UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

Friends of the East Hampton Airport, Inc. et al., 

 Complainants, 

v. 

Town of East Hampton, NY 

 Respondent. 

FAA Docket No. 16-15-02 

RESPONDENT TOWN OF EAST HAMPTON, NEW YORK’S BRIEF 

IN SUPPORT OF ITS MOTION TO DISMISS AND ANSWER TO THE COMPLAINT 

Designation of persons to receive service for the Town of East Hampton, New York: 

Elizabeth Vail 

Town Attorney 

Town of East Hampton 

159 Pantigo Road 

East Hampton, NY 11937 

EVail@EHamptonNY.Gov 

W. Eric Pilsk 

Catherine van Heuven 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave., NW, Suite 800 

Washington, DC 20036 

epilsk@kaplankirsch.com 

cvanheuven@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

 
2

I. INTRODUCTION 

The current Town Board of the Town of East Hampton (the “Town”) is making a 

concerted effort to address a number of long-standing capital needs at the East Hampton Airport 

(“HTO” or the “Airport”). This has included a detailed evaluation of Airport capital and 

maintenance needs, an examination of long-neglected management issues, and a complete 

review of Airport financing. Having done so, the Town is now implementing a comprehensive 

plan to address airport improvement needs to ensure that the Airport is well-maintained, wellmanaged, and remains safe. 

In the past year alone, the Town has issued almost $1.5 million in bonds to fund the costs 

of installing a new Airport Weather Operating System (“AWOS”), new lighting on Taxiway 

“A”, new paving on Runway 4-22, and engineering work for myriad other capital improvement 

projects including construction of a perimeter fence and a comprehensive pavement evaluation 

study. The Town also has installed a permanent seasonal air traffic control tower, and completed 

a comprehensive Terminal Instrument Procedures (“TERPS”) analysis to address known 

obstructions. The Town has adopted an Airport Capital Improvement Plan (“ACIP”) and an 

Airport Maintenance Plan that, together, identify over $10 million in projects that need to be 

completed in the next several years. Less visibly, new Airport management has begun to put into 

place management systems to address outstanding leasing issues, pavement inspection and 

maintenance issues, and a variety of other day-to-day operational concerns. 

The Town also has had to face the fact that paying for all of the needed work is expensive 

and that current Airport revenues will be insufficient to pay for all of that work. Accordingly, 

following a comprehensive – and public – process, the Town increased its fuel flowage fee for 

the first time in almost 20 years and raised landing fees by 10% last year. In addition, the 
3

Airport is actively seeking revenues from non-aeronautical sources, including leases, to further 

enhance Airport revenues. 

In the midst of all of these changes, Complainants filed this Complaint, which focuses on 

past shortcomings while altogether ignoring the Town’s current efforts to address those very 

problems. But as Complainants acknowledge, a sponsor is in compliance with its Sponsor 

Assurances when it understands its obligations, has a plan to address compliance issues, and is 

executing that plan. In this case, the record shows plainly that the Town is actively carrying out 

plans to redress past issues and to implement a comprehensive maintenance plan. Had 

Complainants actually desired to resolve the matter, they would have engaged in a meaningful 

discussion, during which they would have learned that the Town is either currently in 

compliance with its sponsor obligations or willing to agree to a Corrective Action Plan with the 

FAA to resolve lingering compliance issues. 

However, the fact that much of the Complaint focuses on projects that were completed 

before the Complaint was filed, are nearing completion, or are well underway, exposes 

Complainants’ true motive simply to attack the Town for pursuing unrelated matters which 

Complainants oppose. Indeed, Complainants failed to raise a number of issues in their limited 

effort to “resolve” their complaints prior to filing and effectively walked away from the preComplaint discussions they initiated when the Town asked them to prioritize the projects they 

wanted built and to provide other information regarding their claims. 

First, Complainants are simply annoyed that they will have to pay more to use the Airport 

as the Town adjusts fees to pay for the very capital projects Complainants demand. 

Complainants would like the Town to accept federal grants and therefore, reduce the costs to 

them for using the Airport. Complainants are also unhappy that the Town is pursuing Airport 
4

noise rules that will restrict operations by some of the aircraft they operate. Unable to argue that 

they should not pay their fair share of Airport costs and seeking leverage to forestall the noise 

rules, Complainants filed this Complaint based on an incomplete factual investigation that failed 

to discover the Town’s ongoing compliance efforts. 

The facts demonstrate that all of the projects identified in the First Cause of Action have 

either been completed or are moving toward completion under a definite schedule. The Town is 

clearly aware of its maintenance obligations, has plans in place to meet those obligations, and is 

actively implementing those plans. Thus, the First Cause of Action fails to state a claim that the 

Town is in violation of any of its sponsor obligations. 

Second, and similarly, Complainants’ claims in their Second Cause of Action are 

baseless. Complainants allege that the first phase of the rehabilitation of Runway 4-22 – in 

which the runway pavement is being used as a temporary taxiway – is somehow an attempt to 

permanently convert Runway 4-22 into a taxiway. That is simply not true. The pavement was 

constructed to full runway specifications and will be incorporated into a fully rehabilitated 

Runway 4-22 when the runway project is completed as called for in the Airport Capital 

Improvement Plan and on the FAA-approved Airport Layout Plan (“ALP”). The Town’s 

rehabilitation of Runway 4-22 is consistent with the ALP, and there is no compliance issue with 

its interim use as a taxiway. 

Finally, the Third Cause of Action focuses on Airport finances, and in particular, on the 

Airport’s landing fees. As the Town has previously demonstrated, the recent increases to the 

Airport landing and fuel flowage fees are fully justified in part by the cost of financing the 

Airport capital and maintenance projects that must be completed in the coming years, including 
5

projects Complainants themselves demand. Complainants may not like having to bear their fair 

share of those costs, but there is nothing improper or unreasonable about making them do so. 

Nonetheless, the Town acknowledges that aspects of the Airport’s revenue structure need 

to be addressed. The Town acknowledges that through administrative action over the years, the 

weight-based landing fee schedule has come to include a number of discrepancies in fee levels 

between aircraft of similar weights. The Town is committed to revising its landing fee schedule 

this summer to remedy those discrepancies. Second, the Town acknowledges that many of the 

older leases for non-aeronautical property do not charge full, fair market rents. Those leases do 

not include subordination clauses, however, and the Town is not readily able to increase rents. 

Nonetheless, the Town acknowledges that rents are below fair market rates and agrees to enter 

into a Corrective Action Plan with the FAA to assure compliance going forward. 

Because the Town is either actively pursuing plans to address the issues raised by 

Complainants or is willing to enter into a Corrective Action Plan to address certain issues, the 

Complaint fails to state any valid claims of a current compliance violation. Accordingly, the 

Complaint should be dismissed. 

II. STATEMENT OF FACTS 

A. Overview of Airport 

East Hampton Airport is a public-use general aviation airport located in the Town of East 

Hampton in Suffolk County, New York. The Town owns the Airport and maintains and operates 

it for the benefit of the Town, residents, and visitors. The Airport serves a wide-variety of 

helicopters and fixed-wing aircraft. There are approximately 160 based aircraft at HTO. While 

there is no commercial airline service at the Airport, there are flight services that provide nonscheduled, on-demand flight services. Declaration of East Hampton Airport Director J. Charlton 

(“Charlton Dec.”) at ¶ 5. 
6

The Airport has a main terminal and an executive terminal. The Airport has three 

runways: a main runway (Runway 10-28) and two cross-wind runways (Runway 16-34 and 

Runway 4-22). Runway 4-22 is temporarily closed and is currently being used only for taxiing 

purposes. Id. at ¶ 11; id. at Exhibit (“Ex.”) 1 (Airport Layout Plan); id. at Ex. 5 (2010 Master 

Plan Generic Environmental Impact Statement (hereinafter “2010 Master Plan” at pp. 1-3). 

There are currently two fixed-base operators (“FBOs”) that provide aircraft fueling at the 

Airport: (1) Sound Aircraft Services (“Sound”) and Myers Aero Services Inc. (“Myers”). Id. at ¶ 

13. In addition to the two FBOs, there are several aeronautical tenants that operate hangars at the 

Airport. Id. at ¶ 14. There also are approximately 15 non-aeronautical tenants at the Airport. Id. 

B. Comprehensive Airport Management Plan 

The Town has been engaged in a comprehensive master planning process over the last 

decade. The Town conducted a master plan update study between 2004 and 2007 to identify 

essential airport improvement activities. Charlton Dec. at Ex. 5 (2010 Master Plan at vii). In 

2010, the Town completed and adopted a Generic Environmental Impact Review for the 

recommended improvement projects, including runway rehabilitation, obstruction removal, 

replacement of the Automated Weather Observing System (“AWOS”), taxiway lighting, terminal 

ramp rehabilitation, and replacement of the perimeter fence. Id. at Ex. 5 (2010 Master Plan at 

pp. 3-4). In 2011, the FAA issued its conditional approval for the ALP Update that addressed the 

airport improvement projects identified through the master planning process. Id. at ¶ 8(b) and 

Ex. 4 (FAA conditional ALP Approval). Immediately thereafter, the Town commissioned its 

consultants to develop a comprehensive Airport management plan. Id. at ¶ 8(b) and Ex. 5 

(December 1, 2011, consultant presentation). 

In December 2013, the Town approved the 2014-2018 Airport Capital Improvement 

Plan, which identified $5.26 million in capital projects which had secured FAA conditional 
approval 

York Sta

identified

projects t

Airport M

T

plan. Ev

for a new

purchase

fuel farm

taxiway l

(Bond R

the condi

ago, on 

planning

and Ex. 9

A

consensu

(Runway

currently

Runway 

status of 

and which 

ate Environm

d on a separa

that had not 

Maintenance

The Town is

ven before th

w seasonal a

d improved 

m. Id. at ¶ 8

lighting, run

esolutions). 

ition of exist

April 21, 20

, design, and

9 (Bond Res

1. Ai

A major outc

us plan for 

y 10-28) in 

y-closed Run

16-34 into a

the Runway

also had com

mental Quali

ate Airport M

yet undergo

e Plan). 

s taking acti

he ACIP was

air traffic co

data collect

8(c). Last y

nway rehabil

 The Town

ting infrastru

015, the To

d engineerin

olutions). 

irport Runw

come of the 

future runw

approximate

nway 4-22 

a permanent

ys is detailed

mpleted the 

ity Review A

Maintenance

one environm

ive steps to 

s approved in

ontrol tower

tion technolo

year, the To

litation, and 

 also hired a

ucture and p

own issued a

ng work for 

ways 

2004-2010 

way use at H

ely its curre

after resolu

t taxiway. I

d below. 

7

environmen

Act (“SEQR

e Plan an add

mental review

implement 

n 2013, the T

r, completed

ogy, and set

own issued b

installation 

an engineeri

prioritize airp

a bond for 

airport capit

master plan

HTO that c

ent configura

ution of rele

Id. at Ex. 5 (

ntal review p

RA”). At th

ditional $5.1

w under SEQ

its compreh

Town approv

d an update 

ttled environ

bonds for al

of an FAA-c

ing firm in 

port improve

$500,000 to

tal improvem

nning proces

calls for: (1

ation; (2) re

evant safety

(2010 Maste

process purs

he same tim

19 million in

QRA. Id. at 

hensive airp

ved construc

to its Airpo

nmental clai

lmost one m

certified AW

September 2

ement proje

o pay for ne

ment project

ss was the d

) keeping t

epaving and

y issues; an

er Plan at p.

suant to the 

e, the Town

n capital cos

Ex. 8 (ACIP

port manage

ction and fun

ort Security 

ims related t

million dollar

WOS. Id. at 

2014, to eva

cts, and just

ecessary sur

ts. Id. at ¶¶

development

the main run

d reactivatin

d (3) conve

. 1). The cu

New 

n also 

sts for 

P and 

ement 

nding 

Plan, 

to the 

rs for 

Ex. 9 

aluate 

t days 

rveys, 

¶ 9-10 

t of a 

nway 

ng the 

erting 

urrent 
8

Runway 10-28 is 4,255 feet long and 100 feet wide and is the primary-use runway. The 

majority of the traffic is handled by this Runway, as it is dimensionally the largest runway, 

provides more navigational aids and equipment to pilots, and is structurally in the best condition. 

Charlton Dec. Ex. 4 (2007 Master Plan Update at I-1). Runway 10-28 is currently in good 

condition, and the Town has an active preventive maintenance plan. Id. at ¶ 11(a). 

Runway 16-34 is a cross-wind runway that is 2,060 feet long and 75 feet wide. It is 

designated as a cross-wind runway. The 2010 Master Plan calls for the eventual conversion of 

this Runway to a permanent taxiway. Id. at Ex. 5 (2010 Master Plan at pp. 1-3). 

The 2007 Master Plan Report revealed that this Runway was in fair condition with high 

severity block cracking. Id. at Ex. 4 (2007 Master Plan Update at I-1). The Town patched the 

existing cracks in Runway 16-34 last year. Id. at ¶ 11(b) and Ex. 10 (Runway 16-34 invoices). 

Runway 16-34 is currently safe; there are no cracks or vegetation, and there is no standing water 

on the Runway. Id. at 11(b). 

Runway 4-22 is a secondary cross-wind runway that is 2,501 feet long and 100 feet wide. 

In 2006, the FAA rated this Runway as failed. Since then, this Runway has been closed and has 

been used for taxiing operations. Id. at Ex. 4 (2007 Master Plan Update at I-2). The approved 

Master Plan calls for Runway 4-22 to be reactivated as a runway when Runway 16-34 is 

converted into a permanent taxiway. Id. at Ex. 5 (2010 Master Plan at pp. 2-3). 

The FAA is well aware of these plans. The 2011 FAA-approved ALP clearly indicates 

that Runway 4-22 is currently closed, but that it will be reactivated in the future. Id. at Ex. 1 

(ALP). Before any rehabilitation of Runway 4-22, however, appropriate safety and 

environmental implications must first be addressed. For example, Daniels Hole Road penetrates 

the Runway Safety Area at the Runway 22 end. In addition, activation of Runway 4-22 will 
increase 

has the m

Master P

evaluatio

determin

In

purposes

project w

Runway 

the Runw

T

master p

Maintena

for repair

complete

$353,600

Town pu

Baseline 

Resolutio

invoices)

airport us

noise impac

most signific

Plan at pp. 6

on of all Air

ning next step

n the interim

 to ensure t

was complete

is returned 

way. Id. at ¶

2. Ta

The Town id

plan process

ance Plan). 

r of the Taxi

ed state envi

0 on July 3, 

ublished a bi

King Corp

on 2014-128

). The new 

sers. Id. at ¶

ct in areas to 

ant residenti

6 & 119). T

rport paveme

ps and timin

m, the Town h

that the exi

ed in 2014 a

to full servi

¶ 11(c) and E

axiway “A”

dentified the

s, and the 

The Town a

iway “A” lig

ironmental r

2014. Id. a

id for the w

oration on N

89). The wo

lighting sys

¶ 11(f). 

the southwe

ial concentra

The Town ha

ents. Id. at 

ng for future 

has repaved

isting uses o

nd was cond

ce, the Tow

Ex. 11 (Runw

” Lighting

e need to re

work is no

approved de

ghting on Ap

reviews and

at Ex. 14 (R

ork on Sept

November 6

ork was com

stem is state

9

est of the Ai

ation of hom

as directed i

¶ 10. The r

rehabilitatio

the portion

on the close

ducted to ful

wn will only 

way 4-22 rep

ehabilitate th

ow complete

sign work an

pril 17, 2014

d approved t

esolution 20

ember 18, 2

6, 2014. Id

mpleted late

-of-the-art a

irport in Wai

mes around th

its engineer 

results of the

on of Runwa

of the Runw

ed Runway 

ll runway sp

need to rep

paving invoic

he lighting 

e. Id. at ¶

nd the devel

4. Id. at Ex. 

the issuance

014-836 and

2014, and ul

d. at Ex. 14 

e last year. 

and has not g

inscott, whic

he Airport. I

to conduct 

ese studies w

ay 4-22. 

way currently

remain safe

pecifications

ave the rem

ces). 

on Taxiway

¶ 11(f) and

lopment of b

14 (Resoluti

e of bonds i

d Resolution 

ltimately acc

(Resolution

Id. at Ex. 1

generated an

ch is the area

Id. at Ex. 5 (

a comprehe

will be critic

y used for ta

e. The repa

. Thus, whe

maining porti

y “A” durin

d Ex. 8 (Ai

bid specifica

ion 2014-485

in the amou

2014-837). 

cepted the b

n 2014-1150

14 (Taxiway

ny complain

a that 

(2010 

ensive 

cal in 

axiing 

aving 

en the 

on of 

g the 

irport 

ations 

5). It 

unt of 

 The 

bid by 

0 and 

y “A” 

nts by 
D

AWOS a

The Tow

Id. at ¶

environm

the insta

1468). T

construct

at ¶ 11(g

T

Hampton

(“Aviatio

repairs an

Ex. 13 (A

its leaseh

T

(Nov. 21

item dur

Maintena

conduct 

include t

pavemen

3. Au

During the pl

at the Airpo

wn included d

11(g) and

mental review

llation of a 

The Town is

t the new AW

). 

4. Ra

There are two

n Air Hanga

on Resource

nd improvem

Aviation Res

hold. Work i

The main ter

, 2013, Pres

ring the Tow

ance Plan. C

a comprehe

the ramp pav

nt projects. 

utomated W

lanning proc

ort to replace

design and r

Ex. 8 (AC

ws and appr

new AWOS

s about to is

WOS. Cons

amp Mainte

o terminals 

ar, and the 

es”). Under

ments to the

sources Leas

is ongoing a

rminal ramp

entation to T

wn’s planni

Charlton Dec

ensive airpor

vement. Th

In the inter

Weather Ob

ess, the Tow

e the curren

eplacement 

CIP). On 

roved the iss

S. Id. at Ex

sue bid spec

truction is an

enance 

at the Airpo

surrounding

r the terms 

e leasehold, i

se). Aviatio

and anticipat

p is nearing 

Town at p. 2

ing process 

c. at Ex. 8 (A

rt pavement 

he results of 

rim, Airport

10

serving Sys

wn also ident

nt equipment

of the AWO

December 

suance of bo

x. 15 (Reso

cifications an

nticipated to

ort. The exe

g ramp spac

of its lease

including th

n Resources

ed to be com

the end of 

2). The term

and rehabi

Airport Main

evaluation

the evaluati

t staff ensur

stem (“AWO

tified the nee

t that has b

OS in the AC

18, 2014, 

onds in the 

olution 2014

nd to publis

o be complet

ecutive term

ce is leased 

, Aviation R

he ramp. Ch

s is currently

mplete by mi

its design li

minal ramp w

ilitation is c

ntenance Pla

this summe

ion will assi

res ongoing

OS”) Replac

ed to install 

een decertif

CIP and has 

the Town 

amount of $

4-1467 and R

sh a Request

te by early su

minal, also kn

to Aviation

Resources is

harlton Dec. 

y repairing th

id-May. Id. 

ife. E.g., C

was identified

contemplated

an). The Tow

er. The eva

ist the Airpo

g safety by 

cement 

an FAA-cer

fied by the F

proceeded a

completed 

$260,000 to 

Resolution 2

t for Proposa

ummer 2015

nown as the

n Resources,

s responsibl

at ¶ 11(d); 

he paved are

at ¶ 11(d). 

Complaint E

d as a top pr

d in the Ai

wn is planni

aluation will

ort in priorit

conducting 

rtified 

FAA. 

apace. 

state 

fund 

2014-

als to 

5. Id. 

e East 

, Inc. 

le for 

id. at 

eas in 

x. 22 

iority 

irport 

ing to 

l also 

tizing 

daily 
inspectio

at ¶¶ 10 &

T

priority i

Maintena

Septemb

construct

in the ver

with man

working 

efforts w

the Airpo

In

surround

request, t

that the 

under th

immediat

state and

Ex. 16 (J

use of a v

request is

ons of the pa

& 11(d). 

5. Ai

The perimete

item that wa

ance Plan. 

er 2014 and

tion of the fe

ry near futur

nagement of

with tenants

will significan

ort. 

6. O

n May 201

ding the Airp

the Town co

entire canop

he FAA’s r

tely that the

d local regula

July 24, 2014

visual glide 

s still pendin

avement thro

irport Perim

er fence arou

as identified

Id. at Ex. 8

d has directe

ence. Id. at 

re. Id. at ¶ 1

f the local 

s to ensure t

ntly reduce 

bstruction R

3, the FAA

port. Id. at ¶

onducted a c

py of trees 

egulations a

e process for

ations. Id. at

4 Memorand

slope indica

ng before the

oughout the 

meter Fence

und the Air

d early in the

8 (Airport M

ed its engin

¶¶ 10, 11(j).

1(j). The To

deer popula

that all gates

the potentia

Removal 

A identified

¶ 11(h) and E

comprehens

surrounding

at 14 C.F.R

r mitigating 

t ¶ 11(h); id.

dum to Town

ator mitigati

e FAA. Id. a

11

Airport and 

e and Gates

rport is also 

e planning p

Maintenance 

neer to prior

. The Town

own maintai

ation. Id. at

s are closed 

al for deer st

several ob

Ex. 16 (May 

ive review o

g the Airpor

R. Part 77.

the obstruct

 at Ex. 16 (J

n Board). In

on plan to e

at ¶ 11(h). 

removing a

in need of 

process and 

Plan). The

ritize design

n anticipates 

ins an active

t ¶ 11(j). T

when not in

trikes and ot

bstructions (

y 30, 2013, F

of potential 

rt would like

 The Tow

tions could 

July 5, 2013,

n the interim

ensure safe o

any foreign o

repair. Th

was include

e Town hire

n work and 

receiving a 

e hunting pro

The Airport

n use. Id. a

ther potentia

(trees, vehic

FAA Letter).

obstructions

ely constitu

wn also info

be lengthy d

, Town Lette

m, the Town 

operation at 

object debris

is, too, is a 

ed in the Ai

ed an engine

planning fo

scope of ser

ogram that a

t Director is

at ¶ 11(k). T

al safety risk

cles, and a 

 At the agen

s and determ

ute “obstruct

formed the 

due to appli

er); see also 

has propose

the Airport. 

s. Id. 

high 

irport 

eer in 

or the 

rvices 

assists 

s also 

These 

ks at 

hill) 

ncy’s 

mined 

tions” 

FAA 

icable 

id. at 

ed the 

 The 
T

Town ap

analysis 

11(h) and

scope of

mapping 

for obstru

work. Id

In

available

noted abo

identify a

T

areas in t

Town wi

The Tow

Program.

implemen

C

T

value. V

been able

The Town is 

pproved exp

to identify t

d id. at Ex. 

f required m

and a TERP

uction remov

d. 

n the interim

e. The Town

ove, the Tow

a permanent 

7. Pa

The Town ha

the Airport. 

ill be prepari

wn acknowle

. The Town 

nting a plan 

C. Non-A

The Town ha

Virtually non

e to increase

moving forw

penses for a

the full arra

16 (Resolut

mitigation. I

PS analysis. 

val, after wh

m, the FAA 

n is commit

wn has prop

solution for

avement Ma

as records of

Id. at ¶ 11(

ing a compr

edges that it

is aware of

to fulfill tho

Aeronautica

as, in the pa

ne of those l

e rents whil

ward to addr

erial photog

ay of obstruc

tion 2014-12

In March 20

Id. at ¶ 11(

hich it will se

has announ

tted to restor

posed a mitig

r existing ob

aintenance 

f its Airport p

(e); id. at Ex

rehensive air

t does not h

f its obligatio

ose obligatio

al Tenants

ast, entered i

leases has a

e the leases

12

ress the actu

graphy and 

ctions that p

295). This 

015, the Tow

h). The Tow

ecure state a

ced that cer

ring these n

gation plan f

structions. 

pavement an

x. 12 (daily i

rport paveme

have a form

ons regardin

ons. Id. at ¶ 1

into non-aer

a subordinati

 remain in e

ual obstructi

photogram 

penetrate the

information

wn’s engine

wn is curren

and federal e

rtain nighttim

nighttime app

for the short

nd conducts d

inspection lo

ent evaluatio

mal Pavemen

ng pavement

11(e). 

ronautical le

ion clause a

effect. The 

ons. In Nov

metric map

e 20:1 visua

n will be use

eer complete

ntly working 

environmenta

me approach

proaches. I

t term and is

daily inspec

ogs). As ind

on this summ

nt Maintenan

t maintenanc

eases at less 

and the Tow

Town agree

vember 2014

pping and re

al slope. Id

ed to identif

ed review o

to finalize a

al reviews fo

hes are no lo

Id. at ¶ 11(i)

s taking acti

tions of all p

dicated above

mer. Id. at ¶

nce Manage

ce and is act

than fair m

wn has not le

es to enter i

4, the 

elated 

d. at ¶ 

fy the 

of the 

a plan 

or the 

onger 

). As 

ion to 

paved 

e, the 

¶¶ 10. 

ement 

tively 

market 

egally 

into a 
13

Corrective Action Plan with the FAA to ensure that the Town has an aggressive plan to ensure 

that non-aeronautical leases are compliant going forward. 

D. Airport Finances 

The Town has a Budget and Financial Advisory Committee (“BFAC”), the purpose of 

which is to examine ways the Town can reduce costs and can improve budgeting for capital 

projects. Malman Dec. at ¶ 2. In early 2014, the Town directed the BFAC to undertake a 

financial analysis of the Airport, including airport income and expenses, as well as new revenue 

streams, which can serve as a baseline of agreed-upon data for further discussions and policy 

decisions by the Board. The Town identified certain BFAC members and additional community 

members to assist the BFAC in this process. Collectively, this group is known as the BFAC 

Airport Finance Subcommittee (“Subcommittee”). Id. at ¶¶ 3-5 and Ex. 1 (February 4, 2014, 

Town Work Session Minutes). 

The mission of the Subcommittee is to analyze Airport expenses, as well as capital and 

maintenance needs. Id. at ¶ 6. To that end, the Subcommittee undertook extensive fact-finding 

in early 2014 – including outreach to Town officials, Airport personnel, and both FBOs – to 

understand future capital and revenue needs. Id. at ¶¶ 7, 25-28 & 37-38, and Ex. 9 (May 5, 2014, 

letter from Subcommittee transmitting analysis to Town Board). The results of the analysis were 

set forth in the Subcommittee’s April 2014 Preliminary Debt Capacity Analysis. Id. at Ex. 8 

(“Preliminary Debt Capacity Analysis”). In the Preliminary Debt Capacity Analysis, the 

Subcommittee outlined its examination of various operating scenarios (including the status quo 

and various levels of reduced revenue due to varying levels of aircraft operations) to examine 

how much debt the Town could support from Airport revenues. Based on the analysis, the 

Subcommittee concluded that under existing revenue streams, the Town could support debt 

levels between $5.1 and $8.5 million, depending on the operating scenario, but that the Airport 
14

Fund balance at the end of 2018 would be less than $1.5 million.1

 See generally, id. at ¶¶ 12-19; 

id. at Ex. 8 (April 26, 2014, Preliminary Debt Capacity Analysis); id at Ex. 10 (Subcommittee 

Presentation re: April 26, 2014, Preliminary Debt Capacity Analysis); and id at Ex. 11 

(Transcript of May 20, 2014, Town Work Session) (Subcommittee’s public presentation of April 

26, 2014, Preliminary Debt Capacity Analysis). The Subcommittee summarized its conclusions 

as follows: 

The SubCommittee has questions as to the adequacy of the fund balances 

(reserves) to pay for non-bondable expenditures such as litigation and 

consultant’s fees in the event the Town Board adopts an aggressive noise 

abatement policy. 

... 

Accordingly, the SubCommittee has begun to explore revenue enhancement 

opportunities, such as paid parking, increased fuel flowage fees and increase 

lease revenues. Revenue enhancements, which would help (i) increase 

available debt service coverage to support increased capital improvement 

programs and/or (ii) build reserves to guard against contingencies and/or (iii) 

reduce borrowing, will be the primary focus of the Subcommittee’s continuing 

work. 

id at Ex. 8 (April 26, 2014, Preliminary Debt Capacity Analysis at pp. 1 & 3). 

 Based on the conclusion that the existing sources of Airport revenue were not sufficient 

to meet expected needs, the Subcommittee turned its attention to examining specific fee 

increases that could increase revenues almost immediately with no initial expenses. E.g., 

Malman Dec. at ¶ 19. The Subcommittee researched fuel flowage fees at comparable facilities 

and concluded that an increase to the fuel flowage fee for the first time in 20 years would be 

reasonable. E.g., Malman Dec. at ¶¶ 20-30; id. at Ex. 18 (Subcommittee’s June 17, 2014, 

 

1

 Although the Town recently enacted operational restrictions at the Airport, it is important 

to recognize that even the “status quo” scenario studied by the Subcommittee (i.e., the scenario 

examining financial impacts with no use restrictions) predicted minimal reserves remaining in 

the Airport Fund in 2018. Malman Dec. at Ex. 8 (April 26, 2014, Preliminary Debt Capacity 

Analysis at p. 3). Thus, the need for additional revenue existed regardless of whether or not the 

Town enacted use restrictions. 
15

Presentation). Therefore, at its June 2, 2014, meeting, the Subcommittee agreed immediately to 

recommend raising the fuel flowage fee from 15 cents to 30 cents. At the same meeting, the 

Subcommittee also agreed to recommend that the Town increase landing fees by 10 percent 

before the busy season had passed.2

 Id. at Ex. 15 (June 2, 2014, Subcommittee Minutes at 1-3). 

This recommendation was the result of extensive review of historic landing fees at HTO, a 

comprehensive review of landing fees at comparable airports, and review of a detailed analysis 

provided by the Town’s consultant, DY Associates, all of which indicated that raising the 

landing fees by 10 percent was reasonable. Id. at ¶¶ 37-39; id. at Ex. 23 (table comparing landing 

fees at comparable airports); id. at Ex. 24 (Town consultant’s comparison of future landing fee 

options). 

At the June 3, 2014 Town Board Work Session, then-Airport Director Brundige 

announced two proposed resolutions: Resolution 2014-672 (raising the landing fees by 10 

percent) and Resolution 2014-673 (raising the fuel flowage fee to $0.30 per gallon). Malman 

Dec. at ¶ 33; id at Ex. 16 (June 3, 2014, Town Work Session Minutes). At the Town Board 

Meeting two days later on June 5, the Town Board considered both resolutions and heard 

testimony on both proposed fees. At the hearing, Cindy Herbst of Sound Aircraft testified that 

the fuel flowage fee increase would have a direct negative impact on business. Id. at ¶ 34; id. at 

Ex. 17 (Transcript of June 5, 2014, Town Meeting). In response, the Town passed Resolution 

 

2

 Landing fees are a significant source of revenue at the Airport. The amount of the 

landing fee varies for different classes of aircraft (e.g., single-engine, twin-engine, etc.). The 

Town has historically raised landing fees at the Airport at regular intervals. In recent history, 

landing fees were increased in 2006, then again in 2008, 2013 and most recently in 2014. For 

example, the landing fee for a single-engine prop aircraft was raised to $5 in 2006, $7 in 2008, 

$10 in 2013, and $11 in 2014. Currently, the highest landing fee is assessed for multi-engine 

turbine aircraft weighing over 50,000 pounds. That fee was raised to $100 in 2006, $400 in 

2008, $600 in 2013 and $660 in 2014. See generally, Malman Dec. at ¶¶ 37-41; id. at Ex. 22 

(2006, 2008 and 2013 Landing Fee data); Complaint at ¶ 27 (2014 landing fee data). This 

highest fee is only assessed on about 2 percent of the operations at the Airport. 
16

2014-672, increasing the landing fees, but tabled Resolution 2014-673, increasing the fuel 

flowage fee, in order to accommodate further discussion. Id. 

The Town Board then held an extensive public discussion of operations at the fuel farm 

and the proposed fuel flowage fee increase at its June 17, 2014, Work Session. Id. at ¶ 35; id. at 

Ex. 19 (Transcript of June 17, 2014 Town Work Session). At that meeting, the Subcommittee 

presented a detailed discussion on the fuel flowage fee issue to explain the bases for its 

recommendation to increase fuel flowage fees. The goal of the presentation was to explain why 

that particular increase was fair to both the Town and the FBOs, who remained able to make a 

reasonable profit on fuel sales. In brief, the Subcommittee focused on several factors: (1) that 

the fee had not been increased in 20 years; (2) that other airports were charging comparable fees; 

(3) that the fuel flowage fee is the only compensation that the Town receives for owning, 

operating, and maintaining the fuel farm, incurring carrying costs for fuel storage and accounts 

receivable, and assuming liability for fuel farm operations; and (4) that the fuel farm was badly 

in need of costly repairs. Id; id. at Ex. 18 (June 17, 2014, Subcommittee Presentation). 

Two days later, at the June 19 Town Board meeting, the Town Board heard additional 

testimony and ultimately passed the Resolution 2014-673 to increase the fuel flowage fee to 30 

cents. Id. at ¶ 36; id. at Ex. 21 (Transcript of June 19, 2014, Town Meeting). However, in direct 

response to the concerns of the FBOs, the effective date of the increase was deferred to July 1. 

As Councilman Van Scoyoc concluded: 

... we’ve heard from both the FBOs and members of the public. And I just 

want to make it clear that the initiative is really about increasing revenues and 

trying to get our airport in order. 

There’s a number of maintenance issues that, I think everybody recognizes, 

have gone without attention for a number of years. We’re in a position where 

we believe that we can move forward with repairs at the airport without being 

locked into the FAA’s funding, and be an airport that’s obligated to the FAA 
17

rules. We believe that, I think for the last 22 years of this fuel flowage fee, 

has not kept pace with the increases in fuel, or with the requirements of the 

Town in order to provide that service. And that – and just a for-instance, and I 

know this number has been talked about, it’s 100% increase, but it’s a 2.5% 

increase per gallon on the fuel. 

... 

[T]he Town has a responsibility to provide the fuel farm with up-to-date 

equipment. We’re in a position where that really needs to be addressed, it’s 

over 20 years old. ... Again, this is really all about revenue and trying to make 

the airport safe, and continue to improve on the maintenance. 

Id. at Ex. 21 (Transcript of June 19, 2014, Town Meeting, at pp. 32-33). 

E. Pre-Complaint Resolution 

In late July, 2014, Counsel for Friends of the East Hampton Airport (“FOEH”) requested 

a meeting with the Town to discuss various safety allegations, including specifically: (1) tree 

obstructions; (2) runway deterioration; (3) ramp deterioration; (4) the perimeter fence; (5) the 

AWOS; (6) signage; and (7) lighting. The request also detailed FOEH’s concerns regarding 

compliance with federal grant assurances and the Town’s announced intent to pursue use 

restrictions. Charlton Dec. at Ex. 19 (July 31, 2014, FOEH letter). 

Representatives of FOEH met with the Town on September 4, 2014. At that meeting, 

FOEH again outlined its legal theories regarding future use restrictions at the Airport. In 

addition, FOEH discussed at length its concerns about many of the safety issues alleged in its 

letter. The subject of landing fees, fuel flowage fees, and/or lease payments was not raised either 

in the July 2014 letter or at the September 2014 meeting. Id. at ¶¶ 19-20. Following the 

meeting, Town officials asked FOEH for additional information on the specific safety allegations 

that were identified in its July letter and that were discussed at the meeting. Id. at Ex. 19 

(September 8, 2104, letter). FOEH provided no further response to the Town on these issues 

until it filed the pending Complaint on January 29, 2015. Id. at ¶ 21. 
18

III. SUMMARY OF APPLICABLE LEGAL STANDARDS 

A. Part 16 Jurisdiction and Current Compliance 

The FAA’s authority to adjudicate disputes under Part 16 is defined, and limited, by 14 

C.F.R. § 16.1(a), which authorizes the FAA to adjudicate disputes arising under certain laws and 

provisions. Disputes arising under laws not set forth in Section 16.1 may not be addressed in a 

Part 16 proceeding. Final Agency Decision and Order, In re Compliance with Federal 

Obligations by the City of Santa Monica, Cal., FAA Doc. No. 16-02-08, at 29 (July 8, 2009). 

The FAA’s compliance program is focused on achieving voluntary compliance. 

Therefore, “in addressing allegations of noncompliance, the FAA will make a determination as 

to whether an airport sponsor is currently in compliance with the applicable Federal obligations.” 

Scott Meyer v. City of Cincinnati, FAA Docket No. 16-12-14 at 10-11 (Director’s Determination 

Sept. 12, 2014). In making an assessment of compliance: 

FAA must make a judgment call in all cases as to whether a 

sponsor is reasonably meeting its federal commitments. A sponsor 

meets its commitments when: 

(1) The federal obligations are fully understood; 

(2) A program (e.g., preventive maintenance, leasing policies, 

operating regulations, etc.) is in place that the FAA deems 

adequate to carry out the sponsor’s commitments; 

(3) The sponsor satisfactorily demonstrates that such a program is 

being carried out; and, 

(4) Past compliance issues have been addressed. 

Airport Compliance Manual (FAA Order 5190.6B, hereinafter “Compliance Manual”) at 

¶ 2.8(b). See also Keathley v. City of McKinney, TX, FAA Docket No. 16-03-14, at 20-21 

(Director’s Determination Oct. 13, 2004) (finding no violation when respondent was aware of its 

wildlife mitigation obligations, had a plan to address that obligation, and was diligently carrying 
19

out that plan); Ricks v. Greenwood-Leflore Airport, FAA Docket No. 16-09-04, at 17 (same, in 

the context of removing aircraft equipment on airport property). 

B. Burden of Proof 

14 C.F.R. § 16.29(b) places the burden of proof squarely on the complainant: 

[T]he burden of proof rests with the Complainants (who are 

bringing the action), not the Respondent. It is the Complainants’ 

responsibility to provide a concise but complete statement of the 

facts relied upon to substantiate each allegation. 

Director’s Determination, M. Daniel Carey and Cliff Davenport v. Afton-Lincoln Cnty. Mun. 

Airport Joint Powers Bd., FAA Docket No. 16-06-06, at 28 (Jan. 19, 2007) (citing 14 C.F.R. 

§ 16.23(b)(3)). A complainant must also provide “all documents then available in the exercise of 

reasonable diligence, offered in support of the complaint . . .” 14 C.F.R. § 16.23(b)(2). See also 

Director’s Determination, Aero Ways, Inc. v. Del. River & Bay Auth., FAA Docket No. 16-09-

12, at 15 (Aug. 30, 2010) (“The burden of proof falls upon the Complainant to establish and 

substantiate each allegation made.”). Inferences and arguments from the apparent absence of 

contrary evidence are not sufficient to meet this burden. Scott Meyer v. City of Cincinnati, FAA 

Docket No. 16-12-14 at 25 (Director’s Determination Sept. 12, 2014) (“First-person accounts of 

conversations and an abundance of argumentative opinion and criticism do not equate to 

substantial and credible evidence. In a formal Part 16 complaint, the complainant has the burden 

of proof to establish the complaint’s allegations by a preponderance of substantial and reliable 

evidence.”). 

C. Airport Sponsor Assurance 11, Pavement Preventive Maintenance

Sponsor Assurance 11 provides: 

Pavement Preventive Maintenance. With respect to a project 

approved after January 1, 1995, for the replacement or 

reconstruction of pavement at the airport, it assures or certifies that 

it has implemented an effective airport pavement maintenance-
20

management program and it assures that it will use such program 

for the useful life of any pavement constructed, reconstructed or 

repaired with Federal financial assistance at the airport. It will 

provide such reports on pavement condition and pavement 

management programs as the Secretary determines may be useful. 

An effective airport maintenance program “at a minimum, must include (a) a pavement 

inventory, (b) annual and periodic inspections in accordance with AC 150/5380-6B, Guidelines 

and Procedures for Maintenance of Airport Pavements,

3

 (c) a record keeping and information 

retrieval system, and (d) identification of maintenance program funding.” Compliance Manual at 

¶ 7.6. Regular inspection is critical to meeting this obligation and should follow set procedures 

to assure inspection of all pavement elements, follow a regular schedule, and be documented and 

preserved. Id.

D. Airport Sponsor Assurance 19, Operation and Maintenance

Airport Sponsor Assurance 19 provides as follows: 

a. The airport and all facilities which are necessary to serve the 

aeronautical users of the airport, other than facilities owned or 

controlled by the United States, shall be operated at all times in a 

safe and serviceable condition and in accordance with the 

minimum standards as may be required or prescribed by applicable 

Federal, state and local agencies for maintenance and operation. It 

will not cause or permit any activity or action thereon which would 

interfere with its use for airport purposes. It will suitably operate 

and maintain the airport and all facilities thereon or connected 

therewith, with due regard to climatic and flood conditions. Any 

proposal to temporarily close the airport for non-aeronautical 

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

this assurance, the sponsor will have in effect arrangements for- 

(1) Operating the airport's aeronautical facilities whenever 

required; 

(2) Promptly marking and lighting hazards resulting from airport 

conditions, including temporary conditions; and 

 

3

 We note that this Advisory Circular has since been updated. See FAA Advisory Circular 

150/5380-6C (Oct. 10, 2014). 
21

(3) Promptly notifying airmen of any condition affecting 

aeronautical use of the airport. Nothing contained herein shall be 

construed to require that the airport be operated for aeronautical 

use during temporary periods when snow, flood or other climatic 

conditions interfere with such operation and maintenance. 

Further, nothing herein shall be construed as requiring the 

maintenance, repair, restoration, or replacement of any structure 

or facility which is substantially damaged or destroyed due to an 

act of God or other condition or circumstance beyond the control 

of the sponsor. 

b. It will suitably operate and maintain noise compatibility 

program items that it owns or controls upon which Federal funds 

have been expended. 

The FAA has summarized this obligation as follows: 

Grant Assurance 19, Operation and Maintenance, is the most 

encompassing federal grant assurance related to airport 

maintenance. It requires the sponsor to operate and maintain the 

airport’s aeronautical facilities – including pavement – in a safe 

and serviceable condition in accordance with the standards set by 

applicable federal, state, and local agencies. 

Compliance Manual at ¶ 7.3. Assurance 19 generally requires: 

the sponsor to carry out a continuing program of preventive and 

remedial maintenance. The maintenance program is intended to 

ensure that the airport facilities are at all times in good and 

serviceable condition to use in the way they were designed. 

Id. at ¶ 7.4. This program requires regular inspections and repairs. Id. The FAA recognizes that 

it cannot set a uniform standard for maintenance, but has described the criteria for compliance 

with Assurance 19 as follows: 

Although an acceptable level of maintenance is difficult to express 

in measurable units, the FAA will consider a sponsor compliant 

with its federal maintenance obligation when the sponsor does the 

following: 

a. Fully understands that airport facilities must be kept in a safe 

and serviceable condition. 

b. Makes available the equipment, personnel, funds, and other 

resources, including contract arrangements, to implement an 

effective maintenance program. 
22

c. Adopts and implements a detailed program of cyclical 

preventive maintenance adequate to carry out this commitment. 

Id. at ¶ 7.5. 

E. Airport Sponsor Assurance 20, Hazard Removal and Mitigation 

Sponsor Assurance 20 requires that an airport sponsor: 

will take appropriate action to assure that such terminal airspace as 

is required to protect instrument and visual operations to the airport 

(including established minimum flight altitudes) will be adequately 

cleared and protected by removing, lowering, relocating, marking, 

or lighting or otherwise mitigating existing airport hazards and by 

preventing the establishment or creation of future airport hazards. 

The FAA has explained that this assurance generally: 

requires airport sponsors to protect terminal airspace. 

Accordingly, the sponsor must protect instrument and visual flight 

operations, including established minimum flight altitudes. 

Adequate protection includes the clearing, removing, lowering, 

relocating, marking, lighting, or mitigating of existing airport 

hazards. It also includes protecting against establishment or 

creation of future airport hazards, including wildlife hazards. 

Compliance Manual at ¶ 7.13. Although Assurance 20 imposes an affirmative obligation on 

airport sponsors to prevent and remove hazards when the sponsor controls the land uses, the 

FAA recognizes that an airport sponsor may not control hazard or obstruction. In particular, the 

FAA recognizes that “uncontrolled growth of trees and vegetation can be a hazard. These 

hazards must be dealt with in conjunction with any applicable local or state requirements.” Id. at 

7.13(a). See also Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses 

Comm’n, 634 F.3d 206 (2d Cir. 2011) (Part 77 and other federal law did not preempt compliance 

with local wetlands laws). Sponsors are further instructed to coordinate with the Air Traffic 

Organization for guidance on how to address airspace issues when an obstruction exists. Id.

F. Airport Sponsor Assurance 24, Fee and Rental Structure

Sponsor Assurance 24 provides that an airport sponsor: 
23

will maintain a fee and rental structure for the facilities and 

services at the airport which will make the airport as selfsustaining as possible under the circumstances existing at the 

particular airport, taking into account such factors as the volume of 

traffic and economy of collection. 

As the FAA has recognized in its Compliance Manual: 

The requirement [in Assurance 24] recognizes that individual 

airports will differ in their ability to be fully self-sustaining, given 

differences in conditions at each airport. The purpose of the selfsustaining rule is to maintain the utility of the federal investment in 

the airport. 

Compliance Manual ¶ 17.5. Under this principle, airport sponsors have wide latitude to set rates 

and charges. Airport rates and charges are also subject to the general requirement to be 

reasonable and non-discriminatory. 

Charges for aeronautical uses of the airport must be reasonable. 

For aeronautical users, the FAA considers charges that reflect the 

cost of the services or facilities satisfies the self-sustaining 

requirement. Accordingly, the FAA does not consider the selfsustaining obligation to require the sponsor to charge fair market 

value rates to aeronautical users. 

Id. at ¶ 17.10. Under that rule, “fees for the use of the airfield generally may not exceed the 

airport’s capital and operating costs of providing the airfield.” Id. It is permissible, however, for 

an airport sponsor to set rates charges at a level designed to create reserves, hedge against 

contingencies, and facilitate financing: 

Reasonable reserves and other funds to facilitate financing and to 

cover contingencies are not considered revenue surpluses. The 

sponsor must use any surplus funds accumulated in accordance 

with the Revenue Use Policy. 

Id. at ¶ 17.9. Given the discretion airport operators enjoy, the FAA will not ordinarily question 

rates and charges at a general aviation airport unless the airport sponsor is progressively 

accumulating substantial surplus revenue: 
24

The FAA will not ordinarily investigate the reasonableness of a 

general aviation airport’s fees absent evidence of a progressive 

accumulation of surplus aeronautical revenues. 

Id. See also id. at ¶ 17.10 (same).

The FAA has provided further explanation on how it will apply these requirements in its 

Policy Regarding Airport Rates and Charges (“Rates and Charges Policy). 78 Fed. Reg. 55330, 

55332 (Sept. 10, 2013). The Rates and Charges Policy sets forth five principles that establish the 

substantive standards for assessing the reasonableness of airport rates and charges for domestic 

users: 

1. In general, the Department relies upon airport proprietors, 

aeronautical users, and the market and institutional 

arrangements within which they operate, to ensure compliance 

with applicable legal requirements. Direct Federal intervention 

will be available, however, where needed. 

2. Rates, fees, rentals, landing fees, and other service charges 

(‘‘fees’’) imposed on aeronautical users for aeronautical use of 

airport facilities (‘‘aeronautical fees’’) must be fair and 

reasonable. 

3. Aeronautical fees may not unjustly discriminate against 

aeronautical users or user groups. 

4. Airport proprietors must maintain a fee and rental structure that 

in the circumstances of the airport makes the airport as 

financially self-sustaining as possible. 

5. In accordance with relevant Federal statutory provisions 

governing the use of airport revenue, airport proprietors may 

expend revenue generated by the airport only for statutorily 

allowable purposes. 

Id. at 55332. 

Recognizing that disputes between airport sponsors and aeronautical users regarding fees 

are likely, the FAA has provided recommendations for consultation and negotiation that it hopes 

will avoid disputes and the need for FAA intervention. See id. (Paragraph 1.1). Those 

recommendations are not mandatory, however, and the FAA expressly recognizes that: “Federal 
25

law does not require a single approach to airport rate setting.” Id. at 55333 (Paragraph 2.1). 

“Airport proprietors may set fees for aeronautical use of airport facilities by ordinance, statute, or 

resolution, regulation, or agreement.” Id.

When a dispute involving airport fees reaches the FAA, however, the FAA’s role is 

focused on the substance of the fee: “In considering such a dispute [over the reasonableness of 

airport fees], the FAA’s role is to determine whether the airport proprietor is in compliance with 

its grant obligations and statutory obligations relating to airport fees.” Id. at 55332. However, 

the “FAA proceeding is not intended to provide a mechanism for adjudication the respective 

rights of the parties to a fee dispute.” Id. The FAA adjudication process is focused, therefore, on 

the reasonableness of the fee, not on the procedures by which a fee was adopted. 

The FAA has explained that the Rates and Charges Policy applies in a more limited 

manner to general aviation airports compared to air carrier airports. See Policy Regarding 

Airport Rates and Charges, 61 Fed. Reg. 31994, 31997 (June 21, 1996). This reflects, in part, 

the fact that the requirements of 49 U.S.C. § 47129 – which largely prompted promulgation of 

the Rates and Charges Policy – do not apply to general aviation airports. Id. This difference in 

approach also reflects the fact that “airport proprietors, especially proprietors of general aviation 

airports, may use different methods for setting fees than those commonly used for setting fees 

paid by airlines. The Department reiterates its commitment to apply the policy flexibly in 

evaluating general aviation fees.” Id. (emphasis added). For example, the Department 

“understands that many airport proprietors apply a single charge, e.g., a fuel flowage fee, to 

general aviation users for the use of all aeronautical facilities. The Department does not intend 

to disturb this practice [by requiring sophisticated cost allocation systems].” Id.
26

Accordingly, the FAA approaches the reasonableness of general aviation airport fees at a 

very high level. First, “the FAA will not ordinarily undertake an investigation of the 

reasonableness of a general aviation airport’s fees absent evidence of a progressive accumulation 

of aeronautical revenues.” Compliance Manual at ¶ 17.9. Second, general aviation airports are 

not required to set fees accordingly to any particular formula, but simply pursuant to a 

“reasonably transparent and not unjustly discriminatory . . . cost allocation methodology.” 61 

Fed. Reg. at 31997. 

G. Airport Sponsor Assurance 25, Airport Revenue 

The prohibition against revenue diversion is set forth in Sponsor Assurance 25: 

All revenues generated by the airport and any local taxes on 

aviation fuel established after December 30, 1987, will be 

expended by it for the capital or operating costs of the airport; the 

local airport system; or other local facilities which are owned or 

operated by the owner or operator of the airport and which are 

directly and substantially related to the actual air transportation of 

passengers or property; or for noise mitigation purposes on or off 

the airport. 

See also 49 U.S.C. § 47107(l); 49 U.S.C. § 47133; FAA, Policy and Procedures Concerning the 

Use of Airport Revenue, 64 Fed. Reg. 7696 (Feb. 16, 1999) (“Revenue Use Policy”) at 7697. In 

general, airport revenue may be used for the operating and capital costs of the airport: 

Sponsors may use their airport revenue for the capital or operating 

costs of the airport, the local airport system, or other local facilities 

owned or operated by the airport owner or operator and directly 

and substantially related to the air transportation of passengers or 

property. 

[]Operating costs for an airport may be both direct and indirect and 

may include all of the expenses and costs that are recognized under 

the generally accepted accounting principles and practices that 

apply to the airport enterprise funds of state and local government 

entities. 
27

Compliance Manual at ¶ 15.9(a). It is permissible for an airport sponsor to “use airport revenue 

to pay lobbying and attorney fees to the extent these fees are for services in support of airport 

capital or operating costs that are otherwise allowable.” Id. at ¶ 15.9(d). See also Revenue Use 

Policy at § V(A)(5) (same). As discussed above, the sponsor assurances do not prohibit an 

airport sponsor from accumulating a reasonable reserve or providing for contingencies, provided 

that such reserves are ultimately used for allowable airport purposes. Compliance Manual at 

¶ 17.9. 

H. Airport Sponsor Assurance 29, Airport Layout Plan 

Sponsor Assurance 29 provides as follows: 

a. It will keep up to date at all times an airport layout plan of the 

airport showing (1) boundaries of the airport and all proposed 

additions thereto, together with the boundaries of all offsite areas 

owned or controlled by the sponsor for airport purposes and 

proposed additions thereto; (2) the location and nature of all 

existing and proposed airport facilities and structures (such as 

runways, taxiways, aprons, terminal buildings, hangars and roads), 

including all proposed extensions and reductions of existing airport 

facilities; and (3) the location of all existing and proposed 

nonaviation areas and of all existing improvements thereon. Such 

airport layout plans and each amendment, revision, or modification 

thereof, shall be subject to the approval of the Secretary which 

approval shall be evidenced by the signature of a duly authorized 

representative of the Secretary on the face of the airport layout 

plan. The sponsor will not make or permit any changes or 

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

conformity with the airport layout plan as approved by the 

Secretary and which might, in the opinion of the Secretary, 

adversely affect the safety, utility or efficiency of the airport. 

b. If a change or alteration in the airport or the facilities is made 

which the Secretary determines adversely affects the safety, utility, 

or efficiency of any federally owned, leased, or funded property on 

or off the airport and which is not in conformity with the airport 

layout plan as approved by the Secretary, the owner or operator 

will, if requested, by the Secretary (1) eliminate such adverse 

effect in a manner approved by the Secretary; or (2) bear all costs 

of relocating such property (or replacement thereof) to a site 

acceptable to the Secretary and all costs of restoring such property 
28

(or replacement thereof) to the level of safety, utility, efficiency, 

and cost of operation existing before the unapproved change in the 

airport or its facilities. 

In short, Assurance 29 requires an airport sponsor to maintain an ALP showing all 

existing and planned facilities, and to amend the ALP to reflect any changes in existing or 

planned development. Compliance Manual at ¶ 7.18. 

IV. ARGUMENT 

A. Complainants Failed To Make Good Faith Efforts to Resolve This Dispute 

Before Filing Their Complaint 

14 C.F.R. § 16.21 requires a complainant to engage in good faith efforts in a bona fide 

attempt to resolve disputes before filing a complaint. See also Compliance Manual at ¶ 5.16 

(same). In this case, it is clear that Complainants did not meet that standard. Complainants’ only 

effort to resolve this dispute was to participate in one meeting with the Town to discuss their 

concerns about: (1) the Town’s compliance with federal grant assurances related to safety, 

operations, and maintenance; (2) the Town’s intent to pursue use restrictions at the Airport; and 

(3) the 2005 Settlement Agreement between the FAA and the Committee to Stop Airport 

Expansion. Id. Charlton Dec. at ¶¶ 18-21; see also id. at Ex. 19 (July 31, 2014, FOEH letter). 

Representatives of FOEH and the Town met on September 4, 2014. The meeting focused on 

FOEH’s requests that the Airport carry out a number of construction projects to address alleged 

safety issues. There was also discussion of past litigation and the effect of the 2005 Settlement 

Agreement between the FAA and the Committee to Stop Airport Expansion, and Complainants’ 

view that the Town should seek federal grant funds to help fund airfield improvements. Id. at ¶¶ 

19-20. Complainants did not raise any claims regarding landing and fuel flowage fees, revenue 

diversion, or non-aeronautical leases. Id. On those issues, Complainants made no effort 

whatsoever to resolve their concerns prior to filing the pending Complaint. Id. 
29

As a follow-up to the meeting, the Town Supervisor sent a letter to FOEH requesting 

additional data on the specific safety issues alleged; the Supervisor also asked FOEH to provide 

details on its recommendation for approaching the FAA to discuss the effect of the 2005 

Settlement Agreement. Id. at Ex. 19 (September 8, 2014, letter). Complainants did not respond 

to that letter or provide any additional information or data. Id. at ¶ 21. The next communication 

from FOEH was the Complaint, which was served on the Town on January 29, 2015.4 

FOEH’s July 31, 2014, letter and single meeting with the Town do not constitute “good 

faith efforts” to resolve Complainants’ concerns. E.g., 14 C.F.R. § 16.21 (“Prior to filing a 

complaint under this part, a person ... shall initiate and engage in good faith efforts to resolve the 

disputed matter informally ....”). Had Complainants actually desired to resolve the matter, they 

would have responded to the Town’s request, provided the follow-up information to the Town 

and engaged in a meaningful discussion. Had they done so, the Town would have provided 

information that likely would have resolved all or most of their claims. As an illustration of the 

importance of such informal efforts to resolve disputes, had Complainants complied with the Part 

16 requirements, they would have learned that the Town was addressing their concerns and that 

many of the alleged concerns had already resolved by January 2015 when the Complaint was 

filed. Moreover, Complainants failed completely to raise with the Town any of the claims 

asserted in their Third Cause of Action and made no effort whatsoever to resolve those issues. 

Because Complainants failed to make a good faith effort to resolve their claims before filing the 

Complaint, the Complaint should be dismissed. 

 

4

 FOEH also filed a lawsuit against FAA in federal district court on January 29, 2015. 
B

In

dredged 

however,

well into

the FAA

FAA Do

cure past

Town pr

issues ar

Complain

respond i

T

Managem

including

Director 

¶¶ 11(d) 

See Com

already d

the Town

Maintena

B. The T

Main

n an effort t

up a handfu

, the Town h

o the process

A Complianc

cket No. 16-

t violations)

rior to filing

re being res

nants have n

in detail. 

1. Th

To

The Town h

ment Plan. 

g daily visua

keeps record

& 11(e). T

mplaint at ¶¶

directed its e

n is working

ance Manage

Town Has 

tenance Pro

to portray th

ul of mainte

has complete

s of addressi

e Program i

-12-14 at 10

). Had Com

g this Comp

solved (or 

now raised t

he Town M

o Prepare a

has included

Charlton D

al inspection

ds on these d

The Town h

¶ 39-40; Cha

engineer to c

g with the e

ement Progr

Already C

ojects That 

he Town as 

enance issue

ed, or will sh

ing the few r

is designed t

0-11 (FAA lo

mplainants ac

laint, the To

had already

these meritle

aintains Air

a Compliant

d funding fo

Dec. at Ex. 

ns to remove

daily inspect

has not, histo

arlton Dec. 

conduct a co

engineer to p

ram. Id. at ¶ 

30

Completed 

Complaints

a poor man

es they claim

hortly comp

remaining m

to achieve. 

ooks for cur

ctually enga

own would 

y been reso

ess issues in 

rport Pavem

t Pavement 

or pavement

8. The To

e foreign obj

tions and ha

orically, con

at ¶ 11(e). 

omplete pave

prepare and

11(e). 

– Or Will 

s Assert The

nager of the 

m the Town 

plete, virtuall

maintenance 

E.g., Scott 

rrent complia

aged in goo

have been 

lved) in an

n a formal C

ment And H

Maintenan

t maintenan

wn takes ac

bject debris. 

as records of

nducted annu

 However, t

ement evalua

d implement 

l Shortly C

e Town Mu

Airport, Co

has not add

ly all of thos

issues. Thi

Meyer v. C

ance and suc

d faith disc

able to dem

n orderly fa

omplaint, th

Has Directed

ce Managem

nce in its A

ctive steps t

Id. at ¶ 11

f the Airport 

ual and peri

the current 

ation study t

a fully-com

Complete –

ust Complete

omplainants 

dressed. In

se projects a

is is exactly 

City of Cincin

ccessful acti

cussions with

monstrate tha

ashion. Bec

he Town nee

d Its Engine

ment Progra

ACIP and Ai

to ensure sa

(d). The Ai

pavement. 

iodic inspect

Town Board

this summer

mpliant Pave

The 

e

have 

n fact, 

and is 

what 

nnati, 

ion to 

h the 

at the 

cause 

eds to 

eer 

am.

irport 

afety, 

irport 

Id. at 

tions. 

d has 

r, and 

ement 
C

42. As th

appropria

Airport s

any forei

The Airp

maintain

debris, th

Complain

Complain

no weigh

at 25 (Di

T

Resource

with Avi

tenant is

executive

R

Maintena

evaluatio

necessary

The Tow

2. Th

Ai

Complainants

he ramps ha

ate measure

staff conduc

ign object de

port Manag

ed in the Air

here have b

nants’ specu

nt at ¶ 42, is

ht in a Part 1

irector’s Det

The ramp at 

es. Charlton

iation Resou

 currently r

e terminal is

Rehabilitation

ance Plan, an

on study this

y projects ba

wn is aware o

he Town Is 

irport Ram

s assert that 

ave experien

es to ensure 

ct daily visua

ebris and to 

er has form

rport offices

been no acci

ulation that 

s just that: b

6 proceedin

termination S

the executiv

n Dec. Ex. 1

urces to ensu

repaving are

 anticipated 

n of the mai

nd the Town

s year to be

ased on rela

of its obligat

Taking App

ps Safe.

certain ramp

ced normal w

that the A

al inspection

identify any

malized that 

s. Id. Due to

idents or ot

poorly main

aseless spec

ng. Scott Me

Sept. 12, 201

ve terminal 

3 (Aviation 

ure proper m

eas in its le

to be compl

in terminal r

n has directe

etter determ

ative importa

tion to assure

31

propriate St

p areas have

wear and tea

Airport is ke

ns and walk

y areas that r

process to 

o the daily in

ther incident

ntained pave

culation with

eyer v. City o

14). 

is the expre

Resources L

maintenance 

asehold, and

lete by May 

ramp is plan

ed its engine

mine the sche

ance and ava

e that the ram

teps To Ma

e deteriorated

ar, the Airpo

ept in a safe

k-overs of al

require repa

include da

nspections a

ts due to th

ement could

hout any sup

of Cincinnat

ess responsib

Lease). The

 of the ramp

d full rehab

15, 2015. Id

nned for in th

eer to prepar

edule for th

ailability of 

mp pavemen

aintain And 

d and unsafe

ort Director 

e and servic

ll pavement 

air. Charlton

aily inspecti

and removal 

he lack of m

d lead to da

pporting evid

ti, FAA Doc

bility of the 

e Airport Dir

p and relate

bilitation of 

Id. at ¶ 11(d)

he current A

e a compreh

hat work in 

funds. Id. a

nt is maintain

Keep The 

e. Complain

has implem

ceable cond

areas to rem

n Dec. at ¶ 1

on logs tha

of foreign o

maintenance

amage to air

dence that ca

ket No. 16-1

 tenant, Avi

rector is wo

ed facilities. 

the ramp a

. 

ACIP and Ai

hensive pave

relation to 

at ¶¶ 10 & 1

ned and repa

nt at ¶ 

ented 

dition. 

move 

11(d). 

at are 

object 

. Id. 

rcraft, 

arries 

12-14 

iation 

orking 

 The 

at the 

irport 

ement 

other 

11(d). 

aired, 
has a pl

Accordin

A

require r

(letter fr

character

truth. 

B

(trees, ve

examine 

obstructi

conducte

because t

Id. at. ¶ 

trees are 

T

obstructi

id. at Ex

Protectio

Town’s s

Board). 

environm

correctly

an to accom

ngly, the Tow

3. Th

As Complain

removal and

rom Town 

rize the nece

By way of b

ehicles, and 

the entire 

ons. Charl

ed an initial

the entire ca

11(h); id. at

on property 

The Town 

ons would b

. 16 (July 5,

on Area and 

sole source a

As Compla

mental, and t

y. Complain

mplish that 

wn is in full 

he Town Ha

nants themse

d it is active

consultant 

essary action

background, 

a hill) in M

20:1 visual

lton Dec. at

 review and

anopy of tre

t Ex. 16 (Ju

not owned b

immediately

be lengthy b

, 2013, letter

are within t

aquifer. Id. 

ainants’ evid

technical, th

nt at Ex. 7. 

work, and 

compliance 

as A Plan T

elves acknow

ly implemen

regarding p

n as simply 

the FAA n

May 2013, a

l surface fo

t ¶ 11(h); i

d learned th

es surroundi

uly 24, 2014

by the Town

y informed 

ecause of ap

r). In partic

he Town’s W

at. ¶ 11(h); 

dence makes

at need to b

The Town i

32

is in the p

with its obli

o Address T

wledge, the 

nting a plan

plan for ob

cutting dow

notified the 

at which tim

or Runway 

id. at Ex. 1

hat there ma

ing the Airp

 Memorandu

n. Id. at ¶ 11

the FAA 

pplicable sta

cular, the tre

Water Recha

id. at Ex. 16

s clear, there

be completed

is diligently 

process of im

igations und

The Known

Town is aw

n to address 

bstructions). 

wn a few tre

Town of se

me the agenc

10-28 to d

16 (May 30

ay be nume

port would l

dum to Town

1(h). 

that the p

ate and local

ees are locat

arge Overlay

6 (July 24, 2

e are a numb

d before the 

working thr

mplementing

der Assuranc

n Obstructio

ware that the

the issue. C

 Complain

ees. But thi

everal poten

cy demande

determine th

0, 2013, lett

erous additio

ikely constit

n Board). A

process for 

l regulations

ted in a Spec

y District, w

2014, Memo

ber of steps

Town can a

rough those

g that plan.

ce 19. 

ons.

ere are trees

Complaint, E

nants attemp

is is far from

ntial obstruc

ed that the T

he full scop

ter). The T

onal obstruc

tute obstruct

A majority o

addressing

s. Id. at. ¶ 1

cial Groundw

which protect

orandum to T

, including l

address this 

 steps, to re

. Id. 

s that 

Ex. 7 

pt to 

m the 

ctions 

Town 

pe of 

Town 

ctions 

tions. 

of the 

g the 

11(h); 

water 

ts the 

Town 

legal, 

issue 

esolve 
the obstru

a compre

TERPS a

Traffic O

proposed

Precision

A

obstructi

Director’

showing 

Keathley

Determin

mitigatio

plan); Ri

context o

mitigate 

does not 

that “...

requirem

C

the Town

misstates

is taking 

uction issue

ehensive aer

analysis. E.g

Organization

d a visual g

n Approach P

As documen

ons issue an

’s Determina

that the To

y v. City o

nation Oct. 

on obligation

icks v. Gree

of removing

obstructions

create a gra

hazards mu

ments”). 

4. Th

Complainants

n is therefor

s the nature 

to address ru

s as soon as 

rial photogra

g., Charlton D

n to restore 

guide slope 

Path Indicato

ted above, 

nd has demo

ations cited i

own is curre

of McKinne

13, 2004) 

ns, had a pla

enwood-Lefl

g aircraft eq

s in a mann

ant assuranc

ust be deal

he Runways

s assert that 

re in violatio

of the Town

unway pave

possible. F

aphy and ph

Dec. Ex. 11(

two of the 

indicator m

or. This req

the Town h

onstrated tha

in the Comp

ently not in 

ey, TX, FA

(discussing

an to address

lore Airport

quipment on

er consisten

e violation. 

lt with in 

s Are Safe A

all three ru

on of Assura

n’s obligatio

ment issues.

33

or example, 

hotogram m

(h). In the in

nighttime i

mitigation p

quest is curre

has a plan 

at it is dilig

plaint, Comp

compliance

AA Docket 

g whether 

s that obligat

t, FAA Doc

n airport pro

nt with local

E.g., Comp

conjunction

And Service

unways requ

ances 19 and

ns and also 

.

the Town’s

metric mappi

nterim, the T

instrument a

plan that wo

ently pending

in place to

ently carryin

plainants hav

e with its ob

No. 16-03

respondent 

tion, and wa

cket No. 16

operty). Th

l requiremen

pliance Man

n with any

eable.

uire some lev

d 20. Comp

completely 

s engineer re

ing project, 

Town is wor

approaches. 

ould raise t

g before the 

o address th

ng out that 

ve failed to m

bligation to 

3-14, at 20

was aware

as diligently 

6-09-04, at 1

he fact that 

nts may be f

nual at ¶ 7.13

y applicable

vel of rehab

plaint at ¶¶ 5

ignores the 

ecently comp

as well as a

rking with th

 The Town

the angle o

agency. Id.

he acknowle

plan. Unde

meet its burd

remove haz

0-21 (Direc

e of its wi

carrying ou

17 (same, in

it takes tim

frustrating, b

3(a) (recogn

e local or 

bilitation and

50-53. This

efforts the T

pleted 

a full 

he Air 

n has 

of the 

edged 

er the 

den of 

zards. 

ctor’s 

ildlife 

ut that 

n the 

me to 

but it 

nizing 

state 

d that 

s both 

Town 
34

Complainants themselves admit that the Airport’s main runway, Runway 10-28, is in 

good shape. Complaint at ¶ 20. They do not allege, nor can they, that Runway 10-28 is in 

anyway unsafe or unable to accommodate operations. Charlton Dec. at ¶ 11(a) (Runway 10-28 

is in good condition). The Town acknowledges the need to perform preventative maintenance on 

Runway 10-28 and has planned for such maintenance in its Airport Maintenance Plan. Id. The 

Town plans to complete a comprehensive pavement evaluation in 2015. Id. at ¶ 10. The results 

of this study will inform decisions on when preventive maintenance is scheduled for this 

Runway. The Town is aware of its obligations, has a plan to meet those obligations, and is 

diligently carrying out that plan. 

As depicted on the FAA-approved ALP, Runway 16-34 is currently used as a cross-wind 

runway, but it will be eventually converted to a taxiway. Charlton Dec. Ex. 1. (ALP). The 

2014-2018 ACIP includes appropriate funding for this project. Id. at Ex. 8. Complainants’ 

evidence regarding the status of this Runway is simply out-of-date. The Town did, in fact, 

acknowledge the need to rehabilitate this Runway in late 2013, see Complaint at ¶ 50, but that 

work is now complete. In early 2014, the Town patched the cracks in Runway 16-34, and the 

Runway is currently safe. Charlton Dec. at ¶ 11(b); id. at Ex. 10 (Runway 16-34 rehabilitation 

documents). 

Runway 4-22 is temporarily closed, as reflected on the approved ALP. Id. at ¶ 11(c); id. 

at Ex. 1 (ALP) (Runway Data Table); id. at Ex. 6 (Conditional ALP approval). The ALP and 

2010 Master Plan call for the eventual rehabilitation of this Runway. Id.; see also id. at Ex. 5 

(2010 Master Plan at pp. 2-3). In the interim, the Runway will continue to be used for taxiing 

operations. Id. at ¶ 11(c). Just last year, the Town repaved the portions of the Runway that are 
being use

no eviden

F

22 to a ta

conducte

22 as an 

pay for 

Complain

Complain

T

airfield, a

design an

the very 

half milli

Ex. 9 (B

demonstr

demonstr

is commi

In

Complain

Yet, as C

Decembe

ed for taxiin

nce of safety

urther, Com

axiway is ba

ed to full run

operating ru

the future r

nants had re

nt, they wou

5. Th

The Town ac

and it has b

nd construct

near future. 

ion dollars to

Bond Resolu

rate that th

rate that the 

itted to opera

6. A 

n yet anoth

nants allege 

Complainants

er. Complai

ng purposes. 

y concerns w

mplainant’s a

aseless and w

nway specifi

unway. Id. 

rehabilitation

eviewed the

uld have disc

he Town Is 

cknowledges

een taking s

tion of the p

 Id. at ¶¶ 10

o conduct ne

utions). Thu

he Town is 

Town contin

ating the Air

New, FAAher exampl

that the To

s themselves

int at ¶ 59; s

Id.; id. at E

with the curre

assertion that

without mer

ications and 

at ¶ 11(c). 

n. Id. at E

e relevant do

covered that 

Actively Pla

s that it shou

steps to do s

perimeter fen

0, 11(j). The

ecessary wor

us, once aga

in violatio

nues to take

rport in a saf

-Certified A

e of Comp

own has faile

s acknowled

ee also Char

35

Ex. 11 (Runw

ent taxiing o

t the Town h

rit. The pav

in no way p

Moreover, t

Ex. 8 (Airpo

ocuments, ra

there are no

anning To C

uld construc

so. The Tow

nce and anti

e Town also 

rk on critica

ain, Compla

on of any 

 its obligatio

fe, efficient, 

AWOS Will 

plainants’ a

ed to update

dge, the Tow

rlton Dec. at

way 4-22 rep

operations. 

has “perman

ing work fo

prevents the

the Town ha

ort Maintena

ather than r

o grant assura

Construct A

ct an effecti

wn has direc

icipates rece

 has just issu

al projects lik

ainants’ asse

federal obl

ons as the op

 and complia

Be Installed

attempt to 

e its AWOS 

wn issued the

t ¶ 11(g); id

paving docu

nently” conv

or the tempor

e rehabilitati

as adopted a 

ance Plan). 

rushed to fil

ance violatio

A New Perim

ive deer fenc

cted its engi

eiving a sco

ued bonds in

ke the perim

ertions are m

ligation. T

perator of H

ant manner. 

d This Sum

invent a c

system. Co

e bonds for a

d. at Ex. 14 (R

uments). Th

verted Runw

rary taxiway

on of Runw

financial pl

 Once aga

le their mer

ons here. 

meter Fence

ce to enclos

ineer to prio

ope of servic

n the amoun

meter fence. 

moot and do

The facts cl

TO seriously

mmer.

current viola

omplaint at 

a new AWOS

Resolution 2

ere is 

way 4-

y was 

way 4-

lan to 

ain, if 

ritless 

e.

se the 

oritize 

ces in 

nt of a 

Id. at 

o not 

learly 

y and 

ation, 

¶ 59. 

S last 

2014-
485). Ha

they wou

for Propo

will be o

rank spec

could hav

F

that: “[t]

repairs m

that coul

that the 

supportin

Such uns

FAA Do

support i

T

complete

documen

worked 

performa

lighting s

ad Complain

uld have lear

osals to cons

operational i

culation, off

ve discovere

7. Th

O

inally, Com

o the exten

may be band 

ld support an

lighting sys

ng evidence,

supported as

ocket No. 1

ts allegation

The Town in

e in Novem

ntation). Th

without inc

ance on a d

system are u

nants simply

rned that the 

struct the new

n the early 

fered with no

ed through re

he Town Ha

n Taxiway “

mplainants as

nt that the R

aids.” Com

ny violation

stem is curr

, that repairs

ssertions mu

6-12-14 at 

ns). 

nstalled an e

mber 2014. 

he lighting s

cident ever 

daily basis. 

utterly withou

y inquired w

Town is pre

w AWOS, a

summer of 2

o factual sup

easonable in

as Already C

“A”.

ssert that the

Respondent h

mplaint at ¶ 60

n of the Tow

rently not w

s may have 

ust be reject

25 (Compl

entirely new 

 Charlton D

system was 

since. Id

Id. In sum

ut merit. 

36

with the Tow

eparing bid s

and expects t

2015. Id. at

pport, and re

nquiry. 

Completed 

e lighting on

has made an

0. On its fac

wn’s grant o

working; they

been perform

ted out of ha

ainant must

runway ligh

Dec. at ¶ 1

designed an

d. Airport 

m, Complain

wn, in lieu of

specification

that the new

t ¶ 11(g). C

eadily refute

Its Upgrade

n Taxiway “

ny repairs t

ce, this alleg

obligations. 

y merely sp

med and tha

and. Scott M

t include su

hting system

11(f); id. at

nd built to a

staff mon

nants’ asser

f rushing to 

ns, is about t

w AWOS wil

Complainant

ed by facts th

e Of The Li

“A” has bee

to the lightin

gation fails to

Complainan

peculate, wi

at they may 

Meyer v. Ci

ufficient fac

m last year. 

t Exhibit 14

applicable st

nitors the li

rtions regard

file a Comp

o issue a Re

ll be installed

ts’ argument

hat Complai

ighting Syst

n unreliable

ng system, 

o allege any

nts do not a

ithout a shre

not be adeq

ity of Cincin

ctual eviden

 Installation

4 (Taxiway 

tandards and

ighting syst

ding the tax

plaint, 

equest 

d and 

ts are 

inants 

tem 

e, and 

those 

y facts 

allege 

ed of 

quate. 

nnati, 

ce to 

n was 

 “A” 

d has 

tem’s 

xiway 
37

C. The Town Is Maintaining Runway 4-22 Consistent With The FAA-Approved 

ALP 

For their Second Cause of Action, Complainants spin a convoluted tale based on the 

premise that the Town has failed to maintain Runway 4-22 in operational condition and has 

instead “permanently” converted Runway 4-22 into a taxiway. Complaint at ¶¶ 62-70. Like any 

good tale, elements of the story are true. Runway 4-22 has been out of service for several years 

because of disrepair. Charlton Dec. at ¶ 11(c); id. at Ex. 4 (2007 Master Plan at p. I-2); id. at Ex. 

5 (2010 Master Plan at pp. 2-3). The Town is currently using Runway 4-22 as a taxiway. Both 

of those facts are well-known, and the Town has apprised the FAA as appropriate. Id. at ¶ 11(c). 

Beyond that, however, Complainants’ allegations lack any evidentiary support. The ALP 

clearly indicates that the Runway is currently closed and that the Town has proposed to 

rehabilitate the Runway in the future. Id. at. Ex. 1 (Compare Existing ALP with Proposed ALP). 

In the interim, the Town has repaved the portions of Runway 4-22 currently used for taxiing 

operations to ensure ongoing safety at the Airport. Id. at ¶ 11(c); id. at Ex. 8 (Airport 

Maintenance Plan calls for “emergency repair for temporary use of a taxiway before converting 

to a runway”); id. at Ex. 11 (Runway 4-22 repaving documents). This will enable the ongoing, 

temporary use of the Runway as a taxiway while the Town completes its planning work and 

obtains necessary funding to implement future runway projects. As further evidence of the 

Town’s intention – and in refutation of the Complainants’ suppositions – the taxiway pavement 

was built to full runway specifications so that it can be incorporated into a fully-rehabilitated 

runway. Id. at ¶ 11(c). 

There is no evidence that current use of Runway 4-22 is unsafe or that the Town has 

suspended maintenance on this facility. To the contrary, the Town is actively maintaining the 

facility for its current use. There is no evidence that the Town intends to permanently close this 
38

Runway. To the contrary, all of the Town’s planning documents provide clearly for the future 

rehabilitation of the Runway. Id. at ¶ 11(c); id. at Ex. 1 (ALP); id. at Ex. 5 (2010 Master Plan at 

pp. 1-3); id. at Ex. 8 (Airport Maintenance Plan). And there is no evidence that the Town has 

failed to maintain the Runway consistent with the current ALP. The FAA-approved 2011 ALP 

states plainly that the Runway is currently closed for runway operations – a fact that the 

Complainants are forced to admit. Complaint at ¶ 66 n. 4. Moreover, Complainants’ assertion 

that the FAA’s approval was “conditioned upon the return of Runway 4-22 to full use” misses 

the point. E.g., Complaint at ¶ 66. The FAA approved the ALP with Runway 4-22 closed, but 

with the plans to reactivate the runway in the future, as clearly depicted on page 3 of the ALP. 

Charlton Dec. at Ex. 1 (ALP). The Town has not taken any action inconsistent with that or that 

would adversely affect safety. The Town is in full compliance with its obligations under 

Assurance 29 and Complainants’ assertions to the contrary are baseless and without merit. 

D. The Town’s New Airport Fees Are Reasonable And Appropriate Insofar As 

They Were Raised Specifically To Provide For The Airfield Improvements 

Complainants Have Demanded 

Having devoted two Causes of Action to berating the Town for not completing repairs 

and improvement projects fast enough, Complainants switch gears in their Third Cause of Action 

and attack the Town for increasing landing fees to help pay for the costs of necessary capital 

projects at the Airport.5 The obvious contradiction in Complainants’ position is made clear by 

the fact that Complainants do not even suggest that the Town has been accumulating a surplus, 

does not need to spend many millions of dollars to improve the Airport or that any of the projects 

are not necessary. To the contrary, Complainants argue in Paragraph 87 of their Complaint that 

 

5

 We note that the matter of the Town’s 2014 fee increases are the subject of a separate, 

and currently-pending Part 16 Complaint, Sound Aircraft Services, Inc. v. Town of East 

Hampton, NY (FAA Docket No. 16-14-07). 
39

the Town “does not intend to and cannot allocate sufficient funds to perform all of the necessary 

repairs and maintenance” without which the Airport will not be able to operate safely. Yet 

Complainants also challenge the Town’s effort to raise those funds by increasing landing and 

fuel flowage fees to pay for the very repairs and maintenance items Complainants demand. At 

bottom, Complainants’ position rests on the simple and selfish premise that the fees are too high 

and that someone else should shoulder the burden of paying for the facilities they demand. 

There is simply no rule or principle under the grant assurances that supports that position. 

In an effort to distract attention, Complainants offer another convoluted theory, i.e., that 

the Town has deliberately allowed the Airport to fall into disrepair in order to discourage aircraft 

from using the Airport and is now using the increased landing fees to further discourage use. 

E.g., Complaint at ¶¶ 15, 72, 73 & 74. On its face, this is absurd because the very purpose of the 

increased landing fees is to pay for the necessary repairs, thus making the Airport more attractive 

to users. E.g., Malman Dec. at ¶¶ 7, 17, & 19. Moreover, Complainants’ theory lacks any 

factual support whatsoever. 

First, Complainants’ cite no evidence whatsoever to support the notion that the Town 

deliberately allowed the Airport to fall into disrepair in order to discourage use. That is pure 

speculation that deserves no weight or consideration in a Part 16 proceeding. Scott Meyer v. City 

of Cincinnati, FAA Docket No. 16-12-14 at 25 (Complainants must establish by a preponderance 

of substantial and credible evidence that the Sponsor has violated its grant obligations). In any 

event, it is not true. The Town is embarking on an responsible, ambitious, multi-year effort to 

address maintenance and repair needs to make the Airport both safe and attractive to users. 

Charlton Dec. at ¶¶ 7-12; Malman Dec. at ¶¶ 9-11. While the Town acknowledges that it is has 

not always been able to perform maintenance and repairs promptly, the current Town Board and 
40

Airport management are committed to operating the Airport in a professional and safe manner, 

including addressing maintenance and capital needs that may have gone unmet in the past. 

Charlton Dec. at ¶¶ 7, 12. 

Second, Complainants cannot meet their burden of showing that the Town increased the 

landing fee in order to discourage use. The only evidence Complainants offer to support this 

allegation is an excerpt from the minutes of the June 2, 2014 meeting by the BFAC 

Subcommittee.6

 Complaint at ¶ 73. But that discussion was limited to a discussion of touchand-go operations, which the Subcommittee recognized are not a current problem. Complaint 

Ex. 17 at 3. There was no discussion suggesting that the purpose of increasing the landing fee in 

2014 was to discourage touch-and-go operations. As detailed above, moreover, the stated and 

only purpose of increasing the fees was to raise sufficient revenue to pay for needed airport 

maintenance and capital projects to improve the airfield. Supra at pp. 13-17; see also, Malman 

Dec. at ¶¶ 7, 17, & 19; see also id. at Ex. 18 (Subcommittee’s May 17, 2014, presentation at 

slide 2 (“Why BFAC Recommends that HTO Increase Its [Fuel Flowage Fee] To 

$0.30/Gallon”)). Complainants offer no evidence to suggest, much less prove, otherwise. 

Third, Complainants argue that the fee increases are only necessary because the Town 

has decided to no longer accept federal grant funds, which Complainants speculate could have 

been used to fund projects instead of increasing landing fees. Complaint at ¶ 72. But 

Complainants also acknowledge that the Town has no obligation to accept federal grant funds, 

and further, make it clear that they do not allege that the Town’s refusal to accept grant funds is 

in itself a violation of the Sponsor Assurances. Complaint at ¶ 37. Complainants’ argument is 

 

6

 Respondent also notes that the Subcommittee, while created to advise the Town, is 

distinct from the Town and has no authority to speak on behalf of the Town. 
41

simply posturing because, by their own admission, it is of no legal significance. It, too, deserves 

no weight. 

The simple fact is that Complainants want it both ways. They want a modern airport with 

new pavement, as well as other safety and operational features. And they want someone else to 

pay for it: an understandable desire, perhaps, but hardly the basis for a legal action that the 

Town has somehow violated its grant assurances. As explained below, the current fees were set 

in a transparent and fair manner to allocate the cost of needed improvements to the airfield, all of 

which are improvements that Complainants have urged the Town to complete. Complainants’ 

case is motivated by the simple desire to pay less for more, and it should be dismissed. 

1. The New Fees Are Appropriate And Comply With Sponsor Assurance 24.

The fundamental obligation under Sponsor Assurance 24 is to “maintain a fee and rental 

structure that makes the airport as financially self-sustaining as possible under the particular 

circumstances at that airport.” Compliance Manual at ¶¶ 17.9 & 17.10. The focus under 

Sponsor Assurance 24 is on self-sustainability and protecting the federal investment in an airport, 

not in charging “market rates” for using the airport. Compliance Manual at ¶ 5. Moreover, 

“Grant Assurance 24 does not obligate an airport sponsor to design its schedule of rates and 

charges around the profit margins of its FBOs.” Northern Air, Inc. v. County of Kent, FAA 

Docket No. 16-11-10 at 53 (Director’s Determination March 28, 2013). Accordingly, “the FAA 

will not ordinarily undertake an investigation of the reasonableness of a general aviation airport’s 

fees absent evidence of a progressive accumulation of aeronautical revenues.” Compliance 

Manual at ¶ 17.9. 

The 10 percent landing fee increase and the new 30 cent fuel flowage fee at the Airport 

are plainly justified under this standard. First of all, the Subcommittee based its analysis on the 

ACIP and related Airport Maintenance Plan, which together identified over $10 million in capital 
42

projects that need to be done at the Airport. See generally, supra at pp. 13-17; see also Malman 

Dec. at ¶¶ 7-19. These projects include the runway and pavement projects that Complainants 

have demanded, as well as other important projects. Charlton Dec. at Ex. 8 (ACIP and Airport 

Maintenance Plan). The Subcommittee determined that prior Airport revenues were insufficient

to meet expected capital and other expenses. Malman Dec. at ¶ 17. In other words, under the 

prior revenue structure, the Airport would not have been self-sustaining given future capital and 

other needs. The Subcommittee thus determined that additional revenue sources, including the 

increased landing and fuel flowage fees, were necessary for the Airport to become selfsustaining. Id. at ¶ 19. 

Second, the Subcommittee reviewed comparable airports and concluded that the 

proposed increases were generally consistent. Id. at ¶ 25 (fuel flowage fees) & ¶ 38 (landing 

fees). Finally, increasing fuel flowage fees and landing fees is a permissible and traditional way 

for a general aviation airport to meet its obligations under Assurance 24. Rates and Charges 

Policy, 61 Fed. Reg. at 31997. The Subcommittee’s analysis shows that the fuel flowage fee and 

landing fee increases would address most, but not all, of the Airport’s revenue needs. Malman 

Dec. at ¶ 44. Those basic, and uncontested, facts establish that the new fees are reasonable and 

fully compliant with Assurance 24. 

In addition, Complainants fail to meet their burden of proof that the Town has violated 

Assurance 24. A challenge to fees at a general aviation airport under Sponsor Assurance 24 is 

not ripe “absent evidence of a progressive accumulation of aeronautical revenues.” Compliance 

Manual at ¶ 17.9. “Reasonable reserves and other funds to facilitate financing and to cover 

contingencies are not considered revenue surpluses.” Id. Complainants do not offer any proof 

that there has been a progressive accumulation of airport revenues. Nor could they. The new 
43

fees have not been in place for a full year and there simply can be no evidence of a progressively 

accumulating surplus in such a short period of time. Moreover, as detailed above, the new fees 

are necessary to pay for very capital projects that Complainants want. 

The fundamental flaw with Complainants’ argument is that it ignores the fact that the 

landing and fuel fee increases were increased for the sole purpose of providing sufficient revenue 

to pay for over $10 million in airfield capital projects, including the very runway and pavement 

projects Complainants assert are essential. The Subcommittee’s analysis shows that the fuel 

flowage fee and landing fee increases would provide most, but not all, of the revenue needed to 

pay for those necessary capital projects. Malman Dec. at Ex. 8 (Preliminary Debt Capacity 

Analysis); id. at Ex. 10 (May 20, 2014, Subcommittee Presentation). Accordingly, the Town is 

continuing to explore other sources of revenue in order to meet the Airport’s financial needs. 

Malman Dec. at ¶ 44. Those basic, and uncontested, facts establish that the new fees are 

reasonable and fully compliant with Assurance 24. 

Complainants do not argue that the Town does not need to perform the projects identified 

on the ACIP and Airport Maintenance Plan, nor do Complainants dispute the dollar amounts of 

those improvements. Complainants do not present any financial analysis of the Airport revenues 

and capital needs demonstrating: (1) that the new fees are not necessary, (2) that the new fees 

have led to an unreasonable surplus, or (3) that the new fees will lead to an unreasonable surplus. 

In short, Complainants fail to offer any affirmative proof that the new fuel flowage fees and 

landing fees are in any way inconsistent with Assurance 24. 

Instead, Complainants make two arguments that largely miss the point. First, 

Complainants argue that the fees are unreasonable because they are simply too high. Complaint 

at ¶ 75. To support that, Complainants compare the Airport’s landing fees to other airports and 
44

to a fee schedule from Bombardier Aerospace Corp. v. City of Santa Monica, FAA Docket No. 

16-03-11, at 44 (Director’s Determination Jan. 4, 2005), where the FAA found the fees to be 

improper for other reasons. Complaint at ¶ 29. But the simple fact that the Town’s landing fees 

are high does not make them improper. The touchstone of any fee structure is whether it meets 

the goal of self-sustainability. Compliance Manual at ¶¶ 17.5, 17.10. A fee must be evaluated 

not by its absolute cost, but by the financial needs it is intended to meet. Id. As demonstrated 

above, the fees at the Airport are tailored to meet some, but not all, of the Airport’s capital needs 

and are therefore appropriate under Assurance 24. 

Bombardier is not to the contrary. In that case, the Director noted that Santa Monica’s 

fees were high, but did not find the fees to be non-compliant for that reason. Rather, the Director 

was presented with other reasons why the fee itself was unreasonable, including apparent 

discrimination among users and an underlying methodology that did not properly allocate airport 

costs among users. Id.

Second, Complainants allege that the basis for the new fees was that “certain aeronautical 

users could afford it.” Complaint at ¶ 76; see also id. at ¶¶ 26, 30. Not only is that not the case, 

but Complainants offer no evidence to support that assertion.7

 The news fees were set at a level 

appropriate to meet anticipated expenses for capital needs and they are reasonable. 

 

7

 The sole “evidence” that Complainants offer to support their theory that the Town raised 

fees because “aeronautical users can afford it” is in the minutes of the BFAC Subcommittee from 

June 2, 2014. Complaint at ¶ 77. But the Minutes simply state: 

“It was determined that, since there is significant work to complete final fuel 

management recommendations, while continuing this work the Town should 

immediately raise the fuel flowage fee to 30 cents a gallon since, already in 

2002 a consulting report to the town had recommended increasing the fuel 

flowage charge. Since 2002 the retail fuel price has gone from about $2.50 a 

gallon to over $7.00 while the Town’s flowage fee had remained fixed.” 

Malman Dec. at Ex. 15 (June 2, 2014 BFAC Subcommittee Minutes) (emphasis added). 

Moreover, the cited 2002 report recommends raising the fuel prices in the context of its finding 
45

2. The Fee Increases Were Adopted in a Transparent Manner.

The method by which the Town adopted the new fees was, without question, reasonable, 

transparent, and non-discriminatory. Adoption of landing fees by ordinance is expressly 

permitted. 78 Fed. Reg. at 55333 (“Airport proprietors may set fees for aeronautical use of 

airport facilities by ordinance, statute or resolution, regulation, or agreement.”) And periodic 

increases in the fuel flowage fees are expressly contemplated in the FBOs’ respective leases. See

Charlton Dec. at Ex. 18 (Excerpts from FBOs Leases). 

Moreover, both fee increases were adopted through a robust public process that simply 

compared future financial needs to existing revenues and concluded that additional revenues 

were necessary to meet those obligations. Supra 13-17; see also Malman Dec. at Ex. 10 (May 

20, 2014 Subcommittee Presentation); id. at Ex. 11 (Transcript of May 20, 2014, public hearing); 

id. at Ex. 16 (June 3, 2014 Town Work Session Minutes); id. at Ex. 17 (Transcript of June 5, 

2014 Town Board Meeting); id. at Ex. 19 (Transcript of June 17, 2014 Town Work Session). 

The Subcommittee meetings were public, Malman Dec. at ¶¶ 4-5 (Subcommittee has been 

meeting since February 2014 and meetings are open to the public), and the Subcommittee 

actively engaged with aeronautical users. E.g., Malman Dec. at ¶¶ 26-28. And the fee increases 

were adopted by resolution by the Town Board after the public notice required by law. Malman 

Dec. at ¶ 33. Thus, Complainants’ arguments about the lack of transparency are baseless. There 

is no evidence that the Town failed to meet its obligations under Assurance 24. 

3. The Town Did Not Discriminate When It Raised The Fees.

The method by which the Town adopted the new fees was reasonable, transparent, and 

non-discriminatory. The fuel flowage fee applies equally to all aeronautical users. And, with 

 

that “East Hampton has the lowest prices in the service area for 100LL and Jet A ...” See id. at 

Ex. 12 (2002 Airport Economic Analysis at 22). This is hardly the admission that Complainants 

allege. 
46

regard to the landing fee, the Town simply adopted an across-the-board 10 percent increase to 

the long-standing and never-before challenged fee structure. The increase applies equally to all 

aeronautical users. 

Complainants argue that the landing fees cover a wide monetary range and bear “no 

rational relationship to the infrastructure requirements of services that are used by the various 

types of aeronautical users.” Complaint at ¶ 78. To be clear, the Town’s landing fees are 

intended to be weight-based. See Malman Dec. at Ex. 12 (2002 Airport Economic Study at p. 

22) (“East Hampton’s fee is graduated by weight ...”). The Town acknowledges, however, that 

over the years the Town’s actions to adjust landing fees may have resulted in certain 

discrepancies among users. The Town intends to revisit, update, and correct the landing fee 

schedule in the summer of 2015. 

4. The Town Is Addressing Revenues from Non-Aeronautical Leases.

Finally, Complainants argue that the Town has violated Assurance 25 by failing to collect 

fair market rent from non-aeronautical users. Complaint at ¶¶ 80-86. Complainants cite to a 

2012 schedule of leases that provides information about then-current leases and rents. Complaint 

at Ex. 28. Complainants also comment on four specific leases, which are currently below fair 

market value. Complaint at ¶¶ 31-32 & 84-85. As part of its analysis, the Town’s advisory 

committee has acknowledged that the Town will need to increase revenues from nonaeronautical users and sources. Malman Dec. at ¶ 44; id. at Ex. 8 (Preliminary Debt Capacity 

Analysis at p. 3. The Town agrees to enter into a Corrective Action Plan with the FAA to 

discuss and resolve any current issues with non-aeronautical leases and to implement a plan for 

assuring ongoing compliance going forward. 

The Town is committed to finding additional sources of non-aeronautical revenues as 

leases expire or as permitted under existing leases. To the extent any future revenue increases 
will allow the Town to consider lowering aeronautical fees such as the landing and fuel flowage

fees, the Town will do so.

V. CONCLUSION

For the foregoing reasons, the Town respectfully requests that the FAA dismiss the

Complaint and find that the Town is in compliance with its sponsor obligations.

Respectfully submitted this lst day of May, 2015.

Elizabeth Vail

Town Attorney

Town of East Hampton

159 Pantigo Road

East Hampton, NY 11937

EVail@EHamptonNY.Gov

Eric Pilsk

Catherine van Heuven

Kaplan Kirsch & Rockwell LLP

1001 Connecticut Ave., NV/, Suite 800

Washington, DC 20036

epilsk@kaplankirsch. com

cvanheuven@kaplankirsch. com

Telephone: (202) 955-5600

Facsimile: (202) 955-5616

47
CERTIFICATE OF' SERVICE

I hereby certify that I have this lst day of May,2015, served the foregoing Respondent

Town of East Hampton, New York's Brief in Support of Its Motion to Dismiss and Answer

to the Complaint on the following parties by e-mail at the following addresses:

Office of the Chief Counsel

Attn: FAA Part 16 Airport Proceedings Docket, AGC-610

Federal Aviation Administration

800 Independence Avenue, S'W

V/ashington, DC 20591

1 copy via E-mail

9-AWA-AGC -Part- 1 6 @faa. gov

Leonard D. Kirsch, Esq.

McBreen & Kopko

500 North Broadway

Jericho, NY 11753

lkirsch@mklawnyc.com

Dated this I't day of May,2015

Catherine M. van Heuven

48