airport proper, and was notified about the environmental constraints and intervening, privatelyheld properties that precluded this Surplus Land from aeronautical development. As a result oftheFAA'sJanuary 9, 2015letter, the Airport Commissionhad its engineer, DuBois & King, as well as its environmental consulting firm, Epsilon and Associates, conduct an environmental study ofthe Surplus Land (being used as automobile storageproperty) to determine its suitability for aeronautical development. See Exhibit 95. OnApril 9, 2015, the Airport Manager sent the FAA a response to its January 9, 2015 letter, including a copyofthe study's findings. See id. In particular, in his April 9, 2015 letterto the FAA, the Airport Manager states that the development ofthe Surplus Land for additional (aeronautical use) ramp space is not possible under applicable environmental regulations. This is because the Surplus Land (i.e., the automobile storage lot) cannot be accessed from the existing airportpropertywithout filling in greaterthan five thousand (5,000) square feet ofwetlands, while avoidingthe existingthe compensatoryflood storage area noted inthe existing conditions plan. See id. Moreover, the Airport Managernoted that "[t]he subjectproperty [i.e., the Surplus Land] is a virtual island segregated on all sides." See id. Specific to BEH, the Airport Manager's Apri19, 20151etterto FAA, on page 2, states: while weunderstand that our2007 Norwood Airport masterplan cites possible development ofthe subject property for a heli-pad, that developmenthas always been conditional to the NAC acquiring [privatelyheld land undertwo (2) separate ownerships-NoreenMichenzie and Access Road Association lots]. Without these properties, the masterplan recommendations can neverberealized. It should furthermore be noted that, in recent years, due to burgeoninghelicopter interests and requests relative to the Norwood Airport's north quadrant, the NAC-with FAA support-was able to re-configure the northernmost portion of the north/south taxi-lane. We converted this to a helicopteroperating area with four newlyconstructed and marked heli-pads. This development now provides the Norwood Airport with more than adequate rotary-wing facilities, which, in tum, effectivelynegates the need for yet anotherheli-pad, eitheron oradjacentto the subject property.

The April 9, 2015 letter demonstrates that Airport management continued with its past efforts ofattempting to develop the Surplus Land for the benefit ofcivil aviation, butis unable to do so because ofsubstantial environmental and aviation constraints. Consequently, the Airport

849320v239 Manager againrequested that the FAA considerreleasing the Surplus Land for non-aeronautical use "given the prohibitive environmental constraints noted in the [DuBois & King and Epsilon and Associates] land development analysis, combined with the disposition ofthe intervening [privately owned] properties, each ofwhich is incompatibly suited to ourneeds for access." See id.



### RECENT DEVELOPMENTS A January 20, 2015 letter from FlightLeve1 President, Peter Eich1eay, to Chairman Michael J. Lyons, ofthe Norwood Board ofSelectmen, addresses manyofFlightLevel's concerns relative to BEH. See Exhibit 79. These allegations are incorporatedherein for reference, and identify specific disputes between FlightLevel and BEH. In addition, FlightLevel has separately expressed to the Airport Commission its concerns that BEH was encroaching on its leasehold, trespassing and underminingits business. See Exhibits 80-84. Forexample, FlightLevel indicated that, following a January 27,2015 blizzard, BEH removed snow from its leasehold on Lot F and combined it with the snowfall on FlightLevel's Lots G and H (the latter ofwhich is the location ofFlightLevel's fuel farm). See Exhibit 80. This massive snow bank blocked access to FlightLevel's fueling system on Lot H and rendered it impossible for FlightLevel-theonlybusiness commercially selling fuel at the Airport-toreceive fuel deliveries at the Airport. See id. As a result, FlightLevel was left to contract athird partyto remove the snow, to keep its business going and continueto serve Airport users. See id. At the current time, we are now dealing with an event which occurred one (1) month priorto BEH filing its Part 16 Complaint. On February 13,2015,the Airport Commission was notified byFlightLevel that BEH had allegedlyknocked over FlightLevel's fluid-filledjersey barriers, resulting in the spill ofsome three hundred thirty (330) gallons ofglycol onto the Norwood Airport premises. See Exhibits 85, 102. The glycol was apparentlypart ofa glycol/watermix used as ballast and weight for the plasticjerseybarriers, which FlightLevel installed onthe airport's Lot G, the lease lot under BMA's Master Lease at the center ofthe aforementioned privatepartypropertyright disputebetween FlightLevel and BEH. See id. On February 13,2015, FlightLevel's security video confirmed that two (2) individuals with access to BEH'shangar facility were seen entering and exiting the BEH property while in the process ofdumping the pollutants {i.e., the glycol), bytipping overthejerseybarriers. Prior to this dumping, FlightLevel had served BEH with a notice oftrespass/cease and desist, as noted in a February 14, 2015letterfrom FlightLevel to BEH. See Exhibit 82. Exhibit 83 is a March 6, 2015 letter from F1ightLevel to the Airport Commission detailing litigation filed by FlightLevel against BEH for "BEH's continued assault on FLN [i.e., FlightLevel]." Because the Norwood Airport sits in federally protected wetlands, 19 this spill required an environmental response. FlightLevel notified the Massachusetts Department ofEnvironmental Protection about the spill. FlightLevel also contacted environmental clean-up professionals,

19The environmental authorities have deemed Norwood Airport to be sited in an Area ofCritical Environmental Concern, or ACEC.

849320v2even though FlightLevel insists-just as FlightLevel's video seems to support-thefact that BEH caused the environmental spill. See Exhibits 84-85. 40

The Norwood Police Department filed its own reports on this matter. See Exhibit 85. On May 6, 2015, Airport management was notified that criminal complaints were filed against Mr. Donovan and Robert Silva ("Mr. Silva"), a BEH employee identified in the Norwood Police Departmentreports, in Dedham District Court. See Exhibit 103. Mr. Donovan and Mr. Silva were charged under Massachusetts General Laws Chapter266, Section 127, for destruction of propertyover $250.00. See id. BMA, as the long-term master lease holder on the parcels oflandwhere both Lot F and Lot G are situated, has weighed in on the Lot F/Lot G propertydispute. BMA's President, Michael Pendergast, recently filed an affidavit to support FlightLevel'sposition, which perhaps explains why BEH is now claiming in its Part 16 complaint that BMA, with the Airport Commission's support, is treating BEH unfairly-as with BEH's other allegations, this is also not the case. See Exhibit 86. The Lot F/Lot Gproperty disputebetween FlightLevel and BEH, which precipitated this release ofpollutants, resulted in a Massachusetts Superior Court lawsuit. A court order is now in place relative to this private dispute, although the Airport Commission understands that this lawsuit remains pending. See Exhibit 87. The Respondents are not parties to this lawsuit. Although the Airport Commission considers this matter a private disputebetween the two (2) private parties (i.e. FlightLevel and BEH), the release ofpollutants does demonstrate BEH's propensityto incite trouble and its pugnacious, reckless behavioronthe Norwood Airport. Separately, on March 6, 2015, the Airport Commissionresponded to a Part 13 Complaint (see Exhibit 96) filed by Mr. Hues, former Airport Commissioner. Mr. Hues, as noted above, had beenremoved in December2014 from his position after only serving eight (8) months because ofthe incident at the November 25, 2014 Airport Commission meeting. See Exhibit 67. Mr. Hues apparentlyfiled a Part 13 Complaint with the FAA New England Regional Office during the fall of2014, while he was still serving on the Airport Commission. See Exhibit 97. In a letter from Ms. Walsh dated January 15, 2015, the FAA New England Regional Office sought a response to Mr. Hues' Part 13 Complaint from the Airport Commission. See Exhibit 97. As Ms. Walsh makes clearin herJanuary 15, 2015letter, "the (Hues) allegations appear to be similarin nature to those ofthe Part 13 complaint filed against the Town of Norwood byMr. Christopher Donovan ofBoston Executive Helicopters." See id. (emphasis added). In the Airport Commission's response to FAA, as Acting NAC Chairman, I acknowledged this, stating:

849320v2Given your observation, it should additionallybe noted that for manymonths now, Mr. Donovan and Mr. Hues havehad some type ofan agreement or relationship as evidenced by the fact that Mr. Hues' aircraft was hangared with BEHwhilehe served as an Airport Commissioner. In short, Mr. Hues has spent significanttime with Mr. Donovan while on the Norwood Airport, and though Mr. Hues' tenure on the Airport Commission was only about eight months long,hetook any number ofopportunities as an Airport Commissionerto advocate on BEH's behalf. Therefore, the Airport Commissionrespectfully considers the potential and motivations bythe Complainant, Mr. Hues. See Exhibit 96 at 1. Bymeans ofbackground, Mr. Donovan and Mr. Hues were employees ofBay State Correctional Facilityin Massachusetts. Upon information and belief, it is the Airport Commission's understanding that Mr. Donovan had provided Mr. Hues with some type ofa work reference, or support, which was instrumental in Mr. Hues securing employment at this correctional facility. 41

Nonetheless, from April2014, until he was removed from the Airport Commissionbythe Norwood Board ofSelectmen, in December2014, Mr. Hues worked in support ofBEH while simultaneously serving as an Airport Commission. This was first catalogued in a May23, 2014 email from Mr. Eichleay, FlightLevel President, to the Airport Manager. See Exhibit 98. Mr. Eichleay's email specificallydiscussed some ofMr. Hues' intimidatingbehavior and his inappropriate use ofauthority, which also makes clearthe complicity ofMr. Donovan. See id. Four (4) months later, FlightLevel's line supervisor, Kevin Putnam, memorialized a separate episode involving then Airport Commissioner Mr. Hues. See Exhibit 99. It appears that-whileon BEH's leasehold, and afterhaving towed his aircraft out ofBEH'shangar-Mr. Hues was baiting FlightLevellinepersonnel into fueling his aircraft in the Security Gate 3 TOFA. Seeid. Airport management laterdetermined this to be yet another attempt by BEH to show inconsistencyin the enforcement ofTOFA standards. Earlierthis year, following Mr. Hues removal from the Airport Commission, as noted in Exhibit 68, the Airport tried to negotiate yet another lease offerwith BEH. ByFebruary2015, the Airport Commission felt confident this could be achieved. But BEH's seemingly unreasonable behavior-to the Town ofNorwood and to its fellow tenants-persists. BEH has repeatedly misrepresented itselfto the Town ofNorwood and has used the media in an attempt to leverage support against the Airport Commission and Airport Manager. This has amounted to a smear campaign against theAirport Commission and the Airport Manager. As an example, on March 26, 2015, two (2) weeks after filing its Part 16 Complaint with the FAA, Mr. Donovan, representing BEH, submitted a letterto the editor with one ofthe Town's weeklypublications. See Exhibit 100. Mr. Donovan's claims ofdiscrimination were unfounded as he once again misrepresented the Town ofNorwood. What was also clear in Mr. Donovan's letterto the editorwas, again, his propensityto incitetrouble and to rouse controversythroughhis misrepresentation offacts. See id.

849320v242

CONCLUSION In summary, the Norwood Airport Commission and Norwood Airport management have provided BEH with every opportunityto succeed. As stated, Norwood Town Counsel has been involved for the duration ofBEH'stenure, to ensure that we are in full observance ofourfederal and state obligations. Accordingly, webelieve BEH's claims to bequite contrived-and, to be honest, all too routinely invoked as an attempt to leverage favor. In actuality, overthe past five (5) years, Airport management has found Mr. Donovan's equivocations, unrealistic and ineffective business planning, unprofessional demeanor, propensityto incite unnecessary issues, and litigiousness to be the basis for BEH'sproblems. Ratherthan take responsibilityfor his own actions, Mr. Donovanhas tried to blamethe Airport Commission with pleas to the FAA ofdiscrimination. At othertimes, rather than comply with existingregulations and procedures ofthe Norwood Airport, Mr. Donovan has challenged authority, again, bymakingpleas ofdiscrimination. BEH's behaviorwith FAA is well chronicled. See Exhibit 27. Two (2) years ago, Ms. Walsh ofthe FAA felt compelled enoughby Mr. Donovan's actions to apparently contact the FAA's securitypersonnel, and then to notify the Airport Manager ofherconcerns. In the last two (2) years, Mr. Donovanhas lived up to the FAA'swarnings. Mr. Donovan willfullyhas sought to vilify and disparage the Airport Commission and Airport management that had supported him. This, unfortunately, has continued not onlywith the Norwood Airport Commission and Airport Managerbut with at least one ofthe Airport's tenants. Mr. Donovan has also misrepresented the Airport Commission's actions to otherTown officials; he has confronted Airport Commission members-as well as ourengineer, Mr. Adler-individually; he has organized a hostile attitude toward the Airport Manager; and, in at least one (1) public meeting, hehas slandered ourAirport Manager. This behavior is simply an extension ofwhat Mr. Donovan showed he was capable ofbackin 2008, in both the alleged assault ofan FBO manager (see Exhibit 1), and, his involvement with the Shactman v. Helicopters, Inc. matter (see Exhibit 2), in whichJudge Geraghty determined Mr. Donovan to be an agentbehind much ofthe controversy. What the Airport Commissionhas determined about BEH, since its first commercial permit five (5) years ago, is that Mr. Donovan-from the outset-misrepresentedhis company's real interests. In BEH's May 2010 business plan, as part ofthe company's first commercial permit, Mr. Donovan stated: "Ourultimate goal is to become an Executive Helicopter ondemand charter operation here at Norwood Airport." See Exhibit 4. This was incorrect. In only a matter ofmonths after the May 2010 business plan was submitted, BEH had become a moving target with its business interests, which seemed to expand exponentially. Whenever the Airport Commission questioned Mr. Donovan about his BEH'splans, Mr. Donovan tended to equivocate. When Mr. Donovan ultimately approached the Airport Commissionto build a hangar and fuel farm, the fuel farm was to be strictly for the self-fueling ofhis own aircraft, thoughhe admitted to giving some thought to perhaps commercial fueling later. Later, when Mr. Donovan developed his facility on Lot F, that development went very

849320v243 close to the limits ofBEH's sub-leasehold. In effect, BEH all butran out ofland to implement a fueling operation. Mr. Donovan then misrepresented to the Airport Commission about what is now disputed land between BEH and FlightLevel (Lots FIG). And when it became clearthat FlightLevel would challenge BEH on this, Mr. Donovan approached the Airport Commission for more land, this time on the West Apron. The Airport Commission has offered two (2) leases to BEH on the West Apron, conditional on BEH providingthe Airport Commission with an FBO-based business plan and financial information. In fact, BEH wouldhavebeenrequired to provide the Airport Commission with both the FBO plan and financial information had an RFP for a second FBO been formally advertised. This "mission creep" byBEH has, intentionallyornot, allowed BEH to effectively circumvent the formal process ofsoliciting for a second FBO, which would have allowed the Airport Commission to directly control the process to select a qualified second FBO, and the ultimate selection. Nonetheless, the Airport Commissionhas remained willing to continue to work with BEH in the furtherance ofits now-stated intentions. However, Mr. Donovan has, to date, notprovided the Airport Commission with the financial information the Airport Commissionhas requested. Norhas BEH notified the NFD of its interest in undergoing a final inspection ofhis fueling facility, as a requirement to receive a VIP licensebythe Board ofSelectmento store and dispense fuel. Instead, what Mr. Donovan has done is to spend manymonths alleging (incorrectly) discrimination against his company. In fact, not seven (7) months into his tenure as a commercial operatoron the Norwood Airport, in December2010, Mr. Donovanhad alreadybegun to explore a Part 16 complaint with FAA Headquarters, in Washington, D.C., for "restrictive ordiscriminatoryrule changes which would single out 'helicopter' operations

...." These were charges leveled against the Airport Commission, which, ironically, was considering a change to Norwood Airport's helicopter regulations that would havebenefitted BEH. At the exact same time, the Airport Commission was trying to work out a long-term sublease extension withthe FAAregion, again for the benefit ofBEH. All the while, Mr. Donovan was threatening legal actions wheneverthe Airport Manager sought BEH's compliance on existinghelicopterprocedures and regulations, equally applied to otherhelicopter operators. Therefore, in ourdealings with BEH, wehave learned to proceed with caution. In a larger sense, BEH's actions thus far have not been a long-term indicator ofits ability to servethe aviation public with civility and level-headedness, orto be a responsible steward offederally protected land, orto be a tenant on the Airport that will encourage a harmonious, albeit competitivebusiness atmosphere. Mr. Donovan, through his actions, has shownhimselfto be someone harboring problems with authority. Ofthe local Airport authority, Mr. Donovan's pattern ofbehavioris to claim discrimination, all the while seeking treatment separate from, and more favorable to, the requirements equally applicableto otherAirportbusinesses andpilots. As to the specific FAA Grant Assurances identified by BEH, the Respondents respectfully submit that there hasbeenno violation thereof:

849320v2849320v2 

### 44

• Grant Assurance 5 (Rights and Powers):

o BEH cites the BMA Master Lease as a violation ofthe FAA Corrective Action Plan in FAA DocketNo. 16-07-03. However, as the FAA previously determined on January 27, 2010, the Airport Commission is in compliance with the Corrective Action Plan. See Exhibit 17. In FAA Docket No. 16-07- 03, the FAA did not require the Respondents to invalidatethe eighty (80) year Master Lease to BMA.

o The Airport Commission has ended the practice ofawarding long-term leases and has continued to include the required standard provisions in its leases as set forth in the Correction Action Plan in FAA Docket No. 16-07-03.

o TheAirport Commissionpreviouslyrequested thatthe FAA authorize the release ofthe Surplus Land for a compatible, non-aeronautical land use. Most recently, on April 9, 2015, following studies earlierthis year byits engineer and environmental consulting firm, the Airport again requested that the FAA considerreleasingthe Surplus Land for non-aeronautical use because of environmental constraints and the disposition ofinterveningprivately owned properties that are incompatibly suited to the Airport's needs for access.

o The Airport Commission awarded the DC-3 Apron following a competitive RFP process-inwhich BEH chose not to apply. The DC-3 Apron lease is consistent with thehistorical and size restrictions onthat parcel, as well as developing the Airport in the most appropriate manner.

o While the Airport Commission intends to issue an RFP for Parcel B onthe West Apron (and preclude FlightLevel from submitting aproposal to foster competition), the Airport Commission, without an RFP process, made BEH a conditional lease offer for Parcel A on the West Apron. This conditional lease offer is consistent with the limited financial informationthat BEH has provided to date. BEH may submit aproposal for Parcel B on the West Apron when an RFP is issued.

o For the foregoing reasons, the Airport Commissionhas complied with its obligations to providereasonable access to the Airportunder Grant Assurance 5.

• Grant Assurance 22 (Denial ofReasonable Access):

o At the outset, BEH only applied to the Airport Commissionto provide ondemand helicopter services.

o TheAirport Commission never issued an RFP for a second FBO. Nonetheless, the Airport Commissionhas continued to work with BEHto accommodate its interest in constructing a fuel farm and hangar, to become an849320v2 FBO. While BEH rejected the initial West Apron lease offer, the Airport Commission subsequentlymade a contingent lease offerfor Parcel A onthe West Apron, notwithstandingthe insufficiency ofBEH's financial information and the unique position ofBEH in establishing a new FBO enterprise with a track record ofexperience in that level ofservice. The Airport Commission has insisted upon detailed financial information consistent with the Norwood Airport Minimum Standards. 45

o While BEH did not submit a proposal in response to the DC-3 Apron RFP, the limitations on use for parcel were consistent with the historical use and size restrictions, and to offset the prior and anticipated loss oftie-down spaces. The DC-3 Apron RFP did notprohibit commercial services.

o The restrictions on the taxi-lane designation are consistent with thoserequired following the construction ofthe Security Gate 3 taxi-lane in 2006 and with applicable requirements. The Airport Commissionhas uniformly enforced the TOFA.

o Forthe foregoing reasons, the Airport Commission has complied with its obligations to providereasonable access to conduct an aeronautical business at Norwood Airportunder Grant Assurance 22.

• Grant Assurance 22 (Economic Nondiscrimination):

o While BEH attempts to compare itselfto FlightLevel, both entities are differently situated as FlightLevel essentially assumed the business ofa preexisting FBO and BEH is attemptingto establish a new FBO from the ground up.

o The Airport Commission has not delayed action on BEH'srequests. Not only did BEH reject the initial lease offer for the West Apron, but BEH was dilatory in providing a properbusiness plan and to date has failed to submit all requested financial information for its proposed FBO business. BEH has also failed to schedule a required final inspection ofits fueling facility bythe NFD.

o The Airport Commission made BEH lease offers consistent with the information that it received pertaining to BEH'sproposed FBO business, given the absence ofdetailed financial information.

o TheAirport Commissionhas uniformly enforced the TOFA restrictions, consistent with applicable federal, state and local requirements.

o The DC-3 Apron RFP, whilerestricted to aircraft tie-downs and ground handling, did not prohibit noncommercial use. Rather, the DC-3 Apron RFP was consistent with the historical use and sizerestrictions, and to offset the46

loss ofaircraft tie-downs elsewhere on the Airport. BEH chose not to submit a proposal for the DC-3 Apron

.

o The Airport Commission has taken multiple actions overthe years to support BEH, including but not limited to the sublease ofLot F.

o For the foregoing reasons, the Airport Commissionhas not unjustly discriminated against BEH under Grant Assurance 22.

• Grant Assurance 23 (Exclusive Rights):

o The Airport Commission has not granted an exclusive right to FlightLevel,the incumbent FBO, as the Airport Commissionremains supportive of encouraging competition at the Airport.

o The Airport Commission has support in BEH in its efforts at the Airport, which includes, but is not limited to: (a) allowing BEH to communicate and/or coordinate its sublease interests on a Lot F; (b) accommodating updates about BEH's construction involving a hangar and fuel storage/dispensing facility; (c) working with BEH toward its interest in a full-service FBO commercial permit; and



### ~) discussing and providing leasehold opportunities on the West Apron. Additionally, Airport management has held meetings with BEH and met with the FAA on BEH's behalf.

o Forthe foregoing reasons,the Airport Commission has not created an exclusive right for FBO services at the Airport under Grant Assurance 23. In closing, we respectfully request that the FAA determine BEH's Part 16 Complaintto be unfounded and: (1) dismiss the Complaint; (2) decline to investigate the Complaint; (3) determine thatthe Respondents have complied withthe FAA's Grant Assurances; and (4) take no further action in the above-referenced matter. Please let me know ifI can provide any further information in your review ofthis matter.



### cc: Timothy 1 McCulloch, Esquire; NorwoodAirport Commission;Norwood General Manager;Norwood Town Counsel;Massachusetts Department ofTransportationAeronautics Division

849320v247 

### CERTIFICATE OF SERVICE I, Brandon H. Moss, counsel to the Respondents, Town ofNorwood and Norwood Airport Commission in Boston Executive Helicopters, LLC v.Town ofNorwood,

**Massachuse ~**  

### and Norwood Airport Commission, FAA Docket No. 16-15-05, hereby certifies that on this 

## 8 day ofMay 2015, a copy oftheforegoing document was served via overnightmail and email as follows: Complainant, Boston Executive Helicopters, LLC (one copy): Timothy I. 

### McCulloch, Esquire Hinshaw & 

### Culbertson 

### LLP 2375 East Camelback Road, Suite 750 Phoenix, AZ

### 85016 TMcCulloch@hinshawlaw.com

FAA Part 16 Airport Proceedings Docket (original and three (3) copies): Office ofthe ChiefCounsel Attention: FAA Part 16 Airport Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue, S

.W. Washington, D

.C. 20591 9-AWA-AGC-Part-16@faa.gov

849320v2 

# ~Exhibit 1 APPENDIX A RESPONDENTS' INDEX OF EXHIBITS

Norwood Police Report by Patrol Officer Daniel J. Kehoe dated November 21,2007 Exhibit 2 Decision and Order Dismissing Complaint, Shachtman v. Helicopters, Inc. Exhibit 3 Letter from Christopher Donovan to Russ Maguire dated April 8, 2010 Exhibit 4 Letter from Christopher Donovan to Norwood Municipal Airport Commission dated May 12, 2010 Exhibit 5 BEH Commercial Permit Application and Permit, FY 2010 Exhibit 6 BEH Commercial Permit Application and Permit, FY 2011 Exhibit 7 BEH Commercial Permit Application and Permit, FY 2012 Exhibit 8 BEH Commercial Permit Application and Permit, FY 2013 Exhibit 9 BEH Commercial Permit Application and Permit, FY 2014 Exhibit 10 Email exchange between Christopher Donovan and Russ Maguire dated May 12-13,2010

849320v2 48Exhibit 11 Email from Russ Maguire to Peter Eichleay dated May 11,2010 Exhibit 12 Email exchange between Christopher Donovan and Russ Maguire dated September 24 and 27, 2010 Exhibit 13 Email exchange between Christopher Donovan and Russ Maguire dated September27,2010 Exhibit 14 Email from Christopher Donovan to Russ Maguire dated September27,2010 Exhibit 15 Email from ChristopherDonovan to Russ Maguire dated October 14,2010 Exhibit 16 Email from Donna Witte to Russ Maguire dated December21,2010 Exhibit 17 Letter from Randall Fiertz to Russ Maguire dated January 27,2010 Exhibit 17a Letter from Russ Maguire to Peter Eichleay dated November 29,2010 Exhibit 18 49

Email from Russ Maguire to Barry Hammer dated March 2, 2011, with forwarded message from Russ Maguire to Donna Witte dated January 7, 2011 Exhibit 19 Letter from JoshuaFox to Russ Maguire dated June 13,2011 Exhibit 20 Letter from Michael Lehane and Brandon Moss to Joshua Fox dated July2, 2011

849320v2Exhibit 21 Letter from Russ Maguire to Christopher Donovan dated March 21, 2014 Exhibit 21a Minutes ofNorwoodAirport Commission Meeting dated August 13, 2014 Exhibit 21b Email from Russ Maguire to K. Putnam, Mike DeLaria, Peter Eichleay, and Mark Raymond dated April25, 2015 Exhibit 21c Letter from Russ Maguire to William Haney dated November4, 2010 Exhibit 22 Email exchangebetween ChristopherDonovan and Russ Maguire dated September 24 and 27, 2010 Exhibit 23 Lease betweenTown ofNorwood and Boston Metropolitan Airport, Inc. dated December 1967 Exhibit 24 Email from Russ Maguire to BarryHammerdated November 28,2012 Exhibit 25 BEH Loan Amortization Schedule, 2013 through 2043 Exhibit 26 50

Email from ChristopherDonovan to Russ Maguire dated August 21, 2012, with forwarded email exchange from Barry Hammerto Christopher Donovan dated August 20, 2012 Exhibit 27 Memo to file byRuss Maguirere 1-8-2013 phone conversation with Mary Walsh dated January 8,2013

849320v2Exhibit 28 Letter from Russ Maguire to BarryHammerdated February 12, 2013 Exhibit 29 Email from Barry Hammerto Russ Maguire dated February20, 2013 Exhibit 30 Letter from Russ Maguireto Christopher Donovan dated February22, 2013 Exhibit 31 Assignment, Assumption, and Amendment ofLease dated October 19,2012 for Lot F Exhibit 32 Minutes ofNorwood Airport Commission Meeting dated December 12, 2012 Exhibit 33 Letter from Russ Maguire to Norwood Board ofSelectmen dated December 14, 2012 Exhibit 34 Email from Jeffrey Adler to Russ Maguire dated December20, 2012 Exhibit 35 Memo from Russ Maguire to Christopher Donovan dated January 28, 2013 Exhibit 36 Norwood Airport Minimum Standards Exhibit 37 Minutes ofNorwood Airport Commission Meeting dated May 14,2014 Exhibit 38 Minutes ofNorwoodAirport Commission Meeting dated June 11, 2014

849320v2 5152 Exhibit 39 Minutes ofNorwood Airport Commission Meeting dated July 30, 2014 Exhibit 40 FAA Airport Design Document dated January 3, 2008 (AC 150/5300-13 CHG 12) Exhibit 42 Airport/Facility Director, Northeast U.S., effective May29, 2014 to July 24, 2014 Exhibit 43 Norwood Memorial Airport Master Plan Update, Final -Phase II, dated March 2007 Exhibit 44 Office Agreementbetween Eastern AirCenter, Inc., and HB Holdings Inc. dated June 15, 1996 Exhibit 45 Notes to personal calendarre BAC TOFA issues dated September25 through October 2, 2008 Exhibit 46 Email from Russ Maguire to Airport Businesses, Pilots, ATC re TOFA dated April 11, 2014 Exhibit 47 Memo from Mike DeLariato Line Department Personnel dated April24, 2014 Exhibit 48 Note from Jason Tibbetts to all authorities concerned regarding incident occurring September4, 2014 Exhibit 49 Email from Peter Eichleayto ChristopherDonovan dated September9, 2014 Exhibit 50 Letter from Nick Burlingham to Joshua Fox dated December 5, 2013

849320v2Exhibit 51 Memo from Russ Maguire to Norwood Airport Commission dated June 17, 2013 Exhibit 5la NFPA 407 Standard for Aircraft Fuel Servicing, 2007 Edition Exhibit 52 Letter from Russ "-1aguire to Christopher Donovan dated June 24, 2013 Exhibit 53 Memo from Russ Maguire to Christopher Donovan dated July 12, 2013 Exhibit 54 Email from Lisa Lesperance to Russ Maguire dated July 17, 2013 Exhibit 54a BEH Proposed Hangar Reconstruction and Fuel Facility at Norwood Municipal Airport, dated June 27, 2013 Exhibit 55 Letter from Russ Maguire to Christopher Donovan dated July 19,2013 Exhibit 56 Letter from Joshua Fox to Michael DeLaria dated November 19,2013 Exhibit 57 Minutes ofNorwood Airport Commission Meeting dated February 12, 2014 Exhibit 58 Minutes ofNorwoodAirport Commission Meeting dated March 12, 2014 Exhibit 59 Letter from Russ Maguire to ChristopherDonovan dated March 1 7, 2014

849320v2 53Exhibit 60 Minutes ofNorwoodAirport Commission Meeting dated April 9, 2014 Exhibit 61 Email from ChristopherDonovan to Russ Maguire dated April 8, 2014 Exhibit 62 Email from Russ Maguire to Christopher Donovan dated April 30, 2014 Exhibit 63 Letter from Matthew Watskyto Norwood Airport Commission dated April 9, 2014 Exhibit 64 Minutes ofNorwoodAirport Commission Meeting dated May 14, 2014 Exhibit 65 Letter from MaryWalsh to Russ Maguire dated June 5, 2014 Exhibit 66 Letter from TimothyMcCulloch to Thomas Vick dated November4, 2014 Exhibit 67 Minutes from Norwood Board ofSelectmen Meeting dated December 18, 2014 Exhibit 68 Letter from BrandonMoss to TimothyMcCulloch dated February 12,2015 Exhibit 69 Letter from Allen Bishop to Howard Pendergast dated March 15, 1988 Exhibit 70 Letter from Allen Bishop to Lawrence Egan dated July 12, 1994

849320v2 5455 Exhibit 71 Letter from John Updegraph to Lawrence Egan dated July28, 1994 Exhibit 72 Kertzman Inc.'s FBO Proposal dated March 11, 1988 Exhibit 73 Letter from Donald E. Church to Paul Pazniokas dated May26, 1999 Exhibit 74 Lessees ofNorwood Airport Land Lease Lots, 1988 through 2013 Exhibit 75 Letter from Peter Eichleay to Norwood Airport Commission and Russ Maguire dated January22, 2014 Exhibit 76 Advertisement for Proposals, Town ofNorwood dated Decemberthrough January 2013 Exhibit 77 Addendum to Request for Proposal ofDC-3 Apron dated January 28, 2013 Exhibit 78 Letter from Thomas Wynne to Christopher Donovan dated March 14, 2013 Exhibit 79 Letter from Peter Eichleay to Michael Lyons dated January 20, 2015 Exhibit 80 Letter from Peter Eichleayto Russ Maguire dated January 29,2015 Exhibit 81 Letter from Nick Burlingham to Joshua Fox dated July29, 2014

849320v2Exhibit 82 Letter from Nick Burlingham to Christopher Donovan dated February 14,2015 Exhibit 83 Letter from Peter Eichleay to Norwood Airport Commission dated March 6, 2015 Exhibit 84 Letter from Nick Burlingham to Joshua Fox datedJuly29, 2014 Exhibit 85 Norwood Police Report byPatrol OfficerJames Payne dated February 16, 2015 Exhibit 86 Affidavit ofMichael Pendergast dated March 4, 2015 Exhibit 87 Superior Court Order in BEH v. FlightLevel dated March 6, 2015 Exhibit 88 Letter from Russ Maguire to Barry Hammerdated March 8, 2012 Exhibit 89 Email from BarryHammerto Russ Maguire dated July26, 2012 Exhibit 90 Email from Russ Maguire to Barry Hammerdated July 26, 2012 Exhibit 91 Email from Russ Maguire to Mary Walsh dated June 14,2013, with forwarded message from Russ Maguire to Barry Hammerdated May 15, 2013 Exhibit 92 Email from Russ Maguire to Barry Hammer dated April3, 2014

849320v2 56Exhibit 93 Letter from MaryWalsh to Russ Maguire dated January 9, 2015 Exhibit 94 Letter from MaryWalsh to Russ Maguire dated September 16, 2014 Exhibit 95 Letter from Russ Maguire to Bryon Rakoffdated April 9, 2015 Exhibit 96 Letter from Mark Ryan to Mary Walsh dated March 6, 2015 Exhibit 97 Letter from MaryWalsh to Russ Maguire dated January 15, 2015 Exhibit 98 Letter from Peter Eichleayto Russ Maguire dated May23, 2014 Exhibit 99 Incident report by Kevin Putnam dated November 28, 2014 Exhibit 100 Letterto the Editor, Norwood Record, dated March 26,2015 Exhibit 101 Minutes ofNorwood Airport Commission Meeting dated January 14, 2015 Exhibit 102 Miscellaneous Documents related to February 13, 2015 Spill Incident Exhibit 103 Email from Kevin Grasso to Russ Maguire and Mark Raymond dated May 6, 2015

849320v2 57Exhibit 104 Norwood Memorial Airport General Regulations (Revised: October 2008) Exhibit 105 May 9, 2014 Photographs ofNorwoodAirport Gate 3 Taxi-Lane C, Showing Christopher Donovan's Personal Vehicle and BEH Aircraft in the TOFA

849320v2 58