UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. PRO-FLIGHT AVIATION, INC. ) ) Complainant ) ) v. ) Docket No. 16-15-03 ) CITY OF RENTON, WASHINGTON ) ) Respondent ) ) RESPONDENT’S REBUTTAL TO COMPLAINANT’S REPLY TO ANSWER Pursuant to 14 C.F.R. § 16.23(f), RespondentCity of Renton, Washington (“City”) submits this rebuttal to the Repl y of Complainant Pro-Flight Aviation, Inc. (“PFA”) to the City’s Answer to the Complaint in this case (“Reply”). In its Reply, PFA sets out its five principal arguments: (1) Boeing is not engaged in aeronauti cal activity on the 760/770 Parcels; (2) the City discriminated against PFA by misleading them regarding the availability of the 760 Parcel and deciding to lease the parcel to Boeing before o fficially considering PFA’s application; (3) the selection of Boeing’s lease over PFA ’s lease proposal is based on post hoc justifications; (4) the Airport has not complied with th e Airport Layout Plan (ALP) gran t assurance, and (5) PFA has standing to maintain its Part 16 complaint, even absent a valid Operating Permit. As discussed more fully below, the City has provided fact s supported by declarations showing that Boeing’s intended activities on the recently-leased parcels come well within the scope of aeronautical activities as that term has been defined by the F AA. The incomplete and misleading set of facts (at Reply, pp. 10-12) supporting PFA’s claims of prohibited discriminatory treatment of PFA, presumably in violation of Grant Assurance 22, we re effectively dispelled and placed in their2 proper context in both the City’s Answer and th e Fact Statement submitte d in support of that Answer. As additionally highlight ed below, the uncontroverted record evidence shows that PFA submitted a timely application seeking a long-te rm lease of the 760 Parcel, that the other alternative parcels rejected by PFA were suitablefor PFA’s intended purposes, and that the City Council fully and fairly consideredPFA’s application to lease the 760 Parcel. Further, while the City does not believe that the ALP needs to be updated to reflect the aeronautical activities that Boeing will conduct on the leased 760/770 Parcels, it explains below how any updates the FAA deems necessary can readily be incorporated in to the Airport’s ongoing re view of its Master Plan. 1 The only truly new facts set fo rth by PFA are those presented in an attempt to justify its failure to renew its most recent Operating Pe rmit before the July 31, 2015 expiration date, an event that the City conte nds in its Answer deprives PFA of st anding to bring this Part 16 action. Indeed, this undeniable omission is the subjec t matter of 8 out of 12 facts in the Paholke Declaration submitted in support of PFA‘s Reply. However, as discussed more fully below, such an important “oversight” does indeed deprive PFA of the standing it may have otherwise had to pursue this case. I. The City Did Not Unjustly Discriminate Against PFA The crux of PFA’s Grant Assurance 22 claim is that the City unjustly discriminated against it because the City did not agree to lease PFA a partic ular parcel of property—the 760 Parcel. This claim is made, despite the undisputedfact that PFA was offered, and flatly rejected

1 A more thorough analysis of all the facts and legal arguments explaining why the City has not violated any of its grant assurance obligations as alleged in the Complaint, whether or not raised again in PFA’s Reply, can be found in the City’s Motion for Summary Judgment and Memorandum in Support Thereof (filed June 4, 2015) and its Reply to PFA’s Answer to RNT’s Motion for Summary Judgment (filed June 15, 2015). The City would ask that the FAA look to those documents, both of which are incorporated herein by reference, for a full explanation of its defenses, to avoid the need to duplicate them here or in additional legal briefs.3 (several times), seve ral alternative accommodations. Th e fact that PFA refused those alternatives guts its primary argument, and exposes PFA’s complaint as nothing more than an improper attempt to use the Part 16 process to bully the City into leasing PFA the sole property it desires. But Grant Assurance 22 does not guarantee PFA the right to have any property it desires. So PFA is left with unpersuasive, post hoc arguments in hopes that it will get from the FAA through Part 16 what the Airport has refused and what the grant assurances do not require. A. It Is PFA’s, Not The City’s, Post Hoc Analysis That Is A Work of Fiction PFA claims that the Airport’ s justification for a lease award to Boeing—to wit: that PFA is just being “picky” because there are other su itable spots on the field where PFA could conduct its operations—is an invention “concocted” afte r the fact and is, in any case, unsupported as a factual matter. Reply, pp. 14-15. Bu t it is PFA, not the Airport, whose post hoc analysis twists the facts. First, PFA says that it initi ally rejected the 820 Parcel, lo cated just three parcels away from PFA’s current operations, because it wanted to wait for something “more suitable” because 820 was “not a good fit.” Reply, p.16. PFA claims to have rejected it again when offered in 2015 because there will not be any way to sa fely access the Parcel once Boeing assumes possession of the 760 and 770 Parcels. Reply, p.17. This is a post hoc rationalization on PFA’s part. The 820 Parcel is accessibl e from Perimeter Road, as are all the other parcels. Declaration of Jonathan Wilson in Support of RNT’s Rebuttal (“JW Dec. Rebuttal”), ¶¶ 6, 7, & 11. The fact is that while the 820 Parcel is just as safe as the other parcels offered to PFA, it happens to be located right next to PFA’s competition at the Airport—Rainier Flight Services (“Rainier”). JW Dec. Rebuttal, ¶ 8. PFA conveniently fails to men tion that it also reject ed the 770 Parcel, which was offered at the same time, even though that parcel is substantially cl oser to PFA’s current4 location than is the 820 Parcel a nd is, like all parcels, accessible to/from Perimeter Road. JW Dec. Rebuttal, ¶ 7; see also, Declaration of Jonathan Wilson attached to Summary Judgment Motion, ¶ 9, Ex. JW-1. PFA also acknowledges that it re jected the Old Restaurant site when it was offered as an alternative, noting that it was not then and is notnow available for aircraft tie-downs and, in any case, PFA claims that there is “no practicable a nd safe way” to transpor t customers to and from that location. Reply, p.17. As far as the conditio n of the property is concerned, PFA ignores the fact that it is curren tly being redeveloped to accommodate aircraft parking and, to make it suitable for this purpose, that the scope of work will include moving the Airport fence to bring this parcel within the usable and accessible Airport properties. 2 See Declaration of Jonathan Wilson attached to City’s Reply to PFA’s An swer to RNT’s Motion for Summary Judgment (filed June 15, 2015), re-submitted herewith. Thus the full facts clearly show that PFA was not the victim of any grant assuran ce violation, but simply was and continues to be picky, choosing to reject other usable parcels while in sisting on having its “i deal” 760 Parcel. By basing its claim that the Airport violatedGrant Assurance 22 when it failed to award PFA the lease for the 760 Parcel on the lack of an y suitable alternatives, notwithstanding its prior and subsequent rejections of the 770 and 820 par cels, as well as the now -under-development Old Restaurant site, PFA ignores the well-establishedprinciple that the gr ant assurances do not require an airport owner to provide a tenant with the exact piece of property it wants, particularly when it is competing against another existing tenant for the use of the property. PFA has not offered any legally-based rebuttal to the line of cases relied upon by the Airport. See Roadhouse Aviations, LLC v. City of Tulsa & the Tulsa Airports Improvement Trust , FAA Dkt No. 16-05- 08, 2007 FAA LEXIS 240, at *55 (June 26, 2007) (Final Decision); ALCA v. Miami-Dade

2 The Contract for the Engineering Design is ready for signature. See JW Dec. Rebuttal ¶ 11.5 County, FL , FAA Dkt No. 16-08-05, 2010 FAA LEXIS 234, at *71-72 (Aug. 31, 2010) (Director’s Determination); Jimsair Aviation Services, Inc. v. San Diego County Reginal Airport Auth. , Dkt No. 16-06-08, 2007 FAA LEXIS 272, at *47-48 (April 12, 2007) (Director’s Determination); Skydive Monroe, Inc. v. City of Monroe, GA , Dkt No. 16-06-02, 2007 FAA LEXIS 117, *20-22 (March 30, 2007) (D irector’s Determination); Mainardi v. Lincoln Park Airport, Inc. , Dkt No. 16-02-12, 2004 FAA LEXIS 877, at *3 5 (Oct. 18, 2004) (Final Decision). The preferences of tenants and subtenants are ju st preferences, which do not impose any legal obligation on an airport. Santa Monica Airport Ass’ n v. City of Santa Monica , FAA Docket No. 16-99-21, 2003 FAA LEXIS 144, *46 (Feb. 4, 2003) (Fin al Decision). The Airport need only allow PFA access to a “suitable” property to satisfy Grant Assurance 22. See FAA Order 5190.6B. As commonly defined “suitable” means ha ving the qualities that ar e right, needed, or appropriate for something. See www.merriam-webster.com/dictionary/suitable. Both the 770 and 820 Parcels, the only two parc els available at the time PFA fi rst requested additional space, as well as the now-under-development Old Restau rant site, are suitable for the tie-down of PFA’s aircraft training/rental fleet. The distance from PFA’s current building, which PFA emphasizes in its Reply, does not render them unsuitable. It is not atypic al for aircraft to be parked at a remote location from which an airport service provider will shuttle the crew and/or passengers to the building where other services, such as bathrooms, a pilot store and lounge, food, and rental cars are located . B. Pro-Flight And Boeing Are Not Similarly Situated PFA’s claim of unjust discrimination should also be rejected because PFA and Boeing are not similarly situated. U nder well-established law, there can be no unjust discrimination where the complainant is not similarly situated to the airport user about which it complains. See6 ALCA v. Miami-Dade County, FL , FAA Dkt No. 16-08-05, 2010 FAA LEXIS 234, at *89-93 (Aug. 31, 2010) (Director’s determination); Northern Air,Inc. v. County of Kent, MI, Dkt No. 16- 11-10, 2013 FAA LEXIS 316, at *73 (March 28, 2013)(Director’s determination); Aerodynamics of Reading, Inc. v. Reading Regional Airport Authority , FAA Docket No. 16-00- 03, 2001 FAA LEXIS 566, at *29 (Jul y 23, 2001) (Final Decision); Truman Arnold Cos. d/b/a TAC Air v. Chattanooga Metro. Airport Auth, FAA Dkt No. 16-11-08, at *60-61 (Oct. 4, 2013)(Director’s determination); Moore individually and d/b/a Wa rbird Sky Ventures, Inc. v. Sumner County Regional Airport Auth. , FAA Dkt No. 16-07-16, 2009 FAA LEXIS 437, at *107 (Feb. 27, 2009)(Director’s determination). Two aeronautical users are no t similarly situated unless they assume similar obligatio ns, use similar facilities, and make similar use of the airport.
See FAA Order 5190.6B, § 9.2. The differences between the Boeing and PFA ope rations plainly show that the two are not similarly situated. As discussed more fully in the City’s Summary Judgment Motion (at pp. 27- 29) PFA conducts a traditional FBO operation fro m the Airport, and seeks the 760 Parcel for expanding its flight school operations. Boeing, on the other hand, manuf actures aircraft, and seeks to use the 760 Parcel for final completion of modifications of new airc raft. Given the vast differences between the PFA and Boeing operations, they are in no way “similarly situated” and, accordingly, any differences in treatment canno t provide the basis for a finding of economic discrimination under Grant Assurance 22. C. The City Fully And Fairly Considered PFA’s Application The facts leading up to the lease of the 760/770 Parcels, including the City’s handling of both PFA and Boeing, are fully set forth in the City’s Fact Statement supporting its Answer, ¶¶ 14-24 (filed Aug. 7, 2015)(“Fact Statement”). Howeve r, a few of those facts pertaining to PFA’s7 treatment by the Airport demonstrate the flaws inPFA’s rendition of the facts at pages 10-12 of its Reply, where it claims to have been in tentionally misled. These are as follows:

 The 760 Parcel that PFA expressed interest in between 2011 and 2013 was occupied by another tenant until April of 2013. Fact Statement, ¶ 13 (citing Complaint, Ex. 7).

 As soon as PFA sought additional space, the Airport offered PFA the 770 and 820 Parcels that were available. Fact St atement, ¶ 12 (citing Wilson Dec., ¶ 9, Ex. JW-1).

 From the time the 760 Parcel was vacated in April of 2013 until Boeing needed to physically occupy the property, the Airport allowed PFA via an oral month-tomonth lease to tie-down its ai rcraft rental/training fleet there. Fact Statement, ¶ 25 (citing Complaint, ¶¶ 15, 30; Wilson Dec., ¶ 11).

 PFA submitted an application for the 760/770 Parcels on June 6, 2013, seven weeks before the lease of those properties was considered by the City Council’s Transportation/Aviation Committee (“ Transportation Committee”). Fact Statement, ¶ 16 (citing Complaint, ¶¶ 23, 26, Ex.7); ¶ 19 (citing Complaint, ¶ 28).

 The Transportation Committee heard a presentation by PFA as well as Boeing on July 25, 2013, and asked questions of the presenters, before its members independently voted to enter a lease withBoeing for the 760/770 Parcels. Fact Statement, ¶ 19 (citing Declaration of Je sse Uman attached as an exhibit to Summary Judgment Motion (“Um an Dec.”), ¶¶ 6-10); ¶ 20. See , also, Declaration of Marcie Palmer (“Palmer Dec.”), ¶¶	3,	7,	Declaration	of	Don Persson	(“Persson	Dec.”),	¶¶	6,	7,	&	Declaration	of	Greg	Taylor (“Taylor Dec.”),	¶¶	6,	9,	10, all attached as Exhibits to Re ply to PFA’s Answer to RNT’s Motion for Summary Judg ment (filed June 15, 2015) and re-submitted herewith). These facts make it absolutely clear, notwithst anding anything that was said to PFA by the Airport manager, Ryan Zulauf, PFA was fully aw are of the availability of the 760 Parcel and, armed with that knowledge, submitted a timely app lication to lease the property. These are the critical facts to be considered for purposes of th is Part 16 action, because they render irrelevant any statements PFA deems misleading, even assu ming that they occurred as PFA contends. 3

3 For example, PFA’s belief that Mr. Zulauf intentionally misled PFA by advising that the 760 Parcel could not be leased because of a drainpipe that needed repair, by failing to promptly advise PFA of Bo eing’s lease application, or by discouraging PFA from applying because of a prior decision to lease the parcel to Boeing, did not cause any8 Indeed, a Part 16 action looks at and addresses only the Airport’ s current compliance status, it does not impose punishment for past personal wrongs. Wilson Air Center v. Memphis and Shelby County Airport Auth. , FAA Dkt No. 16-99-10, 2001 FAA LEXIS 567, at *12 (Aug. 30, 2001) (Final Decision)(leadcase for proposition), aff’d other grounds, Wilson Air Center, LLC v.
FAA , 372 F.3d 807 (6 thCir. 2004); Flightline Ground, Inc. v Louisiana Dept. of Trans & Dev. , 2015 FAA LEXIS 20, at *37 (Jan. 15, 2015) (Fin al Determination); Order 5190.6B, § 2.8(b) see also Sum. Judg. Mem., at pp. 5-6 (citing other cases) . Thus, as a matter of law, even if Mr. Zulauf’s conduct had somehow violated any gran t assurances, which the Airport has denied and continues to deny, subsequent curative acti ons would make any FAA action unnecessary and unwarranted. Id . Therefore, as a matter of law, the C ity Council’s full consideration of PFA’s timely application eliminates the need for the F AA to consider any alleged harm to PFA by Mr. Zulauf. 4
When PFA claims that the decision had al ready been made before the Transportation Committee met and deliberated on the 760/770 lease, it totally ignores the record evidence that PFA cannot and has not rebutted. As explained in the declaration of Jesse Uman, Boeing’s representative at the Trans portation Committee meeting where the 760/770 lease applications were considered, as well as the declarations of all three Transportation Committee members, the Committee listened carefully to presentations by PFA and Boeing repr esentatives, asked questions to flesh out specifics of the two proposals, and even as ked the PFA representatives if they had any further comments regarding the leas e of the 760 and 770 parcels, before they voted on the matter. See Uman Dec., ¶¶ 7-10; Palmer Dec., ¶¶ 3, 7; Persson Dec., ¶¶ 6, 7; Taylor Dec.,

actionable harm because PFA nevertheless submitted a timely application to lease the pr operty that was subsequently considered on the merits.

4 As Mr. Zulauf is now an employee of the FAA, he is unable to stand up and speak for himself to deny these allegations.9 ¶¶ 6, 9, 10. Further, each of the Committee members te stified in their declarations that they went into the meeting with open minds and made th eir decision based upon the applications and the information presented at that meeting. Ibid . This testimony is uncontroverted. Mr. Zulauf’s decision to recommend to the Transportation Comm ittee that the Airport aw ard a lease to Boeing simply has no bearing on the Committee members’ state of mind. It does not show that the actual decision makers, the City Council (first in Committee and th en as a whole), did not fully and fairly consider PFA’s application. To the contrary, the Transportation Committee proceedings clearly show that the City met its obligation under Grant Assurance 22 to avoid unjust discrimination when making its leas e determination for the 760/770 Parcels. D. An Award To Boeing Was Justified Even If PFA Would Accept A Short- Term Lease. PFA	for	the	first	time	in	this	proceeding	claims	that	it	did	n ot	request	a	long‐term lease,	implying	that	this	fact	w ould	have	mandated	an	award	to PFA	instead	of	Boeing. Reply,	pp.15‐16.		However,	the	length	of	the	lease	is	not	the	d eterminative	factor	in	an award	of	the	lease	to	Boeing.		To the	contrary,	the	City	would have	been	fully	justified	in leasing	the	760	Parcel	to	Boeing even	if	PFA	had	shown	the	alle ged	flexibility	in	the	term	of its	lease.			Boeing	clearly	evid enced	a	demonstrable	need	for	t he	five	737	MAX	aircraft	stalls that	could	be	accommodated	only	o n	the	adjacent	760	and	770	Par cels.		Fact	Statement,	¶	9 (citing Shineman Dec. ¶¶ 2, 8; Wilson Dec., Ex. JW-3; Johnson Dec., ¶¶ 12-13, 15); Fact Statement,	¶	18	(citing	Johnson	Dec.,	¶	17;	Wilson	Dec. Answer,	¶	25).		PFA	safely conducted	its	operations	from	its	existing	location	prior	to	Ap ril	13,	2013,	without	making any	use	of	the	760	Parcel.		Fact Statement,	¶13	(citing	Complai nt,	Ex.	7;	Wilson	Dec.,	¶	10). In	addition,	to	the	extent	additi onal	space	was	nevertheless	ne eded	by	PFA,	its training/rental	fleet	of	smaller aircraft	could	be	accommodated on	a	number	of	Airport10 parcels,	including	the	770,	820,	and	Restaurant	parcels	that	ha d	been	offered	to	PFA	and rejected.		Fact	Statement,	¶	18 (citing	Johnson	Dec.,	¶	17;	Wil son	Dec. Answer,	¶	25). Besides, PFA is now attempting to rewrite the history of the transaction. While its application for the 760/770 Parcels does not e xpressly contain any duration for the requested lease, the “Purpose of Use” portion of the applic ation, PFA’s presentation at the Transportation Committee’s hearing on the competing lease ap plications, and PFA’s later written “Bottom Line” settlement demand, make it absolutely clear that PFA wanted a long-term lease of both parcels. Complaint, Ex. 7; Palmer Declaration, ¶ 11; Complaint, Ex. 6f (Oct. 1, 2014 e-mail captioned “Bottom Line“). PFA’s intended use, as described in the application, was to grow its flight school and aircraftrental business, increase the size of its aircraft fleet, rework the car parking area, remove unused portable buildings, and construct a “T” hangar on the new space, all plans that would require long-term use of the prop erty. Complaint, Ex. 7. This was affirmed by PFA, when asked for its “Bottom Li ne” to settle this matter: We would be willing to cons ider this matter closed if the following terms are met: 1) A long term lease of the 760 parcel to Pro-Flight. The te rm would coincide with the term that our sister comp any, Renton Gateway Center, has on the adjacent 750 parcel. Complaint,	Ex.	6f.		PFA’s	belated offer	in	December	of	2014,	ne arly	one	and	a	half	years after	the	City	had	leased	the	pa rcels	to	Boeing,	to	accept	tie‐ down	spaces	on	the	760	Parcel for	the	short	term	was	accompanie d	by	unacceptable	conditions, such	as	the	elimination	of the	requirement	to	provide	fuel, that	PFA	knew	could	not	be	acc epted	by	the	Airport. Complaint,	Ex.	6g,	p.1. PFA’s	current	claim	that	it	did	n ot	seek	a	long	term	lease	is	d isingenuous.		If,	in	fact, PFA	did	not	seek	a	long	term	lea se,	why	did	it	not	accept	the	8 20	Parcel	when	it	was	offered to	it	for	a	short	term	to	coincide	with	the	duration	of	the	rem ainder	of	the	Boeing	lease	of11 the	760	Parcel?		That	would	have allowed	PFA	to	have	tie‐down	a vailability	at	the	Airport until	Boeing’s	short	term	lease	expired.			PFA’s	rejection	of	t he	820	Parcel	for	a	short	term is	illustrative	of	its	true	motive	to	enter	into	a	long	term	ar rangement	with	t he	City.		In	any event,	as	discussed	above,	a	wi llingness	to	accept	a	shorter	le ase	term	would	not	in	any way	have	invalidated	the	City’s decision	to	award	the	lease	to Boeing	after	comparing	the merits	of	both	applications. II.	 Boeing’s	Intended	Use	Of	The	Disputed	Parcels	Clearly	Comes Within	the Scope	of	Aeronautical	Activities	As	Defined	By	The	FAA In its Answer, echoing the argument made in its Summary Judgment Memorandum (pp. 17-21), the City demonstrated how Boeing’s activities at the Airport come within the scope of an “aeronautical activity” as that term has been defi ned by the FAA. As set forth in the declaration of Clifford E. Johnson attached as an exhibit to the City’s Summary Judgment motion, at ¶ 19, If during flight testing th ere is a need for changes in the 737MAX design, Boeing plans to incorporate those changes into the airplane s parked on the 760 and 770 parcels. During the development stage of the 737 MAX program, the airplanes will possess experimental airworthiness certificates. Once the 737 MAX aircraft is awarded a type certificate, the newl y built aircraft will be capable of being issued standard airworth iness certificates. When the 737 MAX model is FAA certificated and each aircraft is ready fo r delivery, the aircraft will begin their initial flights from the Renton Airport. In the declaration of David K. Shineman submitte d by the City in support of its Answer in this case, Boeing expanded upon this description, em phasizing that the new parcels would be used differently than Boeing’s existing leased space, which is “used for pre-flight operations on previously certificated airplane s (the 737 NG).” Shineman Dec ., ¶ 10. The new parcels, by way of contrast, will be used for “change incorporation” (“CI”) of the pre- certification 737 MAX airplanes and any design and engineeri ng changes and other modifications, as well as repairs and maintenance, requir ed by the FAA for certification of the 73712 MAX airplane, [which] will be performed while those airplanes are stored on the 760, 770, and 820 Parcels. Ibid . Boeing also stated that when Boeing conducts its initial test flights, after completion of any needed changes, repairs, and maintenance, thos e flights will be operated under Part 91 of the FAA’s regulations. Id . at ¶ 4. PFA’s opposing argument is that becaus e the FAA does not consider aircraft manufacturing itself to constitute an aeronautical activity; any activities related to a manufacturing operation likewise should not be considered aer onautical. Reply, pp. 7-8. The fatal flaw in PFA’s argument is that it is inconsistent with the position taken by the FAA itself. Appendix Z to the FAA Compliance Manual, Or der 5190.6B (“Order 5190.6B”), broadly defines “Aeronautical Activity” to include “[a]ny activity that involves, makes possible, or is required for the operation of aircraft or that contributes to or is required for the safety of such operations.” Among the non-exclusive list of activ ities that fall within this de finition are “aircraft storage” and “repair and maintenance.” The Order does not contain the limitation that PFA would have the FAA include—that such activities are excludedfrom this category if they relate to the manufacture of aircraft. Reading such a limitation into what the FAA has deemed an “aeronautical activity” would make a nullity of th e FAA’s own determination of the limits of the concept. Further, PFA totally ignores the FAA’s recently-adopted Policy on the Non-aeronautical Use of Airport Hangars, a policy issued to clarif y the Agency’s position on aeronautical uses and adopted after the cases relied upon by PFA were decided. See Sum. Judg. Mem., at pp. 18-21. In that Policy document, the FAA states unequiv ocally “that final asse mbly of an aircraft, leading to the completion of the aircraft to a poin t where it can be taxied, will be considered an aeronautical use.” See “Policy on the Non-aeronautical Use of Airport Hangars”, 79 Fed. Reg.13 42483, 42485 (July 22, 2014). In short, the Agency distinguished the type of aircraft manufacturing activities th at Boeing conducts at its facility across the river, many of which are non-aeronautical, from the activities that will take place on Boeing’s newly-leased property at the Airport—distinct aeronautical uses such as storage, maintenance, and modifications needed to ensure airworthiness of the 737 MAX aircraft . Given that the FAA has found such activities to be aeronautical, the Airport cannot be char ged with discriminating in violation of its obligations under Grant Assurance 22 on PFA’s theo ry that the City gave a preference to a nonaeronautical user. The fact that PFA provides certa in aeronautical services at the Airport that neither Boeing nor any other party provides (Rep ly, pp.9-10) does not have any bear ing on this legal analysis. Moreover, the Airport has repeatedly acknowledged that “PFA is a valued tenant at the Renton Airport.” Complaint, Ex. 6g, see also Ex.10. That is why the Airport has made every reasonable effort since 2011, when PFA moved to its current l eased parcel and started complaining about its space shortage, to accommodate its claimed need fo r additional space. Complaint, Ex. 2; Fact Statement, ¶ 12 (citing Wilson Dec., ¶ 9, Ex. JW-1 ); Fact Statement, ¶ 25 (citing Complaint, ¶¶ 15, 30; Wilson Dec., ¶ 11); Fact Statement, ¶ 26 (ci ting Jacobson Dec., ¶¶ 7- 9) Fact Statement, ¶ 29 (citing Jacobson Dec., ¶ 11, Ex. DJ-3; Complaint, Exs. 6d & 6e). Further, the Airport did this even though PFA’s predicament was created by its own failure to sublease adequate space in its original agreement with its “sister company” landlord, Renton Gateway Center (“RGC”). Fact Statement, ¶ 11 (citing Wilson Dec., ¶¶ 4, 8, Ex. JW-1; Wilson Dec. Answer, ¶ 7, Ex.C; Complaint, Ex. 14). There is simply no objective evidence to prove the new PFA contention that the Airport thinks things “would be fine without PFA on the field” . But, no matter the services14 PFA supplies, nothing in the grant assurances requires the City to grant PFA a lease on any and every parcel PFA demands be leased to it. Equally important, the City has not failed in its obligation to serve the public by granting Boeing a lease as PFA implies. The parcels recently leased to Boeing to accommodate its proven need for additional space to store, repair, and do maintena nce on the new 737 MAX aircraft are not the only Airport property available to meet th e flying public’s interest and the aeronautical needs of the Airport. To start with, notwithstanding the Boeing lease, PFA will continue to provide the aircraft repair and maintenance servi ces previously provided at the Airport. The services for which PFA claims to be the sole provider—fuel, oxygen, nitrogen, rental cars, a pilot store and lounge, lavatory se rvices, catering, and a GPU—will also continue be provided by PFA. 5 JW Dec. Rebuttal, ¶ 3, Exhibit JW Rebuttal 1. Beyond that, as PFA acknowledges, there are other Airport tenants who are meeting the public’s interest in general avia tion services and the aeronautical needs of the Airport, in some respects duplicating some of th e services that PFA offers. Rainier, Ace Aviation, and NW Seaplanes offer aircraft maintenance; BEFA , Leven, Ace Aviation, and Aerodyne, offer tiedowns for aircraft; Aerodyne can accommodate bus iness jets; BEFA and Rainier offer flight instruction; and N.W. Se aplanes offers charters. See Reply, p.9; Fact Statement, ¶ 5 (citing Wilson Dec. Answer, ¶ 21). The Airport itself directly provides additiona l parking spaces for general aviation aircraft, both leased tie-down spaces and transients and will continue to do so. JW Dec. Rebuttal, ¶ 12. Further, should demand increase in the future fo r either leased tie-downs or transient aircraft

5 In its application for an Operating Permit, PFA has indicated it will continue to offer these services. The terms and conditions of the Operating Permit have yet to be negotiated. PFA has been asked by the Airport to provide to the city a business plan that will show how it will continue to operate and offer the services it identified in its application and do so from the premises that are identified in its current sub- lease with its sister company, RGC. See JW Dec. Rebuttal ¶ 3, Exhibit JW Rebuttal 1.15 parking, the 11 spaces that are expected to be av ailable on the Old Restaura nt parcel, will satisfy the expected demand. JW Dec. Rebuttal, ¶ 11. C onsequently, even with the short-term Boeing lease, the Airport has sufficient space to meet th e public’s interest and aer onautical needs of the Airport. III. Boeing’s Aeronautical Activities Are C onsistent With The Airport Layout Plan, As Required By Grant Assurance 29 PFA essentially restates the argument presente d in its Complaint (¶¶ 55-60), that the lease of the 760/770 Parcels to Boeing, when those parcels are designated for General Aviation (“GA”) on the Airport Layout Plan (“ALP”), viol ates Grant Assurance 29 requiring the ALP to be updated at all times. Reply, pp. 19-20. PFA tries to make its case more impressive by describing the City’s argument that Boeing’s activities come within the scope of GA with hyperbolic terms such as “outlandish” and “absu rd”. However, PFA’s argument is dependent upon the underlying argument that Boeing is not engaged in a ny aeronautical activity on these parcels. Reply, p.20. As discussed at pages 11 through 14, above, Boeing will be engaged in storage, repair and maintenance of its 737 MAX aircraft on the 760/770 Parcels, activities that come well within the scope of aeronautical ac tivities as defined by the FAA. Further, GA includes flights in experimental aircraft conduc ted under Part 91 (General Operating and Flight Rules). See GAO 13-36, Report to Congre ssional Committees, “General Aviation Safety” (Oct. 2012), at p.5. Until the 737 MAX model aircraft ha s been certificated by the FAA, their initial test flights will be conducted under the provisions of Part 91. 14 C.F.R. § 91.319. This is yet another legally-supported conclusi on that PFA has not rebutted other than with a heavy dose of rhetoric. Moreover, given the short term of the Boei ng lease (5-7 years, with 2 years already expired), this does not appear to be the type of permanent change that ordinarily results in a16 formal change to the ALP. If, however, the FAA feels it should be amended, the discrepancy can be eliminated and the modified ALP submitted to the FAA for approval. Importantly, it would not require the initiation of a new proceedi ng to revise the ALP. Independent of this proceeding, early in 2014, the Airport contracted for a review and update of the Airport Master Plan. 6 See Renton Airport Advisory Committee meeting minutes for June 10, 2014, rentonwa.gov/uploadedFiles/Li ving/PBPW/AIRPORT/04_Public _Relations/Approved%20RAA C%20Meeting%20Minutes%2006-10-14.pdf. By the time the City’s Answer was filed, the Airport had completed Chapter’s A through C, a nd was working on Chapter D. Wilson Answer Dec., ¶ 24. Since the ALP is Chapter H of the Master Plan, the ALP review would be incorporated into that process and FAA consideration of any need ed modifications obtained in a timely manner. There is substantial precedent su pporting ALP changes made after-the-fact to accommodate an inconsistent use (should such be found), in order to avoid any possible violation of Grant Assurance 29. See,e g., Boca Airport, Inc. d/b/a Bo ca Aviation v. Boca Raton Airport Auth. , FAA Dkt No. 16-00-10, at *66-67 (April 26, 2001) (Director’s Determination) (Airport sought approval 6 months after selecting proposal); Northern Air, Inc., v. County of Kent, MI, FAA Dkt No. 16-11-10, 2013 FAA LEXIS 316, at*61 n.32 (March 28, 2013) (Director’s Determination) (Airport will update it s ALP upon completion of construction); JetAway Aviation, Inc. v. Montrose County, CO , FAA Dkt No. 16-08-01, 2009 FAA LEXIS 251, at *60 & n.16 (July 2, 2009) (Director’s Determination).

6 Diane Paholke was a member of the Renton Airport Advisory Committee (RAAC) when the update of the Airport’s Master Plan was begun. RAAC members and othe rs in attendance at RAAC m eetings are made aware of such projects as the update to the Airport Master Plan an d the sub parts of that Plan. Ms. Paholke was marked in attendance at the kickoff meeting fo r the Airport’s 2014 Master Plan Update. (JW Dec. Rebuttal, ¶ 9).17 IV. PFA Can Not Complain About The Ai rport’s Failure To Offer It A Lease When It Lacks A Valid Operating Permit At The Airport Although PFA’s arguments fail on the merits, the FAA should also re ject PFA’s claims as a whole based on its lack of standing under Part 16. The City alleged as an affirmative defense included in its Answer that PFA lacked standing to bring this Part 16 ac tion because it is no longer “direc tly and substantially affected” by the alleged acts of non-compliance with the grant assurances, as required by 14 C.F.R. §16.23(a), due to its failure to extend the term of its Operating Permit beyond July 31, 2015. Answer, ¶ 12 & Affirmative Defense 7. This omission deprives PFA of the authorization required by sublessees to provide FBO services at the Airport. PFA cannot and does not deny these factual or legal allegations. To the contrary, as explained in PFA’s Reply, “the initial term of PFA’s Operating Permit ended July 31, 2015, butis extendable upon wr itten notice to the Airport ninety (90) days before the termination date. Complaint, Ex. 2, Section 4.2.” In an attempt to justify its failure to seek an extension of its Permit, PFA says it was “an oversight” and that it advised the Airport of its intent to rene w “as soon as the oversight was discovered.” Reply, p.18. PFA then goes on to ch astise the City for requ iring PFA to submit a new application, instead of waiving the 90-day re quirement, just as it allegedly waived the requirement for Rainier Flight Service (“ Rainier”) to provide fuel services. Ibid

. As a factual matter, the Airport manager fi rst learned of the expi ration of the Operating Permit from the City’s counsel , not from PFA. The Ai rport Manager notified PFA and RGC of the expiration of the Operating Permit. JW Dec. Rebuttal, ¶ 4. Exhibit JW Rebuttal 2. So far as the Airport can determine, PFA is the first subtenant to fail to timely seek to renew the subtenant’s operating permit. Ibid

.18 Second, the Airport should not reasonably be expected to waive the 90-days advance notice requirement because that time period is intended to allow the City sufficient time to reevaluate a sublessee’s proposed use of the sub-leased premises and determine whether it is in the Airport’s best interest to renew an exis ting Permit on the prior terms and conditions or impose new or different terms. JW Dec. Rebuttal, ¶ 5. Thus, by insisting that PFA re-apply for a new Operating Permit, the City is not retaliating as PFA suggests; it is simply doing its due diligence to ensure the viability and suitability of Airport subtenants, thereby ensuring the airport’s sustainability. Ind eed, since PFA has raised questi ons about the viability of its operations if it is not awarded a lease for the 760 Pa rcel, it is particularly important here that the City be given the opportunity to determine whether a new permit should be issued and, if so, whether any terms and conditions should be modi fied from the initial Operating Permit. Third, contrary to PFA’s assertion, the City has not waived the requirement that Rainier provide fueling services, as contemplated by its lease. Rainier’s lease of the 800 Parcel was entered on November 1, 2014, and Rainier has dilig ently pursued the establishment of a new fueling operation since that time . Fact Statement, ¶ 4 (citing Wilson Dec., ¶¶ 6, 25; Wilson Answer Dec., ¶ 2, Ex. A). In fact, Rainier has lo aded aviation fuel into one of the two tanks on its leased premises, installed a credit card r eader, and prepared for submission its “spill prevention and containment plan”. JW Dec. Rebu ttal, ¶ 10. Once approve d, Rainier will be able to sell fuel and will become an FBO at RNT. Ibid

. If, as is currently the case, PFA’s legal auth ority to operate at the Airport has expired, as a result of its own inaction, it is difficult to im agine how it could be dir ectly and substantially affected by any Airport actions that arguably violate the grant assurances. PFA cites to Martyn v. Port of Anacortes, WA , Dkt. No. 16-02-03 (April 14, 2003), as pr oof that a party that is not an19 approved airport tenant or operator may bring a Part 16 action. However, the very different facts of the Martyn case do not provide standing to PFA unde r the present circumstances. In Martyn , the Complainant alleged a denial of access to the involved airport for the purpose of constructing and operating a hangar facility, based upon the airport’s decision not to enter a lease with him. The circumstances creating the alleged grant assurance violation were entirely within the airport’s control. In the present case, the facts placing PFA ’s standing in jeopardy were exclusively within PFA’s control. PFA was an existing Airp ort subtenant, ope rating pursuant to essentially a 4-year Operating Permit granted by th e City, that did not ask in a timely manner to renew its Permit. See Complaint, Tab 2, ¶ 4.1. Thus, any dir ect and substantial effect that the City’s failure to award PFA a lease for the 760/770 parcels might theoretically have had is eliminated by this intervening and unexcu sed failure to act by PFA.
CONCLUSION For all the reasons set forth in the City’s Answer and the supporting Fact Statement, as further explained in the above Rebuttal and in the City’s Summary Judgment Motion and Memorandum, PFA’s Complaint should be dismissed in its entirety. PFA should not be allowed to use the FAA and the grant assurances to bully the Airport into leasi ng to it the one and only parcel that PFA deems acceptable. This is particul arly true as PFA has re peatedly rejected other reasonable alternative properties offered by the Airport for tie-down of PFA’s training/rental fleet. PFA should not be allowed to blame the Ai rport for PFA’s own initial failure to properly plan for its needs and PFA’s failure to competen tly negotiate with its sister company, RGC, to secure a sub-lease that would have afforded it the space it deemed necessary to conduct its FBO business at the Airport. PFA now seeks to use it s own shortcomings to justify a reversal of the Airport’s properly-taken decisi on to lease the 760/770 Parcels to Boeing. Evicting Boeing fromthe contiguous leased 760/770 Parcels would be more than onerous. Unlike PF A, which was offered other parcels that could have met their needs, Boeing's need for these two contiguous large parcels has been proven, as contiguous parcels allow for more aircraft parking than two separated parcels. Boeing has more than reasonably relied on the decision of the City taken in
2013 to lease these parcels to it and for two years has planned and counted on the ability to store
and perform needed modifications and repairs on pre-certification 737 MAX aircraft there. Boeing has already started to manufacture the 737 MAX at its plant across the river-and the
aircraft will begin to roll off the production line by the end of the year. 

### See Polek, Gregory, "Boeing Starts Final Assembly of First 737 MAX", Air Transport (Sept. 15, 2015), www.ainonline.com/aviation-news/air-transport/20 15-09-15/boeing-starts-**final-assembly~** first737-max. Invalidating the short term lease with Boeing would be particularly unwarranted
where the lease to Boeing has not and will not 

### in the future prevent the Airport from continuing

to serve the public interest and the long-term needs of the Airport's FBOs, including PF A and all
·other aeronautical users of the Airport consistent with the grant assurances. Dated this 8th day of October, 2015. Respectfully Submitted:

etta L. Fontes, WSBA # 9604 r. Assistant City Attorney

20CERTIFICATE OF SERVICE

I hereby certify that on this gth day of October 2015, I caused to have filed and served by e-mail transmission 1) the Respondent's Rebuttal To Complainant's Reply to Answer, 2) Declaration of Jonathan Wilson, Airport Manager, Renton Municipal Airport in Support of Renton's Rebuttal to Complainant's Reply to Answer, and Exhibits thereto, 3) Declaration of Councilwoman Marcie Palmer (dated 11 June 20 15), 4) Declaration of Councilman Don Persson (dated 11 June 2015), 5) Declaration of Councilman Greg Taylor(dated 11 June 2015), 6) Declaration of Jonathan Wilson (dated 12 June 2015), and 7) this Certificate of Service in the matter of Pro-Flight Aviation, Inc. v. City of Renton Municipal Airport, Docket# 16-15-03, upon the following:
Federal Aviation Administration Office of the Chief of Counsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration Room921 800 Independence Ave, S.W. Washington, D.C. 20591 e-mail: 9-AWA-AGC-Part-16@faa.gov (Telephone 202-267-3473)

Benjamin H. Klein Law Offices of Paul A. Lange. LLC 80 Ferry Boulevard Stratford, CT 06615 e-mail: bhk@lopal.com (Telephone 203-375-7724, ext. 108)

nior Assistant City Attorney City.ofRenton City Attorney's Office

· 1055 South Grady Way Renton, W A 98057 Phone: (425) 430-6486. Fax: (425) 430-6498 e-mail: zfontes@rentonwa.gov

## DECLARATION OF JONATHAN WILSON, AIRPORT MANAGER, RENTON MUNICIPAL AIRPORT IN SUPPORT OF RENTON'S REBUTTAL TO COMPLAINANT'S REPLY TO ANSWERUNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. PRO-FLIGHT AVIATION, INC. ) ) Complainant ) ) Docket No. 16-15-03 v. ) ) CITY OF RENTON MUNICIPAL ) AIRPORT ) ) Respondent ) ) ____________________________________) DECLARATION OF JONATHAN WILSON, AIRPORT MANAGER, RENT ON MUNICIPAL AIRPORT IN SUPPORT OF RENTON’S REBUTTAL TO COMPLAINANT’S REPLY TO ANSWER

I, Jonathan Wilson, hereby declare based upon my personal knowledge, under penalty of perjury under the laws of the st ate of Washington, that the fo llowing is true and correct:
1. I am the current Airport Manager at the Rent on Municipal Airport (“ RNT”). Prior to my appointment as the Airport Manager in Octobe r, 2014, I served as the Airport’s Assistant Manager for 7 years.
2. The Airport had granted to Pro Flight Aviation, Inc. (“PFA”), an Operating Permit for a term of 4 years plus 24 days. The Term of that Operating Permit coincided with the then effective sub-lease between PFA and its si ster company, Renton Gateway Center. The Term of the Operating Permit expired on July 31, 2015. See Section 4 of the Operating Permit, attached to PFA’s Complaint, at Tab 2. At this time, PFA does not have an Operating Permit to con duct business on RNT.3. PFA has made an application for a new Operating Permit. A copy of that application is attached hereto as Exhibit JW Rebuttal 1. The application indicates PFA intends to continue providing aircraft re pair and maintenance services at RNT, as well as providing the other services previously provided by them. The terms and conditions of the new Operating Permit are being determined at this time and have yet to be negotiated between the parties. As it appears that the facts and circumstances of PFA’s operations have changed since the original Operating Permit was granted, the Airport has requested a new Business Plan from PFA indicating how it will operate on the sub-leased premises. Thereafter, terms and conditions for the ne w Operating Permit will be negotiated.
4. The failure of PFA to petition to extend its Operating Permit on a timely basis was discovered by Airport’s counsel as she was draf ting the Answer to the Part 16 Complaint. I learned of it when I was asked by counsel to determine whether PFA had made a timely request to extend. As PFA had not made a ti mely request to extend, I hand delivered a letter to PFA and its sister company, RGC, indicating that PFA’s Operating Permit had expired. A copy of that letteris attached hereto as Exhi bit JW Rebuttal 2. A records review indicates that at no time prior to th e Airport’s drafting of its Answer to PFA’s Complaint did PFA notify the Airport of its “oversight” regarding the expiration of its Operating Permit. During my eight year tenur e here at RNT, I cannot recall there being a situation where the Operating Permit hol der has allowed its permit to expire. 5. The Operating Permit provisions for an exte nsion of the Operating Permit impose a 90 days advance notice requirement to allow th e Airport an opportunity to consider any changed conditions (as we have here) that mi ght affect the terms and conditions of the Operating Permit. PFA’s Operating Permit is linked to the specific sub-leased premises,nothing more. However, unlike the circumstan ces presented 5 years ago (for the initial Operating Permit), PFA has now indicated it can not fully operate its business from within the boundaries of the sub-leased premises. Th at is a significant changed circumstance that could affect the purpose of use or other terms and conditions of the Operating Permit. RNT needs the time to obtain the information from the applicant (PFA, here) and consider the circumstances and determine the appropriate conditions to impose. A waiver of this time period would eliminate th e Airport’s ability to properly consider the application.
6. The 820 Parcel has ingress and egress from/to Perimeter Road by way of a driveway that serves the 820 Parcel and another tenant. Attached hereto as Exhibit JW Rebuttal 3, is a true and correct photo from G oogle Earth, depicting the driveway serving the 820 Parcel and the neighboring parcel.
7. The 760 and 770 Parcels both have access to/from Perimeter Road as well.
8. The 820 Parcel is adjacent to the 800 Parcel , which is the location of Rainier Flight Services (“Rainier”), soon to be another FBO on the airport.
9. RAAC members and others in attendance at RAAC meetings are made aware of such projects as the update to the Airport Master Plan and the s ub parts of that Plan. Ms. Paholke was marked in attendance at the ki ckoff meeting for the Airport’s 2014 Master Plan Update.
10. Rainier has arranged for the sale of fuel from its leased premises. One of the tanks on its premises has been cleaned out, fuel has been loaded into it and a credit card reader has been installed. Upon approval of its spill prevention and containment plan, Rainier will be able to sell fuel. At that time, Rainier will be an FBO at the Airport.11. The development of the Old Restaurant Site for tie downs is still in progress. The

contract with the engineering design firm is being completed as this declaration is being signed. This parcel, like all others on the west side of the airport will have access to Perimeter Road.
12. In addition to the aircraft parking offered by Airport tenants, the Airport provides tiedown spaces to meet the needs of GA aircraft, including transient aircraft. The Airport
will continue to do so. Additionally, the added tie-down spaces on the Old Restaurant
site will satisfy the expected demand for tie down spaces controlled by RNT.

DATED THIS_/

__ day of October, 2015.

# 'l~~ Jonathan Wilson, Renton Airport Manager

# EXHIBIT

JWREBUTTAL 1Attachment C 

### Renton Airport

Clayto11 Scott Field 616 W. Perimeter Road- U11it A, Re11toll, WA 98057 Pirone 425-430-7471 I Fax 425-430-7472 AiRPORT LEASE/OPERATING PERMIT APPLICATION FORM 

# peceovEn
AUG -4 2m5 

# u



# _____**_,~~;~**

Please read the Airport Leasilrg Policies and the Airport Regulatio11s a11d Mi11imunr Sta11dards prior to jilli11g ;, tlris application. Applicant Name:**_P~_·o-_FI_Ig_ht_A_,_·Ia_tl_o_n_,I_n_c.** _________________________ _ ContactPerson:

__**n_i_n_ne_P_n_h_o_~_e,_P_n_s_~_e_nr** ________________________________ __ Phone: 425-228-9510 Email: pl'ofligbta11lationint@yahoo.com

.

- 

### ., ' Mailing Address: 7SO W. Perimeter Rd Unit #1, Renton, WA 98057 Lease Area Location, if known: FBO/officc nrcn, Hnngnrs A & B, nnd ramp space nt above location

Type of Lease (circle all that apply): Ground Buildin

perating Permit (for subleasing If Operating Permit Application, name of Business from whom Subleasing:

Renton Glitewny Center;LLC Provide a detailed description (Purpose of Use) of the intended commercial aeronautical activities:

Sec attached sheet.

Describe the means an.d methods to accomplish the intended activities:

..- !•. Sel' nttacbed ·sheet

(Attach additional sheets as necessary)

August 4, 2015 Applicant Signature (if sublease, signa Date
Airport Manager Signature Date

H:·Filc Sys\AlR

. Airpon. Tnmsponation Services DivisioniOI Admimstmlioml2 Real Property Managcmcnt\AiJpm1 Leasing Policics\Renton Airport Leasing**Poh~y** • revised 02-25-08 Post Peiffie FINAL· RZ Edits+CMC edits 2·22-0S.doc Page 22 of22

# Renton Gateway Center, LLC

750 W. Perimeter Rd Unit #1 Renton, W A 98057 

# TI**~©~D"~""'** 

# n AUG - 4 2015

# ~ Purpose of Use of the intended commerCial aeronautical activities:

### :.7~ c 

### We will use the subleased areas for the following:

• Aircraft Maintenance, including major and minor repair, and major and minor alteration of airframes, engines, avionics, interiors and aircraft components.

• Storage and tie-down· of aircraft, both indoors and outdoors.

• Commercial flight operations including flight training, aircraft rental, sightseeing, aerial photography, and any operations conducted under 14 CFR part 91 and 14CFR Part 135.

• Sale of aviation fuels and lubricants.

• Sale of aircraft parts, components and pilot supplies.

• Aircraft servicing with fluids and compressed gases.

• Aircraft grooming

• Aircraft sales, leasing & 

### management.

Means and methods to accomplish the intended activities:

• We will continue to use our existing infrastructure, equipment, personnel, and substantial capital investments as we have for the past many years.

Operating Pennit Application

- attached sheet**~**

# EXHIBIT



# JW REBUTTAL 2

# EXHIBIT

JW 

# REBUTTAL 3