VIA UPS Office ofthe ChiefCounsel Attn: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 Richard 

## J. Durden Attorney at Law 27987 Richmond Hill Road Conifer, Colorado 80433 616/901-6516 April9, 2016

Re: Michael Pelzer andPegasus ParachutingService vs. The State of Michigan 

### DocketNo. 16-16-05 Dear Sir or Madam: Enclosed for filing please find an original and three copies ofthe Complainant's Reply in Support ofits 14 CFRPart 16 Complaint in the captioned matter. One copy is unbound, as requestedby the FAA.

enc.
cc: Mike Trout, Executive Administrator, Office ofAeronautics, MDOT Michael PelzerBEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
MICHAEL PELZER and PEGASUS PARACHUTING SERVICE Complainant,
vs. THE STATE OF MICHIGAN Respondent ) ) ) ) ) ) ) DocketNo.: 16-16-05 ) ) ) )
COMPLAINANT'S REPLY IN SUPPORT OF ITS 14 CFR PART 16 COMPLAINT Please Serve: Richard J. Durden Richard J. Durden, Attorney at Law 27987 RichmondHill Rd. Conifer, Co. 80433 T: 616/901-6516 avlawyenZil.yahoo.com Counsel for Complainant Michael G. Trout, Executive Administrator Office ofAeronautics Michigan Department ofTransportation 2700 PortLansing Road Lansing, Michigan 48906 T: 517-335-9283 Executive Administrator ofRespondent
In its unsigned (it does not appear to contain the signature certification required by 14 CFRPart 16.13(e)) Response and Defenses, the Respondent State ofMichigan denies all allegations that the irrational, ad hoc and opaque actions ofits agentto refuse to reduce agreements to writing and to continually change the conditions under which it would lease space to Complainant for a commercial skydiving operation were a violation ofthe grant assurances. Respondenttakes the positionthatthe reason it did not allow Complainantto begin operations
was because Complainantkept changing the amount ofspace that he wishedto lease andthat the eight different price schedules created byRespondent were actually consistent and in keeping
1with its obligation to rent space at a consistent price to commercial tenants. Respondent asserts that it did nothing to prohibit skydiving access to the Airport. Ifthat were true, why then is Complainantnotnow operating on the Airportunder some form oftemporary agreement while the terms ofthe hangar lease are being worked out? There
was immediate agreementby the parties to the site for the PLA, so there were never operational issues with skydiving. Respondent has approved Complainant's insurance. Complainant specifically requested a temporary agreement to start operating whenthings bogged down onthe Concession and Lease Agreement negotiations (Complaint Exhibit 15). Complainant has always beenwilling to signthe sponsor's Commercial Operating Agreement. IfRespondent's assertion that it was pricing the space it proposedto lease to Complainant in a consistent manner-and was open about its calculations, why did Respondent not reveal what its standard per square foot rental price was when it providedthe original Concession and Lease Agreement? As was shown in the Complaint, the issue has beenthe manner inwhichthe sponsor's agent, Mr. Mazur, irrationally dealt with Complainant with regard to the Concession and Lease Agreement for the hangar. Respondent introduced eight different pricings thus far as Complainanthas tried to negotiate a Concession and Lease Agreement. As will be shown below, inthe course oftrying to negotiate a suitable agreement, Complainant made one request to change the space being leased and that was only after Romeo Airport Management's owner decided to cover up his $8,000 payto play demand by charging for parking and ramp spacesomething other operators didn't have to pay. At that point, Mr. Pelzer reduced the amount of parking space requested.

2I. Factual Background As described inthe Complaint, ComplainantMike Pelzer approached Romeo Airport Management inFebruary 2015 regarding renting the recently vacatedhalfofthe community hangar for a commercial skydiving business (Complaintpages 3-4). In March, he met withMr. Mazurto go throughthe plan for the business including the space to be rented, drop zone location, plan for structures for classrooms and storage inthe hangar and for fuel use. Overthe subsequentmonths Complainant made no changes to the size ofthe space he wished to leasethe halfofthe community hangar vacated bythe Dan's Excavating. Only after Respondent's agent, Mr. Mazur, said he was going to require Mr. Pelzer to rent parking and ramp space in additionto the hangar space was there ever a change to the space involved-he sought to rent less parking area. The following table summarizes the eight prices demanded for Mr. Pelzer's proposed operation in a hangar as outlined in the Complaint, the space involved and the various prices setby Respondent:

Price Number Space Requested Price 1 Original $950/month Relevant Pages of the Complaint 3-7 Relevant Exhibits 1-7 Subsequent Developments: Mr. Pelzer contacted Mr. Mazurto advise thatthe overall lease was acceptable but there were some terms that needed to be corrected and he had questions on others. There was a meeting between Mr. Pelzer, Mr. Mazur and representatives ofRespondent at which the proposed Parachute Landing Area was approved. A few days later Mr. Ma= said the price was going up by $200 because the PLA was on area that was being farmed.

PriceNumber Space Requested Price 2 Original $1, 150/month Relevant Pages of the Complaint 7-9 Relevant Exhibits



### I, 8, 9 SubsequentDevelopments: Complainantnoted that Mr. Ma=had not incorporatedthe changes the two had agreedupon subsequent to Agreement #1; they met again and reached agreement on most areas on concern and Mr. Mazur said Complaint could start operating. The next day Mr. Mazur said that Complainant's insurance was not adequate and thathe mustbuy a policyto be provided by Mr. Mazur'sbroker. The policyturned out not to exist. Mr. Mazurthen left a

3voicemail for Complainant stating that his insurance was adequate butthat "the cost ofdoing business"just went up by $8,000.

Price Number Space Requested Price Relevant Pages of the Complaint 3 Original $8,000 per year 9 mcrease Relevant Exhibits 1,10 Subsequent Developments: Mr. Pelzer asked for a written description ofwhat the extra $8,000 per yearprovided him. He neverreceived an answer.

Price Number Space Requested Price 4 Original $1,750/month Relevant Pages of the Complaint 9-11 Relevant Exhibits

I, 11-15 Subsequent Developments: Mr. Pelzer asked Mr. Mazur why the terms they had agreed upon regarding commercial operations, fuel, maintenance, aircraft storage and signage had still not been incorporated into the Concession and Lease Agreement. Because ofhis concern about adequate space for parking, Mr. Pelzer asked for additional parking-!00 feet by 150 feet-on July 3, 2015. When informed by Mr. Mazur that $2,000 ofthe $8,000 "cost ofdoing business" would be for parking, Mr. Pelzer withdrew his request for additional parking. On July 27 Mr. Pelzer sent Mr. Mazur an email (Exhibit 24) answering Mr. Mazur's questions about signage and parking and ramp area needed-Mr. Pelzer only needed 1/3 oftheramp infront ofthehangar. Mr. Pelzer continuedto questionthe additional $8,000 sum and was thentoldbyMr. Mazurthat it was to coverthe increased cost ofinsurance. Yet, as was discovered only inthe Response and Defenses, Mr. Mazur was never told byhis broker that his insurance cost was going to go up by $8,000 (Respondent's Exhibit K), only that it would go up. Mr. Pelzer asked for a temporary agreement so he could begin operations and was denied. Mr. Mazurthen changed the pricing structure to charge for ramp space and parking.

Price Number Space Requested Price Relevant Pages of the Complaint 5 Original I $2,920.07/month 11 Relevant Exhibits

2, 17 Subsequent Developments: Withthe radical price increase and sudden charge for parking and ramp space (Mr. Mazur soughtto charge for use ofthe entire ramp in front ofthe hangar while Mr. Pelzer's operation only needed 1/3 ofit), Mr. Pelzer sought to reduce the parking space that he was obligated to pay for.

Price Number Space Requested 6 Original, with less parking space Price $2,614.43/month

4 Relevant Pages of the Complaint 11-12 Relevant Exhibits 18Subsequent Developments: A meeting was scheduled at Romeo Airport withthe Executive Administrator ofthe Michigan Office ofAeronautics to negotiate terms and pricing.

PriceNumber Space Requested Price 7 Same as 6 $1,800/month Relevant Pages of the Complaint 12, 13 Relevant Exhibits 20 Subsequent Developments: The $1,800 permonth-including parking-pricing was confirmed via email bythe Executive Administrator ofthe Office ofAeronautics-who apparently also prepared the Respondent's Response and Defense. Within days ofthe meeting that generated pricing structure number 7, Mr. Mazur reneged on it and came up withnumber 8.

Price Number Space Requested Price 8 Same as 6 $2,480.43 Relevant Pages of the Complaint 13, 14 Relevant Exhibits 22 Subsequent Developments: Mr. Mazur continued to come up withnewconditions-including architectural drawings and a permitting process for the hangar. In its Response, Respondent makes frequent comments that it refers to as explanations regarding what it did in dealing withMr. Mazur and Complainant, yet it does not refer to contemporaneous records to supportthose explanations. Respondent did not address the long periods that Mr. Mazur failed to returntelephone calls or emails or his irrational behavior ofnot incorporating terms agreedto on suchthings as fueling and signage inthe next Concession and Lease Agreement he would send to Mr. Pelzer. While pricing is only a part ofthe malce-it-up-as-you-go-along behavior ofRespondent's agent, Respondent claims that it had a standard lease rate for commercial space. The behavior of Mr. Mazur, as reflected inthetable above as well as his pay to play "cost ofdoing business" voicemail demonstrate that Mr. Mazur only seized on it as ajustificationfor his price increase after his claim that his insurance would go up bythat amountproved untrue.



### A. PLA Fee/Agricultural Land

5The first price increase imposedby Mr. Mazurwas following the establishment ofthe PLA. Itis approximately 700 feet by 700 feet, totaling some 490,000 square feet or 11.24 acres. In its Response, Respondent stated that the fee charged was to offset lostrevenue from the agricultural activity (Response p. 5). Respondent's exhibit J is a copy oftwo years (2014 and 2015) ofAgricultural License Agreements for land onthe Airport. It shows that Respondent's agent was engaged inthe same questionable practices againstthe Agricultural Licensee as against Complainant. The number of
acres oflandinvolved is precisely the same for both years. The rate per acre thatthe Licensee mustpay Mr. Mazur's company is precisely the same for both years. The first year Mr. Mazur did the math correctly, leading to a total sum due to RAM of$9,911 for the use ofthe farmland (Exhibit J, page 1). The secondyear Mr. Mazur's company used what appears to be creative mathto cause the total sum due RAM to become $12,000 (Exhibit J, page 4). Respondent's Exhibit J also shows thatMr. Mazurjustpicked a number out ofthe air when corning up with the $200 per monthprice increase for use ofthe PLA. There are three distinct rates per acre applicable to three tracts oflandreferenced inthe License Agreement. The Agreement does not make clear on whichtract the PLA lies. Nevertheless, applying the highest rate per acre in the Agreernent-$65 per acre-the maximum loss to be recouped by RAM for the PLAis $730.60 for a year, or $60.89 permonth, less thanhalfthe fee charged.

B. Fueling/Signage/Condition ofHangar/Maintenance From before the first Concession and Lease Agreement, Mr. Pelzerhad ongoing discussions with Mr. Mazur about the terms ofthe Agreement (whenMr. Mazur couldbe reached). As pointed out inthe Complaint, Mr. Mazur and Mr. Pelzerreached agreement on

6many ofthe items that needed to be either added to or changed withinthe boilerplate ofthe Agreement, notably fueling, signage, condition ofthe hangar and aircraft maintenance. However, when the next Agreement was produced by Mr. Mazur, those agreed upon changes were, inexplicably, never made. The only change that ever was incorporated was to allow parking oftwo rather than one airplane in the hangar. Respondent did not address its agent's repeated refusal to incorporate agreed-upon terms into the Concession and Lease Agreement.



### C. Skydiving Operations At page 5 ofits Response, Respondent attempts to explain away orjustify some ofMr. Mazur's practice ofbeing out oftouch for extended periods oftime as the need for him to consult with Respondent about establishing requirements and procedures for skydiving onto the Airport. Itrefers only to its ExhibitH which consists ofemails from Mr. Pelzerto Respondent asking for help because he can'treach Mr. Mazur and, very quickly, the setting up ofa meeting at which the PLA was approved. This was completed onMay 14,2015, very early inthe process. Mr. Mazur's long absences and delays did not stop as ofthat date, as pointed out inthe Complaint. There is no further discussion ofoperational rules orrequirements for skydiving found in the written communications between any ofthe parties. That is either because the FAA regulates skydiving as an aeronautical activity in 14 CFR Part 105 and there is a presumption, as with all other regulated aeronautical activities, that it will be carried out in a safe fashion in accordance withthe regulations or, because Mr. Mazur is waiting to use operating procedures as yet another
newconditionto delay the process ofestablishing a commercial skydiving operation.

7It should also be noted that there has been skydiving operations onto Romeo Airport in the past. Mr. Pelzer hasjumped onto the Airport as part ofAirport openhouse/airshow events and a commercial skydiving operatorbased on an airport nearby has loaded its customer/jumpers at the Airport and occasionally parked its airplanes overnight without a commercial operating agreement. The approval ofthe PLA and no expressed concerns about operational matters mean that there was no rational reason for Mr. Mazurto not approve aplan for temporary operations tmtil the hangar lease was signed.

D. Insurance/Pay to Play/Parking and Ramp Fees Eventhoughthe process ofestablishing a commercial skydiving operation had begun in February and the PLAwas agreed uponinMay, Mr. Mazur kept coming up with new conditions to delay or deny skydiving. In June, he suddenly decided that insurance was a concern, that the policy Mr. Pelzerhadprovided-the standard coverage available for commercial skydiving operators-wasn't satisfactory and sent Mr. Pelzer on a wild goose chase for coverage that was estimated to cost as much as $200,000 a year and ultimately turned out not to exist. [Complaint at pages 8 and 9] Followingthe June 24th meeting with Respondent [Complaint at page 9], Mr. Maznr was satisfied that Mr. Pelzer's coverage was satisfactory and he leftthe pay to play "cost ofdoing business" voicemail for Mr. Pelzer and increased the price Mr. Pelzer wouldhave to pay to play
onthe Airport by $8,000. As pointed out inthe Complaint, Mr. Mazur has made several afterthe-fact attempts tojustify the extra $8,000. Mr. Pelzer's request for a written description as to what the extra $8,000 provided him (Exhibit 10) was never answered by Mr. Mazur or

8Respondent. The firstjustification, on July 7, was that $2,000 was for automobile parking-the first time paying for parking was ever demanded (Exhibit I, page 4)-andthe remaining $6,000
was for an insurance price increase that "may" happen next year. Respondent's Response is silent on Mr. Mazur's $8,000 pay to play demand. Onpage 6 ofits response itmakes reference to Exhibit K in which an insurance brokerpredicts a rate increase ifskydiving is allowed on the Airport and states that 

### it must maintain a fee andrental structure that doesn't subsidize an additional insurance expense. While Respondent must comply with Grant Assurance 24, there was no number specified for an insurance rate increase bythe insurance broker and it can'trationally raise rental prices without knowing ifthe insurance rate is truly going to increase and byhow much. Mr. Mazur's second attempt tojustifythe $8,000 "cost ofdoing business" came on July 15 (Exhibit 15, page 5) when he said that an insurance price increase was imminent-yetthe documents produced by Respondent do not support an imminent price increase of$8,000, or any specific amount at all--only apredictionthat some increase will occur. The third, and current, method used by Mr. Mazur and Respondent tojustizy the $8,000 "cost ofdoing business" and subsequentprice increase came in late July-five months after Mr. Mazur knew the space Mr. Pelzer wished to lease-whenMr. Mazur came up withthe idea of charging for parking and ramp space. Itneatly swallowed the $8,000 price increase, and then some-and lead to Mr. Pelzerrequesting less parking space. In its Response, Respondent ignores the fact that the idea ofcharging for parking and ramp space only came into being after Mr. Mazur had lefthis "cost ofdoing business" voicemail and increased the price $8,000 and spends most ofits Response in a discussion ofper square foot

9pricing and comparing those prices with other commercial and noncommercial operators on the Airport. Respondent ignores that the other operators are not seeking to use a hangar that is in such bad shape that it is scheduled for demolition, its ramp has not been maintained, has numerous potholes and a drainthat sticks above the surface so that a section floods and Mr. Pelzer will have to install temporary structures and portable toilets to make the hangar useable. At page 4 of its Response, Respondent said the Community Hangar is "stable but inneed ofcosmetic repairs." Itwent onto saythat "All man-doors are being replaced with aluminum doors. Installation is scheduledto be completed by AprilS, 2016." At 6:30pmEDT on April 8, 2016 Mr. Pelzer visited the Community Hangar-no workhad started onreplacing the man-doors. Respondent's Response refers to one commercial operator inthe newterminal building and far better hangars (Response page 7)-itwould be ludicrous to apply even remotely comparable square footage rates for the spaces involved. Respondent providedthe Agreements for the two commercial operators it referenced in its Response (Exhibits M and N). What Respondent didn'tpoint out is that the Agreements showthat those two commercial operators do not pay for parking or ramp space. Each only has to pay for office and hangar space. At page 8 ofits Response, Respondent states that the Airport's Minimum Standards (Exhibit B) require that a commercial operator pay for parking, staging and ramp space. That is not correct, there is no suchrequirement. The language ofthe sectionreferenced by Respondent reads: "The Operator shall construct a building or lease aportion of a buildingto provide suitable facilities for office space, flight planning, aircraft parking, and auto parking for customers and employees."
10Itonly speaks to leasing a portion ofa building, not any ofthe land around it. Accordingly Respondent does not charge the operators identified in Exhibits M and N for the land around the portions ofthe buildings they lease. Exhibit M also provides evidence contrary to the Respondent's statement on pages 4 and 5 ofthe Response that commercial operating agreements are required to be signed before operations commence. Respondent did not apply thatrequirement to Victory Aviation. Itwas operating without a signed commercial operating agreement (Exhibit Matpage 24). On page l0 ofthe Response, Respondent attempts tojustifyMr. Mazurreneging onthe pricing structure establishedbythe author ofthe Response brief. Respondent states that Mr. Mazurmade the change to comply with grant assurances, however, Mr. Mazur gave no such explanation at the time. To believe thejustificationrequires that one believe that the Executive Administrator ofthe Michigan Office ofAeronautics did not knowthe requirements ofthe grant
assurances applicable to an airport his department owns.



### E. Permits As pointed out in the Complaint, Respondent or Mr. Mazur constructed a newterminal building on the Airport without going through a permittingprocess. Respondent apparently denied doing so but has not provided a copy ofany permit, and to Complainant's knowledge,
none was ever displayed onthe building. As shown inExhibit 2, the newexecutive hangar constructed onthe Airport did not have to go through apermittingprocess. The addition ofa permitting requirement months into Lease negotiations-whenit knewthat none existed, and then attempting to force a local govermnentto create one-isjustadditional evidence ofthe irrational operation run by Mr. Mazur on behalfofRespondent.

11Respondent announced in its response that it has taken until now to come up with a permitting process that canbe followed and is apparently trying to have it apply retroactively to a building that has been completed, the new executive hangar, all as part oftrying tojustifY imposing the requirement on Complainantmonths after lease negotiations began. Complainant notes that he has no objections to going through a permittingprocess, butpoints out that the
manner in which the requirement was added at the last minute and the way the permitting process has evolved and who will do it is a further example ofthe irrational behavior of Respondent and its agent throughout. Complainant also notes that Respondent and its agent are consistent in doing nothing but delaying in dealing withtheirresponsibilities as an airport sponsor as noted inthe three years it took to negotiate a simple land lease described in Exhibit 2 and complete failure to remedythe problemthathas caused night instrument approaches to the Airport to be prohibited as of September 2014.

II. Law and Argument As pointed out inthe Complaint and generally denied by Respondent, an airport sponsor is not relieved ofits grant assurance obligations when it contracts with a management company to run its airport. Here, the head ofthe management company irrationally continuedto impose additional conditions on Complainantthat had the effect ofdenying him skydiving access. Further, Mr. Mazur imposed apay to play arrangement, which he tried to cover up through variousjustifications-thatRespondentjoined and became party to in its Response. Respondent asserts that it has done nothing to prohibit skydiving access at the Airport, the only problem has beenthat Complainant kept changing the amount ofspace he wantedto


### 12lease. That a sponsor claims it wants to allow an aeronautical activity on an airport is not the
measure as to whether it is actually willing to do so, as set out inthe cases cited inthe Complaint, and for which Respondent provided no countervailing authority. What matters, is the actions ofthe sponsor and whether those actions have the effect ofdelay and thus denial. Here, the sponsor continually and without warning, changedthe conditions for a hangar lease, refused to authorize temporary operations, repeatedly changedthe pricing for the space in
an old, nearly worn-out hangar, imposed an $8,000 payto play fee and then tried to cover it up by charging for parking andramp space even though the documents provided showed it didn't do
so for other commercial operators. The actions ofthe Respondent and its agent have had the effect ofdenying skydiving access in violation ofGrant Assurances 5, 22 and 23.

III. Conclusion Forthe reasons set out above and in the Complaint, Complainantrespectfully requests the FAA enter an order providingthe reliefdesired inthe Complaint.

Dated: April9, 2016 By:

13 Respectfully submitted,
Richard J. Durden, Attorney at Law Attorney for Complainant ,--·""/""?

Conifer, Colorado 80433 (616) 901-65156 avlawyer@yahoo.comSubject: Re: RomeoAirport From: To: Cc: Bee: Date:

Hi Steve, Mike Pelzer (mikeyp@prodigy.net) mbdevelopment@comcast.net; zapataj@michigan.gov; mikeyp@prodigy.net; jlamonaca@avlaw.us; Tuesday, July 14, 2015 7:42PM 

### Page 1of3

Here is my plan for signs.... (see attachment) All ofthem with the exception ofthe ones on the building will be temporary and taken down when we are not in operation. The ones on !he building willjust have logo, phone numberand internet address and will be smallerthan 14' x 6' feet unlessyou have some sort of restriction. The signs on the North side, East end ofthe hangarwill be on poles or sawhorse type barricades and say NO PARKING BEYOND THIS POINT. Estimated size is 3' x2' foot. Other signs will designate the landing area and say NO SPECTATORS BEYOND THIS POINT approximately 2' x 1'foot. I will probably set at least 5 or 6 across the East end. Theywill either be on poles thatwe remove when we're not in operation orsawhorse type barricades. I will also usethe same signs and barricades on the ramp to keep people that aren1jumping awayfrom the aircraft. I will also have one sign sending people towardsthe parking area. (blue square) I am still waiting for responses to myemail from 719 and I am also interested in a "self-fueling agreement" unless we can come up with something thatworks for both ofus. Thank you! Mike Pelzer

From: "mbdevelopment@comcast.net" <mbdevelopment@comcaat.net> To: Mike Pelzer <mikeyp@prodigy.net> Cc: "Zapata, Juan" <zapataj@michigan.gov> Sent: Tuesday, July 7, 2015 9:10PM Subject: Re: Romeo Airport Mr. Mike Pelzer, In regards to your comments and requests in the Commercial Operation Agreement: The commencement date for both License and Commercial Agreement shall be described in Exhibit "D" (Commencement Date Confirmation) ofConcession and License Agreement since they both shall be signed simultaneously. In addition, this simplifies the commencement date, makes 

### it consistent with all other past agreements and we do not know when this actually will get signed. You stated 11-9-2020, whythis date? M2 - This shall not be deleted since this refers to adequate aircraft parking and thatyou have secured enough land and both aircraft and automobile parking. Exhibit "F" will be

**~,** "Airport 

### land for Parachute Landing and Parking Areas" https://us-mg5.mail.yahoo.cornlneollaunch?.partner==sbc&.rand=l5uh7cdrrk48d 11/15/2015CERTIFICATE OF SERVICE I hereby certifythat I have this day served the foregoing 14 CFR Part 16 Complaint on the following person at the following address by UPS second-day delivery: Mike Trout Executive Administrator, Office ofAeronautics Michigan Department ofTransportation 2700 Port Lansing Road Lansing, Michigan 48906-2160 Datedthis 9th day ofApril, 2016