U.S. Department of Transportation Federal Aviation Administration 

### JAN 1

## 5 2015 Office ofAirport Compliance and Management Analysis

CERTIFIED MAIL- Return Receipt Raymond Veatch, Esq. Attorney at Law 209 Glenburn Avenue 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. FRANKBARNETT 

### v. CITY OF WETUMPKA, FAA Docket No. 16-12-11 Enclosed is a copy ofthe final decision and order ofthe Federal Aviation Administration (FAA) with respect to the above-referenced matter. The Associate Administrator concludes that the analysis and conclusions contained inthe Director's Determination withregard 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 ofreliable, 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 2CERTIFICATE OF SERVICE 

### /iL-/ I HEREBY CERTIFY that on January

# J2, 2015, I caused to be placed inthe United States mail (first class mail, postage paid) a true copy ofthe foregoing document addressed to: For Complainant Raymond Veatch, Esq. Attorney at Law 209 Glenburn Avenue 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 StreetNW, Suite 700 Washington, DC 20006 Email: pablo.nuesch(W,spieglmcd.com

Hand Delivered to: FAA Part 16 Airport Proceedings Docket FAAAirport Compliance and Management Analysis, AC0-100 

# /j(! /l , (

# JtJ

**C7~** (_x'{UtAlA4t,

**-rLt.J/1)!<~** Claudia Roberts Office ofAirport Compliance

and ManagementAnalysis

' IUNITED 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 ofWetumpka, 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 byMcDonough Properties, L.L.C., M&RHolding, L.L.C., Tri-D, L.L.C., and Col. FrankBarnett (Complainants/Appellants) from the Director's Determination of October !0, 20!3, issued by the Director ofthe FAA Office ofAirport Compliance and ManagementAnalysis, pursuantto the Rules ofPractice for FederallyAssisted Airport Enforcement Proceedings found in Title 14 Code ofFederal Regulations (CFR) Part 16. The Complainants argue onAppeal to the Associate Administrator for Airports that the Director's Determination should be reversed because the findings and conclusions are not supported bythe administrative record, regulations, law, regulations orpolicy. The Complainants raise four issues on Appeal: l. The Director erred when he developed the exception of"legitimate business purpose" to allow a sponsorto suspend its Federal obligations. 2. Didthe Director err by finding that the City could violate the self-sustainabilityprovision ofGrant Assurance 24 when itrequired the Complainants to sign a one-year lease? 3. Didthe Director err by finding that the City did not discriminate against the Complainants by allowing a nonaeronautical tenant to renewits lease after the City refused to renewthe Complainant's leases? 4. Didthe Director err by finding thatthe City gave an exclusive right to a nonaeronautical tenantby 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, "TheRespondent's refusal to grant long term leases for hangars at the WetumpkaMunicipal Airport is not a constructive granting ofan exclusive right inviolation ofGrant Assurance 23, 1The Complainants also state that they seek to supplementthe Administrative Record by including documentary evidence that appear as Appeal Exhibits CA-l

- CA-8. The supplemental information inthe Appeal includes communications from the FAA to the County, and visual representations ofthe conditions at the Airport, as well as a chartidentifYing "Obstruction Comparison

- Public Use Airport. [FAA Exhibit 1, Item 1, exhibits C-1

- C-8] Upon an appeal ofa Part 16 Director's Determination, the Associate Administrator must determine whether (a) the findings offactmade by the Director are supported by a preponderance ofreliable, probative, and substantial evidence, and (b) each conclusion oflawis made in accordance with applicable law, precedent, andpublic policy. [See e.g. Ricks v Millington Municipal Aimort, FAA DocketNo. 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 ofapplicable law and policy. Based on this reexamination, the FAA affirms the Director's Determination. The Associate Administrator concludes thatthe Director's Determination is supportedby a preponderance ofreliable, probative, and substantial evidence, and is consistent with applicable law, precedent, and FAA policy. The Complainant's Appeal does not containpersuasive arguments sufficient to reverse any portion ofthe Director's Determination. This decision constitutes the final decision ofthe 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 notcurrently in violation ofits Federal obligations as set forth in its airport grant assurances and existing Federal statutes. Intheir 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, PreservingRights andPowers; Grant Assurance 19, Operation andMaintenance; Grant Assurance 22, EconomicNondiscrimination; Grant Assurance 23, Exclusive Rights; Grant Assurance 24, Fee andRentalStructure; and Grant Assurance 38, Hangar Construction. The Complainants' claimedthat 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 ofits rights and powers. [FAA Exhibit l, Item 2, page l] "The Respondent is contemplatingexpanding the airport, or in the alternative, possibly relocating the airport. In assessing the best options availablefor growth, the Respondentcommissioneda Feasibility Study to determine 

### if the airport can be expanded in itspresent location or 

### if the airportshouldbe

Exclusive Rights, 49 U.S.C., §40103(e) and §47107(a)(4). The record refutes the assertionthat other tenants are being treated more favorably thereby creating an exclusive rights. [FAA Exhibit I, Item 2, page 29] 2relocated. To this end, the airport developeda new, standardlease with a oneyear term. Thepurpose of the one-year lease was toputthe airport users on notice that making improvements to hangars wouldnot be economically advisable pending the outcome of thefeasibility Study. The Respondentanticipates that the one-year term will be in effect for aperiodof threeyears. " [FAA Exhibit 1, Item 2, page 17] "The Respondent'sdecision to limit the term of the lease was notan unreasonable approach to apossible impending change atthe airport. The oneyear leaseputs the tenants on notice that the airport may be in transition and tenants should plan accordingly. Prior leases hadaprovision that requiredthe tenants to get the approval of the Respondentprior to making capital improvements to their hangars. The currentNew StandardLease 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 inviolation ofGrant Assurance 5, Rights and Powers because the Respondent wouldbe required to grantlong-term leases at the request ofits tenants evenwhen doing so would limitthe power ofthe sponsorto manage the airport. FAAExhibit 1, Item 2, page 17] The Director found that the Respondent was not in violation ofGrant Assurance 8, Consultation with Users, in failing to allow adequate participationby airport users. GrantAssurance 8, Consultation with Users, applies to developmentprojects under Title 49, UnitedStates Code. The Feasibility Stud/was not federally funded and accordingly GrantAssurance 8 is notapplicable. Even 

### if GrantAssurance 8 applied, it does notobligate the airportsponsor to necessarilyyieldto the will of one or more airport tenants, it states the airportsponsor 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 inviolation ofGrant Assurance 19, Operation andMaintenance, because

... [F]he Complainants didnotelaborate beyond the allegation that the airport was being operated in an unsafe manner nor didthey articulate in whatmanner the Respondentwas in violation of GrantAssurance 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] 3GrantAssurance 19 to the length of a lease. Rather, this grant assurance requires the airportsponsor to maintain the airport andits facilities in a sqfe and serviceable condition. [FAA Exhibit 1, Item 2, page 20] The Director found that the Respondent was not in violation ofGrant Assurance 22, Economic Nondiscrimination, because "

... [t]he facts do not support the Complainants' claim ofeconomic discrimination. The record indicates that the Respondent has not offered any tenant a lease with a term longer than one year after it adoptedthe New Standard Lease in 2011. No Complainant has provided evidence to support an argumentthat a recent improvement is being impacted by a short term lease. There is no evidence inthe 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 thatthe Respondent was not in violation ofGrant Assurance 23, Exclusive Rights, because "

... [t]he FAA will not normally find the airport sponsor in violation ofGrant Assurance 23, Exclusive Rights, where the complainant does not showthe airport sponsor granted to another entity the exclusive right to conduct a particular aeronautical activity orto provide a particular aeronautical service onthe Airport." [FAAExhibit 1, Item 2, page 25] The Director found that the Respondent was notinviolation ofGrant Assurance 24, Fee and RentalStructure, because "

... [ w]hile the Complainants may not agree with the Respondent's decisionto offer one year leases to all tenants when their current leases expire, the airport owners retain the proprietyright to make such decisions. A sponsor is notrequired to develop any and all parcels ofland in a manner consistent with the wishes ofany one party, but rather may exercise its proprietary rights and powers to develop and administer the airport's land in a manner consistent withthe public's interest." [FAA Exhibit 1, Item 2, page 26] The Director found that the Respondent was not in violation ofGrant 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 ofthe airport sponsor. "This interpretation ofthe grant assurance would be a violation ofthe sponsor's rights andpowers. The Respondent retained the right to approve any improvements to hangars 4onthe airport, in part, based onthe long termplanning for the airport. To adopt the position ofthe Complainants would allowthe tenant to dictate the management ofthe Airport bymaking improvements to a hangar that would thenrequire theAirport to grant a long term lease to the tenant." [FAA Exhibit 1, Item 2, page 27] III. PARTIES 

### A. Aimort The WetumpkaMunicipal Airport (08A or Airport) is a public-use, non-towered airport owned and operated by the City ofWetumpka, Alabama. The 312-acre facility is located six nautical miles west ofWetumpka, Alabama. It has 82-based aircraft with 108 average daily aircraft operations and the hangarfacilities at the airport include 5 T-hangars consisting of approximately 50 units, 10 enclosed hangars, 8 openhangars, and 9 larger corporate/business hangars. The Airporthad 39,400 operations for the 12-month period ending November 2012. It has one fixed-base operator currently operating out ofone ofthe Respondent's airport office buildings. The airport has two runways including a paved runway approximately 3000 feet long and a turfrunway approximately 2800 feet long. The development ofthe Airport has been financed, inpart, with discretionary and entitlement funds providedto the City as the Airport sponsor under the Airport Improvement Program (AlP), authorized by the Airport and Airway ImprovementAct of 1982, as amended, 49 U.S.C. Section 47101, et seq. As a resultthe City is obligatedto complywith the FAA sponsor assurances and related Federal law, 49 U.S.C. Section 47101. The last grant awarded at the time ofthe Complaint in 2012, was for $135,523. The City is also boundby a Quitclaim Deed issued pursuantto the Surplus Property Actof 1944, codifiedas49U.S.C. Sections47151 through47153. [FAA Exhibit 1,Item2,page2] 

### B. Complainants/Appellants The Complainants, for the relevanttime period, were tenants and are users ofthe Wetumpka Municipal Airport. McDonoughProperties, L.L.C. (McDonough) owns a large hangar atthe airport and is managed byDavid Ramsey (Ramsey andMcDonough 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 managedby 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 thathad not expired whenthis Complaint was filed. M&R owns one aircraft. Tri-D, L.L.C. (Tri-D) is owned by Theresa Harvey and managedbyherhusband Richard Chaput. Tri-D has been a hangar tenant at the airport since July 1995. Tri-D is a hold-over tenant; its lease expiredDecember 31, 2011. Tri-D has one aircraft located at its hangar.

5Frank 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 McDonoughbecamethe successor in interest to a ground lease beginning inFebruary 1996, with the original lease commencing on October 1, 1992. The hangar was constructed in mid-1970. The term ofthe original lease stipulated aninitial ten-year term followed by five-year renewal periods "on such terms as theparties hereto shallagree 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 newlease to McDonough containing a five-year initial term with the option for two, five-year renewals. McDonough objectedto certainprovisions in the lease including the five-year term ofthe lease, the forfeiture provisionrequiring termination ofthe lease inthe eventlessee received a felony conviction, and the attorney fee provision. The parties exchanged many letters onthese issues but could not resolve the issues ofthe lease term andthe felony convictionprovision. [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 onDecember 19,2007, withthe FAA Airports District Office (ADO) in Jackson, Mississippi. The Part 13 complaintraised the issues ofthe 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 thatthe lease term was reasonable based onthe facts ofthis particular lease. The ADO also requested that the Respondent review the lease and ensure thatthe lease term offered was reasonable and consistent with the other leases onthe airfield. The ADO agreed that the forfeiture provision must bemodified. [Item 1 page 14 andExhibit 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 1page 15] On September 9, 2011, the ADO, by letter, informed the Respondent ofits response to Mr. Ramsey andrequested that the Respondent continue its efforts to resolve the issues with Mr. McDonough. [FAA Item 1page 15 and Exhibit 28] On December 6 and 30, 2011, the Respondent attorney received emails from the City of Wetumpka, Public Works Director, providing informationregarding sample hangar rates in the local area. FAA Exhibit 1, Item 7 Exhibit 6]

6On December 19,2011, the Respondent adopted Ordinance No. 2011-15 approving a New Standard Lease, pending the outcome ofFeasibility Studyto determine growth options for the airport.3 [FAA Item 7 Exhibit 4] On December 22,2011, the Respondent notified the FAA by letter that ithad adopted a New Standard Lease for commercial operators, and thatthe New Standard Lease would temporarily have a one-year term during thependency ofthe Feasibility Study. [Item 7 Exhibit 3] OnDecember 21, 2011, the Respondent informed Mr. Ramsey by letter thatthe Respondent had adopted a newAirport Minimum Standards Code, Airport Rules and Regulations Code, and New Standard Leases for the Airport. The letter also included a copy ofthe lease for McDonoughto execute andrequested that payment be made for the backrent total listed inthe letter. [FAA Item 1, Exhibit 29] On or about December 29, 2011, McDonoughhand delivered a checkfor back rent to the Respondent, butMcDonough did notexecute the New Standard Lease. [FAA Item 1page 15] On January 24, 2012, Ramsey communicated withthe Respondent requesting a meeting regarding the one-year term proposedin theNew Standard Lease. [FAA Item 1page 16] OnJanuary 27, 25, and 24,2012, respectively, the Respondent servedNotice ofTermination 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 thatthe Respondent calculated the backrent inaccurately and included a check for the overpaid amount. [FAA Item 1page 17 and Exhibit 41] On March 23, 2012, by letter Ramsey returned to the Respondent the refimded rent check with the explanation thatthe check was for the amount requested bythe Respondent and covered rent throughNovember 30,2012. [FAA Item 1 Exhibit 42] On May 12, 2012, Ramsey onbehalfofall the Complainants filed a rebuttal to the Respondent's response to the Part 13 Informal Complaint. [FAA Item 1 page 18 and Exhibit 43]

3The forfeiture clause for a felony conviction that Complainant objected to in the lease agreement offered in 2007 was modified in the New Standard Lease torequire forfeiture ofthe leru;e ifthe felony conviction affected the ability ofthe lessee to carry out their obligations underthe lease agreement. The Complainant did not object to this provision inthe New Standard Lease. 

### 7On August 7, 2012, McDonough made a preliminary application for a loan to make improvements on his hangar. [FAA Item 1page 17] On August 23, 2012, the bankresponded to his inquiry stating that the loan maturity date could not exceed the date ofthe termination ofthe lease. [Exhibit 65] TRI-D Lease On August 7, 2006, Tri-D signed a lease with the Respondentproviding for a 5-yearlease, term expiring August 7, 2011, withtwo, five-year renewal periods. [FAA Item 

### 1page 18 and Exhibit45] 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 1pages 18 and 19] On January 25,2012, the Respondent by letter provided Tri-D with a Notice ofTermination of Tenancy and Notice to Vacate and Remove Personal Property. The Respondent has not sought to enforce the eviction notice. [FAA Item 1page 19 and Exhibit 34] Tri-D attempted to payrent due on February 4, 2012. On February 13,2012, the Respondent informed Tri-D by letter that itreceived the past due rent check and the Respondent would hold the checkpending the receipt ofthe signed lease and a current copy ofTri-D's insurance. [FAA Item 1 page 19 and Exhibit 38] OnFebruary 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 soughtto enforce the eviction notice. [FAA Item 1page 19 andExhibit 35, 35a] OnMay 12, 2012, Tri-Djoined the other Complainants in filing a Part 13 Informal Complaint. [FAA Item 1page 19 and Exhibit 43] On or about August 9, 2012, Tri-D made an inquiry for a loan from a financial institution. The credit unionresponded, stating that a loan would have to bepaid offprior to the expiration ofthe lease. [FAA Item 1 page 19] BARNETT Lease On March 15, 2010, the Respondent approved the assignment ofa 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 renewedsubject to negotiations of such terms as the CITYmay fix." [FAA Item 1, page 20 and Exhibit 9] On October 3, 2010, Barnettinformed the Respondent ofhis intent to renew the lease for his hangar. [FAA Item 1, page 20 and Exhibit 26]

8On May 12, 2012, Barnettjoined the other Complainants in filing a Part 13 Informal Complaint. [FAA Item 1, page 20 and Exhibit43] OnAugust 16, 2012, Barnett informedthe Respondent by letter thatunder the terms ofthe lease he was invokingthe optionto 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 ofM & R, for airport property with an existing hangar. The lease expires on or about June 16, 2013, and provided for two renewal periods offive years. [FAA Item 1, page 21 and Exhibit 3] On May 12, 2012, M & Rjoinedthe other Complainants in filing a Part 13 informal complaint. [FAA Item 1, page 21 and Exhibit 43] In August 2012, M & R made a loan inquiry at its financial institution. Theresponse to the inquiry was that a loan would be denied based on the short term ofthe lease. [FAA Item 1, page 21] Airport tenants The relevant airport tenants consist ofnine Commercial Operators. Six ofthese tenants are operatingunder valid leases. [FAA Item 1page 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 offive years setto expire on August 31, 2014. [FAA Item 7, page 6-7] • Brett Curenton's (Curenton) lease became effective onJune 6, 2003, and will expire on June 15, 2013. [FAA Item 7, page 6 and Item 1, Exhibit4] • M & R entered into a lease on June 16, 2003, for a term oftenyears, with an expiration date ofJune 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 termbeginning January 1, 2012, with an expiration date of December 31,2012. (FAA Item 7, page 6, fu. 6] • Mike Albertson's lease expired onDecember 31, 2011, and the New Standard Lease was executedfor a one-year term expiring onDecember 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 signthe New StandardLease and do nothave 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 atthat 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 inNovember 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. OnAugust 31, 2013, Complainants filed First Amended Complaintwith exhibits 71-79. On October 1, 2012, Respondent filed Unopposed Motion ofthe City ofWetumpka for and Extension ofTime to File Answer. On October 22, 1012, Respondent filed Answer to Complaint and Motionto Dismiss with exhibits 1-19. On October 31, 2012, Complainants filed Motion for Extension ofTime 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. OnNovember 20, 2012, the Respondent filed its Rebuttal. On October 20, 2013, the FAA issued a Director's Determination and found the Cityto be in compliance with its grant assurances. On December 13, 2013, McDonough Properties, LLC, filed an Appeal ofthe 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 WetumpkaMunicipal 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 ofairport layout. OnDecember 24, 2013, the City ofWetumpka filed its Replyto the Complainant's Appeal. OnMarch 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 oftime until October 31,2014. On December 10,2014, the FAA issued an extension oftime until January 16,2015. APPLICABLE FEDERAL LAW AND FAA POLICY The Federalrole incivil aviation has been augmented byvarious legislative actions that authorize programs for providing Federal funds and other assistance to local communities for the development ofairport facilities. In each such program, the airport sponsor assumes certain obligations, eitherby contract orbyrestrictive covenants inproperty 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 inproperty conveyance or grant agreements are important factors in maintaining a high degree ofsafety 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 ofAirport Sponsor Assurances. The Airport Improvement Program Title 49 U.S.C. §47101, 

### etseq., provides for Federal airport financial assistance for the development ofpublic-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, 

### etseq., sets forth assurances to which an airport sponsor agrees as a condition of receiving Federal financial assistance. Upon acceptance ofan AlP grant, the assurances become a binding contractual obligationbetweenthe airport sponsor and the Federal Govermnent. The assurances made by airport sponsors inAlP grant agreements are important factors in maintaining a viable national airport system. Airport Sponsor Assurances As a conditionprecedentto providing airport development assistance under the Airport Improvement Program, 49 U.S.C. § 47107, 

### etseq., the Secretary ofTransportation and, by 11extension, the FAAmust 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 andprocedures to be followed by the FAA in carrying out its legislatively mandated functions related to compliance with Federal obligations ofairport sponsors. The FAA considers it inappropriate to provide Federal assistance for improvements to airports where the benefits ofsuch improvements will not be fully realized due to inherent restrictions on aeronautical activities. The FAA grant assurances that apply to the circumstances set forth inthis Complaintinclude: (l) Grant Assurance 5, 

### PreservingRights andPowers; (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, 

### PreservingRights andPowers, (Assurance 5) requires the airport owner or sponsor to retain all rights and powers necessary to ensure the continued operation ofthe airport consistent with its Federal obligations. This assurance implements the provisions ofthe AAIA, 49 U.S.C. § 47107(a), 

### etseq: Assurance 5 requires, inpertinentpart, that the sponsor ofa federally obligated airport:



### ...will not take orpermit any action which would operate to deprive it of any of the rights andpowers necessary to perform any or all ofthe terms, conditions, and assurances in the grant agreement without the written approval ofthe Secretary, and will actpromptly to acquire, extinguish or modifYany outstanding rights or claims of right of others which would interfere with suchperformance by the sponsor. This shall be done in 

### a manner acceptable to the Secretary. [Assurance 5] Grant Assurance 19, Operation andMaintenance Grant Assurance 19, 

### Operation andMaintenance, implements theprovisions ofthe AAIA, 49 U.S.C., 

### § 47107(a)(7), and requires, inpertinentpart, thatthe sponsor ofa federally-obligated airport assure: 

### The airport andall facilities which are necessary to serve the aeronautical users of the airport, other thanfacilities ownedor controlledby the UnitedStates, shall

4See, 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. 12be operatedat all times in a safe andserviceable condition andin accordance with the minimum standards as may be requiredorprescribedby applicable Federal, state, andlocal agencies for maintenance andoperation. It willnot cause orpermitany activity or action thereon which would interfere with its use for airportpurposes. Itwill suitably operate andmaintain the airport andall facilities thereon or connected therewith, with due regardto climatic and flood conditions. Anyproposal to temporarily close the airport for non-aeronautical purposes must first be approved by the Secretary. Infurtherance of this assurance, the sponsor willhave in effect arrangements for: (1) Operating the airport's aeronautical facilities whenever required; (2) Promptly marking andlightinghazards resulting from airport conditions, including temporary conditions; and, (3) Promptly notifYing airmen of any condition affecting aeronautical use of the airport. Nothing containedherein shall be construedto require that the airport be operated for aeronautical use during temporaryperiods when snow,flood, or other climatic conditions interferewith such operation andmaintenance. Further, nothingherein shall be construedas requiring the maintenance, repair, restoration, or replacement of anystructure or facility which is substantially damaged or destroyeddue to an act of Godor other condition or circumstance beyondthe 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 offlight operations and to protectthe public using the airport. Infact, the prime requirement for local regulations is to control the use ofthe airport in a manner that will eliminate hazards to aircraft and to people onthe ground. As inthe operation ofany 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, EconomicNondiscrimination Grant Assurance 22, Economic Nondiscrimination, requires the owner ofany airport developed withFederal grant assistance to operate the airport for the use and benefit ofthe public and to make it available to all types, kinds, and classes ofaeronautical activity onfair andreasonable terms, and without unjust discrimination. Grant Assurance 22 deals withboththe reasonableness ofairport access andthe prohibition ofadopting unjustly discriminatory conditions as a potential for limiting access. GrantAssurance 22 implements the provisions of49 U.S.C. 

### § 47107(a) (1) through (6), and requires, inpertinentpart, that the sponsor ofa federally obligated airport:

...willmake its airport available as an airport forpublic use on reasonable terms, andwithout unjust discrimination, to all types, kinds, andclasses of aeronautical activities, including commercial aeronautical activities offeringservices to the public at the airport. [Assurance 22(a)]

13...may establish suchfair, equal, andnot unjustly discriminatory conditions to be met by all users of the airport as may be necessary.for the safe andefficient operation of the airport. [Assurance 22(h)]

...may ...limit anygiven 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 thepublic. [Assurance 22(i)] Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to subsection (a) to permitthe sponsor to exercise control ofthe airport sufficientto preclude unsafe and inefficient conditions that would be detrimental to the civil aviationneeds ofthe public. In all cases involvingrestrictions on airport use imposed by airport owners for safety and efficiencyreasons, the FAA will make the final determination onthe reasonableness ofsuch restrictions whenthose restrictions deny or limit access to, oruse of, the airport. [See FAA Order 5190.6B,**~14.3]** FAA Order 5190.6B describes the responsibilities under Grant Assurance 22 assumed bythe owners or sponsor ofpublic use airports developed withFederal assistance. Among these is the obligationto treatin a uniform manner those users makingthe same or similar use ofthe 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 ofan airport developed with Federal assistance is required to operate the airport for the use and benefit ofthe public and to make it available to all types, kinds, and classes of aeronautical activities onreasonable terms and withoutunjust discrimination. [See FAA Order 5190.6B,**~9.l.a]** 

### Grant Assurance 23, ExclusiveRights Grant Assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of49 U.S.C. §§ 40103(e) and 47107(a)(4), and requires, inpertinentpart, that the owner or sponsor ofa federally obligated airport:

...willpermitno exclusive rightfor the use of the airport byanypersons providing, or intending toprovide, aeronauticalservices to thepublic

.

...will not, either directly or indirectly, grant orpermitanyperson,firm, or corporation, the exclusive right at the airport to conductany 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 uponthose who engage in aeronautical activities, FAA has takenthe position thatthe application

14ofany umeasonable requirement or any standard that is applied in anunjustly discriminatory manner may constitute the constructive grant ofan exclusive right. Courts have found the grant ofan exclusive right where a significant burden has beenplaced 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 ofintent to exclude others unless it can be demonstrated that the entire leased area is presently required and will be immediately used to conductthe activities contemplatedbythe lease. [See Order, Sec. 8.9.d Space Limitation.] FAA Order 5190.6B provides additional guidance onthe application ofthe statutory prohibition against exclusive rights and FAApolicyregarding exclusive rights at public-use airports. [See Order, Chapter 8.] 

### Grant Assurance 24, Fee andRentalStructure Grant assurance 24, Fee andRentalStructure, addresses fees the owner or sponsor levies on airport users in exchange for the services the airport provides. Section 47107(a)(13) of49 U.S.C. requires, inpertinentpart, that the owner or sponsor ofa federally obligated airport "will maintain a fee and rental structure for the facilities and services being providedto airport users which will make the airport as self-sustaining as possible under the circumstances existing atthatparticular airport." In addition, under§ 47107(a), fees levied on aeronautical activities mustbe reasonable and not unjustly discriminatory. Grant assurance 24 satisfies the requirements of§ 47107(a)(13). Itprovides, in pertinent part, that the owner or sponsor ofa federally-obligated airport agrees that it will maintain a fee and rental structure consistent with assurances 22, EconomicNondiscrimination, and 23, Exclusive Rights. The airport owner or sponsor agrees to establish a fee andrental 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 oftraffic and economy ofcollection. The intent ofthe 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 obligationto make an airport available for public use does notpreclude the owner or sponsor from recovering the cost ofproviding the facility. The owner or sponsor is expected to recover its costs through the establishment offair 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).] 

### GrantAssurance 38,Hangar Construction Section47107(a) (21) of49 U.S.C. requires, in pertinentpart, that the owner or sponsor ofa federally obligated airport:

15...andaperson who owns an aircraft agree that a hangar is to be constructedat the airport for the aircraftat 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 andconditions 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 withtheir 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 ofFederalproperty for airport purposes. These obligations are incorporated in grant agreements andinstruments ofconveyance in orderto protect the public's interest in civil aviation and to ensure compliance with Federal laws. The FAAAirport Compliance Program is designed to ensure the availability ofa national system ofsafe and properly maintained public-use airports operated in a manner consistentwith the airport owners' Federal obligations and the public's investment in civil aviation. The Airport Compliance Program does not control or direct the operation ofairports. Rather, it monitors the administration ofthe valuable rights pledgedby airport sponsors to the people of the United States in exchange for monetary grants and donations ofFederal property to ensure thatthe public interest is being served. FAA Order 5190.6B sets forth policies andprocedures for the FAAAirport Compliance Program. The Order establishes the policies andprocedures to be followed by FAA personnel in carrying out the FAA'sresponsibilities for ensuring airport compliance. Itprovides basic guidance for FAApersonnel in interpreting and administering the various continuing commitments madeto the United States by airport owners as a condition of receiving a grant ofFederal funds or the conveyance ofFederal property for airport purposes. The Order analyzes the various obligations set forth inthe standard airport sponsor assurances, addresses the nature ofthose assurances, addresses the application ofthose assurances inthe operation ofpublic-use airports, and facilitates interpretation ofthe assurances by FAA personnel. The FAA Compliance program is designed to achieve voluntary compliance withFederal obligations acceptedby owners and/or operators ofpublic-use airports developed with FAAadministered assistance. Therefore, in addressing allegations ofnoncompliance, the FAA will make a determination as to whether an airport sponsor is currently in compliance with the applicable Federal obligations. Consequently, the FAAwill consider the successful action bythe airport to cure any alleged orpotential past violation ofapplicable Federal obligationto be grounds for dismissal ofsuch allegations. [See e.g. Wilson Air Center v. Memphis andShelby CountyAirportAuthority, FAA DocketNo. 16-99-10, (8130/01) Wilson Air Center, LLCv FAA, 372 F.3d807 (61 h Cir. 2004)] FAA Enforcement Responsibilities The Federal Aviation Act of 1958, as amended (FAAct), 49 U.S.C. § 40101, et seq., assigns the FAAAdministratorbroadresponsibilities for the regulation ofair commerce inthe interests of

16safety, security, and development ofcivil aeronautics. The Federalrole in encouraging and developing civil aviation has been augmented byvarious 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, eitherby contract or byrestrictive 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 inmaintaining a high degree ofsafety 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 FAAhas a statutory mandate to ensure that airport owners comply withtheir Federal grant assurances. The Complaint Process Pursuantto 14 CPRPart 16, § 16.23, a person directly and substantially affected by any alleged noncompliance may file a complaint withthe FAA. The complainant shall provide a concise but complete statement ofthe facts relied upon to substantiate each allegation. The complaint shall also describe howthe complainant was directly and substantially affected bythe things done or omitted by the respondents. [14 CPRPart 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. Inrendering its initial determination, the FAAmay rely entirely on the complaint and the responsive pleadings provided. Eachparty shall file documents it considers sufficient to present all relevant facts and arguments necessary for the FAAto determine whether the sponsor is in compliance. [14 CPRPart 16, § 16.23] The proponent ofa motion, request, or order has the burden ofproof. A party who has asserted an affrrmative defense has the burden ofproving the affirmative defense. This standard burden ofproofis consistent with the Administrative Procedure Act (APA) and Federal case law. The APA provision states, "[e]xcept as otherwise provided by statute, the proponent ofa rule or order has the burden ofproof." [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, whichrequires that the complainant must submit all documents then available to support his orher complaint. Similarly, 14 CPR § 16.29 states that"[ e]achparty shall file documents that it considers sufficient to present all relevant facts and argument necessary for the FAAto 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 ofthe factual and legal basis for the Director's determination on each claim made bythe complainant. A party adversely affected bythe 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 ofa Director's determination, "a party adversely affected bythe Director's determination may file an appeal with the Associate Administrator within 30 days after the date ofservice ofthe initial determination;" however, "(i)f

17no appeal is filed within the time period specified inparagraph (b) ofthis section, the Director's determination becomes the final decision and order ofthe FAAwithout further action. A Director's determination that becomes final because there is no administrative appeal is not judiciallyreviewable." Title 14 CPR§ 16.247(a) defines procedural recourse forjudicial review ofthe Associate Administrator's final decision and order, as provided in49 U.S.C., § 46110 or section 519(b)(4) ofthe 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 inconcluding the Respondent is not currently in violation ofits grant assurance obligations because those findings and conclusions were not supportedbythe administrative record, law and regulations orpolicy. Specifically, the Complainants raise the following four issues on Appeal: 1. Did the Director errwhen he held itwas not unreasonable under Grant Assurance 22, 

### EconomicNondiscrimination, to limit tenants to a one-year lease? 2. Did the Director errby finding that the Respondentwas "notinviolation ofGrant Assurance 24, 

### Fee andRentalStructure, as a result ofthe New Standard Lease with a oneyearterm"? 3. Did the Director errwhen he found that the record failed to support the assertion that nonaeronautical users were treated more favorably? 

### 4. Did the Director errby not finding that the Respondent gave an exclusive right to a non-aeronauticaltenant inviolation ofGrant Assurance 23, 

### ExclusiveRights, 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 ofWetumpka did not violate Grant Assurance 5, PreservingRights andPowers; Grant Assurance 19, Operation andMaintenance; Grant Assurance 22, EconomicNondiscrimination; Grant Assurance 23, Exclusive Rights; Grant Assurance 24, Fee andRental Structure; and Grant Assurance 38, Hangar Construction. The specifics ofthese findings are detailed inthe above Section II, Summary ofthe Director's Determination. In the Appeal, the Complainants' take issue withthe Director's findings on Grant Assurance 22, 23 and 24. Issue 1 - Did the Director errwhen he held itwas not unreasonable under Grant Assurance 22, 

### EconomicNondiscrimination, to limittenants to a one-year lease?

18The Directorheld in his Determinationthat "the [City's] decision to limitthe term ofthe lease was not anunreasonable approach to a possible impending change at the airport. The one-year leaseputs the tenants on notice that the airport may be in transition and tenants shouldplan accordingly." [FAA Exhibit 1, Item 2, page 17] The Director also stated, "InPompano, the lease was the standard lease with a two year term. The Airport inPompano did not articulate a business purpose for the limited lease term. In Pompano, the FAA found that the airport sponsor was in violation ofits grant assurance for failure to grant long term leases. The facts inPompano can be distinguished from the present set offacts because the Respondent in this complainthas 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 businesspurpose' to do so. '[citation omitted] Such a 'policy' flies in theface of logic andreason. To allow an airport to circumvent itsfederal obligations under the guise of havinga 'legitimate businesspurpose'wouldgive airports carte blanche authority to violate the grant assurances whenever the airport finds it convenient to do so.

.... The 'legitimate businesspurpose' exception to airport obligations is a dangerousprecedent createdby the Director here that mustbe 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 businesspurpose" hasgone away (thefeasibility study ended March 26, 2013),[/ootnote omitted] by correctly concluding that the City does not needto move the airport, it has notnegotiatedwith 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 communicatedto Complainants' Counsel that it is in theprocess of developing a standardlease thatwill extendthe leases to a I0year term with 5 year renewals. "[citation omitted] 

# tJ

5The Complainants have notprovided further information regarding cnrrent (post- Director's Determination) lease negotiations other thanto state that the City has communicated to Complainant's counsel that it is inthe process of developing a longerterm lease. 19[FAA Exhibit 1, Item 1, pages 5-6] In its Reply to the Appeal, the City states, "Complainants'firstallegation of error, that the Director incorrectly developed a "newpolicy" that 'allows a sponsor to violate its grantassurances 

### if

there exists a 'legitimate businesspurpose' to do so' (Appeal at5, citing Director's Determination at 22) mischaracterizes the Director's findings. The Director neither heldthat a 'legitimate businesspurpose' couldever excuse an airport sponsor from its Federal obligations, nor developed apolicy that wouldallow 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 notprovide any credible arguments orpoint to any evidence in the administrative record contradicting thefact that the City was actively exploring alternatives to realize thefuture growth of the Airportwhen it temporarily implemented the standardone-year lease, or that it was (and is) within a City'sproprietarypowers 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 DocketNo. 16-00-14, FinalAgency Decision (July 10, 2002) ("Pompano") (Appeal at 7-8); (2) even 

### if the City did have a "legitimate businesspurpose" for considering thefuture of the Airport, the City "did not undertake thefeasibility study until after it haddenied 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 thefeasibility study has been completedandnow the City is in theprocess of developing a new standardhangar 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 businesspurpose is not validbecause it arose after the City 'denied Complainants' request to exercise their renewal options. Complainants are conflating thefacts. The lease negotiations that occurredbetween the City andComplainantMcDonough in 2007were relatedto a different lease than the one at issue before the Director. The lease at issue in the Complainants' complaint was the City's temporary standardone-year lease. The Director correctly found that the City's 

### 20adoption of a one-year tookplace in 2011, after the City commissionedafeasibility study for thefuture of the Airport. Thereafter, the City didnot offer, or enter into, a longerterm lease with any otherAirporttenant. Contrary to the Complainants' assertions, the validity of the City's businesspurpose for adopting a one-year lease does nothinge on prior events." [FAA Exhibit 1, Item 3, pages 6-7] In a footnote to the Reply, the City also stated, "Itshouldbe notedthat in Pompano, the complainant was being deniedaccess to the airport. Here, Complainants have notbeen denied access. On the contrary, all of the Complainants have hadaccess to theAirportandcontinue to do business from each of their respectiveAirport leaseholds. " [FAA Exhibit 1, Item 3, page 6, fn 5] Inthis case, the Complainants and Arrowhead are not similarly situated (as discussed inmore detail in Issue 3-4). InPompano, the entities were consideredto be similarly situated. Additionally, as the Directorpoints out, the City engagedin a thorough review via a feasibility study to determine whether itwas more advantageous to relocate the airport 

### or have itremain in its current location. [FAA Exhibit 1, Item 2, page 17] This actionjustifiedthe City's use ofa temporary leasepending the outcome ofthe study. The Director did not articulate a 'newpolicy' ofa legitimate business purpose butrather found thatthatthe City had an identified goal and was proceeding in a prudent fashion. To grant longerterm leases whenitwas unclear ifthe airport was goingto remain in its present location wouldhave been irresponsible and potentially harmfulto the existingtenants. Intheir Appeal, the Complainants provided additional information and exhibits. One exhibit contained an email from ReginaB. Edwards, counsel for the Respondent, dated December 3, 2013, to Wade Ramsey, counsel for the Complainant, and stated inpart, "As I toldyou before, we areproposinga standardlease with an initial]0year term with two 5-year renewal options. In the event of new construction we wouldconsider adjusting the term to allowfor depreciation of the improvements. The rental rates wouldbe basedon fair rental value of the leasedproperty andthen adjustedby the Consumer Price Index as we discussed. I believe we are very close on finalizing a lease thatwill be acceptable to allparties. Although the City wouldlove to have this process completedandthe new leases inplace byJanuary 1, 2014, we areprevented from doing so since we will nothave all the necessary information tofinalize the lease by then, so it appears that itwill be mid-January orso before this will be done." [FAA Exhibit 1, Item 1, exhibit CAl, page 5 of6] This information supports the City's contentionthat it is now offering longer term leases as soughtbythe Complainants. The gravamen ofthe Complaintwas thatthe City was not offering lease terms longerthan one year. The evidence thatthe City is movingto 10-year leases for tenants essentially moots the Complainant's argumentthat they have been denied longer term leases. The Complainants have not metthe burden ofprovingthatthe Director erred in his analysis with Pompano. The fact thatthe Complainants were not satisfied with theprocess ofthe feasibility study does notmeanthatthe airport sponsor was not within itsproprietaryrights to engage inthe

21study. As noted earlier, the fact thatthe City has concluded this study and determined that longer term (10 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 errby finding that the Respondentwas "notin violation ofGrant Assurance 24, 

### Fee andRentalStructure, as a result ofthe New StandardLeasewith a one yearterm"? 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 ofthe Respondent regarding the development ofthe Airport, the Respondent has the proprietary right to make such decisions. It maybe 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 ofthe airport and more to do with their desire for long term leases and maintaining the current status ofthe Airport. The Complainants have notprovided any information to support its contentionthat 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 atthe Airport with leases due for renewal, except for the Complainants, have signedthe new one year lease." [citation omitted] [FAA Exhibit l, Item 2, page 25] The Complainants argue onAppeal, "The Director erredby finding that the City could[not} violate the selfsustainabilityprovision of GrantAssurance 24 when it requiredthe 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 andequipment necessary to operate an airportwith one-year leases. " [FAA Exhibit 1, Item 1, page 14]

22To support this argument, the Complainants state, "The Director makes thepoint that the Complainants hadnotmade applications for hangar improvement loans -justthat they hadwritten letters inquiring about such loans- andthat the Complainants hadnotapproachedtheAirportfor approval of hangar improvements

.... To the contrary, it is intuitively obvious that a businessperson does notgo to the expense of submittinga loan application 

## if the loan application will be denied

....Likewise, it is intuitively obvious that a prudent businessperson wouldnotapproach a lessor seekingpermission to make improvement or expansions 

## if it were impossible tofund those improvements or expansions. In this instance there is sufficient evidence in the recordto supporta 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 itspolicies. " [FAA Exhibit 1, Item 1, page 13] In its Reply to the Appeal, the City states, The Director correctly determined that the City justifiedthe one-year lease terms basedon, 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 tofurther develop the airport. Further, the City argues, Besides Complainants own speculations about how a'prudent businessperson ' wouldact, the Appeal again fails toprovide any evidence or analysis in support of their claim. Instead, Complainants offer a laundry list of leaseprovisions that couldhave made the lease morepalatable to them

...Federal obligations should not require the City to unconditionally bendto the Complainants' demands. [FAA Exhibit 1, Item 3, pages 8-9] The Director's Determination did not state that "the City couldviolate the se(f-sustainability provision of GrantAssurance 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 thatthe Respondent's business decision is impacting the airports ability to be self-sustaining." [FAAExhibit 1, Item 2, page 27] Inthe Appeal, the Complainants disagree with the Director and state, "In this instance there is sufficient evidence in the recordto supporta 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 notself-sustainable because of itspolicies." [FAAExhibit 1, Item 1, page 14]

23Grant Assurance 24, Fee andRental Structure, has more flexibility than other Assurances in that compliance is generally determined overthe longer term. Anairport sponsor could not reasonably be found in violation ofthis assurance byjudging its financial performance overjust one year. In this case, the airport sponsor was taking a proactive approach in determining the future location ofthe airport. Section 17 ofFAA Order 5190.6B (Airport Compliance Handbook) states: "Ifmarket conditions or demand for air service do notpermitthe 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 maynot 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 intheir ability to be fully selfsustaining, given differences in conditions at each airport. The purpose ofthe self-sustaining rule is to maintain the utility ofthe Federal investmentin the airport. [FAA Order 5190.6B, Section 17.5] The Complainant's argument is not persuasive. The City was well within its proprietaryrights to examine whether the airport should remain in its current location or move to a new location. It was a prudentbusiness 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 ofthe 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 thinkthe Director erred in the findings and conclusions or why those findings are not supported bythe administrative record, regulations, law, orpolicy. Rather, the Complainants continue to argue that they should have had the rightto a lease term oftheir choosing, notwithstanding the City's determination to evaluate the future ofthe airport and its location. The airport sponsor is expected to make appropriate business decisions that will make the airport as self-sustaining ascircumstances will permit while maintaining a fair andreasonable pricing structure for aeronautical users. Grant assurance 24, Fee andRentalStructure, does notrequire airport sponsors to establish fees that will general the greatest possible income. [See Thermco Aviation, Inc., and A-26 Company v. City ofLos Angeles, Los Angeles Board ofAirport Commissioners, and Los Angeles World Airports, FAADocket No. 16-06-07, (June 21, 2007) (Director's Determination).] The Director's finding that the City was not inviolation ofGrant Assurance 24, Fee andRental 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?

24In the Director's Determination, the Director stated, "The Complainants alleged thatthe Respondent engaged in disparate treatment between airport users, resulting in economic discrimination. They claimed thatthe Respondent leased airport property to nonaeronautical users, specifically Arrowhead Plastics Engineering (Arrowhead) and The Pilot Center, Inc. operatedby Brett Curenton (Curenton) withterms more favorable than those given to the Complainants. [FAA Exhibit 1, Item 1 pages 32, 33] To supportthis allegationthe Complainant compared the renewal negotiations for McDonoughto therenewal ofthe Arrowhead lease." [FAA Exhibit 1, Item 2, page 19-20] "The record confirmed that the current Arrowhead lease was renewed priorto the adoption ofa new standard lease; accordingly, Arrowhead was nottreated more favorably than the Complainants." [FAA Exhibit 1, Item 2, page 21] OnAppeal, the Complainants argue that, "Again, the Director has failed to understand thefacts in this case. Curenton IS an aeronautical user thatDOESHAVE 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 aflightschool that is an aeronautical function. To say that Curenton is notsimilarly situatedto the Complainants is completely wrong. Andit is in error tofind thatArrowhead was not treatedmorefavorably than McDonough or Barnett whenArrowhead's lease was renewedon October 9, 2009, andMcDonough andBarnett's leases were not renewedonJuly 30, 2007, and October 3, 2010, respectively. The recordamply supports thisfact. " [FAA Exhibit 1, Item 1, page 12] In its Reply to the Appeal, the City states, Complainants argue that the Director erredby finding that Curenton is not similarly situatedto 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 notsimilarly situated is valid because Curenton 's lease was notset to expire untilJune 15, 20I3, whereas the Complainants' leases hadalready expiredor were setto expire soon after the Complaint was filed. [See Director'sDetermination at 7, 22 (citing R. Item 7, at 9-10, 34); see also Item I, Ex. 51 atEx. B). Moreover, Complainants do not assert that the Director's misstatement about Curenton wasprejudicial. Rather, all of Complainants' allegations of prejudicial errors are relatedto Arrowhead's lease. [FAA Exhibit 1, Item 3, page 10, fn 9]

25The City additionally argues, Infinding thatthe City was not in violation of GrantAssurance 22, the Director compared Complainant McDonough's lease withArrowhead's lease and found that becauseArrowhead is a nonaeronautical tenant, does not have airfield access, andwouldnot be impacted in the same was as aeronautical tenants 

### if the Airportwere relocated, it is notsimilarly situatedto the Complainants. [FAA Exhibit 1, Item 2, page 9] The Director's apparent misidentification ofthe Curenton lease as nonaeronautical does not materially change the outcome ofthe Director's Determination, nor does the Complainant allege that the misidentification was in any way prejudicial. A review ofComplainant'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 evidencethat Curenton received a longer or more favorable lease term upon expiration ofits lease in June 2013. Rather, the issue onAppeal is whetherthe 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 Directorprovided a thorough analysis in the Determination ofwhy Arrowhead and the Complainants were not similarly situated for the purposes ofGrant Assurance 22. The evidence shows that Arrowhead is not an aeronautical tenant and the Complainants, by virtue oftheir lease agreements to hangar aircraft on the airport, are aeronautical tenants. Aeronautical tenants and nonaeronautical tenants are not similarly situated and may betreated differently. [FAA Exhibit 

### I, Item 2, page 22-22] As identified inthe 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 offive years setto 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 notpermitted 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 ofpublic use airports developed with Federal assistance. Among these is the obligationto treat in a uniform marmer those users making the same or similar use ofthe airport [emphasis ours] and to make all airport facilities and services available onreasonable terms withoutunjust discrimination. [See FAA Order 5190.6B, Chapter 9, Section 9.6]

In Vincent DeSciose, Jr., and OmahaAirplane Supply, Inc., d/b/a Aero Realty Company v. City ofLong Beach, CA, FAADocketNo. 16-99-12 (December 13, 2001) (Final Decision and Order), the issue ofwhether two entities, Westland, identified as a developer and DeSciose identified as a fixed-base operator, was a critical element in the review. TheFAA wrote, "[i]f Westland is characterized as a developer and DeSciose as a fixed-base operator, the two could

26notbe considered similarly situated and the Complainant could not prevail on a claim ofunjust economic discrimination

...The FAA could reviewthis complaint and evaluate allegations of unjust discrimination under the grant assurances only ifboth enterprises were characterized as aeronautical and were similarly situated." The decision further states, "Ifboth Westland and DeSciose are characterized as developers, they might be similarly situated, butwould not fall under the grant assurances designed to protect aeronautical users. In that case, an issue would have beenraised relevant to DeSciose's standing and whether he would have been permitted to bring this Part 16 complaint forward. The FAA couldreview this complaint and evaluate allegations ofunjust discrimination under the grant assurances only ifboth 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, FAADocketNo. 16-99-12 (December 13, 2001) (Final Decision and Order) Page 27) Grant assurance 22, EconomicNondiscrimination, prohibits only unjust economic discrimination, not alleconomic discrimination. The principle ofunjust economic discrimination requires a party who has been allegedly discriminated againstto 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 FAAhas acknowledged that several factors can distinguish parties that a sponsor canjustly treat differently without violating its Federal obligations. Such factors may include: period of lease, business planproposed, location offacilities, level ofservice and amenities, scope of services, investment, market conditions, and reasonable actions bythe sponsor to promote and protect its ability to continue to serve the interests ofthe public in civil aviation, including the enlistment ofprudentbusiness practices that may change overtime. 

### [See Richard M. Grayson and Gate 9 Hangar, LLC v. DeKalb County, GA, FAA DocketNo. 16-05-13, (February I, 2006) (Director's Determination).] The Complainants have failed to demonstrate by a preponderance ofevidence that they are similarly situated to Arrowhead and were therefore unjustly discriminated against by the terms the lease. The arguments presented bythe Complainants do not supportthe propositionthat the Director erredin his finding that Arrowhead and the Complainants were not similarly situated. The Director's Determination fmding that the City is not inviolation ofGrant 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 ofGrantAssurance23,ExclusiveRights, 49 U,S,C., § 40103(e), and 49 U,S,C, § 47017(a)(4)"

27Inthe Director's Determination, the City acknowledged thatArrowhead was a nonaeronautical user butdenied tbatthey were treated more favorably. The City stated that Arrowhead was not similarly situatedto the Complainants and tbe Director's analysis found this to be evident. Arrowhead is a nonaeronautical user notpermittedto 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 ithas no airfield access. The Director also stated, "[t]he Complainants argue tbat the Respondent is in violation ofGrant Assurance 23, Exclusive Rights, in 'conferring exclusive rights onArrowhead and Curentonby allowing themto retain a long termlease but denying thatright to tbe Complainants." "The Complainants' contentionthat Arrowhead and Curenton were offered longer leases tbanthe Complainants has been fully analyzed

.... As explained intbe analysis ofGrant Assurance 22, this assertion by the Complainants is not supportedbythe facts inthe record, specifically no other tenants, aeronautical or non-aeronautical, were offered longer term leases tbanthe 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 ArrowheadwhenArrowhead, while notsimilarly situated, should not receive morefavorable treatment then Complainants becauseArrowhead is a non-aeronautical user andthe Complainants are aeronautical users. " [FAA Exhibit I, Item I, page 12] The Complainants' add; 

### "In addition to the effect of allowingArrowheadto renew its 

### lease but denying Complainants the right to renew their leases is

### providing an exclusive use to Arrowhead. The Complainants go onto state, 

### "The City 

### conferreda right uponArrowheadto renew its lease on October 5, 2009

... The City shouldnot be allowedto refuse to renew the Complainants' leases on either side of the Arrowheadlease when it

### renewed the Arrowhead lease. By doing so, the City 

### gave Arrowheadan exclusive right in 

### violation of GrantAssurance 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 GrantAssurance 23findings are in error is 

### that the City 

### 'refuse[d] to renew the [Complainant McDonough andBarnett's] leases on either side of the Arrowheadlease when it 

### renewed the Arrowheadlease

... Complainants neither

28

### dispute the Director's factualfindings nor do theyprovide any support to contradict the legalprecedent on which the Director relied. Infact, they concede thatArrowhead is 

### not an aeronautical tenant; andthat the City instituted the temporary one-year lease afterArrowhead renewed its lease. " [FAA Exhibit 1, Item 3, pagel2] In orderto make a finding ofa violation ofGrant Assnrance 23, 

### Exclusive Rights, the FAA must determine that the City established such inequity inits aeronautical leases (emphasis onrs) as to create a significant bnrden on one competitor that is not placed on another provider ofa 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. Inparticular, 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 ofthis 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 ofaircraft or that contributes to or is required for the safety ofsuch 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 ofGrant 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 orto provide a particular aeronautical service on the Airport. 

### [See Asheville Jet, Inc. d/b/a Million Air Asheville v Asheville Regional Airport Authority; City ofAsheville, North Carolina; and Buncombe County, FAA DocketNo. 16-08-02, (Director's Determination, page 20)] In order to make a finding ofa violation ofGrant Assnrance 23, 

### Exclusive Rights, the FAA wouldhave to determine that the City established such inequity in its aeronautical leases as to create a significantbnrden on one competitorthat is not placed on another provider ofa particular aeronautical service or activity onthe 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 itin2009 for five years. This renewal occurredprior to the Respondent's adoption ofa new standard lease. Arrowhead was not treated more favorably than the Complainants

- ithad an existing lease whenthe Respondent initiated its new leasing policy. Complainants do not present any evidence or argument ofcircumstances beyond which is discussed above to establish an exclusive right. The Associate Administrator affirms the finding in the Director's Determinationthat the City is not in violation ofGrant Assnrance 23, 

### Exclusive Rights. Submission ofnew documents

29The Complainants seek to supplement the Administrative Record by including additional documentary evidence. In considering the administrative appeal, new evidence may be submitted ifit 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 ofeight (8) exhibits. Four (4) ofthe documents are substantially similar to documents already part ofthe 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'srole inthis Appeal is to determine whether the Director erred in findings offact or conclusions oflawin issuing the Director's Determination. As noted above, the Complainants allege error bythe Director inhis fmdings on Grant Assurance 22, Economic Non Discrimination; Grant Assurance 23, Exclusive Rights; and Grant Assurance 24, Fee andRental Structure, buthave 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 orbe relocated but as noted above, it is the right ofan airport sponsor to plan for the future and examine possible relocation options. Although temporarily inconvenient for some tenants, as part ofits ongoing planning process, airport sponsors may appropriately reevaluate any number offactors atthe airport, including location. Suchplanning is well within their role as the airport proprietor. Additionally, it appears from information provided inthe 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 bythe Complainants. Upon an appeal ofa Part 16 Director's Determination, the Associate Administrator must determine whether (a) the findings offact made bythe Director are supported by a preponderance ofreliable, probative, and substantial evidence, and (b) each conclusion oflawis 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 bythe parties, and applicable lawand policy. Based onthis 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 ofreliable, probative, and substantial evidence, and is consistent with applicable law, precedent, and FAA policy. 30This decision constitutes the fmal decision ofthe Associate Administrator for Airports pursuant to 14 CFR 

### § l6.33(a). ORDER ACCORDINGLY, itis hereby ORDERED that (l) the Director's Determination is affirmed withregards 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 inthe final decision and order ofthe Federal Aviation Administration may file a petition for review pursuantto 49 U.S.C. § 46110, in the United States Court ofAppeals for the District ofColumbia Circuit or in the court ofappeals ofthe United States for the Circuit inwhich the personresides orhas its principal place of business. The petitionmust be filed not later than 60 days after a Final Agency Decision and Orderhas been served on the party. [14 CFR § l6.247(a)]**~~~·······~·······~····~,**

# Et1:to=t~PJ Associate Administrator

for Airports 

## I Date

31FEDERAL AVIATION ADMINISTRATION INDEX OF ADMINISTRATIVE RECORD FINAL AGENCY DECISION DOCKET NO. 16-12-11 FAA Exhibit 1, Item 1- Complainant's Appeal ofthe 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- WetumpkaMunicipal Airport Feasibility Study, dated July 2013. CA-3- Arrowlease with extension letter dated August 15,2009. CA-4- New Standard Lease CA-5- Press Release dated March 26, 2013 ofstudy determination. CA-6- News article re December 6, 2010, City Council meeting to study airport relocation. CA-7- E-mailsbetweenRegina Edwards, Esq., and Wade Ramsey, Esq., dated 4/15/13. CA-8- Airport Layout. FAA Exhibit I, Item 2- Director's Determination, DocketNo. 16-12-11, McDonough Properties, L.L.C., M&R Holding, L.L.C., Tri-D, L.L.C., and Col. FrankBarnett v. City of Wetumpka, AL, dated October 10, 2013 FAAExhibit 1, Item 3- Reply ofthe City ofWetumpkato Complainant's Appeal ofthe Director's Determination, dated December 24, 2013 FAA Exhibit I, Item 4- dated July 3, 2014 -Notice ofExtension ofTime for Final Agency Decisionuntil October 31,2014. FAA Exhibit 1, Item 5- dated March 21,2014- Notice ofExtension ofTime for Final Agency Decisionuntil June 10,2014. FAA Exhibit 1, Item 6- dated July 3, 2014, the FAA issued a Notice ofExtension ofTime for Final Agency Decisionuntil October 31,2014. FAA Exhibit 1, Item 7- dated December 10,2014,the FAAissued a Notice ofExtension of Time for Final Agency Decisionuntil January 16, 2015. Indexfrom 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 betweenthe City ofWetumpka and Kemp, datedJune 16, 2003. 

### Exhibit 4- City Counsel Minutes approving Kemp and Curenton Leases dated June 6, 2003. 

### Exhibit 5 -Letterfrom Ramsey to McCollom, dated June 18, 2003. 

### Exhibit 6- Letter from Whortonto 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 ofWetumpka, 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 ofWetumpka from Ramsey, datedNovember 11, 2009. 

### Exhibit 26- Letter from Barnettto 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 Whortonto 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 ofWetumpkato Tri-D, rejecting backpayment dated February 13,2012. 

### Exhibit 39- Emails exchanged between Ramsey andEdwards 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, datedMarch 2, 2012. 

### Exhibit 42- Return ofRent to City from McDonough, dated March 23,2012, 

### Exhibit 43- Letter from Ramsey to Black, dated May 12, 2012. 

### Exhibit 44- City ofWetumpka- 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 betweenthe City and Alexander H. C. Harwick, dated AprillO, 2007, Description oflease area, Assignment ofLease by the City from Harwick to Col. Frank Barnett, dated March 15,2010, Notice ofLease Renewal from Frank Barnett to the City dated October 3, 2010, letter from the City to Ramsey retuning a checkto Ramsey and requesting he signthe 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 AircraftN25CGregistration. 

### Exhibit 56

- Civil AircraftN3089B registration. 

### Exhibit 57- Civil Aircraft N8149A registration. 

### Exhibit 58

- Civil AircraftN6518U 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 -AirEvac 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 betweenMims and Morgan, dated March 2012. 

### Exhibit 72- City's Motion to Dismiss the Notice ofDefault and Termination ofTenancy 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 ofplans ofWetumpka Airport to conduct study to determine possible expansion orrelocation, 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 ofDocketing, dated September 17,2012. Item 5- FirstAmended Complainant, dated August 31, 2012. Item 6- Respondent's Unopposed Motion ofthe City ofWetumpka for an Extension ofTime 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 ofServices 

### Exhibit 3 - Letter from Edwards to Morgan and Grimes (December 22, 2011) 

### Exhibit 4- City ofWetumpka, 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- AirEvac Lease Agreement (effective March 1, 2012) 

### Exhibit 9

- Arrowhead Lease Documents 

### Exhibit 10- BarnettLease (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 betweenVeatch, Ramsey, and Edwards (September 2012) 

### Exhibit 15- Eviction filings (Augnst 29, 2012) 

### Exhibit 16- Motion to Dismiss and Dismissal ofEviction 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 ofTime 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 Motionto Dismiss, datedNovember 9, 2012, including Complainant's Amended Exhibit l-79. 

### Item 10- Rebuttal ofthe City ofWetumpka, November 20, 2012.

37