U.S. Department 

of Transportation 

Federal Aviation 

Administration 

JAN 1 5 2015 

Office of Airport Compliance and 

Management Analysis 

CERTIFIED MAIL- Return Receipt 

Raymond Veatch, Esq. 

Attorney at Law 

209 Glenburn A venue 

Cambridge, MD 21613 

Wade Ramsey, Esq. 

Ramsey & Associates, LLC 

P. 0. Box 382012 

Birmingham, AL 35238 

Pablo 0. Nuesch, Esq. 

Anjali G. Pate, Esq. 

Spiegel & McDiarmid, LLP 

1875 Eye Street NW, Suite 700 

Washington, DC 20006 

Dear Messrs. Veatch, Ramsey and Nuesch: 

800 Independence Ave., SW. 

Washington, DC 20591 

RE: MCDONOUGH PROPERTIES, L.L.C., M & R HOLDINGS, L.L.C., TRI-D, 

L.L.C., AND COL. FRANK BARNETT v. CITY OF WETUMPKA, FAA Docket 

No. 16-12-11 

Enclosed is a copy of the final decision and order of the Federal Aviation Administration 

(FAA) with respect to the above-referenced matter. 

The Associate Administrator concludes that the analysis and conclusions contained in the 

Director's Determination with regard to Grant Assurance 5, Grant Assurance 8, Grant 

Assurance 19, Grant Assurance 22, Grant Assurance 23, Grant Assurance 24, and Grant 

Assurance 38 are supported by a preponderance of reliable, probative, and substantial 

evidence, and are consistent with applicable law, precedent, and FAA policy. 
The reasons for upholding the Director's Determination are set forth in the enclosed final 

agency decision. 

Sincere y, 

Enclosure 

2 
CERTIFICATE OF SERVICE 

/iL-/ 

I HEREBY CERTIFY that on January J2, 2015, I caused to be placed in the United 

States mail (first class mail, postage paid) a true copy of the foregoing document addressed 

to: 

For Complainant 

Raymond Veatch, Esq. 

Attorney at Law 

209 Glenburn A venue 

Cambridge, MD 21613 

Email: rnanager@internationalacs.com 

Wade Ramsey, Esq. 

Ramsey & Associates, LLC 

P. 0. Box 382012 

Birmingham, AL 35238 

Email: waderamseylaiaol.com 

For Respondent 

Pablo 0. Niiesch, Esq. 

Anjali G. Pate, Esq. 

Spiegel & McDiarmid, LLP 

1875 Eye Street NW, Suite 700 

Washington, DC 20006 

Email: pablo.nuesch(W,spieglmcd.com 

Hand Delivered to: 

FAA Part 16 Airport Proceedings Docket 

FAA Airport Compliance and Management Analysis, AC0-1 00 

/j(! /l , ( JtJ C7~ (_x'{UtAlA4t, -rLt.J/1)!<~ Claudia Roberts 

Office of Airport Compliance 

and Management Analysis 

' 

I 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

McDonough Properties, L.L.C. 

M&R Holding, L.L.C., 

Tri-D, L.L.C., 

And Col. Frank Barnett 

Complainants/ Appellants, 

v. 

City of Wetumpka, AL 

Respondent/ Appellee 

Docket No. 16-12-11 

FINAL AGENCY DECISION AND ORDER 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) Associate Administrator for 

Airports on appeal filed by McDonough Properties, L.L.C., M&R Holding, L.L.C., Tri-D, 

L.L.C., and Col. Frank Barnett (Complainants/Appellants) from the Director's Determination of 

October !0, 20!3, issued by the Director of the FAA Office of Airport Compliance and 

Management Analysis, pursuant to the Rules of Practice for Federally Assisted Airport 

Enforcement Proceedings found in Title 14 Code of Federal Regulations (CFR) Part 16. 

The Complainants argue on Appeal to the Associate Administrator for Airports that the 

Director's Determination should be reversed because the findings and conclusions are not 

supported by the administrative record, regulations, law, regulations or policy. 

The Complainants raise four issues on Appeal: 

l. The Director erred when he developed the exception of "legitimate business purpose" to 

allow a sponsor to suspend its Federal obligations. 

2. Did the Director err by finding that the City could violate the self-sustainability provision 

of Grant Assurance 24 when it required the Complainants to sign a one-year lease? 

3. Did the Director err by finding that the City did not discriminate against the 

Complainants by allowing a nonaeronautical tenant to renew its lease after the City 

refused to renew the Complainant's leases? 

4. Did the Director err by finding that the City gave an exclusive right to a nonaeronautical 

tenant by renewing its lease after the City refused to renew the Complainant's lease? 

[FAA Exhibit l, Item 1, pages 4-5] 1 

The Director's Determination stated, "The Respondent's refusal to grant long term leases for hangars at the 

Wetumpka Municipal Airport is not a constructive granting of an exclusive right in violation of Grant Assurance 23, 

1 
The Complainants also state that they seek to supplement the Administrative Record by 

including documentary evidence that appear as Appeal Exhibits CA-l - CA-8. The 

supplemental information in the Appeal includes communications from the FAA to the County, 

and visual representations of the conditions at the Airport, as well as a chart identifYing 

"Obstruction Comparison - Public Use Airport. [FAA Exhibit 1, Item 1, exhibits C-1 - C-8] 

Upon an appeal of a Part 16 Director's Determination, the Associate Administrator must 

determine whether (a) the findings offact made by the Director are supported by a 

preponderance of reliable, probative, and substantial evidence, and (b) each conclusion oflaw is 

made in accordance with applicable law, precedent, and public policy. [See e.g. Ricks v 

Millington Municipal Aimort, FAA Docket No. 16-98-19, (December 30, 1999) (Final Decision 

and Order), p. 21] 

In arriving at a final decision on this Appeal, the FAA has reexamined the record, including the 

Director's Determination, the administrative record supporting the Director's Determination, the 

Complainant's Appeal, and Respondent's Reply in light of applicable law and policy. Based on 

this reexamination, the FAA affirms the Director's Determination. The Associate Administrator 

concludes that the Director's Determination is supported by a preponderance of reliable, 

probative, and substantial evidence, and is consistent with applicable law, precedent, and FAA 

policy. The Complainant's Appeal does not contain persuasive arguments sufficient to reverse 

any portion of the Director's Determination. 

This decision constitutes the final decision of the Associate Administrator for Airports pursuant 

to 14 CFR § l6.33(b). 

II. SUMMARY OF THE DIRECTOR'S DETERMINATION 

In the October 10, 2013 Director's Determination, the Director concluded that the Wetumpka 

Municipal Airport was not currently in violation of its Federal obligations as set forth in its 

airport grant assurances and existing Federal statutes. 

In their initial Complaint, the Complainants (McDonough Properties, L.L.C., M & R Holdings, 

Tri-D, L.L.C. and Col. Frank Barnett) (Complainants) alleged the Respondent violated Grant 

Assurance 5, Preserving Rights and Powers; Grant Assurance 19, Operation and Maintenance; 

Grant Assurance 22, Economic Nondiscrimination; Grant Assurance 23, Exclusive Rights; Grant 

Assurance 24, Fee and Rental Structure; and Grant Assurance 38, Hangar Construction. The 

Complainants' claimed that the Respondent engaged in economic discrimination by failing to 

provide a rental structure which makes the airport self-sustaining and that the Respondent took 

actions which operated to deprive it of its rights and powers. [FAA Exhibit l, Item 2, page l] 

"The Respondent is contemplating expanding the airport, or in the alternative, 

possibly relocating the airport. In assessing the best options available for 

growth, the Respondent commissioned a Feasibility Study to determine if the 

airport can be expanded in its present location or if the airport should be 

Exclusive Rights, 49 U.S. C., §40103(e) and §47107(a)(4). The record refutes the assertion that other tenants are 

being treated more favorably thereby creating an exclusive rights. [FAA Exhibit I, Item 2, page 29] 

2 
relocated. To this end, the airport developed a new, standard lease with a oneyear term. The purpose of the one-year lease was to put the airport users on 

notice that making improvements to hangars would not be economically advisable 

pending the outcome of the feasibility Study. The Respondent anticipates that the 

one-year term will be in effect for a period of three years. " 

[FAA Exhibit 1, Item 2, page 17] 

"The Respondent's decision to limit the term of the lease was not an 

unreasonable approach to a possible impending change at the airport. The oneyear lease puts the tenants on notice that the airport may be in transition and 

tenants should plan accordingly. Prior leases had a provision that required the 

tenants to get the approval of the Respondent prior to making capital 

improvements to their hangars. The current New Standard Lease has no 

provision that allows the tenants to make capital improvements on their 

hangars." 

[FAA Exhibit 1, Item 2, page 17] 

The Director found that the Respondent was not in violation of Grant Assurance 5, Rights and 

Powers because the Respondent would be required to grant long-term leases at the request of its 

tenants even when doing so would limit the power of the sponsor to manage the airport. 

FAA Exhibit 1, Item 2, page 17] 

The Director found that the Respondent was not in violation of Grant Assurance 8, Consultation 

with Users, in failing to allow adequate participation by airport users. 

Grant Assurance 8, Consultation with Users, applies to development projects under 

Title 49, United States Code. The Feasibility Stud/ was not federally funded and 

accordingly Grant Assurance 8 is not applicable. Even if Grant Assurance 8 

applied, it does not obligate the airport sponsor to necessarily yield to the will of 

one or more airport tenants, it states the airport sponsor must undertake 

'reasonable consultation with affected parties using the airport .... ' 

[FAA Exhibit 1, Item 2, page 18] 

The Director found that the Respondent was not in violation of Grant Assurance 19, Operation 

and Maintenance, because 

... [F]he Complainants did not elaborate beyond the allegation that the airport 

was being operated in an unsafe manner nor did they articulate in what manner 

the Respondent was in violation of Grant Assurance 19. It is incorrect to apply 

'The Feasibility Study is a multi-phase study that includes, among other things, evaluating the existing conditions of 

the Airport, defming requirements for future aeronautical facilities, and determining the ability to use Federal funds 

to expand the existing site ofto relocate the Airport to a new site. [DD page 17] 

3 
Grant Assurance 19 to the length of a lease. Rather, this grant assurance 

requires the airport sponsor to maintain the airport and its facilities in a sqfe and 

serviceable condition. 

[FAA Exhibit 1, Item 2, page 20] 

The Director found that the Respondent was not in violation of Grant Assurance 22, Economic 

Nondiscrimination, because 

" ... [t]he facts do not support the Complainants' claim of economic discrimination. The 

record indicates that the Respondent has not offered any tenant a lease with a term longer 

than one year after it adopted the New Standard Lease in 2011. No Complainant has 

provided evidence to support an argument that a recent improvement is being impacted 

by a short term lease. There is no evidence in the record that supports the proposition 

that the Respondent treated any tenants more favorably than the Complainants. " 

[FAA Exhibit 1, Item 2, page 24] 

The Director found that the Respondent was not in violation of Grant Assurance 23, Exclusive 

Rights, because 

" ... [t]he FAA will not normally find the airport sponsor in violation of Grant Assurance 

23, Exclusive Rights, where the complainant does not show the airport sponsor granted to 

another entity the exclusive right to conduct a particular aeronautical activity or to 

provide a particular aeronautical service on the Airport." 

[FAA Exhibit 1, Item 2, page 25] 

The Director found that the Respondent was not in violation of Grant Assurance 24, Fee and 

Rental Structure, because 

" ... [ w ]hile the Complainants may not agree with the Respondent's decision to offer one 

year leases to all tenants when their current leases expire, the airport owners retain the 

propriety right to make such decisions. A sponsor is not required to develop any and all 

parcels of land in a manner consistent with the wishes of any one party, but rather may 

exercise its proprietary rights and powers to develop and administer the airport's land in a 

manner consistent with the public's interest." 

[FAA Exhibit 1, Item 2, page 26] 

The Director found that the Respondent was not in violation of Grant Assurance 38, Hangar 

Construction. The Complainants argued that Grant Assurance 38 should be interpreted broadly 

to include any improvements made to a hangar even without the knowledge and consent of the 

airport sponsor. 

"This interpretation of the grant assurance would be a violation of the sponsor's rights 

and powers. The Respondent retained the right to approve any improvements to hangars 

4 
on the airport, in part, based on the long term planning for the airport. To adopt the 

position of the Complainants would allow the tenant to dictate the management of the 

Airport by making improvements to a hangar that would then require the Airport to grant 

a long term lease to the tenant." 

[FAA Exhibit 1, Item 2, page 27] 

III. PARTIES 

A. Aimort 

The Wetumpka Municipal Airport (08A or Airport) is a public-use, non-towered airport owned 

and operated by the City of Wetumpka, Alabama. The 312-acre facility is located six nautical 

miles west of Wetumpka, Alabama. It has 82-based aircraft with 108 average daily aircraft 

operations and the hangar facilities at the airport include 5 T-hangars consisting of 

approximately 50 units, 10 enclosed hangars, 8 open hangars, and 9 larger corporate/business 

hangars. The Airport had 39,400 operations for the 12-month period ending November 2012. It 

has one fixed-base operator currently operating out of one of the Respondent's airport office 

buildings. The airport has two runways including a paved runway approximately 3000 feet long 

and a turf runway approximately 2800 feet long. The development of the Airport has been 

financed, in part, with discretionary and entitlement funds provided to the City as the Airport 

sponsor under the Airport Improvement Program (AlP), authorized by the Airport and Airway 

Improvement Act of 1982, as amended, 49 U.S.C. Section 47101, et seq. As a result the City is 

obligated to comply with the FAA sponsor assurances and related Federal law, 49 U.S.C. Section 

47101. The last grant awarded at the time of the Complaint in 2012, was for $135,523. The 

City is also bound by a Quitclaim Deed issued pursuant to the Surplus Property Act of 1944, 

codifiedas49U.S.C. Sections47151 through47153. [FAA Exhibit 1,Item2,page2] 

B. Complainants/Appellants 

The Complainants, for the relevant time period, were tenants and are users of the Wetumpka 

Municipal Airport. 

McDonough Properties, L.L.C. (McDonough) owns a large hangar at the airport and is managed 

by David Ramsey (Ramsey and McDonough may be used interchangeably) and McDonough 

owns 3 aircraft. McDonough is a hold-over tenant; his lease expired on September 30, 2007. 

M & R Holdings, L.L.C. (M & R) is managed by Roger Kemp, who owns a large hangar and has 

been a hangar tenant at the airport since June, 2003. M & R is under an existing lease that had 

not expired when this Complaint was filed. M&R owns one aircraft. 

Tri-D, L.L.C. (Tri-D) is owned by Theresa Harvey and managed by her husband Richard 

Chaput. Tri-D has been a hangar tenant at the airport since July 1995. Tri-D is a hold-over 

tenant; its lease expired December 31, 2011. Tri-D has one aircraft located at its hangar. 

5 
Frank Barnett (Barnett) leases a large hangar and has been a tenant at the airport since March 

2010. Mr. Barnett is constructing an aircraft located at his hangar. Barnett's lease expired on 

January 1, 2011. [FAA Exhibit 1, Item 2, pages 2- 3] 

IV. BACKGROUND AND PROCEDURAL HISTORY 

A. Factual Background 

McDonough Lease 

McDonough became the successor in interest to a ground lease beginning in February 1996, with 

the original lease commencing on October 1, 1992. The hangar was constructed in mid-1970. 

The term of the original lease stipulated an initial ten-year term followed by five-year renewal 

periods "on such terms as the parties hereto shall agree upon. " In 2002, the Respondent 

renewed McDonough's lease for an additional five years. In 2007, the Respondent rejected the 

second five-year renewal. Subsequently, the Respondent presented a new lease to McDonough 

containing a five-year initial term with the option for two, five-year renewals. McDonough 

objected to certain provisions in the lease including the five-year term of the lease, the forfeiture 

provision requiring termination of the lease in the event lessee received a felony conviction, and 

the attorney fee provision. The parties exchanged many letters on these issues but could not 

resolve the issues of the lease term and the felony conviction provision. [FAA Item I pages 14 

and 15] McDonough continues to occupy the hangar and became a holdover tenant in 2007. 

McDonough filed a Part 13 informal complaint on December 19,2007, with the FAA Airports 

District Office (ADO) in Jackson, Mississippi. The Part 13 complaint raised the issues of the 

forfeiture for felony conviction clause and the lease term. [FAA Item I, page 15] 

On July 22,2011, the FAA ADO responded to Mr. McDonough's attorney, Wade Ramsey. The 

ADO stated that the lease term was reasonable based on the facts of this particular lease. The 

ADO also requested that the Respondent review the lease and ensure that the lease term offered 

was reasonable and consistent with the other leases on the airfield. The ADO agreed that the 

forfeiture provision must be modified. [Item 1 page 14 and Exhibit 27] 

On August 22,2011, the Respondent, by email, requested additional time to resolve the 

McDonough lease due to the Respondent's ongoing effort to develop a New Standard Lease. 

[FAA Item 1 page 15] 

On September 9, 2011, the ADO, by letter, informed the Respondent of its response to 

Mr. Ramsey and requested that the Respondent continue its efforts to resolve the issues with 

Mr. McDonough. [FAA Item 1 page 15 and Exhibit 28] 

On December 6 and 30, 2011, the Respondent attorney received emails from the City of 

Wetumpka, Public Works Director, providing information regarding sample hangar rates in the 

local area. FAA Exhibit 1, Item 7 Exhibit 6] 

6 
On December 19,2011, the Respondent adopted Ordinance No. 2011-15 approving a New 

Standard Lease, pending the outcome ofF easibility Study to determine growth options for the 

airport. 3 [FAA Item 7 Exhibit 4] 

On December 22,2011, the Respondent notified the FAA by letter that it had adopted a New 

Standard Lease for commercial operators, and that the New Standard Lease would temporarily 

have a one-year term during the pendency of the Feasibility Study. [Item 7 Exhibit 3] 

On December 21, 2011, the Respondent informed Mr. Ramsey by letter that the Respondent had 

adopted a new Airport Minimum Standards Code, Airport Rules and Regulations Code, and New 

Standard Leases for the Airport. The letter also included a copy of the lease for McDonough to 

execute and requested that payment be made for the back rent total listed in the letter. [FAA 

Item 1, Exhibit 29] 

On or about December 29, 2011, McDonough hand delivered a check for back rent to the 

Respondent, but McDonough did not execute the New Standard Lease. [FAA Item 1 page 15] 

On January 24, 2012, Ramsey communicated with the Respondent requesting a meeting 

regarding the one-year term proposed in the New Standard Lease. [FAA Item 1 page 16] 

On January 27, 25, and 24,2012, respectively, the Respondent served Notice of Termination of 

Tenancy and Notice to Vacate and Remove Personal Property on McDonough, Tri-D, and 

Barnett. [FAA Item 1 page 16 and Exhibits 34 and 36] 

On February 3, 2012, Ramsey requested by letter that the Respondent negotiate with 

McDonough. [FAA Item 1, exhibit C-37] 

On March 2, 2012, the Respondent responded to the request, stating the Respondent did not wish 

to renegotiate the New Standard Lease. [FAA Item 1, page 17 and Exhibit 18] 

On March 2, 2012, Ramsey received a letter from the Respondent stating that the Respondent 

calculated the back rent inaccurately and included a check for the overpaid amount. [FAA Item 

1 page 17 and Exhibit 41] 

On March 23, 2012, by letter Ramsey returned to the Respondent the refimded rent check with 

the explanation that the check was for the amount requested by the Respondent and covered rent 

through November 30,2012. [FAA Item 1 Exhibit 42] 

On May 12, 2012, Ramsey on behalf of all the Complainants filed a rebuttal to the Respondent's 

response to the Part 13 Informal Complaint. [FAA Item 1 page 18 and Exhibit 43] 

3

The forfeiture clause for a felony conviction that Complainant objected to in the lease agreement offered in 2007 

was modified in the New Standard Lease to require forfeiture of the leru;e if the felony conviction affected the 

ability of the lessee to carry out their obligations under the lease agreement. The Complainant did not object to this 

provision in the New Standard Lease. 

7 
On August 7, 2012, McDonough made a preliminary application for a loan to make 

improvements on his hangar. [FAA Item 1 page 17] 

On August 23, 2012, the bank responded to his inquiry stating that the loan maturity date could 

not exceed the date of the termination of the lease. [Exhibit 65] 

TRI-D Lease 

On August 7, 2006, Tri-D signed a lease with the Respondent providing for a 5-year lease, term 

expiring August 7, 2011, with two, five-year renewal periods. [FAA Item 1 page 18 and 

Exhibit 45] 

Tri- D sought to exercise the first, five-year lease renewal option and the Respondent declined to 

renew the lease, informing Tri-D that the Respondent had adopted a New Standard Lease with a 

one year term. [FAA Item 1 pages 18 and 19] 

On January 25,2012, the Respondent by letter provided Tri-D with a Notice of Termination of 

Tenancy and Notice to Vacate and Remove Personal Property. The Respondent has not sought 

to enforce the eviction notice. [FAA Item 1 page 19 and Exhibit 34] 

Tri-D attempted to pay rent due on February 4, 2012. On February 13,2012, the Respondent 

informed Tri-D by letter that it received the past due rent check and the Respondent would hold 

the check pending the receipt of the signed lease and a current copy ofTri-D's insurance. [FAA 

Item 1 page 19 and Exhibit 38] 

On February 24,2012, the Respondent returned the check to Tri-D based on the failure ofTri-D 

to sign the lease. Tri-D was given until March 26, 2012, to vacate the premises. The 

Respondent has not sought to enforce the eviction notice. [FAA Item 1 page 19 and Exhibit 35, 

35a] 

On May 12, 2012, Tri-D joined the other Complainants in filing a Part 13 Informal Complaint. 

[FAA Item 1 page 19 and Exhibit 43] 

On or about August 9, 2012, Tri-D made an inquiry for a loan from a financial institution. The 

credit union responded, stating that a loan would have to be paid off prior to the expiration of the 

lease. [FAA Item 1 page 19] 

BARNETT Lease 

On March 15, 2010, the Respondent approved the assignment of a lease from Lt. Col. Alexander 

H. C. Harwick to Barnett commencing AprillO, 2007. The lease expired on January 1, 2011. 

The lease provided that the lease "must be renewed subject to negotiations of such terms as the 

CITY may fix." [FAA Item 1, page 20 and Exhibit 9] 

On October 3, 2010, Barnett informed the Respondent of his intent to renew the lease for his 

hangar. [FAA Item 1, page 20 and Exhibit 26] 

8 
On May 12, 2012, Barnett joined the other Complainants in filing a Part 13 Informal Complaint. 

[FAA Item 1, page 20 and Exhibit 43] 

On August 16, 2012, Barnett informed the Respondent by letter that under the terms of the lease 

he was invoking the option to renew. [FAA Item 1, page 20] 

M&RLease 

On June 16, 2003, the Respondent entered into a lease agreement for a ten-year term with 

Dr. Roger Kemp, the principal of M & R, for airport property with an existing hangar. The lease 

expires on or about June 16, 2013, and provided for two renewal periods of five years. [FAA 

Item 1, page 21 and Exhibit 3] 

On May 12, 2012, M & Rjoined the other Complainants in filing a Part 13 informal complaint. 

[FAA Item 1, page 21 and Exhibit 4 3] 

In August 2012, M & R made a loan inquiry at its financial institution. The response to the 

inquiry was that a loan would be denied based on the short term of the lease. [FAA Item 1, 

page 21] 

Airport tenants 

The relevant airport tenants consist of nine Commercial Operators. Six of these tenants are 

operating under valid leases. [FAA Item 1 page 6] There are three hold-over tenants operating 

under an expired lease. 

The tenants operating under valid leases at the time the Complaint was filed are: 

• Arrowhead Plastics Engineering, Inc., assumed its lease effective July 6, 1989, and the 

lease was extended on October 5, 2009 for a period of five years set to expire on 

August 31, 2014. [FAA Item 7, page 6-7] 

• Brett Curenton's (Curenton) lease became effective on June 6, 2003, and will expire on 

June 15, 2013. [FAA Item 7, page 6 and Item 1, Exhibit 4] 

• M & R entered into a lease on June 16, 2003, for a term often years, with an expiration 

date of June 15, 2013. [FAA (DD) Item 1, exhibit C-3,] 

• AirEvac's, lease expired on February 28,2011, and the New Standard Lease for a oneyear term was executed for a term beginning January 1, 2012, with an expiration date of 

December 31,2012. (FAA Item 7, page 6, fu. 6] 

• Mike Albertson's lease expired on December 31, 2011, and the New Standard Lease was 

executed for a one-year term expiring on December 31, 2012. 

• Moffet's lease expired on December 31,2011, and the New Standard Lease was executed 

for a one-year term expiring on December 31, 2012. 

The tenants that failed to sign the New Standard Lease and do not have valid leases are: 

9 
• Tri-D's lease expired December 31, 2011, and it is currently a holdover tenant. [FAA 

Item 7 page 9-1 OJ 

• Frank Barnett's lease expired on January 1, 2011, and he is currently a holdover 

tenant. [FAA Item 7 page 9] 

• McDonough's lease expired on September 30,2007. McDonough and the 

Respondent engaged in lease negotiations at that time regarding a dispute over the 

proposed five-year lease term and other provisions in the lease. They were unable to 

agree to the term. McDonough has been a holdover tenant since 2007. [FAA Item 7 

page 9] 

The Respondent approved the New Standard Lease with a one-year lease term in November 

2011. The tenants currently under a lease with terms longer than a year are operating under preexisting leases. 

B. Procedural History 

On August 28,2012, Complainants filed their Complaint alleging the Respondent violated 

49 U.S.C. §47107(a) and Airport Grant Assurances 5, 19, 22, 23,24 and 38, includes exhibits 1-

70. 

On August 31, 2013, Complainants filed First Amended Complaint with exhibits 71-79. 

On October 1, 2012, Respondent filed Unopposed Motion of the City of Wetumpka for and 

Extension of Time to File Answer. 

On October 22, 1012, Respondent filed Answer to Complaint and Motion to Dismiss with 

exhibits 1-19. 

On October 31, 2012, Complainants filed Motion for Extension of Time to file a Reply and 

Answer to the Motion to Dismiss. 

On November 9, 2012, Complainants filed Reply to the City's Answer and Response to the 

City's Motion to Dismiss. 

On November 20, 2012, the Respondent filed its Rebuttal. 

On October 20, 2013, the FAA issued a Director's Determination and found the City to be in 

compliance with its grant assurances. 

On December 13, 2013, McDonough Properties, LLC, filed an Appeal of the Director's 

Determination. This submission included several documents: 

• Exhibit CA-l Emails between Regina Edwards and Wade Ramsey dated 

October- December 2013. 

• Exhibit CA-2 Wetumpka Municipal Airport Feasibility Study dated July 2013. 

• Exhibit CA-3 Arrowhead lease with extension letter dated August 15, 2009. 

10 
• Exhibit CA-4 New Standard Lease 

• Exhibit CA-5 Press release dated March 26,2013 ofstndy determination 

• Exhibit CA-6 News article re December 6, 2010, City Council meeting to stndy 

airport relocation. 

• Exhibit CA-7 Emails between Regina Edwards and Wade Ramsey, dated 4/15/13. 

• Exhibit CA-8 Picture of airport layout. 

On December 24, 2013, the City of Wetumpka filed its Reply to the Complainant's Appeal. 

On March 21,2014, the FAA issued an extension oftime until June 10,2014. [FAA Exhibit 1, 

Item 5] 

On July 3, 2014, the FAA issued an extension of time until October 31,2014. 

On December 10,2014, the FAA issued an extension of time until January 16,2015. 

APPLICABLE FEDERAL LAW AND FAA POLICY 

The Federal role in civil aviation has been augmented by various legislative actions that 

authorize programs for providing Federal funds and other assistance to local communities for the 

development of airport facilities. In each such program, the airport sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely and efficiently and in accordance 

with specified conditions. Commitments assumed by airport sponsors in property conveyance or 

grant agreements are important factors in maintaining a high degree of safety and efficiency in 

airport design, construction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the airport. 

The following is a discussion pertaining to the Airport Improvement Program, Airport Sponsor 

Assurances, the FAA Airport Compliance Program, and enforcement of Airport Sponsor 

Assurances. 

The Airport Improvement Program 

Title 49 U.S.C. § 47101, et seq., provides for Federal airport financial assistance for the 

development of public-use airports under the Airport Improvement Program (AlP) established by 

the Airport and Airway Improvement Act of 1982, (AAIA) as amended. Title 49 U.S.C. 

§ 47107, et seq., sets forth assurances to which an airport sponsor agrees as a condition of 

receiving Federal financial assistance. Upon acceptance of an AlP grant, the assurances become 

a binding contractual obligation between the airport sponsor and the Federal Govermnent. The 

assurances made by airport sponsors in AlP grant agreements are important factors in 

maintaining a viable national airport system. 

Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under the Airport 

Improvement Program, 49 U.S.C. § 47107, et seq., the Secretary of Transportation and, by 

11 
extension, the FAA must receive certain assurances from the airport sponsor. Title 49 U.S.C. 

§ 47107(a) sets forth the statutory sponsorship requirements to which an airport sponsor 

receiving Federal financial assistance must agree. 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances.

4 FAA Order 5190.6B, FAA Airport Compliance Manual (Order), issued on 

September 30, 2009, provides the policies and procedures to be followed by the FAA in carrying 

out its legislatively mandated functions related to compliance with Federal obligations of airport 

sponsors. The FAA considers it inappropriate to provide Federal assistance for improvements to 

airports where the benefits of such improvements will not be fully realized due to inherent 

restrictions on aeronautical activities. 

The FAA grant assurances that apply to the circumstances set forth in this Complaint include: 

(l) Grant Assurance 5, Preserving Rights and Powers; (2) Grant Assurance 19, Operation and 

Maintenance; (3) Grant Assurance 22, Economic Nondiscrimination; (4) Grant Assurance 23, 

Exclusive Rights; (5) Grant Assurance (24 ), Fee and Rental Structure; and ( 6) Grant Assurance 

38, Hangar Construction. 

Grant Assurance 5, Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, (Assurance 5) requires the airport owner or 

sponsor to retain all rights and powers necessary to ensure the continued operation of the airport 

consistent with its Federal obligations. This assurance implements the provisions of the AAIA, 49 

U.S.C. § 47107(a), et seq: 

Assurance 5 requires, in pertinent part, that the sponsor of a federally obligated airport: 

... 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 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. This shall be done in a manner acceptable to the Secretary. 

[Assurance 5] 

Grant Assurance 19, Operation and Maintenance 

Grant Assurance 19, Operation and Maintenance, implements the provisions ofthe AAIA, 

49 U.S.C., § 47107(a)(7), and requires, in pertinent part, that the sponsor of a federally-obligated 

airport assure: 

The airport and all facilities which are necessary to serve the aeronautical users 

of the airport, other than facilities owned or controlled by the United States, shall 

4

See, e.g., the Federal Aviation Act of 1958, as amended and recodified, Title 49 U.S.C. §§ 40101, 40113,40114, 

46101,46104, 46105, 46106, 46110; and the Airport and Airway Improvement Act of 1982, as amended and 

recodified, Title 49 U.S. C.§§ 47105(d), 47106(d), 47107(k), 47107(1), 47lll(d), 47122. 

12 
be operated at all times in a safe and serviceable condition and in accordance 

with the minimum standards as may be required or prescribed by applicable 

Federal, state, and local agencies for maintenance and operation. It will not 

cause or permit any activity or action thereon which would interfere with its use 

for airport purposes. It will suitably operate and maintain the airport and all 

facilities thereon or connected therewith, with due regard to climatic and flood 

conditions. Any proposal to temporarily close the airport for non-aeronautical 

purposes must first be approved by the Secretary. In furtherance of this 

assurance, the sponsor will have in effect arrangements for: 

(1) Operating the airport's aeronautical facilities whenever required; 

(2) Promptly marking and lighting hazards resulting from airport conditions, 

including temporary conditions; and, 

(3) Promptly notifYing airmen of any condition affecting aeronautical use of the 

airport. 

Nothing contained herein shall be construed to require that the airport be 

operated for aeronautical use during temporary periods when snow, flood, or 

other climatic conditions interfere with such operation and maintenance. 

Further, nothing herein shall be construed as requiring the maintenance, repair, 

restoration, or replacement of any structure or facility which is substantially 

damaged or destroyed due to an act of God or other condition or circumstance 

beyond the control of the sponsor. 

Additionally, FAA Order 5190.6B provides that the owner should adopt and enforce adequate 

rules, regulations, or ordinances as necessary to ensure safety and efficiency of flight operations 

and to protect the public using the airport. In fact, the prime requirement for local regulations is 

to control the use of the airport in a manner that will eliminate hazards to aircraft and to people 

on the ground. As in the operation of any public service facility, FAA advises airport sponsors 

to establish adequate rules covering, inter alia, vehicular traffic, sanitation, security, crowd 

control, access to certain areas, and fire protection. [See, FAA Order 5190.6B, Chapter 7 Airport 

Operation, Section 7.9] 

Grant Assurance 22, Economic Nondiscrimination 

Grant Assurance 22, Economic Nondiscrimination, requires the owner of any airport developed 

with Federal grant assistance to operate the airport for the use and benefit of the public and to 

make it available to all types, kinds, and classes of aeronautical activity on fair and reasonable 

terms, and without unjust discrimination. Grant Assurance 22 deals with both the reasonableness 

of airport access and the prohibition of adopting unjustly discriminatory conditions as a potential 

for limiting access. Grant Assurance 22 implements the provisions of 49 U.S.C. § 471 07(a) (1) 

through (6), and requires, in pertinent part, that the sponsor of a federally obligated airport: 

... will make its airport available as an airport for public use on reasonable terms, 

and without unjust discrimination, to all types, kinds, and classes of aeronautical 

activities, including commercial aeronautical activities offering services to the 

public at the airport. [Assurance 22(a)] 

13 
... may establish such fair, equal, and not unjustly discriminatory conditions to be 

met by all users of the airport as may be necessary .for the safe and efficient 

operation of the airport. [Assurance 22(h)] 

... may ... limit any given type, kind, or class of aeronautical use of the airport if such 

action is necessary .for the safe operation of the airport or necessary to serve the 

civil aviation needs of the public. [Assurance 22(i)] 

Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to subsection 

(a) to permit the sponsor to exercise control of the airport sufficient to preclude unsafe and 

inefficient conditions that would be detrimental to the civil aviation needs of the public. 

In all cases involving restrictions on airport use imposed by airport owners for safety and 

efficiency reasons, the FAA will make the final determination on the reasonableness of such 

restrictions when those restrictions deny or limit access to, or use of, the airport. [See FAA 

Order 5190.6B, ~14.3] 

FAA Order 5190.6B describes the responsibilities under Grant Assurance 22 assumed by the 

owners or sponsor of public use airports developed with Federal assistance. 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 without unjust 

discrimination. [See FAA Order 5190.6B, Chapter 9] 

The owner of an airport developed with Federal assistance is required to operate the airport for 

the use and benefit of the public and to make it available to all types, kinds, and classes of 

aeronautical activities on reasonable terms and without unjust discrimination. [See FAA Order 

5190.6B, ~9.l.a] 

Grant Assurance 23, Exclusive Rights 

Grant Assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 49 U.S.C. 

§§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport: 

... will permit no exclusive rightfor the use of the airport by any persons 

providing, or intending to provide, aeronautical services to the public . 

... will not, either directly or indirectly, grant or permit any person, firm, or 

corporation, the exclusive right at the airport to conduct any aeronautical 

activities ... 

In FAA Order 5190.6B, FAA Airport Compliance Manual, the FAA discusses its exclusive rights 

policy and broadly identifies aeronautical activities as subject to the statutory prohibition against 

exclusive rights. While public-use airports may impose qualifications and minimum standards 

upon those who engage in aeronautical activities, FAA has taken the position that the application 

14 
of any umeasonable requirement or any standard that is applied in an unjustly discriminatory 

manner may constitute the constructive grant of an exclusive right. Courts have found the grant 

of an exclusive right where a significant burden has been placed on one competitor that is not 

placed on another. [See e.g. Pompano Beach v FAA. 774 F2d 1529 (1 11

h Cir, 1985)] 

Leasing all available airport land and improvements planned for aeronautical activities to one 

enterprise will be construed as evidence of intent to exclude others unless it can be demonstrated 

that the entire leased area is presently required and will be immediately used to conduct the 

activities contemplated by the lease. [See Order, Sec. 8.9.d Space Limitation.] 

FAA Order 5190.6B provides additional guidance on the application of the statutory prohibition 

against exclusive rights and FAA policy regarding exclusive rights at public-use airports. [See 

Order, Chapter 8 .] 

Grant Assurance 24, Fee and Rental Structure 

Grant assurance 24, Fee and Rental Structure, addresses fees the owner or sponsor levies on 

airport users in exchange for the services the airport provides. 

Section 47107(a)(13) of 49 U.S.C. requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport "will maintain a fee and rental structure for the facilities and services 

being provided to airport users which will make the airport as self-sustaining as possible under 

the circumstances existing at that particular airport." In addition, under§ 47107(a), fees levied 

on aeronautical activities must be reasonable and not unjustly discriminatory. 

Grant assurance 24 satisfies the requirements of§ 47107(a)(13). It provides, in pertinent part, 

that the owner or sponsor of a federally-obligated airport agrees that it will maintain a fee and 

rental structure consistent with assurances 22, Economic Nondiscrimination, and 23, Exclusive 

Rights. The airport owner or sponsor agrees to establish a fee and rental structure that will malce 

the airport as self-sustaining as possible under the circumstances existing at the particular airport, 

taking into account such factors as the volume of traffic and economy of collection. The intent 

of the assurance is for the airport operator to charge fees that are sufficient to cover as much of 

the airport's costs as is feasible. 

Moreover, FAA Order 5190.6B, Airport Compliance Requirements, states that the owner or 

sponsor's obligation to make an airport available for public use does not preclude the owner or 

sponsor from recovering the cost of providing the facility. The owner or sponsor is expected to 

recover its costs through the establishment of fair and reasonable fees, rentals, or other user 

charges that will make the airport as self-sustaining as possible under the circumstances existing 

at the particular airport. [See Order, 4-14(a).] 

Grant Assurance 38, Hangar Construction 

Section 47107(a) (21) of 49 U.S.C. requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport: 

15 
... and a person who owns an aircraft agree that a hangar is to be constructed at the 

airport for the aircraft at the aircraft owner's expense, the airport owner or operator will 

grant to the aircraft owner for the hangar a long term lease that is subject to such terms 

and conditions on the hangar as the airport owner or operator may impose. 

The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their 

Federal obligations through its Airport Compliance Program. The FAA's airport compliance 

efforts are based on the contractual obligations an airport owner accepts when receiving Federal 

grant funds or the transfer of Federal property for airport purposes. These obligations are 

incorporated in grant agreements and instruments of conveyance in order to protect the public's 

interest in civil aviation and to ensure compliance with Federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a national system 

of safe and properly maintained public-use airports operated in a manner consistent with the 

airport owners' Federal obligations and the public's investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. Rather, it 

monitors the administration of the valuable rights pledged by airport sponsors to the people of 

the United States in exchange for monetary grants and donations ofF ederal property to ensure 

that the public interest is being served. FAA Order 5190.6B sets forth policies and procedures 

for the FAA Airport Compliance Program. The Order establishes the policies and procedures to 

be followed by FAA personnel in carrying out the FAA's responsibilities for ensuring airport 

compliance. It provides basic guidance for FAA personnel in interpreting and administering the 

various continuing commitments made to the United States by airport owners as a condition of 

receiving a grant of Federal funds or the conveyance of Federal property for airport purposes. 

The Order analyzes the various obligations set forth in the standard airport sponsor assurances, 

addresses the nature of those assurances, addresses the application of those assurances in the 

operation of public-use airports, and facilitates interpretation of the assurances by FAA 

personnel. 

The FAA Compliance program is designed to achieve voluntary compliance with Federal 

obligations accepted by owners and/or operators of public-use airports developed with FAAadministered assistance. Therefore, in addressing allegations of noncompliance, the FAA will 

make a determination as to whether an airport sponsor is currently in compliance with the 

applicable Federal obligations. Consequently, the FAA will consider the successful action by the 

airport to cure any alleged or potential past violation of applicable Federal obligation to be 

grounds for dismissal of such allegations. [See e.g. Wilson Air Center v. Memphis and Shelby 

County Airport Authority, FAA Docket No. 16-99-10, (8130/01) Wilson Air Center, LLC v FAA, 

372 F. 3d 807 (61

h Cir. 2004)] 

FAA Enforcement Responsibilities 

The Federal Aviation Act of 1958, as amended (F AAct), 49 U.S.C. § 40101, et seq., assigns the 

FAA Administrator broad responsibilities for the regulation of air commerce in the interests of 

16 
safety, security, and development of civil aeronautics. The Federal role in encouraging and 

developing civil aviation has been augmented by various legislative actions, which authorize 

programs for providing funds and other assistance to local communities for the development of 

airport facilities. In each such program, the airport owner or sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely, efficiently, and in accordance 

with specified conditions. Commitments assumed by airport owners or sponsors in property 

conveyance or grant agreements are important factors in maintaining a high degree of safety and 

efficiency in airport design, construction, operation and maintenance, as well as ensuring the 

public reasonable access to the airport. Pursuant to 49 U.S. C. § 47122, the FAA has a statutory 

mandate to ensure that airport owners comply with their Federal grant assurances. 

The Complaint Process 

Pursuant to 14 CPR Part 16, § 16.23, a person directly and substantially affected by any alleged 

noncompliance may file a complaint with the FAA. The complainant shall provide a concise but 

complete statement of the facts relied upon to substantiate each allegation. The complaint shall 

also describe how the complainant was directly and substantially affected by the things done or 

omitted by the respondents. [14 CPR Part 16, § 16.23(b) (3, 4)] 

If, based on the pleadings, there appears to be a reasonable basis for further investigation, the 

FAA will investigate the subject matter ofthe complaint. In rendering its initial determination, 

the FAA may rely entirely on the complaint and the responsive pleadings provided. Each party 

shall file documents it considers sufficient to present all relevant facts and arguments necessary 

for the FAA to determine whether the sponsor is in compliance. [14 CPR Part 16, § 16.23] 

The proponent of a motion, request, or order has the burden of proof. A party who has asserted 

an affrrmative defense has the burden of proving the affirmative defense. This standard burden 

of proof is consistent with the Administrative Procedure Act (AP A) and Federal case law. The 

AP A provision states, "[ e ]xcept as otherwise provided by statute, the proponent of a rule or order 

has the burden of proof." [5 U.S.C. § 556(d).] [See also, Director, Office of Worker's 

Compensation Programs, Department of Labor v. Greenwich Collieries, 512 US 267, 272 

(1994); Air Canada et al. v. Department of Transportation, 148 F3d 1142, 1155 (DC Cir, 

1998).] Title 14 CPR§ 16.229(b) is consistent with 14 CPR§ 16.23, which requires that the 

complainant must submit all documents then available to support his or her complaint. 

Similarly, 14 CPR § 16.29 states that"[ e ]ach party shall file documents that it considers 

sufficient to present all relevant facts and argument necessary for the FAA to determine whether 

the sponsor is in compliance." 

Title 14 CPR§ 16.31(b-d), in pertinent parts, provides that "(t)he Director's determination will 

set forth a concise explanation of the factual and legal basis for the Director's determination on 

each claim made by the complainant. A party adversely affected by the Director's determination 

may appeal the initial determination to the Associate Administrator as provided in§ 16.33." In 

accordance with 14 CPR§ 16.33(b) and (e), upon issuance of a Director's determination, "a 

party adversely affected by the Director's determination may file an appeal with the Associate 

Administrator within 30 days after the date of service of the initial determination;" however, "(i)f 

17 
no appeal is filed within the time period specified in paragraph (b) of this section, the Director's 

determination becomes the final decision and order of the FAA without further action. A 

Director's determination that becomes final because there is no administrative appeal is not 

judicially reviewable." 

Title 14 CPR§ 16.247(a) defines procedural recourse for judicial review of the Associate 

Administrator's final decision and order, as provided in 49 U.S.C., § 46110 or section 519(b)(4) 

of the Airport and Airway Improvement Act of 1982, as amended, (AAIA), 49 U.S.C., 

§ 47106(d) and 4711l(d). 

ISSUES ON APPEAL 

On Appeal, the Complainants allege that the Director erred in concluding the Respondent is not 

currently in violation of its grant assurance obligations because those findings and conclusions 

were not supported by the administrative record, law and regulations or policy. Specifically, the 

Complainants raise the following four issues on Appeal: 

1. Did the Director err when he held it was not unreasonable under Grant Assurance 

22, Economic Nondiscrimination, to limit tenants to a one-year lease? 

2. Did the Director err by finding that the Respondent was "not in violation of Grant 

Assurance 24, Fee and Rental Structure, as a result of the New Standard Lease with 

a one year term"? 

3. Did the Director err when he found that the record failed to support the assertion 

that nonaeronautical users were treated more favorably? 

4. Did the Director err by not finding that the Respondent gave an exclusive right to a 

non-aeronautical tenant in violation of Grant Assurance 23, Exclusive Rights, 49 

U.S.C., § 40103(e), and 49 U.S.C. § 47017(a)(4)" 

VI. ANALYSIS AND DISCUSSION 

The Director's Determination found that the City of Wetumpka did not violate Grant 

Assurance 5, Preserving Rights and Powers; Grant Assurance 19, Operation and Maintenance; 

Grant Assurance 22, Economic Nondiscrimination; Grant Assurance 23, Exclusive Rights; Grant 

Assurance 24, Fee and Rental Structure; and Grant Assurance 38, Hangar Construction. The 

specifics of these findings are detailed in the above Section II, Summary of the Director's 

Determination. 

In the Appeal, the Complainants' take issue with the Director's findings on Grant Assurance 22, 

23 and 24. 

Issue 1 - Did the Director err when he held it was not unreasonable under Grant Assurance 

22, Economic Nondiscrimination, to limit tenants to a one-year lease? 

18 
The Director held in his Determination that "the [City's] decision to limit the term of the 

lease was not an unreasonable approach to a possible impending change at the airport. The 

one-year lease puts the tenants on notice that the airport may be in transition and tenants 

should plan accordingly." [FAA Exhibit 1, Item 2, page 17] 

The Director also stated, 

"In Pompano, the lease was the standard lease with a two year term. The Airport 

in Pompano did not articulate a business purpose for the limited lease term. In 

Pompano, the FAA found that the airport sponsor was in violation of its grant 

assurance for failure to grant long term leases. The facts in Pompano can be 

distinguished from the present set of facts because the Respondent in this 

complaint has articulated a legitimate business purpose to support its decision to 

limit lease terms to one-year and no tenants were offered longer term leases than 

the Complainants." 

[FAA Exhibit 1, Item 2, page 21] 

The Complainant argues on Appeal that, 

"The Director cites in his Determination a 'policy· that allows a sponsor to 

violate its grant assurances if there exists a 'legitimate business purpose' to do 

so. '[citation omitted] Such a 'policy' flies in the face of logic and reason. To 

allow an airport to circumvent its federal obligations under the guise of having a 

'legitimate business purpose' would give airports carte blanche authority to 

violate the grant assurances whenever the airport finds it convenient to do so . 

.... The 'legitimate business purpose' exception to airport obligations is a 

dangerous precedent created by the Director here that must be reversed " 

[FAA Exhibit 1, Item 1, page 5] 

The Complainant adds; 

"Further, the City remains in violation of its federal obligations because while 

the "legitimate business purpose" has gone away (the feasibility study ended 

March 26, 2013),[/ootnote omitted] by correctly concluding that the City does not 

need to move the airport, it has not negotiated with nor offered the Complainants 

anything other than a one-year non-renewable lease. [footnote omitted] [citation 

omitted] The City knows that it is currently in violation of its grant assurances 

because it has communicated to Complainants' Counsel that it is in the process of 

developing a standard lease that will extend the leases to a I 0 year term with 5 

year renewals. "[citation omitted] tJ 

5

The Complainants have not provided further information regarding cnrrent (post- Director's Determination) lease 

negotiations other than to state that the City has communicated to Complainant's counsel that it is in the process of 

developing a longer term lease. 

19 
[FAA Exhibit 1, Item 1, pages 5-6] 

In its Reply to the Appeal, the City states, 

"Complainants'first allegation of error, that the Director incorrectly 

developed a "new policy" that 'allows a sponsor to violate its grant assurances 

if there exists a 'legitimate business purpose' to do so' (Appeal at 5, citing 

Director's Determination at 22) mischaracterizes the Director's findings. The 

Director neither held that a 'legitimate business purpose' could ever excuse 

an airport sponsor from its Federal obligations, nor developed a policy that 

would allow an airport sponsor to violate its Federal obligations. Rather the 

Director found that the City was in compliance with its Federal obligations. 

See, e.g. Director's Determination at 23, 24, 27, and 29." 

[FAA Exhibit 1, Item 3, page 4] 

Additionally, the City states, 

"Complainants do not provide any credible arguments or point to any 

evidence in the administrative record contradicting the fact that the City was 

actively exploring alternatives to realize the future growth of the Airport when 

it temporarily implemented the standard one-year lease, or that it was (and is) 

within a City's proprietary powers to take actions that are in the short- and 

long-term best interest of the Airport. Rather, Complainants argue that: (1) 

the Director erred because he misinterpreted United States Construction 

Corp. v. City of Pompano Beach, FAA Docket No. 16-00-14, Final Agency 

Decision (July 10, 2002) ("Pompano") (Appeal at 7-8); (2) even if the City did 

have a "legitimate business purpose" for considering the future of the Airport, 

the City "did not undertake the feasibility study until after it had denied 

Complainants' requests to exercise their renewal options but restricted the 

Complainants to a new lease" (Appeal at 5); and (3) the City is currently in 

violation because the feasibility study has been completed and now the City is 

in the process of developing a new standard hangar lease (Appeal at 6). None 

of these arguments withstand the most cursory scrutiny. " 

[FAA Exhibit 1, Item 3, page 5] 

The City also argues, 

" ... Complainants allege that the City's legitimate business purpose is not valid because it 

arose after the City 'denied Complainants' request to exercise their renewal options. 

Complainants are conflating the facts. The lease negotiations that occurred between the 

City and Complainant McDonough in 2007 were related to a different lease than the one 

at issue before the Director. The lease at issue in the Complainants' complaint was the 

City's temporary standard one-year lease. The Director correctly found that the City's 

20 
adoption of a one-year took place in 2011, after the City commissioned a feasibility study 

for the future of the Airport. Thereafter, the City did not offer, or enter into, a longerterm lease with any other Airport tenant. Contrary to the Complainants' assertions, the 

validity of the City's business purpose for adopting a one-year lease does not hinge on 

prior events." [FAA Exhibit 1, Item 3, pages 6-7] 

In a footnote to the Reply, the City also stated, "It should be noted that in Pompano, the 

complainant was being denied access to the airport. Here, Complainants have not been denied 

access. On the contrary, all of the Complainants have had access to the Airport and continue to 

do business from each of their respective Airport leaseholds. " 

[FAA Exhibit 1, Item 3, page 6, fn 5] 

In this case, the Complainants and Arrowhead are not similarly situated (as discussed in more 

detail in Issue 3-4). In Pompano, the entities were considered to be similarly situated. 

Additionally, as the Director points out, the City engaged in a thorough review via a feasibility 

study to determine whether it was more advantageous to relocate the airport or have it remain in 

its current location. [FAA Exhibit 1, Item 2, page 17] This action justified the City's use of a 

temporary lease pending the outcome of the study. The Director did not articulate a 'new policy' 

of a legitimate business purpose but rather found that that the City had an identified goal and was 

proceeding in a prudent fashion. To grant longer term leases when it was unclear if the airport 

was going to remain in its present location would have been irresponsible and potentially 

harmful to the existing tenants. 

In their Appeal, the Complainants provided additional information and exhibits. One exhibit 

contained an email from Regina B. Edwards, counsel for the Respondent, dated December 3, 

2013, to Wade Ramsey, counsel for the Complainant, and stated in part, "As I told you before, 

we are proposing a standard lease with an initial] 0 year term with two 5-year renewal options. 

In the event of new construction we would consider adjusting the term to allow for depreciation 

of the improvements. The rental rates would be based on fair rental value of the leased property 

and then adjusted by the Consumer Price Index as we discussed. I believe we are very close on 

finalizing a lease that will be acceptable to all parties. Although the City would love to have this 

process completed and the new leases in place by January 1, 2014, we are prevented from doing 

so since we will not have all the necessary information to finalize the lease by then, so it appears 

that it will be mid-January or so before this will be done." [FAA Exhibit 1, Item 1, exhibit CAl, page 5 of6] 

This information supports the City's contention that it is now offering longer term leases as 

sought by the Complainants. The gravamen of the Complaint was that the City was not offering 

lease terms longer than one year. The evidence that the City is moving to 1 0-year leases for 

tenants essentially moots the Complainant's argument that they have been denied longer term 

leases. 

The Complainants have not met the burden of proving that the Director erred in his analysis with 

Pompano. The fact that the Complainants were not satisfied with the process ofthe feasibility 

study does not mean that the airport sponsor was not within its proprietary rights to engage in the 

21 
study. As noted earlier, the fact that the City has concluded this study and determined that 

longer term (1 0 year) leases are appropriate and efforts have been made to communicate this 

information to the Complainants essentially renders this argument in the Appeal with little 

practical value. 

The Complainants' argument that the Director erred when he identified the process the City was 

undertaking with its feasibility study as having a legitimate business purpose has no merit. 

Issue 2 - Did the Director err by finding that the Respondent was "not in violation of Grant 

Assurance 24, Fee and Rental Structure, as a result of the New Standard Lease with a one 

year term"? 

In the Director's Determination, the Director stated, 

"The administrative record does not contain any evidence that the Respondent's business 

decision is impacting the airports ability to be self-sustaining. While Complainants may 

disagree with the financial business decisions of the Respondent regarding the 

development of the Airport, the Respondent has the proprietary right to make such 

decisions. It may be appropriate for the Respondent to decline to enter into a long term 

lease with a tenant for an area slated for redevelopment. The Respondent offered a 

business decision as support for the lease term." 

[FAA Exhibit l, Item 2, page 27] 

Additionally, the Director's Determination stated, 

"In this case, the Complainants' concern appear [sic] to have less to do with the selfsustainability of the airport and more to do with their desire for long term leases and 

maintaining the current status of the Airport. The Complainants have not provided any 

information to support its contention that the Respondent's New Standard Lease has 

impaired the Airports ability to be self-sustaining. To the contrary, it appears from the 

record that all tenants at the Airport with leases due for renewal, except for the 

Complainants, have signed the new one year lease." [citation omitted] 

[FAA Exhibit l, Item 2, page 25] 

The Complainants argue on Appeal, 

"The Director erred by finding that the City could [not} violate the selfsustainability provision of Grant Assurance 24 when it required the Complainants 

to sign a one-year lease. One-year leases are, on their face, contrary to an 

airport's self-sustainability. Airports cannot attract tenants to invest in 

infrastructure and equipment necessary to operate an airport with one-year 

leases. " 

[FAA Exhibit 1, Item 1, page 14] 

22 
To support this argument, the Complainants state, 

"The Director makes the point that the Complainants had not made applications 

for hangar improvement loans -just that they had written letters inquiring about 

such loans- and that the Complainants had not approached the Airportfor 

approval of hangar improvements .... To the contrary, it is intuitively obvious that 

a business person does not go to the expense of submitting a loan application if 

the loan application will be denied .... Likewise, it is intuitively obvious that a 

prudent business person would not approach a lessor seeking permission to make 

improvement or expansions if it were impossible to fund those improvements or 

expansions. In this instance there is sufficient evidence in the record to support a 

finding that loans cannot be obtained for improvements to leaseholds with oneyear terms which thereby results in a conclusion that the Airport is not self~ 

sustainable because of its policies. " 

[FAA Exhibit 1, Item 1, page 13] 

In its Reply to the Appeal, the City states, 

The Director correctly determined that the City justified the one-year lease terms 

based on, among other things, 'its business decision to explore the expansion of 

the airport or its relocation by conducting a Feasibility Study' and 'on a business 

decision designed to streamline its tenants' leases to allow it to further develop 

the airport. 

Further, the City argues, 

Besides Complainants own speculations about how a' prudent business person ' 

would act, the Appeal again fails to provide any evidence or analysis in support 

of their claim. Instead, Complainants offer a laundry list of lease provisions that 

could have made the lease more palatable to them ... Federal obligations should 

not require the City to unconditionally bend to the Complainants' demands. 

[FAA Exhibit 1, Item 3, pages 8-9] 

The Director's Determination did not state that "the City could violate the se(f-sustainability 

provision of Grant Assurance 24 when it required the Complainants to sign a one-year lease. " 

[See FAA Exhibit 1, Item 1, page 14] Rather, the Determination stated, "[t]he administrative 

record does not contain any evidence that the Respondent's business decision is impacting the 

airports ability to be self-sustaining." [FAA Exhibit 1, Item 2, page 27] 

In the Appeal, the Complainants disagree with the Director and state, "In this instance there is 

sufficient evidence in the record to support a finding that the loans cannot be obtained for 

improvements to leaseholds with one-year terms which thereby results in a conclusion that the 

Airport is not self-sustainable because of its policies." [FAA Exhibit 1, Item 1, page 14] 

23 
Grant Assurance 24, Fee and Rental Structure, has more flexibility than other Assurances in that 

compliance is generally determined over the longer term. An airport sponsor could not 

reasonably be found in violation of this assurance by judging its financial performance over just 

one year. In this case, the airport sponsor was taking a proactive approach in determining the 

future location of the airport. Section 17 of FAA Order 5190.6B (Airport Compliance 

Handbook) states: 

"If market conditions or demand for air service do not permit the airport to be 

financially self-sustaining, the sponsor should establish long-term goals and 

targets to make the airport as financially self-sustaining as possible." [FAA Order 

5190.6B, Section 17.7] 

Grant Assurance 24 does not necessarily prohibit agreements that in the short term may not 

maximize revenues. Airports must maintain a fee and rental structure that makes the airport as 

financially self-sustaining as possible under the particular circumstances at that airport. The 

requirement recognizes that individual airports will differ in their ability to be fully selfsustaining, given differences in conditions at each airport. The purpose of the self-sustaining 

rule is to maintain the utility of the Federal investment in the airport. [FAA Order 5190.6B, 

Section 17.5] 

The Complainant's argument is not persuasive. The City was well within its proprietary rights to 

examine whether the airport should remain in its current location or move to a new location. It 

was a prudent business decision to require short -term leases while the feasibility study was 

ongoing. The fact that the Complainants were not in agreement with this decision does not make 

it a violation of the grant agreements. The grant agreements are in place to protect the Federal 

investment made in airports, not to provide protection to tenants who demand specific lease 

terms for their own interest. The Complainants have not explained why they think the Director 

erred in the findings and conclusions or why those findings are not supported by the 

administrative record, regulations, law, or policy. Rather, the Complainants continue to argue 

that they should have had the right to a lease term of their choosing, notwithstanding the City's 

determination to evaluate the future of the airport and its location. 

The airport sponsor is expected to make appropriate business decisions that will make the airport 

as self-sustaining as circumstances will permit while maintaining a fair and reasonable pricing 

structure for aeronautical users. Grant assurance 24, Fee and Rental Structure, does not require 

airport sponsors to establish fees that will general the greatest possible income. [See Thermco 

Aviation, Inc., and A-26 Company v. City of Los Angeles, Los Angeles Board of Airport 

Commissioners, and Los Angeles World Airports, FAA Docket No. 16-06-07, (June 21, 2007) 

(Director's Determination).] 

The Director's finding that the City was not in violation of Grant Assurance 24, Fee and Rental 

Structure, is upheld. 

Issue 3 -Did the Director err when he found that the record failed to support the assertion 

that nonaeronautical users were treated more favorably? 

24 
In the Director's Determination, the Director stated, 

"The Complainants alleged that the Respondent engaged in disparate treatment between 

airport users, resulting in economic discrimination. They claimed that the Respondent 

leased airport property to nonaeronautical users, specifically Arrowhead Plastics 

Engineering (Arrowhead) and The Pilot Center, Inc. operated by Brett Curenton 

(Curenton) with terms more favorable than those given to the Complainants. [FAA 

Exhibit 1, Item 1 pages 32, 33] To support this allegation the Complainant compared the 

renewal negotiations for McDonough to the renewal of the Arrowhead lease." 

[FAA Exhibit 1, Item 2, page 19-20] 

"The record confirmed that the current Arrowhead lease was renewed prior to the adoption of a 

new standard lease; accordingly, Arrowhead was not treated more favorably than the 

Complainants." [FAA Exhibit 1, Item 2, page 21] 

On Appeal, the Complainants argue that, 

"Again, the Director has failed to understand the facts in this case. Curenton IS 

an aeronautical user that DOES HAVE access to the runway. [Emphasis in the 

original] As can be seen on Complainant's exhibits C-2 and CA-8, Curenton 

owns a hangar adjacent to the airport runway. He operates a flight school that is 

an aeronautical function. To say that Curenton is not similarly situated to the 

Complainants is completely wrong. And it is in error to find that Arrowhead 

was not treated more favorably than McDonough or Barnett when Arrowhead's 

lease was renewed on October 9, 2009, and McDonough and Barnett's leases 

were not renewed on July 30, 2007, and October 3, 2010, respectively. The 

record amply supports this fact. " 

[FAA Exhibit 1, Item 1, page 12] 

In its Reply to the Appeal, the City states, 

Complainants argue that the Director erred by finding that Curenton is not 

similarly situated to them. While Complainants may be correct in stating that 

Curenton is an aeronautical tenant the Director's finding otherwise is a harmless 

error. The Director's conclusion that Curenton is not similarly situated is valid 

because Curenton 's lease was not set to expire until June 15, 20I 3, whereas the 

Complainants' leases had already expired or were set to expire soon after the 

Complaint was filed. [See Director's Determination at 7, 22 (citing R. Item 7, at 

9-10, 34); see also Item I, Ex. 51 at Ex. B). Moreover, Complainants do not 

assert that the Director's misstatement about Curenton was prejudicial. Rather, 

all of Complainants' allegations of prejudicial errors are related to Arrowhead's 

lease. 

[FAA Exhibit 1, Item 3, page 10, fn 9] 

25 
The City additionally argues, 

In finding that the City was not in violation of Grant Assurance 22, the Director 

compared Complainant McDonough's lease with Arrowhead's lease and found 

that because Arrowhead is a nonaeronautical tenant, does not have airfield 

access, and would not be impacted in the same was as aeronautical tenants if the 

Airport were relocated, it is not similarly situated to the Complainants. 

[FAA Exhibit 1, Item 2, page 9] 

The Director's apparent misidentification of the Curenton lease as nonaeronautical does not 

materially change the outcome of the Director's Determination, nor does the Complainant allege 

that the misidentification was in any way prejudicial. A review of Complainant's exhibit C-8 

identifies The Pilot Center operated by Brett Curenton as an aeronautical use with airfield access. 

[FAA Exhibit I, Item 1, exhibit CA-8]. However, the Complainants' have not alleged or 

provided evidence that Curenton received a longer or more favorable lease term upon expiration 

of its lease in June 2013. Rather, the issue on Appeal is whether the City unjustly discriminated 

against the Complainants by allowing Arrowhead, a nonaeronautical tenant, to renew its lease 

after the City refused to renew the Complainant's aeronautical lease. 

The Director provided a thorough analysis in the Determination of why Arrowhead and the 

Complainants were not similarly situated for the purposes of Grant Assurance 22. The evidence 

shows that Arrowhead is not an aeronautical tenant and the Complainants, by virtue of their lease 

agreements to hangar aircraft on the airport, are aeronautical tenants. Aeronautical tenants and 

nonaeronautical tenants are not similarly situated and may be treated differently. [FAA Exhibit 

I, Item 2, page 22-22] 

As identified in the Director's Determination, Arrowhead Plastics Engineering, Inc., assumed its 

lease effective July 6, 1989, and the lease was extended on October 5, 2009 for a period of five 

years set to expire on August 31, 2014. [FAA Exhibit 1, Item 2, page 21] There was no dispute 

in the Director's Determination that the Arrowhead lease was for a nonaeronautical user that was 

not permitted to engage in aeronautical activities on the airport, and where that nonaeronautical 

leasehold was separated from the airfield by a state highway resulting in no airfield access. FAA 

Order 5190.6B describes the responsibilities under Grant Assurance 22 assumed by the owners 

or sponsor of public use airports developed with Federal assistance. Among these is the 

obligation to treat in a uniform marmer those users making the same or similar use of the 

airport [emphasis ours] and to make all airport facilities and services available on reasonable 

terms without unjust discrimination. [See FAA Order 5190.6B, Chapter 9, Section 9.6] 

In Vincent DeSciose, Jr., and Omaha Airplane Supply, Inc., d/b/a Aero Realty Company v. City 

of Long Beach, CA, FAA Docket No. 16-99-12 (December 13, 2001) (Final Decision and 

Order), the issue of whether two entities, Westland, identified as a developer and DeSciose 

identified as a fixed-base operator, was a critical element in the review. The FAA wrote, "[i]f 

Westland is characterized as a developer and DeSciose as a fixed-base operator, the two could 

26 
not be considered similarly situated and the Complainant could not prevail on a claim of unjust 

economic discrimination ... The FAA could review this complaint and evaluate allegations of 

unjust discrimination under the grant assurances only if both enterprises were characterized as 

aeronautical and were similarly situated." 

The decision further states, "If both Westland and DeSciose are characterized as developers, 

they might be similarly situated, but would not fall under the grant assurances designed to protect 

aeronautical users. In that case, an issue would have been raised relevant to DeSciose's standing 

and whether he would have been permitted to bring this Part 16 complaint forward. The FAA 

could review this complaint and evaluate allegations of unjust discrimination under the grant 

assurances only if both enterprises were characterized as aeronautical and were similarly 

situated. The Complainant characterized Westland in the appeal as an aeronautical provider and 

characterized its own enterprise as a fixed-base operator, which is also an aeronautical provider." 

(Vincent DeSciose, Jr., and Omaha Airplane Supply, Inc., d/b/a Aero Realtv Company v. City of 

Long Beach, CA, FAA Docket No. 16-99-12 (December 13, 2001) (Final Decision and Order) 

Page 27) 

Grant assurance 22, Economic Nondiscrimination, prohibits only unjust economic 

discrimination, not all economic discrimination. The principle of unjust economic 

discrimination requires a party who has been allegedly discriminated against to be "similarly 

situated" to an alleged preferred party in order to establish unjust economic discrimination under 

assurance 22. [See RIT -182, LLC v. Portage County Regional Airport Authority, FAA Docket 

No. 16-05-14, (March 29, 2007) (Final Agency Decision), page 12.] 

The FAA has acknowledged that several factors can distinguish parties that a sponsor can justly 

treat differently without violating its Federal obligations. Such factors may include: period of 

lease, business plan proposed, location of facilities, level of service and amenities, scope of 

services, investment, market conditions, and reasonable actions by the sponsor to promote and 

protect its ability to continue to serve the interests of the public in civil aviation, including the 

enlistment of prudent business practices that may change over time. [See Richard M. Grayson 

and Gate 9 Hangar, LLC v. DeKalb County, GA, FAA Docket No. 16-05-13, (February I, 2006) 

(Director's Determination).] 

The Complainants have failed to demonstrate by a preponderance of evidence that they are 

similarly situated to Arrowhead and were therefore unjustly discriminated against by the terms 

the lease. 

The arguments presented by the Complainants do not support the proposition that the Director 

erred in his finding that Arrowhead and the Complainants were not similarly situated. The 

Director's Determination fmding that the City is not in violation of Grant Assurance 22 is 

upheld. 

Issue 4 - Did the Director err by finding that the Respondent did not grant an exclusive 

right to a non-aeronautical tenant in violation of Grant Assurance 23, Exclusive Rights, 49 

U,S,C., § 40103(e), and 49 U,S,C, § 47017(a)(4)" 

27 
In the Director's Determination, the City acknowledged that Arrowhead was a nonaeronautical 

user but denied tbat they were treated more favorably. The City stated that Arrowhead was not 

similarly situated to the Complainants and tbe Director's analysis found this to be evident. 

Arrowhead is a nonaeronautical user not permitted to engage in aeronautical activities at the 

airport. Additionally, Arrowhead operates its facilities from leasehold that is separated from tbe 

airfield by a state highway and it has no airfield access. 

The Director also stated, "[t]he Complainants argue tbat the Respondent is in violation of Grant 

Assurance 23, Exclusive Rights, in 'conferring exclusive rights on Arrowhead and Curenton by 

allowing them to retain a long term lease but denying that right to tbe Complainants." 

"The Complainants' contention that Arrowhead and Curenton were offered longer 

leases tban the Complainants has been fully analyzed .... As explained in tbe 

analysis of Grant Assurance 22, this assertion by the Complainants is not 

supported by the facts in the record, specifically no other tenants, aeronautical or 

non-aeronautical, were offered longer term leases tban the Complainants." 

[FAA Exhibit I, Item 2 (DD), page 25] 

In their Appeal, the Complainants admit that they are not similarly situated to Arrowhead, 

stating; 

"The City discriminated against the Complainants by signing a longer term 

lease with Arrowhead when Arrowhead, while not similarly situated, should 

not receive more favorable treatment then Complainants because Arrowhead 

is a non-aeronautical user and the Complainants are aeronautical users. " 

[FAA Exhibit I, Item I, page 12] 

The Complainants' add; 

"In addition to the effect of allowing Arrowhead to renew its lease but denying 

Complainants the right to renew their leases is providing an exclusive use to 

Arrowhead. The Complainants go on to state, "The City conferred a right 

upon Arrowhead to renew its lease on October 5, 2009 ... The City should not 

be allowed to refuse to renew the Complainants' leases on either side of the 

Arrowhead lease when it renewed the Arrowhead lease. By doing so, the City 

gave Arrowhead an exclusive right in violation of Grant Assurance 23." 

[FAA Exhibit I, Item I, page 9] 

In its Reply to the Appeal, the City states, 

"Complainants only argument in support for their claim that the Director's 

Grant Assurance 23 findings are in error is that the City 'refuse[d] to renew 

the [Complainant McDonough and Barnett's] leases on either side of the 

Arrowhead lease when it renewed the Arrowhead lease ... Complainants neither 

28 
dispute the Director's factual findings nor do they provide any support to 

contradict the legal precedent on which the Director relied. In fact, they 

concede that Arrowhead is not an aeronautical tenant; and that the City 

instituted the temporary one-year lease after Arrowhead renewed its lease. " 

[FAA Exhibit 1, Item 3, pagel2] 

In order to make a finding of a violation of Grant Assnrance 23, Exclusive Rights, the FAA must 

determine that the City established such inequity in its aeronautical leases (emphasis onrs) as to 

create a significant bnrden on one competitor that is not placed on another provider of a 

particular aeronautical service or activity on the airport. As discussed above, Arrowhead is a 

nonaeronautical tenant and therefore was not granted any right to provide a particular 

aeronautical service that was not provided to the Complainants. In particular, the sponsor may 

not grant a special privilege or a monopoly to anyone providing aeronautical services on the 

airport or engaging in an aeronautical use. The intent of this restriction is to promote 

aeronautical activity and protect fair competition at federally obligated airports. 

An aeronautical activity is defined as any activity that involves, mal,es possible, or is required 

for the operation of aircraft or that contributes to or is required for the safety of such operations. 

Arrowhead, as a nonaeronautical business does not fall under this definition and the 

Complainants and Arrowhead are not in competition with each other. 

The FAA will not normally find the airport sponsor in violation of Grant Assnrance 23, 

Exclusive Rights, where the complainant does not show the airport sponsor granted to another 

entity the exclusive right to conduct a particular aeronautical activity or to provide a particular 

aeronautical service on the Airport. [See Asheville Jet, Inc. d/b/a Million Air Asheville v 

Asheville Regional Airport Authority; City of Asheville, North Carolina; and Buncombe County, 

FAA Docket No. 16-08-02, (Director's Determination, page 20)] 

In order to make a finding of a violation of Grant Assnrance 23, Exclusive Rights, the FAA 

would have to determine that the City established such inequity in its aeronautical leases as to 

create a significant bnrden on one competitor that is not placed on another provider of a 

particular aeronautical service or activity on the airport. As discussed above, Arrowhead is a 

nonaeronautical user and therefore, was not granted any right to provide a particular aeronautical 

service that was not provided to the Complainants. Again, the record shows that Arrowhead 

assumed its lease in 1989 and renewed it in 2009 for five years. This renewal occurred prior to 

the Respondent's adoption of a new standard lease. Arrowhead was not treated more favorably 

than the Complainants - it had an existing lease when the Respondent initiated its new leasing 

policy. 

Complainants do not present any evidence or argument of circumstances beyond which is 

discussed above to establish an exclusive right. The Associate Administrator affirms the finding 

in the Director's Determination that the City is not in violation of Grant Assnrance 23, Exclusive 

Rights. 

Submission of new documents 

29 
The Complainants seek to supplement the Administrative Record by including additional 

documentary evidence. In considering the administrative appeal, new evidence may be 

submitted if it was not previously available and could not have been previously discovered or 

proffered by the parties [14 CFR 16.33(3)] 

In this case, the information submitted to the Record consists of eight (8) exhibits. Four (4) 

of the documents are substantially similar to documents already part of the administrative 

record. Three (3) related to the feasibility study and one (1) is communications between 

complainants and attorney regarding payments by M&R Holdings. Additionally, there 

several emails included between counsels Regina Edwards and Wade Ramsey. These emails 

include information supporting the City's intent and efforts to develop longer term leases for 

on-airport tenants. [FAA Exhibit 1, Item 1, exhibit C-1, email dated 12/3/2013 from Regina 

Edwards regarding 10- year lease with 5-year renewal provisions.] 

The supplemental evidence is accepted. 

VII. CONCLUSION 

The FAA's role in this Appeal is to determine whether the Director erred in findings of fact or 

conclusions of law in issuing the Director's Determination. As noted above, the Complainants 

allege error by the Director in his fmdings on Grant Assurance 22, Economic Non 

Discrimination; Grant Assurance 23, Exclusive Rights; and Grant Assurance 24, Fee and Rental 

Structure, but have failed to back their allegations with supporting fact and evidence. The 

Complainants may not have agreed with the City and its efforts to determine whether the airport 

should remain in its current location or be relocated but as noted above, it is the right of an 

airport sponsor to plan for the future and examine possible relocation options. Although 

temporarily inconvenient for some tenants, as part of its ongoing planning process, airport 

sponsors may appropriately reevaluate any number of factors at the airport, including location. 

Such planning is well within their role as the airport proprietor. Additionally, it appears from 

information provided in the Appeal pleadings that the City has made the decision to remain in its 

current location and has reached out to Complainant's counsel to negotiate longer term leases as 

sought by the Complainants. 

Upon an appeal of a Part 16 Director's Determination, the Associate Administrator must 

determine whether (a) the findings offact made by the Director are supported by a 

preponderance of reliable, probative, and substantial evidence, and (b) each conclusion of law is 

made in accordance with applicable law, precedent, and public policy. [See e.g. Ricks v 

Millington Municipal Airport, FAA Docket No. 16-98-19 (December 30, 1999) (Final Decision 

and Order), p. 21] 

In arriving at a final agency decision on this Appeal, the FAA has reexamined the record, 

including the Director's Determination, the administrative record supporting the Director's 

Determination, the Appeal and Reply submitted by the parties, and applicable law and policy. 

Based on this reexamination, the Administrator concludes that the analysis contained in the 

Director's Determination with regard to Grant Assurance 22, 23 and 24 is supported by a 

preponderance of reliable, probative, and substantial evidence, and is consistent with applicable 

law, precedent, and FAA policy. 

30 
This decision constitutes the fmal decision of the Associate Administrator for Airports pursuant 

to 14 CFR § l6.33(a). 

ORDER 

ACCORDINGLY, it is hereby ORDERED that (l) the Director's Determination is affirmed 

with regards to the sponsor's compliance with Grant Assurance 22, Economic Non 

Discrimination; Grant Assurance 23, Exclusive Rights; and Grant Assurance 24, Fee and Rental 

Structure. The Appeal is dismissed, pursuant to 14 CFR § 16.33. 

RIGHT OF APPEAL 

A party to this decision disclosing a substantial interest in the final decision and order of the 

Federal Aviation Administration may file a petition for review pursuant to 49 U.S.C. § 46110, in 

the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals 

of the United States for the Circuit in which the person resides or has its principal place of 

business. The petition must be filed not later than 60 days after a Final Agency Decision and 

Order has been served on the party. [14 CFR § l6.247(a)] 

~~~·······~·······~····~, 

Et1:to=t~PJ Associate Administrator 

for Airports 

I 

Date 

31 
FEDERAL AVIATION ADMINISTRATION 

INDEX OF ADMINISTRATIVE RECORD 

FINAL AGENCY DECISION 

DOCKET NO. 16-12-11 

FAA Exhibit 1, Item 1- Complainant's Appeal of the Director's Determination dated 

December 13,2013. Includes exhibits: 

CA-l- E-mails between Regina Edwards, Esq., and Wade Ramsey, Esq., OctoberDecember 2013 

CA-2- Wetumpka Municipal Airport Feasibility Study, dated July 2013. 

CA-3- Arrow lease with extension letter dated August 15,2009. 

CA-4- New Standard Lease 

CA-5- Press Release dated March 26, 2013 of study determination. 

CA-6- News article re December 6, 2010, City Council meeting to study airport 

relocation. 

CA-7- E-mails between Regina Edwards, Esq., and Wade Ramsey, Esq., dated 4/15/13. 

CA-8- Airport Layout. 

FAA Exhibit I, Item 2- Director's Determination, Docket No. 16-12-11, McDonough 

Properties, L.L.C., M&R Holding, L.L.C., Tri-D, L.L.C., and Col. Frank Barnett v. City of 

Wetumpka, AL, dated October 10, 2013 

FAA Exhibit 1, Item 3- Reply of the City of Wetumpka to Complainant's Appeal of the 

Director's Determination, dated December 24, 2013 

FAA Exhibit I, Item 4- dated July 3, 2014 -Notice of Extension of Time for Final Agency 

Decision until October 31,2014. 

FAA Exhibit 1, Item 5- dated March 21,2014- Notice of Extension of Time for Final Agency 

Decision until June 10,2014. 

FAA Exhibit 1, Item 6- dated July 3, 2014, the FAA issued a Notice of Extension of Time for 

Final Agency Decision until October 31,2014. 

FAA Exhibit 1, Item 7- dated December 10,2014, the FAA issued a Notice of Extension of 

Time for Final Agency Decision until January 16, 2015. 

Index from Director's Determination: 

Item 1 - Part 16 Complainant dated August 28, 2012, alleges the respondent violated 49 

U.SA.C. §47107(a) and airport Grant Assurances 5, 19, 22, 23, 24 and 38, includes exhibits 1-

70. 

Exhibit 1- Swindle Lease dated September 25, 1992. 

32 
Exhibit 2 - Ramsey Lease description with airport diagram. 

Exhibit 3 - Lease between the City of Wetumpka and Kemp, dated June 16, 2003. 

Exhibit 4- City Counsel Minutes approving Kemp and Curenton Leases dated June 6, 

2003. 

Exhibit 5 -Letter from Ramsey to McCollom, dated June 18, 2003. 

Exhibit 6- Letter from Whorton to Ramsey, dated March 13, 2006. 

Exhibit 7- Letter from Ramsey to Whorton, dated March 15, 2006. 

Exhibit 8- Letter from Whorton to Ramsey, dated March 16,2006. 

Exhibit 9- Lease between Barnett and the City of Wetumpka, dated AprillO, 2007. 

Exhibit 10- Letter from Howard to Ramsey, dated July 30, 2007. 

Exhibit 11 - Letter from Ramsey to Howard, dated August 17, 2007. 

Exhibit 12- Letter from Howard to Ramsey, dated August 22, 2007. 

Exhibit 13- Letter from Howard to Ramsey, dated September 19,2007. 

Exhibit 14- Letter from Ramsey to Howard, dated September 24,2007. 

Exhibit 15- Letter from Howard to Ramsey, dated September 26,2007. 

Exhibit 16- Letter from Howard to Ramsey, dated September 28,2007. 

Exhibit 17- Letter from Ramsey to Howard, dated September 30, 2007. 

Exhibit 18- Letter from Howard to Ramsey, dated October 1, 2007. 

Exhibit 19- Letter from Ramsey to Howard, dated December 2, 2007. 

Exhibit 20- Letter from Howard to Ramsey, dated December 17, 2007. 

Exhibit 21- Letter from Ramsey to Grimes, dated December 19, 2007. 

Exhibit 22- Letter from Ramsey to Howard, dated December 19,2007. 

Exhibit 23- Proposed Lease dated 2007. 

Exhibit 24- Lease Rules and Regulations, dated 2007. 

33 
Exhibit 25- Letter to City of Wetumpka from Ramsey, dated November 11, 2009. 

Exhibit 26- Letter from Barnett to Whorton, dated October 2, 2010. 

Exhibit 27- Letter from Grimes to Ramsey, dated July 22, 2011. 

Exhibit 28 - Letter from Grimes to Whorton, dated September 9 2011. 

Exhibit 29- Letter from Edwards to Ramsey, dated December 21,2011. 

Exhibit 30 - Airport Minimum Standards, dated November 2011. 

Exhibit 31- City Ordinance, dated December 2011. 

Exhibit 32 - Standard Lease Agreement, dated December 2011. 

Exhibit 33- Letter from Ramsey to Edwards, dated January 24, 2012. 

Exhibit 34- Letter from Edwards to Tri-D, dated January 25, 2012. 

Exhibit 35- Letter from Whorton to Tri-D, dated January 26, 2012. 

Exhibit 36- Letter from Edwards to Ramsey, dated January 27,2012. 

Exhibit 37- Letter from Ramsey to Edwards, dated February 2, 2012. 

Exhibit 38- Letter from City of Wetumpka to Tri-D, rejecting back payment dated 

February 13,2012. 

Exhibit 39- Emails exchanged between Ramsey and Edwards from February 27, 2012 

to March 13,2012. 

Exhibit 40- Emai1s exchanged between Edwards and Ramsey dated March 2, 2012. 

Exhibit 41- Letter from Whorton to Ramsey, dated March 2, 2012. 

Exhibit 42- Return of Rent to City from McDonough, dated March 23,2012, 

Exhibit 43- Letter from Ramsey to Black, dated May 12, 2012. 

Exhibit 44- City of Wetumpka- Council Minutes, dated July 2, 2012. 

Exhibit 45- Tri-D- Old Lease dated, August 7, 2007. 

Exhibit 46- Part 13, Informal Complaint filed by Complainants, dated March 23,2012. 

34 
Exhibit 47 -Wetumpka Airport, FAA Form 5010. 

Exhibit 48- By letter, rebuttal by Complainants, dated June 12, 2012, to City's response 

dated May 22, 2012. 

Exhibit 49- By letter, rebuttal by Complainants, dated May 12, 2012, to City's response 

dated May 22, 2012. 

Exhibit 50 - Lease agreement between the City and Alexander H. C. Harwick, dated 

AprillO, 2007, Description oflease area, Assignment of Lease by the City from Harwick 

to Col. Frank Barnett, dated March 15,2010, Notice of Lease Renewal from Frank 

Barnett to the City dated October 3, 2010, letter from the City to Ramsey retuning a 

check to Ramsey and requesting he sign the standard lease and submit the appropriate 

payment and email from City to Ramsey. 

Exhibit 51- City's Response to Part 13 Complaint, dated May 22, 2012. 

Exhibit 52- Federal Aviation Administration ADO response to the Part 13 Complaint. 

Exhibit 53 -Airport Sponsor Assurances, dated April 2012. 

Exhibit 54 - Civil Aircraft N76826 registration. 

Exhibit 55 - Civil Aircraft N25CG registration. 

Exhibit 56 - Civil Aircraft N3089B registration. 

Exhibit 57- Civil Aircraft N8149A registration. 

Exhibit 58 - Civil Aircraft N6518U registration 

Exhibit 59 - David H. Ramsey Affidavit. 

Exhibit 60- Wetumpka Municipal Airport Map. 

Exhibit 61 - Shelby County, Alabama, lease example. 

Exhibit 62 - Tallassee, Alabama, lease example. 

Exhibit 63- Financial Accounting Standards Board No.l3. 

Exhibit 64- Wetumpka Airport FAA Grant History. 

Exhibit 65- McDonough bank letter regarding requested loan, dated August 23,2012. 

35 
Exhibit 66 -Air Evac EMS, Inc. Lease 

Exhibit 67- Barnett Bank letter, dated August 16,2012, regarding lease inqniry. 

Exhibit 68- Emails from the City to Ramsey, dated August 10,2012, regarding vehicle 

parked on airport property with for sale sign and political sign. 

Exhibit 69- Airport Quitclaim Deeds, dated January 23, 1948. (Partially unreadable) 

Exhibit 70 - Curenton Alabama Business Entity Details 

Item 2- First Amended Complainant, dated August 31,2012. 

Exhibit 71- Emails exchange between Mims and Morgan, dated March 2012. 

Exhibit 72- City's Motion to Dismiss the Notice of Default and Termination of Tenancy 

against Complainants. 

Exhibit 73- Emails from the City to Veatch, dated September 2012. 

Exhibit 74- AirNav KMGM Airport information. 

Exhibit 75- FAA Form 5010 Airport Master Record 

Exhibit 76- Article of plans of Wetumpka Airport to conduct study to determine 

possible expansion or relocation, dated December 15, 2010. 

Exhibit 77- Beechcraft King Air C-90GTx Specifications 

Exhibit 78 -Press Clippings 

Exhibit 79- Wetumpka Municipal Airport, Standard Lease Agreement forT-Hanger and 

Tie Downs. 

Item 3- Airport Grant history, dated February 14,2013. 

Item 4-Notice of Docketing, dated September 17,2012. 

Item 5- First Amended Complainant, dated August 31, 2012. 

Item 6- Respondent's Unopposed Motion of the City of Wetumpka for an Extension of Time to 

File Answer, dated October 1, 2012. 

Item 7 - Respondent's Answer to the Complaint and Motion to Dismiss, dated October 22, 

2012. 

36 
Exhibit 1- Wetumpka Municipal Airport, Airport Layout Plan 

Exhibit 2- Feasibility Study, Scope of Services 

Exhibit 3 - Letter from Edwards to Morgan and Grimes (December 22, 2011) 

Exhibit 4- City of Wetumpka, Ordinance No. 2011-14 

Exhibit 5- Airport Rules and Regulations November 2011) 

Exhibit 6 - Emails from Weldon to Edwards (December 2011) 

Exhibit 7-2010 Alabama Public Airport Rates & Charges Survey (September 22, 2010) 

Exhibit 8- Air Evac Lease Agreement (effective March 1, 2012) 

Exhibit 9 - Arrowhead Lease Documents 

Exhibit 10- Barnett Lease (effective AprillO, 2007) 

Exhibit 11 - Letter from Edwards to Chaput (December 21, 2011) 

Exhibit 12 - Letter from Edwards to Barnett (December 21, 2011) 

Exhibit 13- Notice to Vacate and Remove Personal Property (January 27, 2012) 

Exhibit 14- Email exchange between Veatch, Ramsey, and Edwards (September 2012) 

Exhibit 15- Eviction filings (Augnst 29, 2012) 

Exhibit 16- Motion to Dismiss and Dismissal of Eviction Action (September 17, 2012) 

Exhibit 17 - Elmore County Land Records 

Exhibit 18- Email exchange between Whorton, Grimes, and Morgan (August 2011) 

Exhibit 19- ALDOT Inspection Report (November 9, 2011) 

Item 8 - Complainants' Motion for Extension of Time to file a Reply and Answer to the Motion 

to Dismiss, dated October 31, 2012. 

Item 9- Complainants' Reply to the City's Answer and Response to the City's Motion to 

Dismiss, dated November 9, 2012, including Complainant's Amended Exhibit l-79. 

Item 10- Rebuttal of the City of Wetumpka, November 20, 2012. 

37