Benjamin H. Klein

T HE K LEIN F IRM LLC 61 Broadway, Suite 2125 New York, NY 10006 Phone: (212) 658

- 1219 Fax: (646) 368

- 8401 bklein@thekleinfirm.com

UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Mansfield Helifl ight, Inc.

Complainant, v. Docket No. 16

- 14

- 06 City of Burlington , Vermont

Respondent. / MANSFIELD HELIFLIGHT , INC.’S CONSOLIDATE D REPLY AND ANSWER TO RESPONDENT ’S ANSWER AND MOTION FOR SUMMARY JUDGMENT Complainant Mansfield Heliflig ht, Inc. (“Mansfield ”), by and through the undersigned counsel, and pursuant to 14 C.F.R. § § 16.23 (e), 16.26(c)(3) and the FAA’s November 18, 2013 Order granting an extension of time, hereby files this consolidated Reply and Answer to Respondent City of Bu rlington, Vermont ’s (“ City” or “Respondent”), Answer (“Answer”) and Motion for Summary Judgment, and in support thereof, states as follows: INTRODUCTION In its Part 16 Complaint (“Complaint”) , Mansfield alleged that for a period of over eighteen months, R espondent and its employees working at the Burlington International Airport (“Airport”) , in violation of its federal grant assurance obligations, engaged in an2

effort to exclude Mansfield from opening a FBO at the Airport

– one that would compete with the existing, sole FBO , Heritage Aviation, Inc. (“Heritage”) . Mansfield has also alleged that Respondent , using tactics ranging from neglect to active deceit, has unjustly discriminated against it by denying it opportunities that i t has provided to similarly sit uated

users at the Airport

. In its Answer and Motion for Summary Judgment, Respondent continues it s pattern of obfuscation, denying , in a conclusory fashion, Mansfield’s allegations of grant assurance violations , but without providing any probative record evidence of its own to refute the voluminous record that Mansfield has submitted

. Notably, the City has not provided a single internal e

- mail related to Mansfield, or any evidence to show that it was actually working diligently on Mansfield’s oft

- stated re quest to open a FBO at Burlington International Airport (“Airport” )

. This perhaps is not surprising , as Complainant imagines that if Respondent’s emails were produced, they would substantiate Mansfield claims that Respondent was actively seeking to prevent Ma nsfield from gaining a foothold at the Airport

. Mansf ield will not restate all of the allegations in the Complaint herein: suffice it to say that it is undisputed that Mansfield first requ ested the opportunity to open a FBO at the Airport in January 2013, and that Respondent claimed that there was “ no available space . ” This “no available space” mantra has continued for eighteen months and is one that Respo ndent repeats today, despite the fact that: (1) it continues to permit Heritage to occupy buildin gs at the Airport that it does not need or use : and (2) it has concocted myriad excuses to deprive Mansfield from occupying space that Heritage recently released

.3 Unable to avoid these facts that unequivocally support finding an exclusive rights violation , Respondent has tried to shift attention, and disingenuously claims that Mansfield was always entitled to develop new space for an FBO, and that Airport staff encouraged this possibility. To the contrary, Airport staff tried their very best to bury this reque st, never responding in good faith to Mansfield’s inquiries in this regard ; in fact, Mansfield’ s last communication on the subject, a June 2, 2014, letter to Airport Director Richards asking “what the next steps are to expeditiously move forward with this process,” was apparently deemed unworthy of a response

. Respondent would now like the FAA to believe that its lack of action stemmed from Mansfield ’s alleged failure to provide Airport staff with a “business plan,” which “confused”
it about Mansfield’ s ob

jectives. However, a s the record evidence proves, in the eighteen month s in which Mansfield repeatedly requested a FBO, Respondent never once requested a “business plan” from Mansfield; thus, this alleged “confusion” proffered as an excuse for Respondent’ s neglect of Mansfield should be seen as nothing more than further evidence of Respondent’s bad faith approach to “negotiating” with Mansfield

. Further evidence of such can found in Respondent’s dealings with Mansfield regarding the latter’s oft

- repeated requ est to lease space in the North Hanger (or the entire hanger itself)

. After Respondent denied Mansfield’s request to lease the entire hanger, it added insult to injury by also denying its request to lease space for two of its aircraft. Respondent explains thi s denial by claiming that other parties requested hanger space in the North Hanger before Man sfield , but an examination of the evidence provided does not bear this out.4 What the entirety of the evidence submitted with the Complaint does reveal is that
Re spondent’s standard practice was simply to ignore Mansfield’s requests. When it became too persistent, Mansfield would simply be shuffled off to another Airport staff member, after

w hich, said staf

f member would continue the pattern of deceit and neglect, until, with a straight face, Respondent would argue that someone beat Mansfield to whatever it was looking to achieve

. In sum, and as described more fully herein, Mansfield has alleged, and provided reliable and probative evidence proving Respondent’ s gra nt assurance violations. Accordingly, Mansfield respectfully submits that this matter should be submitted to investigation pursuant to 14 C.F.R. § 16.29(a). As for its Motion for Summary Judgment, Respondent cannot and does not demonstrate that there is no genuine issue of material fact for adjudication , as required by 14 C.F.R. § 16.26(a) ; a ccordingly, its Motion for Summary Judgment should be denied

. I. REPLY TO ANSWER In justification of its discriminatory conduct towards Mansfield, and to distract
attent ion from its efforts to protect Heritage’s exclusive right, Respondent offers the following general answer to Mansfield’s Part 16 Complaint : there is no existing , available space at the Airport suitable for a second FBO , and Mansfield always was and contin ues to be free to develop new space for an FBO . More specifically , Respondent defends its actions by claiming that: (A ) the City’s strategic plan calls for a s econd FBO; (B ) the City did not consent to Heritage’s acquisition of Atlantic, which allowed it to become the sole FBO on the field; (C) rather than colluding with Heritage as Mansfield suggests , the City was actually in5

a dispute with it; (D) the City has man aged the North Hanger prudently since taking it back from Heritage ; (E ) the City’s decision to suddenly draft minimum standards after Mansfield requested a copy is entirely unrelated to Mansfield’s desire to offer aeronautical services a t
t he Airport; and (F) even though Mansfield’s objectives at the Airport are “ confusing, ” the City has always t ried to be responsive to its requests. Mansfield’s response to these unavailing defenses

– all of which are made by Respondent without evidentiary support

– is as follows: A. The City’s Strategic Plan Respondent asserts that the City’s strategic plan calls for another FBO at the Airport , but offers no evidence in support of this contention , other than a map in a PowerP oint presentati on that makes no reference to a FBO at all

. Answer, Pg. 2; Ex. 5 at 10. Moreover, Airport staff have not, as Respondent claims , “made it very clear that [the Airport] would like to attract another FBO.” Id. Lacking evidence of its own to support this alleged intent , Respondent disingenuously cites the Complaint as proof of its desire for a second FBO at the Airport , but this is a n overt mischa racterization of Complaint and the record evidence provided by Mansfield. Answer at 2, citing Complaint Exs. 13 and 28. A review of the material cited by Respondent reveals that Mansfield has never claimed (nor does the evidence it provided demonstrate) that Respondent wants to attract a second FBO to the Airport ; rather, Complainant has alleged that R espondent unfair ly and unjust ly discriminated against Mansfield when it voiced its preference that a FBO that was “solid and with length y expe rience” purchase Heritage, as opposed to Mansfield. Complaint ¶¶ 42

- 44. Respondent’s preference for a single FBO was laid bare by Airport Director6

Richards, when he stated that “[t]he airport would like the matter with Heritage and Atlantic to come to frui tion and resolve issues before taking on anything new

. If [the Atlantic purchase of Heritage] does not happen then interested parties will be notified of opportunities at the airport ” Complaint Ex. 13, §2.0 (emphasis added)

. Clearly, Respondent was worri ed that if Mansfield were allowed to open a second FBO, it would dissuade Atlantic from going through with its hoped for purchase of Heritage (which never transpired), an outcome that Respondent not only preferred , but actively encouraged. Respondent’s int ervention in the business affairs of private aeronautical service providers at the Ai rport is an overt violation of
Grant A ssurances 22 and 23, as not only was it actively discriminating against Mansfield in its preference for Atlantic, but it was also enc ouraging the continuation of the status quo of having one FBO on the field. Next, Respondent point s to its feigned interest in Mansfield developing new facilities as further proof that its “strategic plan” call s for a second FBO. Answer at 3. However, as the undisputed record evidence demonstrates , Respondent never actually wanted Mansfield to develop new facilities from which it could operate a FBO , and Mansfield was met with deafening silence after finally deciding to proceed with that option

. 1 Mansfiel d repeatedly request ed (and re

- requested) information from Respondent on this subject, and it was not until six weeks after meeting with Airport staff to discuss the possibility of developing new

1 Despite Respondent’s claim otherwise, Mansfield never accepted Respondent’s contention that there was no room for a second FBO in existing facilities. See Answer at bott om of 11, citing Complaint Ex. 34 in support of its mischaracterization of the record in this regard. Mansfield had simply given up hope that Respondent would abide by its grant assurance obligations and divest Heritage of those leaseh olds that it was mai ntaining simply to stifle competition

.7

space that Mansfield was finally provided with what Airpor t staff represented was the entire universe of information required in order for Mansfield to proceed with its development of new facilities : namely, a copy of the Heritage FBO agreement , and insurance requirements. Answer Ex. 15

. Finding it hard to credit A irport staff’s representation at the April 29, 2014 meeting
that that all that Mansfield needed in order to proceed with developing a new facility for an FBO at the Airport was a copy of the incumbent FBO’s agreement with the City and a piece of paper list ing insurance requirement s (and seeing this as further evidence that Respondent
was not acting in good faith ) , Mansfield sent Airport Director Richards a letter on June 2, 2014, stating that it was “ready to close a deal,” on developing new space, and inqu iring into “the next steps [] in order to expeditiously move forward wi th this process.” Complaint Ex

. 34. It is undisputed that Mr. Richards never responded to this letter. Complaint ¶ 84, Answer ¶ 84. Notably, Respondent provides no evidence of its ow n (other than through self

- serving affidavits) to support its contention that it was legitimately interested in Mansfield develop ing new facilitie s at the Airport

. Answer at 3. If, as Respondent would have the FAA believe, it was actually excited about th e possibility of a second FBO , it would seem that Respondent would be able to produce at least one internal email corroborating this assertion

. Indeed, the single internal e

- email provided by Respondent as evidence in this entire matter

concerns not Mansfi eld, but Perry Sporn , who, upon information and belief, has also expressed interest in openin g a FBO on the Airport. Answer Ex. 14. As this e

- mail regarding Mr. Sporn’s request demonstrates, when a party other than Mansfield requests information8

from Airpo rt Director Richards, he acts with a sense of urgency wholly absent from any of his dealings with Mansfield. 2 Accordingly, as the record evidence demonstrates, there is no reason to believe that the Respondent is currently planning for a second FBO, or th at it ever took Mansfield’s stated interest in opening one

– whether through the use of existing , underutilized space or the development of new facilities

– seriously. Instead, at every turn Respondent has sought to frustrate Mansfield’s desire to provid e aeronautical services at the A irport, whether motivated by its desire to protect Heritage ’ s monopoly on the provision of such services, or otherwise to unjustly discriminate against Mansfield.
B. Her itage’s Acquisition of Atlantic and its Monopoly on FBO Serv ices Mansfield has alleged that Heritage’s acquisition of Atlantic, and Respondent’s acquiescence to such, constitutes a v iolation of Grant Assurance 23

- Exclusive R ights. Complaint ¶¶ 23

- 25, 38

- 39, 120. In response, Respondent asserts that it never cons ented to Heritage’s acquisition of Atlantic and that it has no ability to control what Heritage does with its property on the Airport as long as it meets its payment obligations in a timely fashion. Answer Ex. 1, ¶ 5, Ex. 2 ¶ 6. This is both a mischaracter ization of the facts, and a misstatement of Respondent’s grant assurance obligations.

2 The timing of this email from Mr. Sporn is curious as well. Mansfield sent its letter outlining it goals at the Airport and requesting copies of Heritage’s leases on November 18 th , 2013. Complaint Ex. 25 at 4. One week later, Mr. Sporn writes Richards and requests exa ctly the same thing. Answer Ex. 14. This is despite the fact that Mansfield specifically asked for its letter t o be kept confidential.9 First, the facts: Respondent claims that the City h as always taken the position that Heritage’s acquisition of Atlantic required “the express co nsent” of the City, Answer at 4; however, the record evidence provided by Respondent suggests otherwise. In a letter dated September 14, 2011, a full ten weeks after Heritage’s ac quisition of Atlantic was completed , an attor ney for Respondent weakly stated that the “City reserves its right to assert that the transfer ” required the City’s consent. Answer Ex. 6. Two month s later (it obviously did not feel much pressure ), counsel for Heritage replied to Respondent’s September 14 th letter noting that, since Heritage purchased Atlantic via a Stock Purchase Agreement, the language of Atlantic’s FBO Agreement 3 did not require the City’s consent

. Answer Ex. 9. Respondent has not provided any evidence to suggest it further disputed Heritage’s position on this
matter , and neither Heritage n or Atlantic w ere ever required even to obtain Respondent’s
pos t hoc consent to the transaction , nor for that matter has Respondent taken any action against Heritage

– some three years later

– for its failure to obtain what Respondent claims was its require d consent to become the sole FBO on the field

. Regardless, even if Respondent’s allowance of Heritage’s sole FBO status was unintentional , this fact will not save it from violating Grant Assurance 23. See AC 150/5190

- 6, dated January 4, 2007, at 3 (“Sign ificant to understanding the exclusive rights policy, is the recognition that it is the impact of the activity, and not necessarily the airport sponsor’s intent, that constitutes an exclusive rights violation”).

3 Complaint Ex. 3

- Fixed Base Operator and Lease Agreement, dat ed November 25, 1997.10 Moreover, given that Heritage’s reading of Section 21 of the Atlantic FBO Agreement is likely the legally correct one, and thus, Heritage was free to acquire a monopoly over FBO services at the Airport with out requiring the City’s consent, Respondent is likely in violation of Grant Assurance 5 a s , when it entered into the Atlantic FBO Agreement, Respondent granted a propert y interest to an entity on the A irport that “restrict[s] the airport sponsor’s ability to preserve its rights and powers to operate the airport in compliance with the applicabl e federal obligations. ” Platinum Aviation and Platinum Jet Center BMI v. Bloomington

- Normal Airport Authority , FAA Docket No. 16

- 06

- 19 , Director’s Determination at 14, ( June 4, 2007 ) (“One of the most common violations of Grant Assurance 5 may occur when airport sponsors enter into agreements with terms that result in subsequent actions that may place the sponsor in noncompliance with its federal obligations. ”) As the Atlantic FBO Agreement is current ly still in place with Heritage ( since it now stands in the place of Atlantic for purposes the agreement ) , this violation of Grant
Assurance 5 is continuing. In short, whatever Respondent believes its position is or was with regard to Heritage’s acquisition of Atlantic , the undisputed facts are as follows : (1) Heritage acquired Atlantic without the Respondent ’s consent; (2) to date, neither Heritage n or Atlantic has ever obtained the Respondent ’s consent for the transaction ; (3) Heritage continues to occupy Atlantic ’s leasehold s at the Airport; (4) Respondent h as never reprimanded or imposed any penalty upon Heritage for the manner in which it acquired Atlantic even though, for the purposes of defending itself in this proceeding , Respondent claims that a breach of contract occurred11

when Heritage acquired Atlanti c ; and (5) to date, as a result of its acquisition of Atlantic, and Respondent ’s continued acquiescence to such, Heritage is the sole FBO on the Airport. C. Respondent’s Settlement with Heritage and its Discrimination in Favor of Atlantic Respond ent next sugg ests that it could not possibly be colluding with Heritage since, at the very same time Mansfield alleges that it was being prevented by Airport staff from opening an FBO, Respondent was in litigation wit h Heritage over a tax dispute. Answer at 4. This no n sequitur is nothing more than a smokescreen designed to distract from the clear evidence that Mansfield has presented to prove that Respondent has operated to protect Heritage’s exclusive right at the Airport. In order to spin its dealings with Heritage as something other than completely deferential, Respondent claims that it was able to “leverage” its position in the settlement negotiations with Heritage concerning the tax litigation “to more appropriately tailor the size of Heritage’s leasehold to Herit age’s current service offerings.” Answer at 5

- 6. 4 However, if Respondent does desire a second FBO at the Airport (as it stridently, but without evidentiary support, argues), and if Respondent is truly interested in having Heritage’s leasehold “tailored” to its actual use (as opposed to Heritage’s desire to land grab in order to prevent competition ) , why not use this claimed leverage to force Heritage to divest itself of that

4 This would appear to be an admission by Respondent that, at least prior to the settlement, Heritage was not making use of all of its leased properties at the Airport.12

property that it unlawfully acquired (i.e., the Atlantic Hanger and Terminal), wh ich would be most attractive to a second FBO, and which Heritage currently lets lie essentially fallow ? 5 Instead, Respondent allowed Heritage to divest itself of its least valuable leaseholds

– properties from which Heritage was likely happy to be libera ted

. Complaint at 13, n. 4 (alleging that the North Hanger requires $600,000 in repairs, and Heritage disputed that it was responsible for such under the terms of its lease with the Burlington City Development Corporation

– an City

- affiliated entity previo usly controlled by the City’s current mayor ) ; Answer Ex. 17 (describing in detail the dilapidated state of the North Hanger that Respondent used its “leverage” to reacquire). Indeed, Respondent adm its that the North Hanger is in a state of significant disr epair and , in an apparent exercise in wishful thinking , is now looking for an outside party to bid for the right to manage the property and pay for the repairs. 6 Answer at 7

. Respondent also uses the litigation/settlement with Heritage to deflect attention fro m other inconsistencies in its A nswer to Mansfield’s allegations ; specifically Mansfield’s claim that it was unfairly discriminated against by the Airport regarding its interest in purchasing Heritage

. Responding to Mansfield’s allegation that Heritage was permitted to attend a session of the Airport Board meeting that was closed to the public in order to discuss

5 Notably, Respondent has not provided any evidence (other than c onclusory denials) to refute Mansfield’s record evidence that the both the Atlantic Hanger/Terminal and ASH Hanger /Terminal are woefully underutilized by Heritage and thus, constitute inappropriate “land banking.”

6 Respondent claims that it is “unclear” who would have been responsible for the repairs to the North Hanger (Answer at 6, n. 7)

. Upon information and belief , the City

- affiliated entity that acted as Sub lessor argued that Heritage was responsible , and by relie ving Heritage of the property, Res pondent essentially caved to Heritage’s position

.13

Heritage’s financial difficulties and its efforts to find a buyer ( and thus collude in excluding Mansfield ) , Respondent explains Heritage’s at tendance at this particular closed session as related to the “ongoing litigation.” Complaint ¶ 45, Answer ¶ 45. However, the m inutes of the meeting state clearly that the purpose of this closed session was to discuss “ contracts. ” Complaint Ex. 14 § 3.01. Thus, Respondent incredulously suggests that it went into a private session, with an adverse party , and without counsel present, to discuss resolution of a pending litigation

. If that is the case, then the minutes are inaccurate, and should be restated. The more likely explanation , however, is that the minutes of the Airport Board meeting are accurate, and further evidence of Respondent’s clearly expressed desire to see Atlantic ’s purchase of Heritage come to fruition, as opposed to a purchase of Heritag e’s assets by Mansfield. Airport Director Richards admits that Mansfield told him that it wanted to purcha se some of Heritage’s leasehold s in January 2013, and that he said he could not help Mansfield in th at regard. Answer, Ex. 1 ¶ 3. He did , however , se em willing to help Atlantic purchase Heritage

– so much so that he simply ignore d Mansfield until the possibil ity of that deal fell through. Complaint Ex. 13 §2.0; Complaint ¶¶ 42

- 47. Why was the Airport more invested in the Atlantic transaction (which wo uld have simply maintained the status quo of one FBO on the field) than it was in helping Mansfield to acquire certain of Heritage’s underutilized assets? T he record provides the answer: Respondent discriminated against Mansfield in favor of a “national, e stablished chain ” with

“ solid and lengthy experience.” Complaint Ex. 13 §2.0; Complaint Ex. 5 ¶ 10. Thus, this executive session with Heritage (which was closed to the public) is further evidence of Respondent’s unjust discrimination against Mansfield, and the preferential t reatment14

provided to Heritage. The result of the City’s discriminatory conduct has been to the detriment of aeronautical users of the airpo rt. There is currently no Part 135 operator located at the Airport , and maintenance and fuel are provided at infl ated prices that users are forced to accept as a result of the lack of an y competition

. 7 Finally, Respondent uses the litigation with Heritage to avoid answering Complaint ¶
47. Mansfield alleges that though Airport Director Richards knew t hat Mansfield was int erested in purchasing some of Heritage’s assets , and/or taking over some of its space , Richards kept Mansfield in the dark about the collapse of the possible Atlantic acquisition , even though on March 18, 2013, he represented to Mansfi eld and the Airport Board of Commissioners that he would do otherwise. Complaint Ex. 13 § 2. 0; Complaint ¶ 47. Yet, instead of responding to this allegation, which goes directly to Respondent’s vi olation of grant assurances , Respondent glibly states that “it admits it did not keep Mansfield informed of its litigation strategy. ” This is an odd response as the allegation in Complaint ¶ 47 has nothing to do with Respondent’s tax litigation with Heritage , and because Respondent was apparently willing to reveal its “litigation strategy” in a meeting that was open to the public. Rather, Complaint ¶ 47 goes to Mansfield’s allegation that it was practically forced to beg 8 to be kept informed of developments on the Airport after it expressed its interest in opening an

7 Upon information and belief, the scheduled airlines have discontinued their fuel purchases at BTV precisely because of Heritage’s inflated prices, and they have expressed interest in obtaining maintenan ce services elsewhere as well. Unfortunately, Respondent’s actions have made this impossible.

8 After the meeting in January 2013, Airport Director Richards refused to engage Mansfield directly on the subject of its interest in opening an FBO. He relente d only after the involvement of a third

- party, who made it clear to Richards that Mansfield intended to involve its elected officials if Airport staff continued to ignore its requests.15

FBO in January 2013, even though Airport Director Richards willing ly shared them at a public meeting of the Airport Board of Commissioners.
D. North Hanger Mansfield has alleged that it was unjustly discriminated against by Respondent when it was denied h anger space in the North Hanger, and that Respondent continued to protect Heritage’s exclusive right by denying it the ability to provide aeronautical services from the North Hanger (even though Heritage was allowed to provide FBO services from the buildin g, and two current tenants provided aeronautical services including maintenance and flight instruction) . Complaint ¶¶ 80

- 98, 105

- 111. Respondent defends itself against these allegations by claiming that : (1) other parties asked for space in the North Hange r prior to Mansfield; and (2) a RFP has been issued for the North Hanger , which Respondent apparently hopes will prove its good faith desire to see competition with Heritage. Answer at 7

- 8

. Respondent’s “ first come , first serve ” defense is ye t another a ttempt to find cover for its disparate treatment of Mans field, and a poor one at that. N either document provided by Respondent in support of this assertion proves that Mr. Sporn or Mr. Mendal requested space in the North Hanger prior to Mansfield

. The e mai l from Mr. Mendel simply forwards an email exchange with Heritage concerning its pricing which, on information and belief, Mr. Mendal was upset about, and which was the direct result of Heritage’s monopoly. Mr. Mendal does not request a lease in the North Hanger, nor could he have, since it had not been returned to the Airport on November 13 th

. Answer Ex. 13. The email from Mr. Sporn is entirely unrelated to leasing hanger space in general, or t he North Hanger in particular.16

Answer Ex. 14. Dated November 26 , 2013, it simply contain s a request for Heritage’s leases since, upon information and belief, Mr. Sporn is/was also interested in running a FBO at the Airport. 9 In contrast, and as the record evidence demonstrates, Mansfield clearly requested space in the North Hanger as soon as it knew that it was coming back to the City, and that Respondent would be managing the leases there. Complaint Ex. 31. More importantly, since January 2013, Respondent had been well aware of Mansfield’s desire to acquire space free from Heritage’s yoke (which Respondent had made impossible after the Atlantic acquisition), and from which Mansfield could begin to provide competing aeronautical services. In an underhanded effort to avoid the fact that all Airport staff were keenly aware of Mansfield’s desire for hanger space outside of Heritage’s control , Respondent blames the
new guy. 10 Nic olas Longo, in a sworn statement, says that he was “not aware of [Mansfield’s] interest in leasing space to park aircraft until [June 30 th ]. ” Ans wer, Ex. 3, ¶ 5. At the outset, it is worth noting that this sworn statement is belied by the fact that Mr. Longo is copied on emails concerning Mansfield’s reque st for space in the North Hanger as early as

9 This excuse offered by the City also begs the following question: if Messrs. Sporn and Mendel did in fact request space in the North Hanger on November 13, 2013, h ow did they know, at that point that the North Hanger would be managed by the City o nce it was released by Heritage? At the November 21 st , meeting with Mansfield , Airport staff were still leading Mansfield to believe that it could take over the North Hanger ( and provide FBO services therefrom ) when it was released to the Airport foll owing the Heritage settlement. Were Sporn and Mendal provided with different infor mation?

10 All Airport staff that Airport Director Richards has assigned to deal with Mansfield have either left or a re shortly leaving the Airport’s employ. Ryan Betcher, the original point of contact for Mansfield left shortly after the April 29, 2014 me eting. Upon information and belief, Heather Kendrew resigned in September 2014 . Robert McEwing is retiring as of December 2014.17

May 23 , 2014. Complaint Ex. 33

. Mr. Longo also a ttended the Airport Board meeting on June 13, 2014 , where Mansfield’s interest in North Hanger space was discussed

. Complaint
Ex. 37 § 8.2

. Putting Mr. Longo’s knowledge of Mansfield’s interest in the North Hanger aside, the timeline confirmed by the rec ord clearly demonstrates that Respondent was not dealing openly and in good faith with Mansfield. On Friday, June 13, at 7:26 p.m., Respondent provided Mansfield with a hanger lease for the North Hanger , calling it a “draft” and saying
that more edits will come from the insurance ag ency. Complaint Ex. 36. In its A nswer, Respondent backtrack s further and calls the lease a “sample.” Answer ¶ 86. But this “sample” lease had already been provided to, and negotiated with at least Mr. Sporn, as evidenced by the fact that his name was in the signature block of the “sample” lease provided
to Mansfield on June 13 th

. Complaint ¶ 87, Answer ¶ 87

. Then, o n Monday, June 16, 2014, this “sample” lease, now apparently finalized (but without informing Mansfield) , was
prese nted to the Airport Board for approval

. Complaint Ex. 37 § 8.2

. Heather Kendrew and Nicolas Longo were praised for their “excellent negotiations of the leases,” apparently referring to their negotiations with Messrs. Sporn and Mendal , as no negotiation had occurred with Mansfield. Id.
On June 20 th , Mansfield called Heather Kendrew to inquire into the status of the North Hanger lease. Complain t Ex. 17 ¶¶ 4

- 5. Ms. Kendrew did not tell Mansfield that the lease had been approved, or that Sporn and Mendal had already (or were shortly about to) sign

. Instead, she told Mansfield that she was no longer handling the leases for the North18

Hanger , and that Mansfield should contact Mr. Longo on June 24 th

. 11 This is undisputed

. Complaint ¶ 89, Answer ¶ 89. Even assumi ng, arguendo , that Messrs. Sporn and Perry did req uest hanger space on November 13, 2013, Respondent has admitted that Mansfield expressed interest in occupying hanger space in order to provide charter services on October 13, 2013

. Answer at 9. The spots in the North Hanger that have been given to Sporn and Mendal would have been sufficient for such an operation , as both are storing large business jets

. Thus, even accepting Respondent’s claim that October 13, 2013 is the first time it was aware that Mansfi eld wanted hanger space at the Airport (a patently absurd suggestion, given the record evidence , which clearly establishes that the first request was made in January 2013 ), does not provide the cover for its unjust discrimination that Respondent so despera tely seeks. With palpable irony, Respondent argues that it would have been discriminatory to allow Mansfield to provide aeronautical services out of hanger space and an office at the North Hanger while Heritage had four buildings. Answer at 12. Respondent appears to suggest that because it allowed Heritage to acquire all of th e existing property on the Airport suitable for an FBO ( even though it could not put all of the space to use ) it could not subsequently allow Mansfield to provide limited, competing, economically sustainable,

11 It appears that Ms. Kendrew did not choose June 24 th by accident. On June 23 rd , as she would surely have known at that po int, the City Council was set to vote on the approval of the Sporn and Mendal leases, and it did in fact vote to approve the leases on that date. Mansfield Reply Ex. 1 , June 23, 2014, Burlington City Council Minutes §§ 4.06, 4.07.19

aeronautical serv ices out of a smaller footprint. 12 This turns the doctrine of unju st discrimination on its head. Unfortunately, if this is Respondent’s understanding of Grant Assurance 22, it appears that such a requirement will b e memorialized in its new minimum standards document

– further evidence that it is being drafted solely to protect Heritage’s exclusive right

. Respondent uses Mansfield’s October 13, 2013 request for hanger space from which to provide charter services as a n excuse, saying that it did not consider the North Hanger suitable since the “new North Hanger leases that have been extended by the City have been

use - limited to aircraft storage.” Answer at 8, n 8. But nothing required the City to impose such a limit o n the leases, other than its manifest desire to keep Mansfield from acquiring space on the Airport from which it can provide aeronautical services. Finally, Respondent notes with great fanfare that it has issued an RFP for the management of the North Hange r, apparently in the belief that this will exonerate it from its unjustly discriminatory dealing s with Mansfield, and its continued desire to protect Heritage’s right to be the sole FBO on the field. Answer at 7. However, as of November 21,

12 Respondent mock s Mansf ield’s desire to offer FBO services out of an office, and suggests this confused it as to what Ma nsfield actually wanted. Answer at 12. If Respondent was actually interested in working with Mansfield, or having a competitor with Heritage on the field, it could easily have resolved this confusion by doing the one thing it consistently avoided

– engage Mansfield in an open an honest way. If it had done so, it would have come to understand that Mansfield had no intention of operating a full

- service FBO out o f an office (albeit with airside access) , but that it did believe that it could begin to provide maintenance services, and possibly charter services. Of course, it would have been much easier for Mansfield if Respondent has also provided the promised and a vailable hanger space in the North Hanger , and Respondent was certainly aware of this fact when it decided not to do so.20

2014, there w as no RFP for the North Hanger listed on either the website of the Airport or the Respondent. Mansfield Reply Ex. 2. Moreover, Mansfield has consistently asked to be kept informed about the RFP
process for the North Hanger , and it has heard nothing from R espondent about the issuance of any such RFP. Mansfield Reply Ex 3

. Accordingly, if in fact a RFP is currently in place, Respondent’s failure to inform Mansfield is further evidence of its unjust discrimination against it, and its desire to keep the North Hanger from a party that seeks to provide aeronautical services in competition with Heritage.
E. Minimum Standards The evidence provided by Mansfield supports its allegation that the City, in violation of its grant assurances , is developing minimum standard s with the p urpose of excluding Mansfield. Complaint ¶¶ 99

- 115. The City does not refute the timeline offered by Mansfie ld, nor does it offer its own. Instead, it simply states , in a conclusory fashion, and without the support of any record evidence, that its decision to develop minimum standards was “independent of [Mansfield’s] many requests for space or t o run an FBO.” Answer at 12

- 13. An examination of the undisputed timeline provided by Mansfield strongly suggests otherwise. Mansfield requested a co py of the Airport’s minimum standards on July 11 , 2014

. Complaint ¶ 100. Ten days later, and only when forced to speak to Ms. Lindberg after running into her at Starbucks, did the Airport admit to n ot having any. This was after significant staling and re direction on the part of Richard’s and his staff. Complaint ¶¶ 99

- 105, Complaint Exs. 41

- 42. Airport Director Richards s tated that Airport staff “ha d looked,21

but couldn’t find any [minimum standards]. ” Answer Ex. 1, ¶ 13. Thus, according to the Airport Dir ector , the staff of the Airport had s pent at least a week looking for a minimum standards document, that, on July 11 th , Ma nsfield had been told existed. Complaint ¶ 103, Answer ¶ 103. One would imagine that i f a Part 139 certified, international airport ha d minimum standards, at least one membe r of its staff would be aware of that, and such standards would be readily available to those who requested them

– perhaps even in an electronic format. Additionally, i f Airport staff believed that minimum standards e xisted at the time of Mansfield’s request , why were they not referenced in any of the FBO leases going back two decades?
Man sfield submits that Respondent knew shortly after Mansfield’s request that
minimum standards did not exist , but stalled when it rea lized the implication , and quickly decided to concoct minimum s tandards in order to prevent Mansfield from providing aeronautical ser vices out of the North Hanger. If in fact Mansfield is mistaken, Respondent should come forward with its own evidence on th e matter, including all internal emails referencing minimum standards (specifically those sent after Mansfield made its request). 13
F. Mansfield’s “ Unknown ” Business Plan As a final, catch

- all excuse for its eighteen months of deceit and neglect, Respondent sh amelessly claims that it tried to be responsive to Mansfield, but was hampered by Mansfield’s lack of a “business plan,” which caused “confusion” amongst Airport staff as to

13 Mansfield respectfully submits that as part of any investigation, t he FAA should use its authority pursuant to 14 CFR 16.29(2) to com pel the production of all of Respondent’s and Airport’s non - privileged emails relating to Mansfield.22

what Mansfield sought to accomplish. Answer at 8. The undisputed record evidence disprove s this bad faith argument

. In January 2013, Mansfield met with Airport Director Richards and expressed its interest in opening an FBO, and its belief that Heritage should be relieved of some of the space it acquired from Atlantic since it was not putting it to producti ve use. Complaint Ex. 5, ¶¶ 5

- 7; Answer Ex. 1 ¶ 5. In March 2013, after having been ignored by Richards, Mansfield attended a meeting of the Board of Airport Commissioners, and clearly expressed its interest in opening a second FBO, and said that if the Airport was interested, Mansfield would appl y for such an opportunity. Complaint Ex. 13 § 2.0

. Richards responded by saying that the Airport was focused on Atlantic’s possible acquisition of Heritage. Id. Mansfield attended another mee ting of the Airport Board in August 2013, again to ex press its interest in opening

a FBO at the Airport. Complaint Ex. 16 § 2.0. At a September 2013 meeting of the Airport Board, a board member specifically inquired into the status of Mansfield’s request. Complaint Ex. 18 § 3.1. Richards responded by noting that there was no space available and, conveniently for him since Mansfield was not present, that “a business plan from the company needs to be reviewed by staff to better understand the extent of the bu siness.” Id. Neither Richards nor Airport staff ever made Mansfield aware that a “business plan” was
needed

. Nevertheless, on November 18, 2013, Mansfield sent a letter providing substantial detail about what it hoped to achieve at the Airport. Complaint Ex. 25. Neither Richards nor any Airport staff ever followed

- up and requested additional information from Mansfield, even though Mansfield offered to provide details concerning its financial resources at the23

Airport’s request. Id. at 4. Mansfield met wit h Airport staff on November 21, 2013 , and again on April 29 2014, and articulated clearly at both meetings what its stated objectives were. Complaint ¶¶ 58

- 67, 73

- 79. It also asked what the Airport would need from Mansfield in order for it to qualify for a n FBO. Id. ¶ 77. Airport staff neve r requested a “business plan.” If one thing is certain, it is that beginning in January 2013 Mansfield consistently made it clear to all who would listen that it wanted to open an FBO on the Airport (or at the very least provide maintenance and charter services)

. If Respondent was hampered in responding to Mansfield’s interest because of the lack of a business plan, why, if it was acting in good faith, did it never request one ? Respondent claims to have always responded t o what it understood Mansfield’s request to be; however , when read in conjunction with the record evidence that Mansfield has provided, Respondent’s narrative concerning its good faith efforts to work with Mansfield , which is drawn entirely from its own, s electiv e and inaccurate interpretation of the evide nce Mansfield has produced (as opposed to any of its own), is unconvincing. See Answer at 8

- 12.

II. REPLY TO AFFIRMATIVE DEFENSES Mansfield hereby incorporates by reference its Answer to Respondent’s Motion fo r Summary Judgment into its Reply to Respondent’s lettered Affirmative Defenses, other than Affirmative Defense B ( Complainant failed to engage in informal dispute resolution prior to filing the Complaint in violation of 14 C.F.R. § 16.21 ), which is specif ically responded to as follows: Mansfield correctly certified that it has complied with 14 C.F.R. § 16.21, and Respondent’s affirmative defense suggesting this is not the case flies in the face of its own24

admission to voluminous back and forth corresponden ce between the parties, as well the multiple meetin gs and face

- to

- face discussions that took place between the parties over the course of eighteen months. Complainant will not re

- list those events here. It does, however, feel the need to address Responden t’s contention that it was somehow blindsided by Mansfield’s fi ling of the Part 16 Complaint. The u ndersigned personally made Assistant City Attorney Gregg Meyer aware in February 2014, that Complainant believed that Heritage was being allowed to hold spac e it did not need, in violation of grant assurances. The undersigned made it abundantly clear at that time that if the matter was not resolved, Mansfield would seek to enforce the grant assurances through a Part 16 Complaint. Five months of correspondence and m eetings followed , all in service of Mansfield’s goal of avoiding the present action. In the final analysis, however, n o further proof of Respon dent’s unwillingness to
reach a resolution without outside intervention is needed other than Airport Directo r Richard s ’ admission that in July 2014 , he directed all communication with Mansfield to flow through an Assistant City Attorney

– an impediment to informal resolution if there ever was

one . Answer, Exhibit 1 ¶ 11. 14 Respondent’s suggestion that this was si mply for logistical reasons, as opposed to a clear manifestation of its hostile inte nt, does not pass the sniff test

. Why would a n Assistant City Attorney, with no aviation e xperience, be designated as the main point of contact for a party seeking to prov ide aeronautical services at the Airport?

14 Richards’ sworn statement in this regard is as inconsistent as it is absurd. In the same breath that he says that he instructed all communication with M ansfield to “flow through the City Attorney’s office,” he also states that he did not direct Airport staff to cease communications with Mansfield

– a distinction that is itself “confusing.”25 In fact, it was Respondent’s decision to cease communications (other than through its attorney) that led t o the filing of the Complaint. Moreover, a week before filing the Complaint (and a day after Airport Directo r Richards directed Mansfield to communicate only with the City Attorney), the undersigned sent Gregg Meyer an e

- mail stating that, “we appear to have come to the end of the road here,” and requesting, that, if he hadn’t already, to
instruct his client to implement a litigation hold. Mansfield Reply Ex. 4

. This e

- mail was never responded to. 15

III. ANSWER TO MOTION FOR SUMMARY JUDGEMENT Respondent has filed a Motion for Summary Judgment (“MSJ”) on Mansfield’s claims of violations of Grant Assurance 22 and 23; ho wever, since Respondent has not made the required showing that there is “no genuine issue of material fact for adjudication,” its Motion for Summary Judgment on both counts should be denied.

A. LEGAL STANDARD A motion for summary judgment is appropriate only when “there is no genuine
material issue of fact for adjudication, and [] the complaint, when viewed in the light most favorable to the complainant, should be summarily adjudicated in favor of the respondent as a matter of law.” 14 C.F.R. 16.26(c).

15 Given that all of the relevant Airport staff that have been corr esponding with Mansfield have resigned or are retiring (i.e., Heather Kendrew, Robert McEwing, and Ryan Betcher) , the undersigned sent Mr. Meyer a similar document retention demand on September 22, 2014. This is based on Complainant’s belief that if the F AA were to request such documents pursuant to its authority under 14 C.F.R. 16.29(2), Mansfield’s claims would be further substantiated.26 B. STA TEMENT OF MATERIAL FACTS 14. C.F.R. 16.26(c)(2) requires the movant to provide a “concise statement of
material facts as to which the respondent contend s there is no genuine issue of material fact.” Respondent quotes the standard for summary judgment corr ect ly “no genuine issue of material fact,” but th en misapplies it, merely reciting its own allegations and defense s from its Answer , almost all of which are disputed. MSJ at 32

- 35.
For reasons of judicial economy, Mansfield will make reference to the mater ial facts that it alleges are in dispute (or are undisputed in Mansfield’s favor), in Argument, Section III.C below.
C. ARGUMENT

1. Exclusive Rights Violation An airport sponsor may not grant a special privilege or a monopoly to anyone providing aeronautical ser vices on the airport or en gaging in an aeronautical use. FAA Order 5190.6B, Airport Compliance Requirements , September 30, 2009, ¶ 8.1. The FAA has taken the position that the existence of an exclusive right to conduct any aeronautical activity at an airpo rt limits the usefulness of the airport and deprives the public of the benef its of competitive enterprise. Id. at ¶ 8.4(c). “An exclusive rights violation occurs when the airport sponsor excludes others, either intentionally or unintentionally, from partic ipating in an on

a irport aeronautical activity.” Advisory Circular 150/5190

- 6, Exclusive Rights at Federally

Obligated Airports , dated January 4, 2007. Although having a single FBO at an airport is not necessarily an exclusive rights violation, when such a single service provider has been allowed to acquire space in excess of27

its reasonable needs , and this fact denies a competitor from gaining entry onto the airport, the FAA may find the sponsor in violation of the exclusive rights proh ibition. FAA Order 5190.6B, Airport Compliance Requirements , September 30, 2009, at 8.7(b). The FAA views “land grabbing” (i.e., when a single provider of aeronautical services acquires leases over properties for which there is no demonstrable immediate need) as a potential violation of
Grant Assurance 23. See Roadhouse Aviation , FAA Docket No. 16

- 05

- 08, Director’s Determination, (December 14, 2006) at 29; Bisti Aviation , FAA Docket No. 16

- 07

- 01, Director’s Determination (December 4, 2007) at 18; Ricks , FAA Docket No. 16

- 98

- 19, Director’s Determination (July 1, 1999) at 6 (“The leasing to one enterprise of all available airport land and improvements planned for aeronautical activities will be construed as evidence of an intent to exclude others unless it can be dem onstrated t hat the entire leased area is presently required and will be immediately used to conduct the activities contemplated by the lease.”).
Mansfield has provided evidence to support its general allegation that Respondent has intentionally and directly sought t o exclude Mansfield from providing FBO services at the Airport , favoring a single provider, whether that provider be Heritage, or another “national, established chain” that acquires Heritage. Such evidence includes the statement of the general manager of H eritage , who replied to Mansfield ’s suggestion that Respondent was trying to protect Heritage as the sole FBO on the field by saying, “well, maybe a little.” Complaint Ex. 5 ¶ 37. This allega tion is not denied, and is , at best, disputed: Respondent avoid s answering it and says only that Mr. Shea “does not speak for it. ” Answer at 2, n. 2. Mansfield also alleges that Respondent willfully sought to prevent Mansfield from28

purchasing certain assets of Heritage, and instead encouraged Atlantic to take over t h e entire FBO operation at the A irport, again favoring a single FBO. Complaint ¶ 40, 43

- 47; Complaint Ex. 13 § 2.0, Section I .C supra. Respondent answers this allegation with a distortion of the record, and argues that its conduct with regard to Atlantic’s potential purchase of Heritage is evidence that it is seeking a second FBO. But a review of the evidence provided by Mansfield (Respondent has provided none of its own) disproves this point. Again, at best, the facts in this regard are disputed. More sp ecifically, Mansfield has alleged , a nd provides evidence proving that Respondent is intentionally and directly excluding Mansfield from participating in an on

airport aeronautical activity by: (a ) refusing to allow Mansfield to provide aeronautical service s from space that is currently available; (b ) refusing to negotiate in good faith with Mansfield to develop new space; and (c ) developing minimum standards with the express purpose of excluding Mansfield. At the very least, Respondent has excluded Mansfie ld indirectly , as a result of its acquiescence to Heritage’s acquisition of Atlantic, and Heritage’s resulting control of all existing space that is s uitable for FBO services, which Respondent admits is a condition that exists at the Airport today

. MSJ at 37, 42. As such, Mansfield has alleged facts and provided evidence proving that it has been excluded by Respondent , whether directly or indirectly, or intentionally or unintentionally, from providing on

- airport aeronautical services, in favor of the sole, incumbent FBO, and at the expense of competition. Accordingly, Respondent’s Motion for Summary Judgment on Grant Assurance 23 should be denied.29 a. Respondent’s Direct, Intentional Exclusion of Mansfield Respondent’s Refusal to Allow Mansfield to Operate out of the North Hanger Mansfield alleges that Respondent’s refusal to allow it to provide aeronautical services from the North Hanger stems from its desire to protect Heritage’s exclusive right,
and ke ep competition off the Airport, and it has provided reliab le, probative evidence demonstrating such. Complaint ¶¶ 6

- 8, 62

- 64, 75

- 76; Complaint Ex. 5 ; Section I.D supra . On the other hand, Respondent’s explanation of its decision to exclude Mansfield from the
Nort h Hanger is rife with logical inconsistencies and assertions unsupported by the record evidence. It is undisputed that, by October 12, 2013 at the latest (and Mansfield provides other evidence to show it was much earlier), Respondent was on notice of Mansfield’s desire for hanger space with airside access from which it could provide charter services. Answer at 8,
n. 8. On November 21, 2013, Respondent met with Airport staff to discuss its desire to find suitable space from which it could provide aeronautical at the Airport. Answer Ex. 2 ¶ 3. At that mee ting , Mansfield was told that the North Hanger would likely be released by Heritage as a result of its settlement with the City , and that this space could be suitable for Mansfield’s
needs. Answer Ex. 2 ¶ 7. All parties knew at that time that the North Han ger wo uld require substantial repairs; nevertheless, Mansfield indicated its interest in leasing the North Hanger

as soon as Heritage released it . Answer Ex. 2 ¶ 8; Complaint ¶ 65. At an April 29, 2014 meeting, Respondent informed Mansfield that it had dec ided to act as property manager for the North Hanger once Heritage released it (i.e., that it did not intend to lease it to Mansfield)

. Complaint ¶ 75. Respondent now justifies its decision not to30

lease the North Hanger to Mansfield as stemming from its sudden realization that the North Hanger would require significant repai rs, and because there were existing sub

- tenants , MSJ
at 38 , but neither reason justifies its decision to exclude Mansfield from the one property that Heritage was releasing that would be suitable for aeronautical services. All parties knew, a t least as early as November 2013 , that the North Hanger required repairs

. Answer Ex. 2 ¶ 8; Complaint ¶ 65. In fact, if Respondent was truly interested in having a second FBO on the Airport, it wo uld have used its leverage with Mansfield (based on its clear desire to acquire s pace on field) to enter into a lease agreement for the North Hanger by which Mansfield may have assumed at least some responsibility for the repairs. As for the existing subt enants, Respondent offers no explanation for why their subleases could not have been managed by Mansfield, as Heritage managed them before, and

a s Respondent manages them now. Moreover, and what Respondent likely does not care to share, is that the majorit y of North Hanger tenants do not provide aeronautical services.
Answer Ex. 17 at 20

. Accordingly, Mansfield’s acquisition of the North Hanger, and its repair and conversion of it to a financially viable FBO, would have been the best use of the Airport’ s sc arce resources, and a fulfillment of Respondent’s primary obligation to operate the Airport for aeronautical use. See Kihlstrom , FAA Docket No. 16

- 02

- 07, D irector’s
Determination at 17 (“Operating the airport for aeronautical use is not a secondary obligat ion ; it is the primary obligation. This obligation includes the opportunity for leaseholders to develop airport property for aeronautical use.”). Cf . MSJ at 49. Instead of leasing the North Hanger to a party that wanted to develop and repair it to provid e31

aeronautical services , Respondent allegedly decided to issue an RFP for a “property manager” for the North Hanger. Respondent attempted to appease Mansfield about its sudden RFP decision by stating that if Mansfield still wanted to run an FBO out of the North Hanger, it could propose this in its RFP submission , and it would b e considered by Airport Staff. Complaint ¶ 75

. When queried about the decision not to simply issue an RFP for an FBO in the North Hanger , Airport Director Richards told Mansfield that he could not do so as that would upset Heritage. Complaint Ex. 17 ¶ 15. Doing its best not to become cynical about the motives behind Respondent’s RFP decision, Mansfield asked repeatedly to be kept informed about the RFP process for the North Hanger, b ut to date it has heard nothing. Mansfield Reply Ex.
3. Mansfield submits that the evidence demonstrates that Respondent’ s decision to use an RFP process for the North Hanger is yet another indication of its intent to exclude Mansfield from providing aeronau tical services at the Airport. Undeterred by Respondent’s ongoing efforts to exclude it , Mansfield requested hanger space in the North Hanger immediately after being told that the Airport intended to manage the property itself (that is, until it could fin d some unidentified third

- party other than Mansfield to manage it). Complaint Ex. 31. Unsurprisingly, Respondent then denied Mansfield hanger space in the North Hanger on the grounds that “other parties asked first,” and because the leases it was providing in the North Hanger were “use

- limited to aircraft storage .” Answer at 8; Answer n. 8. Respondent has provided no evidence to support its claim that other individuals asked for hanger space in the North Hanger before Mansfield, (this is addressed in deta il in Section32

I.D. supra , which is incorporated here by reference ) and it has provided no justification for its decision to “use

- limit the hanger space in the North Hanger to aircraft storage,” when, at the current time, there are two entities providing ae ronautical services from the North Hanger (maintenance and flight instruction). Answer Ex. 17 at 26.
In sum , Mansfield has alleged that Respondent has stymied Mansfield’s desire to
occupy existing, suitable hanger space with airfield access (i.e., the No rth Hanger) from which to provide aeronautical services at every turn in order to protect Heritage’s exclusive right, and that its pattern of conduct regarding the North Hanger is further evidence of its intentional exclusion of Mansfield from on

- airport a eronautical activity. If proven, such conduct would be a clear violation of the exclusive rights prohibition. Accordingly, because there are genuine , disputed material issues of fact in this regard, Respondent’s Motion for Summary J udgment on Grant A ssuran ce 23 should be denied. Respondent’s Refusal to Negotiate with Mansfield in Good Faith to Develop New Facilities Mansfield has alleged and provided reliable and probative evidence proving that Respondent did not negotiate in good faith with Mansfield about its desire to develop new facilities from which it could provide FBO services. Complain t ¶¶ 71

- 72, 77

- 78, 84; Section
I .A , supra (incorporated here by reference)

. Respondent provides no evidence of its own (other than through self

- serving affidavits) to support its contention that it was legitimately interested in Mansfield developing new facilities at the Airport. Answer at 3. Seeking to distract attention from the reality of the record on this point, it states that Mansfield never provided “a irport s taff any concreate business plans for an FBO.” MSJ at 36 . However, there is no record evidence33

demonstrating that Respondent ever requested such. See Section I .F supra ( incorporated here by reference ) . If , after a year and half of meetings and corresponde nce (including letters from Mansfield outlining its plans at the Airport

– Complaint Ex. 25), Respondent was truly negotiating in good faith with Mansfield about the possibility of developing new space , one imagines that if it required a business plan, it would have simply requested one. The absence of such a request (if a b usiness plan was actually required ) is evidence of Respondent’s bad
faith. Minimum Standards The use of minimum standards as a vehicle to effect an exclusive business operation is p rohib ited. Khilstrom , FAA Docket No. 16

- 02

- 07, Director’s Determination at 23 ( November 28, 2007 ) (“Manipulating [minimum] standards solely to protect the interest of an existing tenant is unacceptable.”) ; Platinum Aviation , FAA Docket No. 16

- 06

- 09, Director’s Determination at 17

. Mansfield has alleged that Respondent is n ow developing minimum standards only afte r Mansfield requested them, with the purpose of preventing Mansfield from providing aeronautical services at the Airport and to protect Heritage ’s exclu sive right . Complaint ¶¶ 99

- 104, 112

- 115. Respondent argues that Mansfield cannot possibly demonstrate that the minimum standards are being drafted to exclude Mansfield, because no draft minimu m standards exist.
MSJ at 43. While it is true that the conte nt of the minimum standards that are being drafted is still a mystery, it is readily apparent from the timeline of supported by the record evidence that this document is being drafted solely in respon se to Mansfield’s request , which was made during the tim e that Mansfield was seeking to provide aeronautical services from a34

portio n of the North Hanger. See Complaint ¶¶ 99

- 104, 112

- 115; Section I .E supra (incorporated here by reference)

. Respondent has provided no evidence of its own, including any interna l emails about the decision to draft minimum standard s, that refute Mansfield’ s allegation s . Moreover, Respondent has shed some light on what might be the content of such minimum standards, by arguing, ominousl y (and incorrectly), that it would be a grant assurance violation to allow Mansfield to provide aeronautical services from a footprint that is smaller than Heritage’ s. Answer at 12; cf. FAA Order 5190.6b ¶ 9.6(c). Thus, there are genuine, disputed material issues of fact regarding Respondent’s intent ions in making the decision to draft minimum standards only after Mansfield requested them. Accordingly, as Mansfield has demonstrated that there are genuine, disputed material issues of fact as to whether Respondent i s actively and intentionally seeking to exclude it from providing aeronautical services at the Airport, Respondent’ s Motion for Summary Judgment on Grant Assurance 23 should be denied

.

b. Respondent’s Indirect Exclusion of Mansfield Heritage’s Land Grabbing Mansfield has alleged, and provided r elia ble, probative evidence proving that Heritage has been allowed by the Airport to acquire and hold property that grea tly exceeds its immediate needs

. Complaint 3, 7, 26, 3 8, 39, Complaint Ex. 5 ¶¶ 5

- 7. Mansfield has provided photographic evidence demons trating that properties in Heritage’s current leasehold at the Airport (i.e., the ASH Hanger terminal, and the GA terminal associated with the Atlantic Hanger) are virtually empty and unused. Complaint Ex. 12. Each of these facilities on its35

own would be sufficient for n FBO that was scaled to offer services commensurate to the demand at the Airport. And, it is undisputed that Mansfield has been deni ed the opportunity to operate a FBO out of existing space at the Airport, based on Respondent’s claim that n o such existing space is available. Complaint Ex. 13 § 3.1, MSJ at 37, 42. Rather than refute Mansfield’s evidence of underutilization with evidence of its own, Respondent simply denies this allegation ; however, conclusory denials do not create the sort of undisputed material facts required to prevail on a motion for summary judgment. Cf. Bisti Aviation, Inc. , FAA Docket No. 16

- 07

- 01, Dire ctor’s Determination at 16 (December 4, 2007) (where Respondent provided record evidence, including its own “independent evaluation” of space utilization, to refute Compla inant’s claim of “land grabbing ”). Tellingly, Respondent is inconsistent in responding to the allegation of “land grabbing,” at one point admitting that it used the “leverage” it had in settling its tax di spute with Heritage to more “appropriately tailor” it leasehold to its “current service offerings,” while also arguing (incorrectly) that it has no say over how Herita ge uses its space as long as it pays its bill on time. Answer at 5

- 6. Answer Ex. 1, ¶ 5 , Ex. 2 ¶ 6. Respondent argues that Heritage’s acquisition of Atlantic was the result of “market forces,” willfully ignoring the fact that the terms of the Atlantic FBO Agreement that it signed allowed for the acquisition, and that, to date, it has done no thing to penalize Heritage for completing the transaction (and thus, acquiring a monopoly)

– one that Respondent now claims required its consent. See Section I.B supra, incorporated here by reference. Even if Heritage’s acquisition of Atlantic was the resu lt of “market forces,” that would not relieve Respondent of the obligation to ensure that Heritage was putting all of its leasehold to36

productive use, especially in light of the fact that it was denying access to Mansfield on the basis of its argument that , “there is no available space.” 16 Answer Ex. 1 ¶ 4.
Jimsair , which Respondent cites in support of its argument that no t all single FBO operations will lead to an exclusive rights violation, is entirely distinguishable. Jimsair Aviation Services, Inc. v. Sa n Diego County Regional Airport Authority , No. 16

- 06

- 08, Director’s Determination (April 12, 2007). In Jimsair , complainant was the sole FBO , and there was no allegation that a second party had requested and been denied access. Id. at 21. Here, it is un disputed that Mansfield requested access to existing space and has been denied such. Answer Ex. 1 ¶ 4. Accordingly, as Mansfield has alleged, and provided evidence to prove that Heritage has been allowed by Respondent to bank space at the Airport that it does not need or use, and because it is undisputed that Mansfield has been denied access to the Airport on the basis that, “there is no existing space available,” Respondent’s Motion for Summary Judgment on Grant Assurance 23 should be denied.

2. Unjust Discr imination Violation s Grant Assurance 22 obligates an airport sponsor to make suitable areas or space available on reasonable terms to those willing and qualified to offer aeronautical or support services to the public

. FAA Order 5190.6b ¶ 9.7 . If existing facilities are not available, and suitable land is available for development, a n airport sponsor must, at a minim um, make that

16 In fact, the only forces that led to Heritage’s acquisition of Atlantic were anti

- competitive ones. Upon informati on and believe, Heritage purchased Atlantic for a wildly

- inflated price, and one that bore little relationship at all to the “market.”37

land available to the prospective service provider so that it can develop its aeronautical facility. Id. at 9

- 6. Violations of G rant Assurance 22 occur when an airport sponsor applies an inconsistent methodology in imposing terms and conditions for similarly situated users. Platinum Aviation , FAA Docket No. 16

- 06

- 09, Di rector’s Determination at 51. Unjust discrimination may also b e found when an airport sponsor disadvantages a potential provider of aeronautical services by deception or neglect. Khilstrom , FAA Docket No. 16

- 02

- 07, Director’s Determination at 19. Mansfield has alleged that Respondent violated Grant Assurance 22 wh en it: (1) denied Mansfield the ability to lease the North Hanger, and provide FBO services therefrom; (2) denied Mansfield the ability to lease hanger space in the North Hanger, and provide charter and maintenance services therefrom; (3) refused to negoti ate with Mansfield in good faith over the development of new facilities , from which Mansfield could provide FBO services; and (4) discriminated against Mansfield when actively encouraging Atlantic’s acquisition of Heritage over Mansfield’s. Respondent’s De nial of Mansfield’s Request to Lease the North Hanger Mansfield has alleged that it specifically requested to lease the North Hanger once it was released by Heritage in o rder to provide FBO services. Complaint ¶ 65. Respondent does not deny this. Answer E x. 2 ¶ 7 . Instead of considering Mansfield for the North Hanger lease as promised once the building became available , Respondent decided to manage the property itself, or alternatively, to issue a RFP for a property manager. Answer at 7

. Thus, it is undis puted that Respondent denied Mansfield’s request to provide aeronautical services38

from the North Hanger. 17 Mansfield has alleged generally that the Airport’s conduct with regard to the North Hanger evinces it goal of excluding Mansfield from the Ai rport. S ee Section I .D supra (incorporated here by reference)

. Respondent contends that Mansfield ’s claim of unjust discrimination on this basis must fail , since no similarly situated users have been allowed to provide aeronautical servi ces from the North Hanger. T his is incorrect. First, Heritage, up until the date it released the facility in May 2014, was permitted to provide FBO s ervices from the North Hanger

. Furthermore, as of the date of this filing, there are currently two North Hanger tenants that provide aeronautical services therefrom: North Ramp Aviation, which provides flight instruction, and an independent A&P

. Answer Ex. 17 at 20. Although Respondent now hides behind a “saf e and serviceable ” argument as to why it decided not to allow Mansfield to as sume the lease for the North Hanger, it provides no evidence to suggest that it ever demanded that Heritage cease providing aeronautical services therefrom for safety reasons

. Moreover, if the North Hanger is truly so unsafe as to prohibit aeronautical ser vices, then all current tenants should be immediately removed until the facility is returned to a safe condition. In sum, Respondent’s denial of Mansfield request lease the North Hanger once it was release by Heritage is further evidence of its desire to exclude Mansfield from the Airport,

17 Respondent tries to deny the existence of Mansfield’s outstanding request to lease the North Hanger by saying that th ese discussions have “ been terminated, ” and citing Complaint ¶ 75 in support. But Complaint ¶ 75 only stands for the proposition that Respondent reneged on its promise to make the North Hanger available to Mansfi eld once Heritage released it. Mansfield ha s most certainly never terminated its request to lease the North Hanger, and it has made it clear that it intends to participate in the RFP process, when and if it goes forward

.39

and because it has allowed similarly situated users to use the North Hanger to provide aeronautical services (including Heritage) , it has unjustly discriminated against Mansfield in deciding to deny Mansfield’s request

. Respondent’s Denial of Mansfield’s Request to Lease Hanger Space Mansfield has alleged and provided evidence proving that Respondent unjustly discriminated against it when it awarded hanger space in the North Hanger to Perry Sporn and David Mendal, even t hough Mansfield made it s desire for such space known long be fore Messrs. Mendal and Sporn. Complaint ¶¶ 80

- 94; Section I .D supra (incorporated here by reference). Respondent defends its actions by stating that Sporn and Mendal requested the space before Ma nsfiel d. Not only does Respondent’s own record evidence not support this claim ( see Answer Ex. 13 and 14), but the voluminous correspondence submitted by Mansfield and admitted to by Respondent leaves no doubt as to the fact that Respondent was well aware that Mansfield was looking for hanger space free from Heritage’s control and from which it could provide aeronautical services long before November 13, 2013. Perhaps aware that “first come, first serve,” will not pass muster, Respondent offers a
second rat ionale for its decision to deny Mansfield hanger space in the North Hanger; specifically, that its decision to lease to Sporn and Mendal, who had allegedly located off

airport as a result of Heritage’s monopoly, was motivated b y its desire to regain them a s A irport tenants, and in furtherance of its oblig ation under Grant Assurance 24 to make the Airport as “ self

- sustaining ” as possible. Nonsense : Mansfield made it clear that it would provide Part 135 services (which are no longer offered at the Airport) fr om the North Hanger40

if provided hanger space

– a far more s elf

- sustaining use, and in furtherance of Respondent’s prime obligation to provide space to businesses wanting to provide aeronautical services. See Kihlstrom , FAA Docket No. 16

- 02

- 07, Director’s D etermination at 17. In sum, Mansfield has demo nstrated that there is a genuine material issue of fact as to whether Messrs. Sporn and Mendal , users that are similarly situated to Mansfield , were given leases according to a standard different from the one set by Respondent for Mansfield. Respondent’s Refusal to Negotiate in Good Faith with Mansfield for the Development of New Facilities Mansfield has alleged that Respondent has denied Mansfield that ability to construct new facilities from which to provi de FBO services. See Complaint ¶ 84 ; Complaint Ex. 34; Section I .A supra (incorporated here by reference). If existing facilities are not available at an airport (as Respondent claims is true here ), and suitable land is available for development, an airpo rt sponsor must, at a minimum, make that land available to the prospective service provider so that it can deve lop its aeronautical facility. FAA Orde r 5190.6b at 9

- 6. Although Respondent claims that it negotiated with Mansfield in good faith regarding its desire to develop new facilities , the record belies this claim. For example, there is no dispute that Airport Director Richards has yet to respond to Mansfield’ s letter of June 2, 2014, in which it states its desire to “close a deal,” and requests informa tion on “the next steps in order to expeditiously move forward with this process.” Compla int Ex. 34; Answer ¶
84. At the very least, there are genuine material issues of fact in dispute concerning whether Respondent ever engaged Mansfield in good faith on the possibility of developing new facilities at the Airport ; thus, Respondent’s Motion for Summary Judgment should be denied.41 Respondent’s Preference for Atlantic Finally, Mansfield has provided evidence that demonstrates that Respondent overtly favored A tlantic in its potential acquisition of Heritage, so much so that it refused to even address Mansfield’s request for an FBO while Atlantic was deciding whether to purchase Heritage. Complaint Ex. 13 § 2.0 ; Section s I .A and I.C supra (incorporated here by

r eference)

. Because there are genuine material issues of fact in dispute concerning whether Respondent unjustly discriminated against Mansfield in its preference for Atlantic’ s acquisiti on of Heritage, Respondent’s Motion for Summary Judgment of Grant Assur ance 22 should be denied CONCLUSION Based on the foregoing, Complaint respectfully requests that Respondent’s Motion for Summary Judgment be denied, and that the FAA commence an investigation of Mansfield’s claims pursuant to 14 C.F.R. 16.29. Dated Novemb er 24, 2014. Respectfully submitted,

/s/___

________________ Benjamin H. Klein T HE K LEIN F IRM LLC 61 Broadway, Suite 2125 New York, NY 10006 Phone: (212) 658

- 1219 Fax: (646) 368

- 8401 bklein@thekleinfirm.com Attorney for Complainant42 CERTIFICATE OF SERVICE I hereby certify that I have this da y caused the foregoing Consolidated Reply and Answer to Respondent’s Answer and Motion for Summary Judgment to be served electronically on the following:
City of Burlington Attn: Gregg Meyer Burlington City Attorney’s Office 149 Church Street Burlington, VT 05401 gmeyer@burlingtonvt. gov William F. Ellis McNeil, Leddy & Sheahan P.C. 271 South Union Street Burlington, VT 05401 wellis@ncneilvt.com Pablo O. Nüesch Spiegel &McDiarmid LLP 1875 Eye Street, NW Suite 700 Washington, DC 20006 pablo.nuesch@spiegelmcd.com

Dated November 24 , 2014

_ /s/

_________________________ Benjamin H. Klein