Benjamin H. Klein

L AW O FFICES OF P AUL A. L ANGE , LLC 80 Ferry Boulevard Stratford, CT 06615 Phone: (203) 375

- 7724 Fax: (203 ) 375

- 9397 bhk@lopal.com

UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Pro

- Flight Avia tion, Inc.

Complainant, v. Docket No. 16

- 15

- 03 City of Renton, Washington

Respondent. / PRO
- FLIGHT AVIATION, INC .’S ANSWER IN OPPOSITION TO RESPON DENT’S

MOTION FOR LEAVE TO FILE REPLY Complainant Pro

- Flight Aviation, Inc. (“PFA”), by and through the undersigned counsel,

a nd pursuant to 14 C.F.R. § 16.19 (c) , hereby files this Answer in Opposition to the Motion for Leave to File Reply (“MFL”) filed by the City of Renton, Washington (“City” or “Respondent”) on June 15, 2015, and in suppor t thereof, states as follows: INTRODUCTION Because reply briefs are not expressly contemplated or permitted by the rules governing Part 16 proceedings, Respondent seeks permission to file a Reply to PFA’s Answer to Respondent’s Motion for Summary Judgemen t (“Answer” ), ostensibly on the basis that the Answer contains “significant mischaracterizations of the record.” MFL at 1. However, Respondent does not use the Proposed Reply Brief (“Proposed Reply”) attached to the MFL to correct “mis characterizations of the record ” (there are none), but rather to dispute certain facts2

as alleged by PFA, and to restate its unavailing legal argument that Boeing is engaged in “aeronautical activi t i es ” at RNT. To be sure, there are significant, material factual disputes betwe en PFA and the City , as well as disagreements over the relevant law; however , Respondent provides no new facts or legal argument in its Proposed Reply. Instead, it simply uses the Proposed Reply as an opportunity to take a second bite at presenting its own spin on factual and legal disputes of which the FAA is already well aware. Accordingly, because the Proposed Reply does not present any new evidence, law, or “ corrections of the record, ” but rather is an impermissible attempt to have the last word o n wha t are already well

- developed legal and factual disputes betwe en the parties, Respondent’s MFL should be denied. PFA Did Not “Mischaracterize the Record” When it Correctly Stated that its Lease Application was Denied by Respondent Before the City Counci l Met to Vote Respondent claims, incorrectly, that the Answer is the first time that PFA has argued that Respondent rejected PFA’s lease application for the 760/770 Parcels in favor of Boeing before the City Council vote d on the issue, and that because of this undisputable fact , the outcome of the City Council’s v ote was a foregone conclusion. In fact, t he Complaint clearly and unequivocally alleges that Respondent rejected PFA’s lease application before the Transportation
Co mmittee met to vote on the matte r. Complaint ¶ 27. PFA also asserts that when the Transportation Committee did meet, its deliberations were cursory , and that when the City Council met to vote on August 5, 2013, it approved the Boeing lease without further discussion. Complaint ¶¶ 28

- 29. Accordingly, the Answer is not the first time that PFA alleged that awarding Boeing the lease for the 760/770 Parcels was a foregone conclusion before the City Council voted ; thus, Respondent’s Motion for Leave to File a Reply on this basis should be
deni ed

.3

Respondent takes great umbrage at the notion that PFA’s lease application for the
760/770 Parcels was effectively denied before the Renton City Council met to vote ; however,

w hile the City might dispute this allegation, it has pointed to no “mischarac terization of the record ” by PFA on this point

. Instead, Respondent provides a lecture on the proper functioning of a tripartite government

– arguing that the clear and unequivocal rejection of PFA’ s application found in a le tter from Respondent dated July 24, 2013 (“July 24 th Letter”) contained nothing but the recommendation of one branch of government that was not empowered to decide the matter.
MFL at 4. However, the July 24 th Letter, which is the most probative piece of unbiased evidence on this point, belies Respondent’s claim in this regard . T he rejection of PFA that is contained therein is unambiguous and not made contingent on any future action or deliberation by another municipal body. See Complaint, Ex. 10. T he July 24 th Letter does not state that the City’s decision to approve the Boeing application is merely the recommendation of but one branch of government, or that the City Council would have t he ultimate say on the matter. To the contrary,
t he July 24 th Letter presents the decision to awar d the lease to Boeing as a fait accompli

– an unsurprising outcome given the events that preceded it.
C ontrary to Respondent’s assertion in the MFL, PFA has produced signifi cant evidence regarding the events that preceded the “ vote ” by City Council, all i n support of PFA’s allegation that Boeing’s award of the lease for the 760/770 Parcels was a foregone conclusion. Such evidence include s , but is not limited to, the following :

 Airport Manager Zulauf informed PFA in April 2013 that the 760 Parcel was not

av ailable at the same time he was negotiating with Boeing its lease . Complaint ¶ 23; Complaint , Ex. 15, pg. 2

- 3.4  In early

- June 2013, Mr. Zulauf informed PFA that the City had decided to lease the 760/770 Parcels to Boeing and discouraged PFA from submitting an application . Complaint ¶ 25

.

 On July 24, 2013, Respondent sent PFA a letter informing it that its application for lease of the 760/770 Parcels had been rejected in favor of Boei ng’s. Complaint ¶ 27, Complaint, Ex. 10.

 On July 25, 2013, after a short di scussion, the Transportation Committee of the City Council approved the Boeing lease application

. In reaching the decision, Councilmember Persson simply stated, “Well, if it comes down to you (PFA) or Boeing, I have to go with Boeing.” Complaint ¶ 28.

 Wit hout any discussion or consideration of the PFA lease application, the Renton Ci ty Council Committee of the Whole approved the Boeing lease on August 5,
2013

. Id. ¶ 29

. All of the above provides evidence in support PFA’s allegations that: (1) Respondent
mi sled PFA about the availability of the 760 Parcel and then tried t o dissuade it from submitting a lease application ; (2) Respondent’s concealment of 760 ’s availability, and its attempt to discourage PFA from submitting a lease application, was followed by its reje ction of PFA in favor of Boeing in the July 24 th Letter ; (3) the Transportation Committee rub b er - stamped the City Administration’s decision in this regard; and (4) the City Council Committee of the Whole5

accepted the Transportation Committee’s reco mmendation without deliberation or discussion of
PFA ’s application

. 1 Again, Respondent may dispute these material facts, but it has pointed to no “record”
evidence that has been mischaracterized by PFA on this point. Indeed, the only record evidence subm itted by Respondent is the self

- serving affidavits of the members of the Transportation Committee. Accordingly, because Respondent does not use the Proposed Reply to “correct mischaracterizations of the record,” but rather to dispute PFA’s allegations , whi ch were well known to Respondent when it filed its M otion for Summary Judgement, the MFL should be denied.
PFA Did Not Mischaracterize the Record When it Correctly Stated that The Old Restaurant Site Is Not Viable for Transient or Local Tie
- Down s
I n arguing that the Old Restaurant Site is a viable alternative for PFA to the 760/770 Parcels, Respondent once again merely restate s its position regarding a well

- defined factual dispute. PFA asserts that this site is not viable, and points to its complet ely impractical location outside of the A irport fence at the far north side of the Airport , as well as Deputy Public Works Administrator Doug Jacobsen’s acknowledgement to Bernie Paholke that the costs involved in

1 Respondent and its representatives repeatedly imply that PFA should have attended the City Council vote on the Boeing lease on August 5 th in order to argue its case , falsely suggesting that there was actual deliberation on the issue at this meeting

. MSJ at 13 ; Dec laration of Marcie Palmer ¶ 18. Video of the meeting contradicts this claim, and underscores PFA’s argument that Boeing’s approval was a fore gone conclusion. There was no debate on whether the Boeing lease should be approved , and no discussion of PFA’s competing application. Council member Palmer stated that Boeing’s lease of 760

- 770 was a “win

win” for all involved. http://streaming.rentonwa.gov/ondemand/citycouncil/2013/august/cc

- 08

- 05

- 2013.aspx (starting at 54:00).6

devel oping the space for tie

- downs was lik ely not worth it. Answer at 12, 24; Paholke Dec. (attached to Answer) ¶ 18. For its part, while admitting that the Old Restaurant Site is not currently configured for PFA’s needs (MFL at 6), Respondent points to the fact that it has identified a consultant to
prepare “a design and cost analysis for the property,”

– a claim seemingly meant to be indicative of some future, potential viability

. 2 Again, Respondent points to no “mis characterization of the record” by PFA and the evidence submitted in Respondent’s Proposed Reply only lends support to PFA’s claim that the Old Restaurant Site is simply being offered as a red herring, when it is not currently, nor likely ever to be suitable for PFA’s needs. 3 Accordingly, since Respondent provides no new evidence and points to no “mischaracterizations of the record” by PFA regarding the suitability of the Old Restaurant Site, or any of its other alternative proposals, the MFL should be denied.

2 If Respondent is serious about developing the Old Restaurant Site, it begs th e question of why it would not be more appropriate to use the space to park Boeing aircraft since: (a) unlike PFA, Boeing’s parking needs do not appear to be location dependent; and (b) Boeing has no current need for the 760/770 Parcels ( as evidenced by th e fact that it has not occupied them in the two years since its lease first began), and thus can wait for Respondent to work through the design and development pro cess of the Old Restaurant Site, which Respondent estimates will be complete by July 2016. Ac cording to Boeing, the first 737 MAX will not roll off the assemb ly line until the end of the year

. http://boeing.mediaroom.com/2015

- 0 6

- 16

- Boeing

- Focuses

- on - Record

- Delivery

- Pace

- Airplane

Development

- Programs

3 Another red herring offered by Respondent concerns 9 tie

- downs that it allegedly controls on the east side of the Airport, across the active runway from PFA. Even if the se spots were available (and Respondent hedges on this point, see Wilson Decla ra tion attached to MFL ¶ 8) , they are completely unsuitable for PFA’s fleet of training aircraft, or for PFA’s transient customers, particular jet aircraft. It is a 1.7 mile jo urney from PFA to the tie

- downs on the east side of the Airport

– one way. See Complaint, Ex. 11.7 Boeing is Not Engaged in Aeronautical Activity PFA agrees with Respondent that “gettin g the law correct” on the question of whether Boeing is engaged in a eronautical a ctivity at RNT is “essential.” MFL at 2. However, Respondent’s Proposed Reply does not contribu te to this mutually

- held goal. PFA has argued , both from a legal and public poli cy perspective , that Boeing’s activity at RNT should not be considered “aeronautical” as the term applies to the obligations imposed on all airport recipients of federal grant money

. See Answer § 2.A. It made such arguments in response to those asserted by Resp o ndent in its MS J. In the Proposed Reply , Respondent offers no new argu ments, and points to no new law on this point; it merely seeks the last word by restating the same exact argument contained in the MSJ . Accordingly, the MFL should be denied.
CON CLUSION Based on the foregoing, Complainant respectfully requests that Respondent’s Motion for Leave to File Reply be denied. Dated June 2 4 , 2015. Respectfully submitted,

/s/___________________ Benjamin H. Klein L AW O FFICES OF P

AUL A. L ANGE , LLC 80 Ferry Boulevard Stratford, CT 06615 Ph one: (203) 375

- 7724 Fax: (203 ) 375

- 9397 bhk@lopal.com Attorney for Complainant8 CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Answer i n Opposition to be served electronically , with prior written consent, on the following:

Zanetta L. Fontes Senior Assistant City Attorney 1055 South Grady Way Renton, WA 98057 zfontes@rentonwa.gov

Dated June 2 4 , 2015

_/s/_________________________ Benjamin H. Klein