Benjamin H. Klein

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

- 7724 Fax: (203) 375

- 9397 bhk@lopal.com

UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Pro

- Flight Avi ation, Inc.

Complainant, v. Docket No. 16

- 15

- 03 City of Renton, Washington

Respondent. / COMPLAINANT’S MOTION FOR LEAVE TO FILE SU R
- REBUTTAL TO

RESPONDENT’S REBUTTA L Complainant Pro

- Flight Aviation, Inc. (“PFA”), pursuant to 14 C.F. R. § 16.19 and §16. 23(j ), hereby moves for leave to file and files this Sur

- rebuttal to the City of Renton, Washington ’s (“Respondent” or “City” ) Rebuttal (“Rebuttal”) to PFA’s Reply to the Answer (“Reply”). The Sur

- rebuttal is necessary and should be per mitted in order to allow PFA to address new matters that occurred subsequent to the filing of the Reply; namely, the continuing retaliatory measures that Respondent has taken against PFA in response to PFA’s filing of the Complaint in this matter. For the foregoing reasons, PFA hereby moves for leave to file the brief sur

- rebuttal set forth below.2 SUR
- REBUTTAL Respondent Continues to Retaliate Against PFA for Filing the Part 16 Complaint As discussed in the Reply, Respondent is requiring PFA to submit a n ew application for an Operating Permit to conduct FBO operations at the Airport , despite the fact that PFA notified the Airport of its intention to renew before the permit expired on July 31, 2015

. Declaration of Bernard A. Paholke in Support of Reply, dat ed September 3, 2015 (“Paholke Reply Dec.”) ¶ 6, 8. Respondent argues that this punitive action is warranted because the Operating Permit imposes a 90 day advance notice req uirement for renewal in order to permit the Airport the opportunity to “ consider a ny changed conditions ” and PFA, admittedly, did not provide notice of its intention to renew 90 days in advance . Declaration of Jonathan Wilson in Support of Renton’s Rebuttal, dated October 7, 2015 (“Wilson Rebuttal Dec.”) ¶ 2.
However, i nstead of merely having PFA wait for 90 days from its notification while the Airport contemplates “changed conditions,” Respondent is requiring PFA to submit an entirely new application for an Operating Permit , and has stated that the process will take “at least” three mo nths and that the outcome is uncertain (i.e., PFA may not be awarded the permit)

. Paholke Reply Dec. ¶ 3. This retaliatory measure serves no legitimate business purpose: it appears designed solely to threaten PFA ’s business

– one that is owne d by a husband and wife team that has faithfully served the GA users of the Airport for over 20
years , and has invested millions of dollars in equipm ent and infrastructure to do so

. C onveniently , Respondent’s approach also allows it to argue, incorrectly ( see Reply , Sec tion
IV ) , that PFA no longer has standing to bring the Part 16 Complaint, and thus , that the FAA should ignore the very serious allegations contained therein.3 Since the Reply was filed, Respondent has taken its desire to punish PFA to new lengths. Now, ove r two months after PFA submitted its completed Operating Permit

a pplication, Respondent is requiring it to sub mit a business plan demonstrating how PFA will be able to profitably operate within the boundaries of the 750 Parcel. Declaration of Bernard
A. Pa holke in Support of PFA’s Sur

- Rebuttal, dated October 16 , 2015 (“Paholke Sur

Rebuttal Dec .”) , Ex. A

. Respondent justifies this late, burdensome request by stating that the “facts and circumstances” have changed since PFA’ s original Operating P ermit was g ranted in 2011 and that the Airport needs more information regarding PFA’s proposed operations

. Wilson Rebuttal Dec. ¶ 3

. PFA has been operating on the field for over 20 years, its business model and the scope of its operations are well known, and it s si ster company, Renton Gateway Center always makes it s requir ed payments to the City on time; thus, it is hard to understan d what additional information or proof of profitability Respondent could reasonably require

. Moreover, the Operating Permit application does not call for a business plan, nor was PFA required to submit one with its applic ation in 2011. Complaint, Ex. 5 at pg. 20 (Airport Leasing Policies). All that is required is a description of the commercial aeronautical activities to be performed and the means an d methods for providing such , all of which PFA submitted with its application

. Wilson Rebuttal Dec., Ex. JW Rebuttal 1. Additionally, and as further evidence of its violations of Grant Assurance 22, Respondent has not require d others seekin g Operating Permits to submit business plans in support of their Operating Permit applications. Paholke Sur

- Rebuttal Dec . ¶ 3

. Upon information and belief, Respondent did not require a business plan from Rainier Flight4

Services (a similarly situated user) when it entered into a lease wi th Respondent in November
201 4, to provide FBO services from a smaller footprint than that which is occupied by PFA , or when it entered into the lease for the 820 Parcel in August 2015

. 1 Clearly then, Respondent’ s stated reas on for requiring a business plan in support of its Operating Permit application should be disregarded as nothing other than pretext that allows it to punish PFA for raising questions regarding Respondent’s grant assurance compliance, and for daring to chal lenge the operations of the City’s largest employer at the Airport

. As of the date of this filing, PFA continues to provide F BO services at the Airport and the City has not asked it to desist, despite PFA’s dire ct inquiries on this point. Paholke Reply Dec . ¶¶ 9

- 12

. Respondent’s strenuous argument to the FAA that PFA lacks authorization to operate at the A irport and thus standing to bring its complaint, combined with its silence to PFA’s inquiries as to whether it is permitted to operate while its applicat ion is being processed , is further proof that Respondent created the Operating Permit “issue” solely to : (1) dissuade PFA from continuing with its Part 16 Complaint ; and (2) manufacture the unavailing argument that PFA now lacks standing to continue challe nging Respondent’s unlawful acti ons. Complainant respectfully submits that the FAA should see Respondent’s tactic s for what they are

– bullying

– and consider them in the overall context of PFA’s allegations.

1 As discussed in the Reply, Rainier’s “lease” of the 820 Parcel provides further eviden ce that it was not offered to PFA in good faith after Boeing expr essed interest in 2013. Reply pgs. 16

- 17

. Rainier is subleasing the parcel back to the City until June 2019 (and paying no rent), during which time Respondent will be leasing it to Boeing. Paholke Sur

- Rebuttal Dec., Ex. B

. Thus, the 760/770/820 Parcels will all be occupied by Boeing until mid

- 2019 at the earliest.5 CONCLUSION For the foregoing reasons, Pro

- Fligh t respectfully requests the FAA to grant its Motion for Leave to File a Sur

- R ebuttal and consider the arguments contained therein when deciding the above

- captioned matter

. Dated October 16 , 2015

Respectfully submitted,

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

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

- 7724 Fax: (203) 375

- 9397 bhk@lopal.com Attorney for Complainant6 CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Motion for Leave to file Sur

Rebuttal to be served electronically, with prior written consent, on the following:

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

Dated October 16 , 2015

_/s/_________________________ Benjamin H. Klein