Benjamin H. Klein

LAW OFFICES OF PAUL A. LANGE, 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 Aviation, Inc.

Complainant,

v. Docket No. 16-15-03

City of Renton, Washington

Respondent.

/

PRO-FLIGHT AVIATION, INC.’S ANSWER TO RESPONDENT’S MOTION 

FOR SUMMARY JUDGMENT

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

and pursuant to 14 C.F.R. § 16.26(c)(3) and the FAA’s May 1, 2015 Order granting an extension 

of time, hereby files this Answer to Respondent City of Renton, Washington’s (“City” or 

“Respondent”) Motion for Summary Judgment (“MSJ”), and in support thereof, states as 

follows: 

INTRODUCTION

In its Part 16 Complaint (“Complaint”), PFA alleges that Respondent violated several 

enumerated grant assurance obligations when it provided preferential treatment to the Boeing 

Company (“Boeing”), a non-aeronautical user of the Renton Municipal Airport (“RNT” or 

“Airport”), at the expense of PFA, a longtime aeronautical service provider at RNT. 

Specifically, PFA alleges that Respondent intentionally concealed from PFA that the 760 Parcel 
2

was available for lease in order to ensure that Boeing was awarded the lease, even though the 

City was aware of PFA’s longstanding interest in the 760 Parcel, and its desire to use 760 for its 

flight training aircraft and transient aircraft parking.

Respondent does not squarely deny the allegation that it concealed 760’s availability 

from PFA, and it does not offer any evidence to refute the timeframe asserted by PFA that 

unequivocally demonstrates that the City was negotiating with Boeing for the 760 Parcel while at 

the same time representing to PFA that it was not available. Instead, Respondent constructs a 

straw man and argues that both Boeing’s and PFA’s lease applications were considered, and that 

Boeing was chosen over PFA because: (1) PFA failed to include a feasibility study with its

application; and (2) Boeing’s proposed use of the 760/770 Parcels better serves the interests of 

the flying public, the City of Renton, and the public at large. 

The first excuse offered by the City is nothing but pretext. Respondent’s letter notifying 

PFA that Boeing had been awarded the lease (which was sent before the City Council formally 

voted on the matter) makes no mention of a missing “feasibility study”. In fact, Respondent said 

that it considered PFA’s proposal an “attractive one,” but that Boeing’s application “further[ed] 

the City’s goals.” Complaint, Ex. 10. Accordingly, the record evidence does not support the 

City’s claim that PFA’s application was denied because it was somehow deficient or otherwise 

lacked required information. To the contrary, the evidence supports PFA’s claim that it was 

never considered for the lease of the 760/770 Parcels, and that Boeing’s approval was a foregone 

conclusion.

The City’s second justification for its actions – that Boeing’s use of the 760/770 Parcels 

better serves the interests of the flying public, the public in general, and the City of Renton – is 

hard to square with what even Respondent acknowledges to be the primary purpose of a 
3

federally-obligated airport. In the words of Respondent, “the primary focus of a publicallyfunded airport must be to provide aeronautical services to the public.” MSJ at 17. RNT “is 

designated by the FAA as a reliever airport diverting general aviation aircraft traffic from nearby 

Sea-Tac International Airport ("SEA"). MSJ at 6. What then is the basis for Respondent’s claim 

that Boeing’s lease of facilities designated for general aviation better “serves the interest of the 

flying public”?

As a reading of the MSJ makes abundantly clear, Respondent justifies its decision to 

mislead and discriminate against PFA on simple terms: Boeing is a valuable Airport tenant that 

provides $1.5 million in rent payments to RNT per year, allows the Airport to be self-sustaining, 

and contributes greatly to the local economy. To be sure, PFA is not in a position to dispute any 

of these claims. A federally-obligated airport, however, does not exist to maximize city revenues 

or to serve as a source of job creation – although these are certainly worthy attributes. A 

federally-obligated airport exists to serve the flying public. In the case of RNT, that means 

general aviation aircraft and those who use and provide services in support of them.

While it may be true that the flying public worldwide benefits from Boeing’s takeover of 

RNT and its displacement of general aviation aircraft and service providers, the flying public that 

actually uses RNT, or seeks to use RNT, is harmed by it. Boeing utilizes the Airport essentially 

as a parking lot for 737s that are manufactured off airport. Not only is this not aeronautical 

activity as the FAA defines it, even assuming that it is, Boeing’s use of the Airport comes at the 

expense of general aviation operators and service providers – the very segment of the flying 

public that RNT, a SEA reliever airport, was designed to serve. 

Because of Boeing’s activities, PFA, the operator of the sole, full service FBO at RNT 

has been deprived of sufficient space to house the aircraft it uses for flight training, and because 
4

there is no other suitable space currently available, PFA will be forced to choose between serving 

transient aircraft or continuing its flight training program. In addition, because Boeing continues 

to displace other aeronautical users of the Airport, many are considering relocating elsewhere, 

and many have already done so. With decreasing users, aeronautical service providers such as 

PFA may not remain viable as ongoing business concerns. 

Even assuming that Boeing is engaged in aeronautical activity (and it is not, see Section 

II.A, infra), Respondent violated its grant assurance obligations when it unjustly discriminated 

against PFA during the lease application process for the 760/770 Parcels. As is detailed in the 

Complaint and also herein, Respondent actively misled PFA about the availability of the 760 

Parcel in order to afford Boeing the opportunity to negotiate terms with the City and get a jump 

on the lease application process – exactly the type of conduct that is prohibited even when two 

potential users are differently situated. In addition, Respondent violated its own leasing policies 

in its effort to underhandedly secure the Boeing lease.

Respondent also violated Grant Assurance 29, Airport Layout Master Plan, when it 

agreed to lease the 760/770 Parcels to Boeing. The ALP for RNT clearly designates the 760/770 

Parcels for General Aviation (“GA”), and no amount of linguistic gymnastics by Respondent 

should convince the FAA that Boeing, a manufacturer of airline transport aircraft, has anything 

to do with GA. If Boeing is found to be so engaged, the term GA will have lost its meaning.

In acceding to Boeing’s every wish and command at RNT, Respondent, in violation of 

Grant Assurance 5, has given up its rights and powers. It has allowed Boeing, in its sole 

discretion, to leave its leaseholds at the Airport idle and vacant, as Respondent has entered leases

permitting Boeing to bank space based on future, contingent needs. 
5

In sum, and as described more fully herein, PFA has alleged, and provided reliable and 

probative evidence proving Respondent’s grant assurance violations. 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(c); accordingly, its Motion for Summary Judgment should be denied. 

I. 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 alleging its own set of entirely irrelevant facts (e.g., the history of 737 

manufacturing at RNT), while at the same time either ignoring or disputing the material facts 

alleged by PFA. Because there are still genuine issues of material fact in dispute, and because 

those facts that are undisputed support a finding of grant assurance violations, Respondent’s 

Motion for Summary Judgement should be denied.

A. Respondent Unjustly Discriminated Against PFA in Leasing the 

760/770 Parcel to Boeing

The facts surrounding Respondent’s unfairly discriminatory treatment of PFA with regard 

to the latter’s oft-stated interest in leasing the 760 Parcel are stated in detail in the Complaint. See 

general, Complaint ¶¶ 22-30, 43-54. These facts include, but are not limited to the following:

 From 2011 through 2013, PFA’s management repeatedly expressed its interest in 

leasing the 760 Parcel, which is adjacent to PFA’s current leasehold, and which 
6

has been designated on the Airport Layout Plan for General Aviation. Complaint

¶ 22.1

 The previous occupant of the 760 Parcel defaulted on its lease in or about April 

2013, at which point PFA reiterated its interest to Airport management. 

Complaint ¶ 23.

 On April 15, 2013, PFA wrote to Airport Manager Ryan Zulauf asking for a 

meeting concerning the 760 Parcel. Complaint, Ex. #6a.

 Shortly thereafter, Mr. Zulauf stated, in response to PFA’s inquiry, that the 760 

Parcel would not be available for lease until a storm drain pipe could be replaced. 

Complaint ¶ 23. At no time during this period did Mr. Zulauf indicate to PFA 

that the Airport was engaged in lease negotiations with Boeing over the 760/770

Parcels. See Declaration of Bernard A. Paholke (“Paholke Dec.”), ¶ 5, attached 

hereto as Exhibit A.

 On April 17, 2013, Respondent sent Boeing a letter stating that the 760/770 

Parcels were available for lease and Respondent met with Boeing on that same 

day to discuss the matter. At that meeting, Boeing reiterated its interest is 

securing the lease for the 760/770 Parcels. Complaint, Ex. 15, pg. 2-3.

 

1 Respondent states that “a search by RNT staff has not uncovered any subsequent written 

communiqué from PFA to the Airport” in the one and a half-year period following PFA’s December 2011 

email expressing interest in 760 (MSJ at 11), but also admits that it had “numerous discussions with PFA 

between 2011 and 2013 about its interest in leasing the 760 Parcel. MSJ at 4. Thus, the fact that PFA 

repeatedly expressed interest in the 760 Parcel is not in dispute. 
7

 By email dated April 18, 2013, Boeing said that it was securing internal approvals 

and hoped to begin lease discussions for those parcels “in the next 2-3 weeks.” 

Id.

 Despite being aware of PFA’s longstanding interest in leasing the 760 Parcel, 

Respondent did not make PFA aware that the 760 Parcel was in fact available 

and that Boeing would be submitting an application for its lease.2 

 In early-June 2013, PFA again inquired about the availability of the 760 Parcel. 

PFA was informed, for the first time, that the 760 Parcel was available, but that 

Boeing had already submitted a lease application for both it and the 770 Parcel. 

PFA was also informed by Mr. Zulauf that the City had already decided to lease 

the space to Boeing, and he discouraged PFA from submitting an application. 

Complaint ¶ 25; Paholke Dec. ¶ 6.

 On June 6, 2013, PFA submitted a lease application for the 760/770 Parcels. 

Complaint ¶ 26.

 On July 24, 2013, Respondent sent PFA a letter informing it that its application 

had been rejected in favor of Boeing’s. Complaint ¶ 27, Complaint, Ex. 10.

 On July 25, 2013, the Transportation Committee of the City Council met to 

“deliberate” on decision that had clearly already been made. Complaint ¶ 28.

 

2

Subsequent to Respondent’s filing of the MSJ, PFA contacted Mr. Zulauf who is now an 

employee of the FAA, as it was surprised by some of the assertions contained in the MSJ, particularly 

those surrounding the timing of the lease application process for the 760/770 Parcels. Mr. Zulauf stated 

that it was widely known by Respondent that PFA was interested in the 760 Parcel. Rather than provide a 

declaration with hearsay testimony, PFA respectfully submits that the FAA can corroborate the same and 

more if it interviews Mr. Zulauf in connection with an investigation conducted pursuant to 14 C.F.R. § 

16.29
8

 In an act of political theatre that merely carried out a foregone conclusion (as 

demonstrated by Respondent’s letter of July 24th), the Transportation Committee 

voted to approve the Boeing lease application. Id.

PFA’s factual assertions in this regard unequivocally demonstrate that Respondent 

actively concealed from PFA that the 760 Parcel was available for lease, that Boeing had 

submitted a lease application before Respondent even acknowledged to PFA that the 760 Parcel 

was available, and that Respondent decided to grant Boeing the lease before its governing bodies 

had officially considered the competing applications. Respondent does not (because it cannot) 

dispute these allegations. Instead, Respondent glosses over the timing of PFA’s lease application 

process and the fact that: (1) the City had entered into lease discussions with Boeing while at the 

same time representing to PFA that the 760 Parcel was not yet available for lease; and (2) 

Airport staff misled PFA about the timing of the availability of the 760 Parcel so that it could 

negotiate with Boeing and stall/prevent PFA from submitting a competing application. 

For example, Respondent disingenuously states that “when the 760 Parcel became 

available in April of 2013, PFA learned it was vacant and entered into discussions with the 

Airport regarding its proposed use of the space.” MSJ at 11. However, it provides no evidence in 

support of the second part of this assertion (that in April 2013, PFA was in discussions with 

Respondent regarding its lease of the 760 Parcel) other than a cite to Exhibit 6b of the 

Complaint. Exhibit 6b is an April 15, 2013, email from PFA to Airport Manager Zulauf, which 

reiterates PFA’s interest in the 760 Parcel. This one-sided e-mail hardly proves, as the City 

appears to suggest, that Respondent was in “discussions” with PFA about the lease of the 760 

Parcel in April 2013. In fact, the City did not respond to this email. Paholke Dec. ¶ 4. Any actual 
9

“discussions” about the lease of the 760 Parcel that occurred in April 2013, were between Boeing 

and Respondent – they did not involve PFA. Complaint, Ex. 15, pgs. 2-3; Paholke Dec. ¶ 5.

Respondent does not even attempt to dispute the allegation that it misled PFA about the 

availability of the 760 Parcel; it simply ignores it, suggesting that even if that were so, the FAA 

should pay such a detail no mind. See MSJ at 11. (“Notwithstanding claims in the Complaint that 

it was misled regarding the actual time the property would be available for lease ...). Then, after 

conveniently sweeping this serious allegation under the rug (rendering it admitted, or in the light 

most favorable to the City, disputed, and thus inappropriate for resolution on summary 

judgment), the City argues that all must have been above board since, in fact, PFA did end up 

submitting a lease application. MSJ at 11-12. 

However, accepting the City’s contention that merely allowing PFA to apply for the 

760/770 Parcels – after PFA discovered, on its own, that Boeing had already applied – proves 

that Respondent did not violate Grant Assurance 22 would render toothless the obligation not to 

unjustly discriminate against aeronautical service providers at the Airport. The essential point is 

this: Boeing’s approval was a foregone conclusion before it even submitted its application, and it 

was provided preferential treatment in the application process, as evidenced by Respondent’s 

effort to keep PFA from submitting a competing application as long as it could. When PFA 

nevertheless proved itself determined and submitted an application even after it was discouraged 

from doing so, Respondent simply rejected PFA’s application before City Council formally 

voted on the issue – a violation of Respondent’s own policies and procedures. 

Additional evidence of Respondent’s unjustly discriminatory treatment of PFA can be 

found in the Airport’s violation of its own, self-imposed leasing policies. Complaint ¶¶ 18-21, 

46-50. Among others, PFA asserted that Respondent violated Section 6.13 of the Airport 
10

Leasing Policies, which states that “[o]versubscribed facilities will be managed using a process 

that is fair, transparent, and uniformly applied.” Complaint, Ex. 5, Section 6.13. Certainly, the 

facts as alleged demonstrate that the process for the lease of the 760/770 Parcels was not “fair, 

transparent, [or] uniformly applied.”

Again, Respondent does not bother to dispute the fact that it ignored this and other 

provisions of its leasing policies when it came to the 760/770 Parcels. Instead, it argues that any 

such deviations cannot form the basis of a Part 16 claim. Indeed, Respondent all but admits that 

Boeing and PFA were treated differently, but claims that this is permissible given that the two

are not “similarly situated” users. MSJ at 29. While ignoring self-imposed leasing policies may 

not, on its own, constitute a grant assurance violation, PFA has not alleged as much. Rather, PFA 

has pointed to the Airport’s complete disregard of its own leasing policies as evidence of 

Respondent’s discriminatory conduct and the preferential treatment accorded to Boeing at the 

expense of PFA. Respondent has submitted no evidence to contradict this allegation; it rests on 

the proposition that a violation of its leasing policies does not matter for the purposes of a Part 16 

Complaint.

In sum, the material facts as alleged by PFA surrounding Respondent’s unjustly 

discriminatory conduct toward PFA provide evidence to prove that PFA was never even 

considered by Respondent for the lease of the 760/770 Parcels, and thus, unjustly discriminated 

against in favor of Boeing. PFA’s factual allegations in this regard, which are either disputed or 

undisputed in its favor, are more than sufficient to form the basis for a violation of Grant 

Assurance 22. 
11

B. General Aviation Is Being Displaced at RNT to Make Room for 

Boeing, a Non-Aeronautical User

PFA has alleged that the City has allowed Boeing to expand its leaseholds at the Airport, 

including in areas specifically designated for GA on the Airport Layout Master Plan (“ALP”), to 

the detriment of aeronautical users and service providers at RNT. Complaint ¶¶ 1, 55-60. For 

example, Boeing has entered into leases with the Airport for the 760/770 Parcels, and the City 

has indicated that it also intends to lease Boeing the 820 Parcel. Complaint ¶¶ 29, 30, 32; MSJ, 

Jacobsen Dec. ¶ 8. These parcels are designated for GA on the ALP, and are currently occupied 

by dozens of GA aircraft. Complaint Ex. 11 (ALP), Complaint ¶ 33. The latest ALP update 

published by the Airport was in 2009 and was paid for, in part, by federal grants received 

through the Airport Improvement Program. Complaint ¶ 55. 

Respondent has stated that the needs of the aeronautical users of the Airport that are

being displaced by Boeing can be accommodated elsewhere. MSJ at 12; Jacobson Dec. ¶ 5. This 

is disputed. See, e.g., ¶¶ Complaint 1, 52, 53. Current aeronautical users of the 760/770/820 

Parcels have stated that they will likely need to leave the Airport once Boeing displaces them as 

there will be insufficient space for GA aircraft tie-down at RNT once these parcels come under 

Boeing’s control. See Declaration of Collin Klopfenstein, dated May 19, 2015, attached hereto as 

Exhibit B; Declaration of Stephen Kwan, dated May 19, 2015, attached hereto as Exhibit C; 

Declaration of Jay Falatko, dated May 15, 2015, attached hereto as Exhibit D. Airport Manager 

Jonathan Wilson has testified that these displaced users can move to tie-downs located on the 

east side of the Airport. Wilson Dec. ¶ 26. This is disputed; the manager of the only area 

available for tie-downs on the east side of the Airport has stated to PFA that they are full. 

Paholke Dec. ¶ 23.
12

Respondent alleges that there will be adequate space for transient aircraft parking after 

Boeing occupies the 760/770/820 Parcels. MSJ at 16. This is disputed. Complaint ¶ 33; Paholke 

Dec. ¶¶ 12-13. The only remaining spots for transient aircraft (outside of PFA) are located on the 

820 Parcel, which Respondent soon intends to lease to Boeing. Jacobsen Dec. ¶ 8. In addition, 

PFA is the only location at RNT that accepts transient jet parking. Paholke Dec. ¶ 11. If it is 

forced to move its flight training fleet back to its ramp on the 750 Parcel, PFA will not be able to 

accommodate any transient jet aircraft. Id. Rainier Flight Services, the entity that Respondent 

refers to as the other FBO at RNT does not offer parking for any transient aircraft or provide 

them with any services. Id. ¶ 22.

Respondent has alleged that the alternative proposals it suggested to PFA provide suitable 

space from which it, and others, could provide aeronautical services. MSJ at 14-16. This is 

disputed. Paholke Dec. ¶¶ 14-18. One such proposal, re-purposing space on the Airport formally 

occupied by a restaurant, is admittedly not currently viable. Jacobsen Dec. ¶ 8. This space is 

outside of the airport fence and unpaved. Moreover, Respondent has acknowledged that it would 

not be cost effective to spend the approximately $250,000 required to develop the space for 11 

tiedowns. Paholke Dec. ¶ 18. Another red herring offered by the City concerns the 820 Parcel. 

Although PFA does not believe that it is viable (or safe) to ask its flight school students to walk 

across active ramps that are soon to be closed to the public by Boeing in order to access training 

aircraft, it is a moot point: Respondent has already agreed to lease the 820 Parcel to Boeing. 

Jacobsen Dec. ¶ 8. 

Respondent’s remaining defense to the assertion that GA is being displaced by Boeing’s 

occupation of the 760/770/820 Parcels is that it accommodated aeronautical users “to the 

maximum extent possible,” by only offering Boeing a 7 year lease (5 year initial term, renewable 
13

for 2 years thereafter at Boeing’s discretion). MSJ at 13. It is audacious to suggest that 

aeronautical users and service providers are being accommodated to the “maximum extent 

possible” when they are being displaced for 7 years, during which time many users will likely 

leave RNT since there is no suitable alternative space, causing businesses such as PFA to shutter.

Respondent itself acknowledges the disruption to aeronautical users of the Airport in the 

preamble to Amendment No. 4 to the Boeing Lease Agreement. Complaint, Ex. 9 (Amendment 

No. 4), Recital ¶ 6 (“WHEREAS, the Landlord desires to maintain the existing number of 

aircraft tie downs on the 760 Parcel and 770 Parcel so as to minimize disruptions to the existing 

number of aircraft based at the airport...”).

In fact, Respondent’s policies in this regard have only delayed the disruptive effect of 

Boeing’s displacement of GA and magnified the uncertainty of the future of GA at RNT. 

Initially, GA aircraft on 760 and 770 were told that they could stay there until March 31, 2015. 

This date was later pushed back to June 30th. Now, it appears to have been moved again to July 

31st; however, with nowhere to go and an uncertain future, many GA aircraft are choosing to 

leave the field. Paholke Dec. ¶ 24. Given current conditions, they will not return and they will 

not be replaced.

Finally, despite Respondent’s conclusory statements buttressed by self-serving 

information provided by Boeing, the latter has no demonstrable need for the 760/770 Parcels, 

and simply referencing the heavy demand for the 737 MAX does provide any evidence

demonstrating an actual, current need. MSJ at 9-10. To the contrary, the most probative 

evidence demonstrates a clear lack of need, given that in the almost two years that it has leased 

the parcels, Boeing has never parked a single aircraft there or otherwise made use of them. 

Paholke Dec. ¶ 19. Indeed, Respondent has acknowledged that Boeing may choose never to 
14

utilize the 760/770 Parcels. Complaint, Exhibit 6d, paragraph 4. This is not a surprising 

conclusion given that Boeing leaves large portions of its other leaseholds at RNT unoccupied, 

including Apron B, a parking apron with positions for five 737s that Boeing has leased since 

2008 and which is almost always entirely vacant. Paholke Dec. ¶¶ 19-21; See also, Renton 

Reporter, March 26, 2008, “Boeing Takes Back Apron, Sealing Jet Center’s Demise” attached 

hereto as Exhibit E.

Unfortunately, Respondent’s leases, in an abdication of its rights and powers, allow 

Boeing to employ this sort of “contingency” strategy, and leave its leaseholds vacant and unused 

unless and until it requires them – all at the expense of aeronautical service providers who have

proven, current and real needs for more space in order to serve the aeronautical users of RNT. 

Accordingly, the material facts as alleged by PFA regarding Respondent’s displacement of GA at 

the Airport, are either disputed or undisputed in PFA’s favor, and thus more than sufficient to 

form the basis for a violation of Grant Assurances 5, 22, 24, and 29.

II. ARGUMENT

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). Respondent’s Motion for Summary Judgement seeks summary adjudication 

on all of PFA’s clams; 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 should 

be denied. 
15

A. Boeing is Not an Aeronautical User and It is Not Engaged in 

Aeronautical Activities at RNT 

As Respondent correctly notes, “the primary focus of a publically-funded airport must be 

to provide aeronautical services to the public.” MSJ at 17. And, Respondent readily 

acknowledges that Boeing does not serve the flying public from the Airport. MSJ at 30, fn. 10. 

In Respondent’s opinion however, this seeming contradiction is of no import. Boeing, it argues, 

is engaged in “aeronautical activity,” in that it manufactures airline transport aircraft that are 

ultimately used by the public after they are flown out of the Airport for delivery; thus, Boeing is 

should be considered an aeronautical user of the Airport, and entitled to all of the rights and 

protections that such a designation affords. This includes allowing Boeing to compete with 

aeronautical service providers for space at the Airport designated for GA, and to be given the 

preferential lease rates accorded to aeronautical users. If the Grant Assurances are to have any 

meaning, however, and if federally-obligated Airports are to remain open and available to public 

aeronautical users, the FAA must reject Respondent’s interpretation of “aeronautical activity” 

outright.

“The basic federal obligation of the sponsor is to make public landing and aircraft 

parking areas available to the public.” FAA Order 5190.6B, Airport Compliance Requirements, 

September 30, 2009 (“FAA Order 5190.6B”), ¶ 12.2(b). “The Airport Compliance Program is 

designed to protect the public interest in civil aviation. Grants [] are in exchange for binding 

commitments (federal obligations) designed to ensure that the public interest in civil aviation 

will be served.” Id. at ¶1.5. 

Boeing, a corporation that manufactures airline transport aircraft off-airport and then 

tows them on airport to be stored before delivery, does not serve the public interest in civil 

aviation at RNT. It serves its own interests and that of its shareholders. If RNT and federally 
16

obligated airports nationwide are to continue to provide aeronautical services to the public, the 

FAA must affirm a definition of aeronautical use that excludes activities that are related, directly 

or indirectly, to the commercial manufacture of aircraft. To do otherwise would lead to the 

extreme example that is now presented at RNT, where a powerful multinational corporation, 

with virtually unlimited resources, is able to effectively convert a public airport into a private 

one.

Aeronautical Activity Does Not Include Aircraft Manufacturing

Pointing to Appendix Z to FAA Order 5190.6B, Respondent contends that Boeing’s 

activities at the Airport fall squarely within the definition of “Aeronautical Activity,” which 

includes, “[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. Id. Appendix Z is 

admittedly broad ranging and goes on to provide a non-exhaustive list of such activities; notably 

absent from that list, however, is aircraft manufacturing. Id. 

This is not surprising as the FAA has consistently taken the position that aircraft 

construction is not an aeronautical activity. Respondent’s attempt to minimize the finding by the 

FAA in BMI Salvage Corporation & Blueside Services, Inc. v. Miami-Dade County, FL that 

“aircraft manufacturing is not recognized by the FAA as an ‘aeronautical activity’” is unavailing. 

Although BMI might have concerned a salvage and demolition operation, the FAA explicitly 

treated the question of whether aircraft manufacturing could be regarded as an aeronautical 

activity and concluded that it could not. FAA Docket No. 16-05-16 (April 15, 2011) (Final 

Decision and Order on Remand), at 23. Moreover, on appeal, the 11th Circuit concluded that the 

FAA’s determination in this regard was reasonable. BMI Salvage Corp. v. FAA, 488 Fed.Appx. 

341 (Table) (11th Cir. July 19, 2012) (“Not every action involving aircraft is deemed aeronautical 
17

and the FAA is entitled to draw a line between what is aeronautical activity and what is not”). 

Ashton is equally clear. Ashton v. City of Concord, FAA Docket No. 16-99-09 (January 28, 

2000) (Director’s Determination), 2000 FAA LEXIS 150, *41 (“The FAA notes that the 

construction of aircraft is not an aeronautical activity.”).

In an effort to skirt the FAA’s clear and longstanding position in this regard, Respondent 

alleges throughout the MSJ, and often inconsistently, that Boeing is engaged in other activities at 

the Airport that are on the list found in Appendix Z, such as aircraft storage and aircraft 

maintenance. 3 This, Respondent submits, is proof that Boeing is in fact engaged in aeronautical 

activities as the term is defined in Appendix Z. However, the examples listed in Appendix Z all 

share one thing in common: they are related to aircraft operation at the airport in question. 

Boeing’s storage of aircraft at RTN (and whatever limited maintenance is performed) is not 

related to the operation of aircraft from RTN, but rather to its manufacture of aircraft next door. 

Even Respondent acknowledges that “Boeing’s Airport activities are, of necessity, tied directly 

to the manufacturing operations going on at its facility adjacent to the Airport.” MSJ at 22. 

Boeing provides nothing to aeronautical users of the Airport, and it does not buy services from 

aeronautical service providers at the Airport (it has its own fuel farm); thus, it does not 

 

3 While Respondent and Boeing go to great lengths to amplify the type of activities that Boeing

will be engaged on the 760/770 Parcels, a review of the record, including the MSJ and the materials 

provided in support thereof, reveals that Boeing intends primarily to use the 760/770 Parcels for aircraft 

storage, and that any maintenance or other activity conducted there will be minimal, at best. See e.g., 

Letter from Lori Pitzer (Boeing) to Ryan Zulauf (Respondent), dated February 28, 2012, attached to as 

Exhibit JW-3 to Wilson Dec. (“The space requested would be additional apron space to accommodate 

aircraft storage only...”); Johnson Dec. ¶ 19 (“Boeing will use the 760 and 770 Parcels for temporary 

airplane storage and for completion of reengineering and maintenance or other modifications that may be 

needed to required airplane changes based on flight test results.”) (emphasis added).
18

participate in aeronautical activity at RNT. It merely parks its airplanes there that do not fit in its 

own, off-airport facility, and uses the runways when needed.4

If an activity that is merely associated with the commercial manufacture of airline 

transport aircraft that occurs off-airport constitutes an “aeronautical activity” at federally

obligated airports, the implications would be significant. Not only could Boeing rightfully, and 

through proceedings such as this, force federally-obligated airports to treat it on terms equal to 

any other legitimate aeronautical user or aeronautical service provider at an airport, but so could 

a Boeing subcontractor that manufactures bolts that are “required for the operation of [737] 

aircraft,” as by Boeing’s reading, this would place such a subcontractor within the definition 

found in Appendix Z (the bolt, after all, is “required for the operation” of the aircraft). If this 

interpretation is accepted, RNT and airports like it across the country will cease to be available 

for public use, and instead will become federally subsidized manufacturing hubs for anything 

having to do with the operation of aircraft. PFA does not believe that this is the result that 

Congress or the FAA intended when legislating and enacting the federal grant assurances.

Recent Proposed Policy Statements Do Not Support Respondent’s Contention that 

Aircraft Storage that is Incidental to Off-Airport Commercial Aircraft Manufacturing Constitutes 

an Aeronautical Use at a Federally Obligated Airport

On July 22, 2014, the FAA published a proposed Policy of the Non-Aeronautical Use of 

Airport Hangers. 79 Fed. Reg. 42483 (July 22, 2014) (“Proposed Hanger Policy”). As noted 

therein, the primary goal of the Proposed Hanger Policy is to “protect federal investment in 

federally obligated airports by insuring aeronautical facilities are available to aeronautical users.” 

 

4 Other than the runway use, all of Boeing’s activities could and should occur at its facility offairport. Presumably the issue is that Boeing does not have enough room at this facility; but the problems 

caused by Boeing’s space constraints should not be shifted onto the aeronautical users of a federally

obligated airport.
19

Id. Under the heading “Use of Hangers for Fabrication and Assembly of Aircraft,” the Proposed 

Hanger Policy states that “While building an aircraft results in an aeronautical product, the FAA 

has not found all stages of the building process to be aeronautical for the purposes of hanger use. 

A large part of the construction process can be and often is conducted off-airport.” In other 

words, the FAA reiterated its position that aircraft manufacturing is not considered an 

aeronautical activity for the purposes of ascertaining the obligations of an airport that receives 

federal funding.

As the background of the Proposed Hanger Policy makes clear, this longstanding FAA 

policy regarding aircraft construction caused some consternation within the homebuilding 

community, which often uses aircraft hangers to assemble experimental aircraft. The Proposed

Hanger Policy explicitly states that it is directed squarely at the homebuilding community and 

those airports where they reside. Id. (“While the same principles apply generally to large aircraft 

manufacturing, compliance issues involving aircraft construction have typically been limited to 

homebuilt aircraft construction at general aviation airports. “). In fact, the Experimental Aviation 

Association, the lobbying and advocacy arm of the homebuilding community worked with the 

FAA to create the Proposed Hanger Policy. See “FAA Releases New Hanger Use Policy,” dated 

July 24, 2014 at https://www.eaa.org/en/eaa/eaa-news-and-aviation-news/eaa/2014-07-24-faareleases-new-hangar-use-policy, attached hereto as Exhibit F. To suggest then, as Respondent 

does, that a policy clarification directed toward general aviation and the homebuilding 

community somehow blesses Boeing’s non-aeronautical use of the Airport misreads both the 

intention behind the Proposed Hanger Policy and any clarification that is contained therein.

This is especially true given that Boeing is not even engaged in the final assembly of 

aircraft at RNT, which is the only portion of manufacturing that the FAA proposes to treat as 
20

aeronautical. Proposed Hanger Policy at 42485 (“The FAA is not proposing any change to 

existing policy other than to clarify that final assembly of an aircraft, leading to the completion 

of the aircraft to a point where it can be taxied, will be considered an aeronautical use.”) Boeing 

uses huge swaths of RNT essentially as a parking lot for its completed 737s. These aircraft are 

assembled off-airport (including final assembly) and towed onto Airport property under a 

Through the Fence Agreement.5 Moreover, Boeing’s aircraft storage at RNT is not related to 

aircraft operations at the Airport, but rather to aircraft manufacturing that occurs off-airport. 

Although Respondent might wish otherwise, the FAA’s proposed policy clarification does not 

change the logical conclusion that activities (e.g., aircraft storage) that are related to nonaeronautical activities (e.g., aircraft manufacturing) must also be considered non-aeronautical. Id. 

It is clear then that nothing in the Proposed Hanger Policy is applicable to Boeing’s 

activities at RNT or changes the fact that it is not engaged in aeronautical activity at the Airport. 

To the contrary, the statements contained therein confirm that Boeing, a non-aeronautical user, 

should not have been permitted to compete with PFA, an aeronautical service provider, for the 

lease of parcels designated for aeronautical (and specifically, general aviation) use. Proposed 

Hanger Policy at 4284 (“Limiting use of aeronautical facilities to aeronautical purposes ensures 

that airport facilities are available to meet aviation demand at the airport.”). Accordingly, 

Respondent’s actions in this regard were in violation of its primary grant assurance obligation to 

make the Airport open and available to aeronautical users and service providers.

 

5 Through the fence operations for aeronautical businesses offering no services to the public are

discouraged by the FAA. See FAA Order 5190.6B §12-7(d)(2). “If the FAA regional airports division 

determines that such an agreement lessens the public benefit for which the airport was developed, the 

FAA regional airports division will notify the sponsor that the airport may be in violation of its federal 

obligations.” Id. § 12-7(e).
21

B. Grant Assurance 22 - Unjust Discrimination 

Grant Assurance 22 obligates an airport sponsor to make its aeronautical facilities 

available to the public on reasonable terms and without unjust discrimination. FAA Order 

5190.6b ¶ 9.1(a). The prohibition on unjust discrimination extends to all types, kinds and classes 

of aeronautical activities, as well as individual members of a class of operator. Id. Unjust 

discrimination may be found when an airport sponsor disadvantages a potential provider of 

aeronautical services by deception or neglect. Khilstrom v. Port of Orcas, FAA Docket No. 16-

02-07 (Director’s Determination) (September 1, 2004) at 19. 

PFA has alleged that Respondent violated Grant Assurance 22 when it: (1) awarded 

Boeing, a company that provides no aeronautical services to the public at the Airport, a leasehold 

for facilities designated for general aviation at the expense of PFA, a commercial aeronautical 

service provider; and (2) unfairly discriminated against PFA with regard to the application to 

lease the 760/770 Parcels and accorded preferential treatment to Boeing by misleading PFA 

about the availability of the 760 Parcel at the same time it was negotiating a lease for such with 

Boeing. 

Respondent’s Failure to Make the Airport and its Facilities Available For Public Use

Respondent has acknowledged, in its leasing polices and elsewhere, that the Airport is 

“largely built-out, and it may happen that demand for aeronautical leasehold facilities [will] 

exceed [] availability.” Complaint, Ex. 6, Section 6.13. PFA, the only full-service FBO6at the 

 

6 Despite Respondent’s efforts to convince the FAA otherwise, Rainier Flight Service, the only 

other “FBO” on the field, is not full service. Paholke Dec. ¶¶ 10-21; Cf. Wilson Dec. ¶ 6. It does not 

provide fuel, aircraft maintenance, oxygen, lavatory service, or transient aircraft tie-down. Transient 

aircraft are not directed there, nor does Rainier provide any services to them. It is essentially a flight 

school that leases a few tie-downs to operators based on the field. See www.ranierflightservice.com; 

http://www.airnav.com/airport/KRNT (listing Pro-Flight as the only FBO on the field), printouts of both 

attached hereto as Exhibit G.
22

Airport, made it known to Respondent as early as December 2011 that it required additional 

space in order to grow and fully provide the services that were being demanded of it by 

aeronautical users, the Airport, and the flying public.7 Complaint, Ex. 6a. 

When additional suitable space became available, space that PFA repeatedly expressed 

interest in and from which PFA intended to provide aeronautical services (namely, flight training 

and transient aircraft tie-down and servicing), Respondent instead chose to quietly negotiate the 

lease of the space to Boeing, an entity that provides absolutely no aeronautical services to the 

public from the Airport. This decision in and of itself violated the first principal of Grant 

Assurance 22, which is to make an airport funded by public tax dollars available for public use –

not to a corporation that will close the space to the public in order to store airline transport 

aircraft before they depart the Airport, never to return again.

PFA waited patiently for the 760 Parcel since first indicating its interest in 2011, as it is 

directly adjacent to the parcel from which it operates its FBO. When the 760 Parcel finally did 

become available, PFA was the only aeronautical service provider to express an interest in its 

lease. Although Respondent is correct in arguing that an airport sponsor has no obligation to 

provide a tenant with any and all property it desires, Grant Assurance 22 does obligate a sponsor 

“to make available suitable areas or space on reasonable terms to those willing and qualified to 

offer aeronautical services to the public or support services to aircraft operators.” FAA Order 

5190.6b § 9-7.8 This is the prime obligation of a federally obligated airport. See Roadhouse 

 

7

In 2003, the Airport demanded that PFA begin selling Jet A fuel. After investing significant 

sums to do so, the Respondent is now taking actions that will deprive PFA of the very customers (turbine 

operators) that Respondent required PFA to expend significant resources to serve. 

8

Perhaps in order to distract from the unambiguous charge to sponsors that is contained in this 

language, Respondent claims that PFA somehow misapplied or misinterpreted this very clear provision of 

FAA Order 5190.6B in its Complaint. See MSJ at 27 citing Complaint ¶ 51. PFA did not; it cited the 

(footnote cont’d)
23

Aviations, LLC v. City of Tulsa & the Tulsa Airports Improvement Trust, FAA Docket No. 16-

05-08 (June 26, 2007) (Final Decision) 2007 LEXIS 240, *17 n.4 citing United States Const. Co. 

v. City of Pompano Beach, FL, FAA Docket No. 16-00-14 (July 10, 2002) (Final Decision) 

(“Operating the airport for aeronautical use is not a secondary obligation; it is the prime 

obligation. This obligation includes the opportunity for leaseholders to develop airport property 

for aeronautical use.”) 

Moreover, as Respondent has noted, it is required to “administer the Airport’s land in a 

manner consistent with the public’s interest.” Northern Air, Inc., v. County of Kent, MI, FAA 

Docket No. 16-11-10 (March 28, 2013) (Director’s Determination) 2013 FAA Lexis 316, at *60. 

If “public” is defined as that portion of the public that makes use of the Airport, as it should be, 

there can be no doubt that Respondent has failed in this charge.

As a result of the City’s preferential treatment of Boeing, the public will no longer have 

access to the 760/770 Parcels (which the Airport has designated for general aviation), the tiedown’s on those parcels will be removed, and PFA will no longer be able to store its flight 

school aircraft in a workable location. In addition, parking space for GA aircraft will be greatly 

diminished. Thus, by rejecting PFA in favor of Boeing, an entity that will provide no 

aeronautical services to the public (in fact, once occupied by Boeing, the 760/770 Parcels will be 

off limits to the public), Respondent has ignored its overarching obligation as a federallyobligated facility to make the Airport available to the public for aeronautical use. 

The supposed alternative arrangements that Respondent offered to PFA are not, as the 

Respondent well knows, viable options. The only “available” parcel at the Airport suitable for 

 

provision verbatim, and in support of its argument that Respondent was obligated to award 760/770 to 

PFA, an aeronautical user providing services to the public, over a through the fence operator that provides 

no aeronautical services to the public. See Complaint ¶¶ 51-52.
24

GA is the 820 Parcel; however, the City has already agreed to lease it to Boeing. Jacobsen Dec. ¶ 

8. Even if 820 was available, Boeing’s occupation of the 760/770 Parcels leaves the 820 Parcel 

unsuitable for transient aircraft parking or PFA’s flight training fleet. There is no access to the 

820 Parcel from the Perimeter Road; accordingly, the only way to ferry flight school students or 

transient customers from PFA will be to drive them through airport drive lanes – a thoroughly 

impracticable situation for an active flight school, or for transient customers. Paholke Dec. ¶ 17. 

Thus, with no other suitable spaces left for GA thanks to Boeing’s ongoing encroachment into 

the areas designated for GA, Respondent has been left to lamely suggest that PFA could park 

aircraft on the site of an old restaurant at the far end of the Airport, which Respondent has 

admitted would need retrofitting before it was even suitable for such a use, as it is unpaved and 

located outside of the Airport fence. MSJ at 3, Jacobsen Dec. ¶ 8.

In sum, Respondent has chosen to deny PFA, the sole full-service FBO at RNT, access 

to the only remaining viable space on the Airport (and one that has been designated for general 

aviation) to store its flight school aircraft and to park transient aircraft, in favor an entity that will 

offer no services, aeronautical or otherwise, to the public. Accordingly, Respondent’s failure to 

make the 760/770 Parcels available to the only aeronautical service provider that was interested 

in leasing them is a violation of Grant Assurance 22.

Respondent’s Unjust Discrimination Against PFA

In addition to failing to provide reasonable access, Respondent unjustly discriminated 

against PFA during the application and negotiation process for the 760/770 Parcels. Again, PFA 

alleges and provides proof to suggest that Respondent actively misled it into believing that the 

760 Parcel was not available for lease, while at the same time negotiating lease terms with 

Boeing for the very same parcel. PFA has provided detailed allegations concerning Respondent’s 
25

discriminatory conduct. See Section I.A, supra. Rather than dispute these allegations, 

Respondent argues that it was allowed to unjustly discriminate against PFA since it is an 

aeronautical service provider at the Airport, while Boeing “manufacturers its aircraft in a facility 

adjacent to the Airport; taxis the aircraft to the Airport [and] uses [the Airport] for new aircraft 

storage...”. MSJ at 28. Thus, Respondent implies that it was well within its rights to treat the two 

differently since Boeing and PFA are not similarly situated users. MSJ 27-29. That is a 

misreading of the applicable law. 

While it is true that sponsors are entitled to offer different terms to users that are 

differently situated, there is nothing in any of the caselaw cited by Respondent, or in other FAA 

policy or guidance, to suggest that a sponsor is ever allowed to mislead, deceive, or otherwise 

unjustly discriminate against one airport tenant in favor of another. See BMI Salvage Corp. & 

Blueside Servs. v. Miami-Dade County, FL, FAA Docket No. 16-05-16, (March 5, 2007) (Final 

Decision) 2007 WL 926176, *7 (“Among these is the obligation to treat in a uniform manner 

those users making the same or similar use of the airport, and to make all airport facilities and 

services available on reasonable terms and without unjust discrimination.”) (emphasis added); 

Northern Air, supra, 2013 LEXIS 316, *31 (noting the requirement to treat similarly situated 

users in a uniform manner and to make facilities available without unjust discrimination). In 

other words, the obligation not to unjustly discriminate is separate and distinct from the 

obligation to treat similarly situated users in a uniform manner. Deviation from the former 

obligation is never permitted. See R/T-182, LLC v. Portage County Regional Airport Authority, 

FAA Docket No. 16-05-14, (Final Decision) (March 29, 2007) 2007 WL 1058451, *14 (“[T]he 

plain language of grant assurance 22 does not prohibit discrimination...it prohibits unjust [] 

discrimination.”); Adventure Aviation v. City of Las Cruces, NM, FAA Docket No. 16-01-14, 
26

(Final Determination) (September 9, 2003) 2003 WL 22696923, *18 (“Grant Assurance 22 does 

not require the Respondent to offer lease rates and terms that are identical to other leases 

negotiated, so long as there is no unjust discrimination.”). 

PFA is not claiming that Respondent unfairly offered different pricing, offered different 

terms, or imposed unfair requirements – all things that may properly vary between differently 

situated users. PFA alleges, and provides evidence tending to prove, that Respondent refused to 

negotiate with PFA in good faith over the lease of the 760/770 Parcels, as the City was only 

interested in awarding Boeing this space. The failure to negotiate in good faith – as PFA alleges 

occurred when the City misled it about the availability of the 760 Parcel and discouraged it from 

submitting a lease application, and when it notified PFA that Boeing had been awarded the 

760/770 Parcels before the City formally voted in the matter – constitutes unjust discrimination. 

See United States Construction Corp. v. City of Pompano Beach, FL, FAA Docket No. 16-00-14, 

(Final Determination) (July 10, 2002) 2002 WL 34167573, * 16,. 

Even assuming that Boeing is an aeronautical user of RNT, the only entity that Grant 

Assurance 22 would have allowed preferential treatment for in the application for a lease of a 

parcel designated for general aviation, would be the entity that was proposing to offer 

aeronautical services to the GA public therefrom. See ALCA v. Miami-Dade County, FL, FAA 

Docket No. 16-08-05 (August 31, 2010) (Director’s Determination) 210 FAA LEXIS 234, *39-

40 citing Grant Assurance 22(i) (finding that an exception to the prohibition against limiting 

access to a type, kind or class of aeronautical user exists “when necessary to serve the civil 

aviation needs of the public.”); accord Roadhouse, 2007 FAA LEXIS 240, *15-16; Northern Air,

2013 FAA LEXIS 316, *31-32. The only applicant for the 760/770 Parcels proposing to serve 

the civil aviation needs of the public was PFA.
27

In sum, Respondent shamelessly argues that it was justified in giving preferential 

treatment to Boeing – an entity that intends to close to the public an area that the Airport has

designated for general aviation in order to park those completed airline transport aircraft that it 

could not fit in its own, off-airport facility – because Boeing is not “similarly situated” to PFA.

Respondent was not so entitled, and its decision to do so constitutes a violation of Grant 

Assurance 22. Accordingly, its Motion for Summary Judgment should be denied.

C. Grant Assurance 29 – Airport Layout Master Plan

“Federal grant agreements require sponsors to conform airport use and development to 

the ALP.” FAA Order 5190.6B § 7.18. An ALP “reflects the agreement between the FAA and 

the sponsor regarding the proposed allocation of airport areas to specific operational and support 

functions.” Id. An approved ALP “becomes an important instrument for controlling the 

subsequent development of airport facilities.” Id. A sponsor “will not make or permit any 

changes or alterations in the airport of any of its facilities which are not in conformity with the 

Airport Layout Plan as approved by the Secretary and which might, in the opinion of the 

Secretary, adversely affect the safety, utility or efficiency of the airport.” Id. at Appendix A, 

29.a. 

By allowing Boeing to lease large tracts of Airport property designated for GA, 

Respondent has permitted changes to be made to the ALP, without approval by the Secretary, 

which drastically affect the utility of the Airport. PFA’s factual allegations in this regard can be 

found in in Section I.B, supra.

Respondent doesn’t deny that the 760/770/820 Parcels are designated on the ALP for GA, 

nor does it claim that the ALP has been updated since December 2009, which is the version PFA 

attached as Exhibit 11 to the Complaint. Instead, in an effort involving no small amount of 

audacity, it claims that the activities that Boeing will be engaged in on those parcels – the storage 
28

of airline transport aircraft – constitutes GA. MSJ at 40. PFA will not expend either its or the 

FAA’s resources refuting this argument. Suffice it to say, if this definition of GA is accepted,

ALPs at airports across the nation will not be worth the paper on which they are written. 

Perhaps recognizing the futility of this argument, Respondent next argues that if the FAA 

does determine that Boeing’s use of the 760/770/820 Parcels is inconsistent with the ALP (as it 

is), the City should simply be allowed to make an interim update to the ALP, which would cure 

any violation. It cites several prior cases in support of this proposition, but these cases are readily 

distinguishable.

For example, in JetAway Aviation, the FAA determined that it did not constitute a 

violation of Grant Assurance 29 when the sponsor in question refused to accept Complainant’s 

off-airport parcel for an FBO just because it was once depicted on an ALP as a future location 

for an FBO. JetAway Aviation v. Montrose County, Colorado, FAA Docket No. 16-08-01, 

(Director’s Determination) (July 2, 2009) 2009 FAA LEXIS 251, *65-66. When the needs of 

aeronautical users and aeronautical development change, the FAA found that a sponsor could 

deviate from an ALP in order meet these needs. Id. Such is not the case here. 

At RNT, large chunks of Airport property that have been designated for GA on the ALP 

are being turned over to Boeing, an aircraft manufacturer that is not engaged in general aviation 

activity at the Airport. This is not a change in the ALP that responds to the needs of aeronautical 

users and aeronautical development – the type of change that the FAA allows, and in facts 

encourages. Id. at *63 quoting Gate 9 v. Dekalb County, FAA Docket No. 16-05-13 (February 1, 

2006) (Director’s Determination) (“The FAA fully expects that pursuit of aeronautical 

development would reasonably include pursuing any necessary and appropriate alteration [] to an 

ALP...”). This change comes at the expense of aeronautical development at the Airport, and re-
29

writes the understanding between the FAA and Respondent about the proper allocation of the 

limited space at the Airport to GA. Cf. Valley Aviation Services, LLP v. City of Glendale, AZ, 

FAA Docket No. 16-09-06 (Director’s Determination) (May 24, 2011) 2011 WL 2274635, *35 

(“[I]t is a violation of the airport sponsor’s federal obligations to permit aeronautical hangers to 

be used for non-aeronautical purposes,[],where there is a need for aeronautical use and where the 

ALP indicates the use is aeronautical.”) 

The entire purpose of an FAA-approved ALP, which is a prerequisite to receiving AIP 

grants, is to memorialize the agreement between the FAA and the sponsor regarding the 

proposed allocation of airport areas to specific operation and support functions. FAA Order 

5190.6B § 7.18. Presumably, when the FAA approved the current ALP in 2009, it was aware of 

Boeing’s operations on the Airport, and concurred with the Airport’s allocation of space between 

manufacturing (which must have been understood to mean Boeing) and GA. To simply allow 

Respondent to amend the ALP to permit what was previously deemed an incompatible use of 

Airport property would defeat the very purpose of having an FAA-approved ALP in the first 

place. The FAA, aeronautical users, and the flying public depend on the representations 

contained therein in order to plan for current and future use and operations. Accordingly, as 

Respondent has clearly violated the ALP by granting Boeing leases on parcels of the Airport that 

have been designated for GA, the FAA should order Respondent to restore the 760/770/820 

Parcels for GA use. FAA Order 5190.6B, Appendix A ¶ 29.b. 

D. Grant Assurance 24 – Fee and Rental Structure

Boeing is not an aeronautical user of the Airport. See Section II.A, supra; see also FAA 

Order 5190.6B § 18-3(b) (“Individuals or business providing services involving operation of 

aircraft or flight support directly related to aircraft operation are considered to be aeronautical 

users.”). Because Boeing does not fall within the definition of an aeronautical user, it must be 
30

charged fair-market rates. Id. § 17.2 (“Fair market fees for the use of the airport are required for 

non-aeronautical use...”). 

Respondent disputes the need to charge Boeing a fair market rate for the 760/770 Parcels 

on the grounds that: (1) Boeing is an aeronautical user; (2) the focus of Grant Assurance 24 is an 

airport’s ability to be self-sustaining, and PFA has not alleged, nor could it allege, that RNT is 

not self-sustaining; and (3) PFA has submitted no evidence to demonstrate that Boeing is not 

already being charged a fair market rate.

First, while self-sustainability is a goal for all federally-obligated airports, the FAA does 

not elevate the principle of self-sustainability above all others. In particular, and in recognition of 

the fact that the primary purpose of an airport is to attract and retain aeronautical service 

providers, the FAA acknowledges that some airports may need to charge rates that are below 

what would be required to maintain self-sustainability in order to assure that aeronautical 

services are available to the public. In other words, if an airport has to choose between being 

self-sustaining, or attracting businesses to provide an appropriate level of aeronautical services to 

the public, it is appropriate to choose the latter. FAA Order 5190.6B §§ 17.6, 17.10; See also,

Clarke v. City of Alamogordo, NM, FAA Docket No. 16-05-19, (Director’s Determination) 

(September 20, 2006) 2006 WL 2791038, *19 quoting 64 Fed. Reg. 7696 (February 16, 1999) 

(“[A]n airport proprietor’s decision to charge rates that are below those needed to achieve selfsustainability in order to assure that services are provided to the public is not inherently 

inconsistent with the obligation to make the airport as self-sustaining as possible in the 

circumstances.”).

As for what constitutes a fair market rate, Respondent has not disputed that Boeing pays 

the same rate per square foot as PFA. Complaint ¶ 68. Rather, Respondent argues that PFA has 
31

provided no evidence to suggest that this is not the fair market rate for such properties. 

However, as Respondent is well aware, the rate provided to Boeing is discounted 15% off the

appraised fair market rate due to aviation use restrictions. See 2014 RNT Appraisal, pg. 32, 

excerpt attached hereto as Exhibit H. 

Even assuming, arguendo, that Respondent is charging Boeing the fair market rate, then 

that means it is also charging PFA the fair market rate, as Boeing and PFA pay the same rate per 

square foot. This result is incompatible with the requirement that aeronautical users be charged 

“reasonable” rates, and that non-aeronautical users’ fair market rates be employed to lower the 

rate structure provided to aeronautical users. FAA Order 5190.6B § 17.11 citing Bombardier 

Aerospace, et al. v City of Santa Monica, FAA Docket No. 16-03-11, January 3, 2004 (“It is to 

the benefit of aviation and the travelling public that aeronautical users be able to use the airport 

at rates and charges below the cost of providing the aviation facilities and services if these are 

effectively subsidized by non-aeronautical users.”). Furthermore, given the substantial revenue 

surpluses that the Airport seems to be accruing (See Jacobsen Dec. ¶ 4 and Ex. 1 thereto), an 

FAA inquiry into whether the fees being charged to aeronautical users is consistent with the

Respondent’s obligation to make the Airport available on fair and reasonable terms would appear 

to be warranted. FAA Order 5190.6B § 17.9. 

In sum, if Respondent is going to continue to allow Boeing to displace aeronautical users 

at RNT, Boeing’s lease rates should be increased to fair market rates in order to subsidize 

aeronautical activities at the Airport, thereby reducing the economic impact of Boeing’s 

expansion at RNT on aviation users and the aviation public.

E. Grant Assurance 5 – Preserving Rights and Powers

Grant Assurance 5 requires that a sponsor will not “take or permit any action which 

would operate to deprive it of any of the rights and powers necessary to perform any or all of the 
32

terms, conditions, and assurances in the grant agreement without the written approval of the 

Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or 

claims of right of others which would interfere with such performance by the sponsor. FAA 

Order 5190.6B, Appendix A ¶ 5.a. 

Boeing’s lease with Respondent gives Boeing the “sole discretion” to leave all of its 

leaseholds (including the 760/770 Parcels) vacant if “business conditions affecting aircraft 

delivery and/or manufacturing at the time of such determination” warrant as much. Complaint, 

Ex. 9 (Boeing Lease) ¶ 8.b. Although Respondent asserts that Boeing has a demonstrable need 

for all of the space it leases, the facts belie this claim. In the past two months, despite Boeing’s 

apparent record setting pace of forty-two 737s manufactured per month, Apron B, which can 

store up to five aircraft, was occupied for only 9 position days. Paholke Dec. ¶ 21. This equates 

to a 3% occupancy rate.9There is no reason to believe that Boeing’s use of the 760/770 Parcels 

will be any more robust (and for the first two years of Boeing’s lease the have been entirely 

vacant), but even if its on-airport needs do materialize, Boeing already had more than sufficient 

space (on Apron B) to meet them.

Although the City claims that Amendment No. 4 somehow altered the broad discretion 

given to Boeing under the original lease, it did not – Amendment No. 4 is just that, an 

amendment, and nothing therein states that Section 8.b of the Boeing Lease is being modified or 

amended. It is true that until Boeing takes occupancy of the 760 and 770 Parcels, Section 1.b 

allows the current tenants to remain in place; however, once Boeing does take occupancy, its use 

of the parcels will be governed by Section 8.b of the Boeing Lease, which means that Boeing 

 

9

Five positions over 60 days equal 300 position-days. In the 60 day period that Apron B was 

observed beginning March 24, 2015, two aircraft were parked for one day, one was parked for three days, 

and one was parked for four days. Paholke Dec. ¶ 21.
33

could leave the parcels empty for the duration of the lease if it decides, in its sole discretion, that 

business conditions necessitate such a decision. By giving Boeing the contractual authority to 

leave space designated for GA fallow for up to 7 years if manufacturing conditions warrant it, 

Respondent has abdicated the power necessary to ensure that the Airport is utilized in a manner 

that benefits the flying public.

With palpable irony, Respondent argues that Section 8.b of the Boeing Lease is simply a 

reflection of the fact that Boeing, unlike PFA, does not serve public users of the Airport. MSJ at 

22. Boeing’s activities at the Airport “are, of necessity, tied directly to the manufacturing 

operations going on at its facility adjacent to the Airport.” Id. In other words, Boeing’s use of 

the Airport is not related to aviation activities at the Airport, but rather to aircraft manufacturing 

that occurs off-airport. Thus, Respondent appears, when it is convenient for its case, to be 

perfectly willing to acknowledge that Boeing does not perform or engage in aeronautical 

activities that are related in any way to aeronautical operations at the Airport.

Finally, further evidence of Respondent’s relinquishment of its powers necessary to 

comply with its grant assurance obligations can be found in Boeing’s refusal to negotiate with 

PFA and the City over the use of the 760/770 Parcels, despite the request of the City Attorney. 

See Email from Gerald Bresslour to Zanetta Fontes, dated March 20, 2015, attached hereto as 

Exhibit I; Email from Zanetta Fontes to Bernie Paholke, dated April 6, 2015, attached hereto as 

Exhibit J. Apparently, Boeing does not believe that the City could force it to relinquish the 760 

Parcel if Respondent determined that it was required to do so in order to comply with its grant 

assurance obligations and, as such, Boeing feels no need, even when requested by the City, to 

engage in negotiations with PFA to attempt to resolve the instant matter. 
34

CONCLUSION

Based on the foregoing, Complainant respectfully requests that Respondent’s Motion for 

Summary Judgment be denied, and that the FAA commence an investigation of PFA’s claims 

pursuant to 14 C.F.R. 16.29. 

Dated June 4, 2015.

Respectfully submitted,

 

 /s/___________________

 Benjamin H. Klein 

LAW OFFICES OF PAUL A. LANGE, LLC

 80 Ferry Boulevard

Stratford, CT 06615

Phone: (203) 375-7724

 Fax: (203) 375-9397

 bhk@lopal.com

Attorney for Complainant
35

CERTIFICATE OF SERVICE

I hereby certify that I have this day caused the foregoing Answer to Respondent’s Motion 

for Summary Judgment 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 4, 2015

 _/s/_________________________

Benjamin H. Klein