Benjamin H. Klein

THE KLEIN FIRM LLC

61 Broadway, Suite 2125

New York, NY 10006

Phone: (212) 658-1219

Fax: (646) 368-8401

bklein@thekleinfirm.com

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Mansfield Heliflight, Inc.

Complainant,

v. Docket No. 16-14-06

City of Burlington, Vermont

Respondent.

/

MANSFIELD HELIFLIGHT, INC.’S CONSOLIDATED REPLY AND 

ANSWER TO RESPONDENT’S ANSWER AND MOTION FOR SUMMARY 

JUDGMENT

Complainant Mansfield Heliflight, 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 Burlington, 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, Respondent and its employees working at the Burlington International 

Airport (“Airport”), in violation of its federal grant assurance obligations, engaged in an 
2

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 it has provided to similarly situated 

users at the Airport. 

In its Answer and Motion for Summary Judgment, Respondent continues its 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 request 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 Mansfield from gaining a foothold at the Airport. 

Mansfield will not restate all of the allegations in the Complaint herein: suffice it to 

say that it is undisputed that Mansfield first requested 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 

Respondent repeats today, despite the fact that: (1) it continues to permit Heritage to occupy 

buildings 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 request, 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 objectives. However, as the record evidence proves, in the eighteen

months 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 request 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 this denial by claiming that other parties requested hanger space in the 

North Hanger before Mansfield, 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

Respondent’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 

which, said staff 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 grant 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); accordingly, its Motion for Summary Judgment should be denied. 

I. REPLY TO ANSWER

In justification of its discriminatory conduct towards Mansfield, and to distract 

attention 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 continues 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 second 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 in 
5

a dispute with it; (D) the City has managed 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 at 

the Airport; and (F) even though Mansfield’s objectives at the Airport are “confusing,” the 

City has always tried 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 PowerPoint 

presentation 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 an overt mischaracterization 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 Respondent unfairly and 

unjustly discriminated against Mansfield when it voiced its preference that a FBO that was

“solid and with lengthy experience” purchase Heritage, as opposed to Mansfield. Complaint 

¶¶ 42-44. Respondent’s preference for a single FBO was laid bare by Airport Director 
6

Richards, when he stated that “[t]he airport would like the matter with Heritage and Atlantic 

to come to fruition 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 worried 

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 intervention in the 

business affairs of private aeronautical service providers at the Airport is an overt violation of 

Grant Assurances 22 and 23, as not only was it actively discriminating against Mansfield in 

its preference for Atlantic, but it was also encouraging the continuation of the status quo of 

having one FBO on the field. 

Next, Respondent points to its feigned interest in Mansfield developing new facilities 

as further proof that its “strategic plan” calls 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 Mansfield repeatedly 

requested (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 bottom 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 leaseholds that it was maintaining simply to stifle competition.
7

space that Mansfield was finally provided with what Airport 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 Airport 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 listing insurance requirements (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 inquiring into 

“the next steps [] in order to expeditiously move forward with 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 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. If, as Respondent would have the FAA 

believe, it was actually excited about the 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 Mansfield, but Perry Sporn, who, upon information and belief, has also 

expressed interest in opening 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 information 
8

from Airport 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 that 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 provide aeronautical services at the Airport, whether 

motivated by its desire to protect Heritage’s monopoly on the provision of such services, or 

otherwise to unjustly discriminate against Mansfield.

B. Heritage’s Acquisition of Atlantic and its Monopoly on FBO Services

Mansfield has alleged that Heritage’s acquisition of Atlantic, and Respondent’s 

acquiescence to such, constitutes a violation of Grant Assurance 23 - Exclusive Rights. 

Complaint ¶¶ 23-25, 38-39, 120. In response, Respondent asserts that it never consented 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 mischaracterization 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 18th, 2013.

Complaint Ex. 25 at 4. One week later, Mr. Sporn writes Richards and requests exactly the same 

thing. Answer Ex. 14. This is despite the fact that Mansfield specifically asked for its letter to be kept 

confidential. 
9

First, the facts: Respondent claims that the City has always taken the position that

Heritage’s acquisition of Atlantic required “the express consent” 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 acquisition of Atlantic was completed, 

an attorney for Respondent weakly stated that the “City reserves its right to assert that the 

transfer” required the City’s consent. Answer Ex. 6. Two months later (it obviously did not 

feel much pressure), counsel for Heritage replied to Respondent’s September 14th letter

noting that, since Heritage purchased Atlantic via a Stock Purchase Agreement, the language 

of Atlantic’s FBO Agreement3did 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 nor Atlantic were ever required even to obtain Respondent’s 

post 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 required 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 (“Significant 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, dated 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 without requiring the City’s consent, 

Respondent is likely in violation of Grant Assurance 5 as, when it entered into the Atlantic 

FBO Agreement, Respondent granted a property interest to an entity on the Airport that 

“restrict[s] the airport sponsor’s ability to preserve its rights and powers to operate the airport 

in compliance with the applicable 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 currently 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 nor Atlantic has ever obtained 

the Respondent’s consent for the transaction; (3) Heritage continues to occupy Atlantic’s

leaseholds at the Airport; (4) Respondent has 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 occurred
11

when Heritage acquired Atlantic; 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

Respondent next suggests 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 with Heritage over a tax dispute. Answer at 4. 

This non 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 Heritage’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), which 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 liberated. 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 previously 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 admits that the North 

Hanger is in a state of significant disrepair 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 from 

other inconsistencies in its Answer 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 conclusory 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 relieving Heritage of the property, 

Respondent 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 attendance at this particular closed session as 

related to the “ongoing litigation.” Complaint ¶ 45, Answer ¶ 45. However, the minutes 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 Heritage’s 

assets by Mansfield. Airport Director Richards admits that Mansfield told him that it wanted 

to purchase some of Heritage’s leaseholds in January 2013, and that he said he could not help 

Mansfield in that regard. Answer, Ex. 1 ¶ 3. He did, however, seem willing to help Atlantic 

purchase Heritage – so much so that he simply ignored Mansfield until the possibility of that 

deal fell through. Complaint Ex. 13 §2.0; Complaint ¶¶ 42-47.

Why was the Airport more invested in the Atlantic transaction (which would 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? The record provides the answer: 

Respondent discriminated against Mansfield in favor of a “national, established 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 treatment 
14

provided to Heritage. The result of the City’s discriminatory conduct has been to the 

detriment of aeronautical users of the airport. There is currently no Part 135 operator located 

at the Airport, and maintenance and fuel are provided at inflated prices that users are forced 

to accept as a result of the lack of any competition.

7

Finally, Respondent uses the litigation with Heritage to avoid answering Complaint ¶ 

47. Mansfield alleges that though Airport Director Richards knew that Mansfield was 

interested 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 Mansfield 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 violation 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 beg8to 

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 

maintenance 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 relented 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 willingly 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 hanger 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 building, 

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 Hanger 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 yet another attempt to find cover for

its disparate treatment of Mansfield, and a poor one at that. Neither 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 email 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 13th. Answer Ex. 13. The email from Mr. Sporn is 

entirely unrelated to leasing hanger space in general, or the North Hanger in particular. 
16

Answer Ex. 14. Dated November 26, 2013, it simply contains 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 Nicolas Longo, in a sworn statement, says that he was “not aware of 

[Mansfield’s] interest in leasing space to park aircraft until [June 30th].” Answer, 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 request 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, how did they know, at 

that point that the North Hanger would be managed by the City once it was released by Heritage? At 

the November 21st, 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 following the Heritage settlement. Were Sporn and Mendal provided with different 

information? 

10 All Airport staff that Airport Director Richards has assigned to deal with Mansfield have 

either left or are shortly leaving the Airport’s employ. Ryan Betcher, the original point of contact for 

Mansfield left shortly after the April 29, 2014 meeting. 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 attended 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 record 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 agency. Complaint Ex. 36. In its Answer, 

Respondent backtracks 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 13th. Complaint ¶ 87, Answer ¶ 87. Then, on Monday, June 16, 2014, 

this “sample” lease, now apparently finalized (but without informing Mansfield), was

presented 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 20th, Mansfield called Heather Kendrew to inquire into the status of the 

North Hanger lease. Complaint 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 North 
18

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

11 This is undisputed. 

Complaint ¶ 89, Answer ¶ 89. 

Even assuming, arguendo, that Messrs. Sporn and Perry did request 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 Mansfield 

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 desperately 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 the 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 24th by accident. On June 23rd, as she 

would surely have known at that point, 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 services out of a smaller footprint.12 This turns the doctrine of unjust 

discrimination on its head. Unfortunately, if this is Respondent’s understanding of Grant 

Assurance 22, it appears that such a requirement will be 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 an 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 on 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 Hanger, apparently in the belief that this will exonerate it from its 

unjustly discriminatory dealings 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 mocks Mansfield’s desire to offer FBO services out of an office, and suggests 

this confused it as to what Mansfield 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 of 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 

available hanger space in the North Hanger, and Respondent was certainly aware of this fact when it 

decided not to do so.
20

2014, there was 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 Respondent 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 standards with the purpose of excluding 

Mansfield. Complaint ¶¶ 99-115. The City does not refute the timeline offered by Mansfield, 

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 to run an FBO.” Answer at 12-13.

An examination of the undisputed timeline provided by Mansfield strongly suggests

otherwise. 

Mansfield requested a copy 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 not having any. This was after 

significant staling and redirection on the part of Richard’s and his staff. Complaint ¶¶ 99-

105, Complaint Exs. 41-42. Airport Director Richards stated that Airport staff “had looked, 
21

but couldn’t find any [minimum standards].” Answer Ex. 1, ¶ 13. Thus, according to the 

Airport Director, the staff of the Airport had spent at least a week looking for a minimum 

standards document, that, on July 11th, Mansfield had been told existed. Complaint ¶ 103, 

Answer ¶ 103. One would imagine that if a Part 139 certified, international airport had 

minimum standards, at least one member 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, if Airport staff believed that minimum standards existed at 

the time of Mansfield’s request, why were they not referenced in any of the FBO leases 

going back two decades? 

Mansfield submits that Respondent knew shortly after Mansfield’s request that 

minimum standards did not exist, but stalled when it realized the implication, and quickly 

decided to concoct minimum standards in order to prevent Mansfield from providing 

aeronautical services out of the North Hanger. If in fact Mansfield is mistaken, Respondent 

should come forward with its own evidence on the 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 

shamelessly 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, the FAA should use its 

authority pursuant to 14 CFR 16.29(2) to compel 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 

disproves 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 productive 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 apply 

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 meeting of the Airport Board in August 2013, again to express 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 business.” 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 the 
23

Airport’s request. Id. at 4. Mansfield met with 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 an FBO. Id. ¶ 77. Airport staff never 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 to 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, selective and inaccurate interpretation of the evidence 

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 for 

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 specifically 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 own 
24

admission to voluminous back and forth correspondence between the parties, as well the 

multiple meetings 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 Respondent’s contention that it was 

somehow blindsided by Mansfield’s filing of the Part 16 Complaint. The undersigned 

personally made Assistant City Attorney Gregg Meyer aware in February 2014, that 

Complainant believed that Heritage was being allowed to hold space 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 meetings followed, all in service of 

Mansfield’s goal of avoiding the present action.

In the final analysis, however, no further proof of Respondent’s unwillingness to 

reach a resolution without outside intervention is needed other than Airport Director

Richards’ 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 simply for logistical 

reasons, as opposed to a clear manifestation of its hostile intent, does not pass the sniff test. 

Why would an Assistant City Attorney, with no aviation experience, be designated as the

main point of contact for a party seeking to provide 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 Mansfield 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 to the filing of the Complaint. Moreover, a week before filing the 

Complaint (and a day after Airport Director 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; however, 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 corresponding 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 FAA 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. STATEMENT 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 contends there is no genuine issue of material fact.” 

Respondent quotes the standard for summary judgment correctly “no genuine issue of 

material fact,” but then misapplies it, merely reciting its own allegations and defenses from 

its Answer, almost all of which are disputed. MSJ at 32-35.

For reasons of judicial economy, Mansfield will make reference to the material 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 services on the airport or engaging 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 

airport limits the usefulness of the airport and deprives the public of the benefits of 

competitive enterprise. Id. at ¶ 8.4(c). “An exclusive rights violation occurs when the airport 

sponsor excludes others, either intentionally or unintentionally, from participating in an onairport aeronautical activity.” Advisory Circular 150/5190-6, Exclusive Rights at FederallyObligated 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 of 
27

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 prohibition. 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 demonstrated that 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 to 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 Heritage, 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 allegation is not denied, and is, at best, disputed: Respondent 

avoids 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 from 
28

purchasing certain assets of Heritage, and instead encouraged Atlantic to take over the entire 

FBO operation at the Airport, 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 specifically, Mansfield has alleged, and provides evidence proving that 

Respondent is intentionally and directly excluding Mansfield from participating in an onairport aeronautical activity by: (a) refusing to allow Mansfield to provide aeronautical 

services 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 Mansfield indirectly, as a result of its 

acquiescence to Heritage’s acquisition of Atlantic, and Heritage’s resulting control of all 

existing space that is suitable 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 keep competition off the Airport, and it has provided reliable, 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 

North 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 meeting, 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 Hanger would 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 decided 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 to 
30

lease the North Hanger to Mansfield as stemming from its sudden realization that the North 

Hanger would require significant repairs, 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, at 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 would have used its leverage with Mansfield (based 

on its clear desire to acquire space 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 subtenants, Respondent offers no explanation for why their 

subleases could not have been managed by Mansfield, as Heritage managed them before, and 

as Respondent manages them now. Moreover, and what Respondent likely does not care to 

share, is that the majority 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 scarce resources, and a fulfillment of Respondent’s primary obligation to operate 

the Airport for aeronautical use. See Kihlstrom, FAA Docket No. 16-02-07, Director’s 

Determination at 17 (“Operating the airport for aeronautical use is not a secondary 

obligation; 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 provide 
31

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 be 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, but 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 aeronautical 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 find 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 detail in Section
32

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 aeronautical 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 North 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 aeronautical 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 Judgment on Grant Assurance 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. Complaint ¶¶ 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 “airport staff any 

concreate business plans for an FBO.” MSJ at 36. However, there is no record evidence 
33

demonstrating that Respondent ever requested such. See Section I.F supra (incorporated here 

by reference). If, after a year and half of meetings and correspondence (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 business 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 prohibited. 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 now developing 

minimum standards only after Mansfield requested them, with the purpose of preventing 

Mansfield from providing aeronautical services at the Airport and to protect Heritage’s 

exclusive 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 minimum standards exist. 

MSJ at 43. While it is true that the content 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 response to Mansfield’s request, which was 

made during the time that Mansfield was seeking to provide aeronautical services from a 
34

portion 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 internal emails about 

the decision to draft minimum standards, that refute Mansfield’s allegations. Moreover, 

Respondent has shed some light on what might be the content of such minimum standards, 

by arguing, ominously (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 intentions 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 is 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 reliable, probative evidence proving that 

Heritage has been allowed by the Airport to acquire and hold property that greatly exceeds its 

immediate needs. Complaint 3, 7, 26, 38, 39, Complaint Ex. 5 ¶¶ 5-7. Mansfield has provided 

photographic evidence demonstrating 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 its 
35

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 denied the opportunity 

to operate a FBO out of existing space at the Airport, based on Respondent’s claim that no 

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, Director’s Determination at 16 (December 4, 

2007) (where Respondent provided record evidence, including its own “independent

evaluation” of space utilization, to refute Complainant’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 dispute with Heritage to more 

“appropriately tailor” it leasehold to its “current service offerings,” while also arguing 

(incorrectly) that it has no say over how Heritage 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 nothing 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 result of “market forces,” that would not relieve 

Respondent of the obligation to ensure that Heritage was putting all of its leasehold to 
36

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 not all single FBO 

operations will lead to an exclusive rights violation, is entirely distinguishable. Jimsair 

Aviation Services, Inc. v. San 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 undisputed 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 Discrimination Violations

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, an airport sponsor must, at a minimum, make that 

 

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

ones. Upon information 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 Grant 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, Director’s Determination at 51. Unjust 

discrimination may also be 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 when 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 negotiate 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 Denial 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 order to provide FBO services. Complaint ¶ 65. Respondent 

does not deny this. Answer Ex. 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 undisputed that Respondent denied Mansfield’s request to provide aeronautical services 
38

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 Airport. See

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 services 

from the North Hanger. This is incorrect. First, Heritage, up until the date it released the 

facility in May 2014, was permitted to provide FBO services 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 “safe and serviceable” argument as to why 

it decided not to allow Mansfield to assume 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 services, 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 these 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 Mansfield once Heritage released it. Mansfield has 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 though Mansfield made its desire for such space known long before 

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 Mansfield. 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 rationale 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 offairport as a result of Heritage’s monopoly, was motivated by its desire to regain them as 

Airport tenants, and in furtherance of its obligation 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) from the North Hanger 
40

if provided hanger space – a far more self-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 Determination at 17.

In sum, Mansfield has demonstrated 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 provide 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 

airport sponsor must, at a minimum, make that land available to the prospective service 

provider so that it can develop its aeronautical facility. FAA Order 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 information on “the next 

steps in order to expeditiously move forward with this process.” Complaint 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 Atlantic 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; Sections I.A and I.C supra (incorporated here by 

reference).

Because there are genuine material issues of fact in dispute concerning whether 

Respondent unjustly discriminated against Mansfield in its preference for Atlantic’s 

acquisition of Heritage, Respondent’s Motion for Summary Judgment of Grant Assurance 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 November 24, 2014.

Respectfully submitted,

 

/s/___________________

Benjamin H. Klein 

THE KLEIN FIRM LLC

61 Broadway, Suite 2125

New York, NY 10006

Phone: (212) 658-1219

Fax: (646) 368-8401

bklein@thekleinfirm.com

Attorney for Complainant
42

CERTIFICATE OF SERVICE

I hereby certify that I have this day 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