BEFORETHEUNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION



### MANSFIELD HELIFLIGHT, INC. Complainant, V. 

### CITY OF BURLINGTON, VERMONT Respondent. DocketNo. 16-14-06



### ANSWERIN OPPOSITION TO MOTION TO SUPPLEMENT
Pursuant to 14 C.F.R. § 16.19(c), Respondent, the City ofBurlington, Vermont ("City"), submits this Answer in Opposition to the Motion to Supplement filed by Mansfield Heliflight, Inc. ("Complainant") onApril 7, 2015. The City incorporates all ofthe arguments made in, and exhibits submitted with, its ConsolidatedAnswer, Motion for Summary Judgment, and Motionto Dismiss ("Answer"), as well as the arguments made in its Rebuttal, and reiterates those arguments as ifrestated herein. To the extent Complainant raises new allegations in its Motion to Supplementthat are not expressly addressed herein, such allegations are hereby denied. I. 

### INTRODUCTION Complainant seeksto include additional information inthe administrative record to bolster its claimthatthe City "has allowed Heritage

...to 'landbank' valuable leaseholds at the [Airport] in orderto preventcompetition- i.e., a second FBO

- from gaining a foothold at the Airport." Motionto Supplement at 1. As the City explained in the Answer and again inthe

### Reply, there is no land banking. The City understands that Complainantwants access to certain existing facilities, butthose facilities are leasedto, and generallybeing used by, the incumbent FBO. Forthatreason andto accommodate Complainant, the City instead offered Complainant Airport land onwhich Complainant could develop its own facilities. In its Motion to Supplement, Complainantmerely restates its beliefthat the Grant Assurances require an airport sponsorto somehow accommodate a new entrant FBO in facilities under lease by an incumbent FBO even after the airport sponsor has offered the new entrant FBO the opportunity to develop its ownfacilities on airport land. That cannotbe. The City does notbelieve FAA should consider Complainant's new evidence because it lacks probative value, does notpresentnew, relevant facts, and fails to support what Complainant alleges. The City is satisfiedthat Heritage is using its space in accordance with its contractual obligations. But even ifHeritage's leasehold were in some way improper (an allegation that the City denies), Complainant has failed to showthat there is no space elsewhere at the Airport available for itto conduct its business. In fact, the City has offered, and Complainant seemingly accepted, undeveloped Airport land for this very purpose. 

### II. COMPLAINANT PROVIDES NO NEW, RELEVANT EVIDENCE Complainant offers evidence-anadvertisement for office space, Board minutes where Airport Director Gene Richards reported on space to lease at Heritage and litigation with Complainant, and emails between Complainant and Heritage-thatdoes notfurther its allegations and therefore need notbe considered as part ofthe record. Complainant states that its

newevidence provides additional proofthat Heritage is notutilizing the space it leases from the City. Motionto Supplement at 3. However, the City already had represented to FAA that it believed Heritage was in negotiations with a tenant for office space inthe ASH Hangar, Rebuttal at 4-5 n.5 ("upon information and belief, Heritage is in active negotiations with atenant to 2

### occupy much of[ASH Hangar office space]"), so this is not new information; it has beenin the administrativerecord since the City submitted its Rebuttal. Complainant also suggests that the Citybelieved that Heritage was planningto make space available to Complainant, Motionto Supplement at 3, but Complainant does not allege howthis piece ofevidence supports its claims thatthe City is inviolation ofits Federal obligations. To the extentthatFAA finds the new evidence submittedby Complainantrelevant to this investigation, the City respectfully requests that FAA also consider Exhibit 1, 

### attached hereto. The City believes thatExhibit 1 supplements the evidence submittedby Complainant by providing a more detailed account ofthe roles played by the City and Heritage in the events highlighted by Complainantthatwould similarly assist FAA's investigation. 

### III. THE CITY BELIEVES THAT HERITAGE IS USING ITS LEASED SPACE IN ACCORDANCE WITH CONTRACTUAL TERMS The City reiterates thatitbelieves that Heritage is using its space in accordance with its contractual obligations. See 

### Rebuttal at 15-16. The City has denied Complainant's allegations that Heritage does notput its leased space to productive use. Answer at 13-14,**~~** 

### 3, 6; Answer at 26,**~** 

### 120. Although Complainanthas its theories about how space should be leased at the Airport, the City does not agree with these characterizations. See 

### Answer at 17,**~** 

### 38. Complainant seeks to introduce evidence showing that Heritage is seeking subtenants for office space and that Heritage decided it does not have space suitable for Complainant's proposedbusiness in its listedproperties. Motionto Supplement Exs. A, C. Complainant alleges that Heritagetold Complainant itwas not interested in granting a sublease to Complainant after Complainant "made it clearthat it would be looking to provide aeronautical services therefrom." Motionto Supplement at 3. However, neither the Motionto Supplement

nor the new evidence attached to it explains the type ofaeronautical services that Complainant 

### 3wanted to provide. More importantly, Complainanthas not shown (or alleged) thatthe office space that Heritage had available for lease inthe ASH Hangar was suitable for Complainant's intended aeronautical services, whateverthey may be. 1 It shouldbe noted thatthe Citytookno part in Complainant's discussions withHeritage regarding the space in question. Complainant also seeks to introduce evidencethat Airport Director Gene Richards discussed notifying Complainantthat Heritage is leasing space, Motionto SupplementEx. B, for the propositionthatthe City is "operating underthe mistaken assumptionthat Heritage would make this empty space available to Mansfield." Motionto Supplement at 3. This allegation is a return to Complainant's predilection for argument based on innuendo. See, e.g., Rebuttal at 12 n.18. Yet the conspiracy here is evenmore attenuated than Complainant's priortheories: the record reflects the City's efforts to find space for Complainant atthe Airport-both in existing facilities and on undeveloped land, see, e.g., Complaint Ex. 24 at 2 (describing available facilities and offeringpossibility ofconstructing newfacilities); ComplaintEx. 28 at 1-2 (providing information about leasing various facilities); Complaint Ex. 40 at 1 (notifying Complainantthat the City is working on its office lease); Answer Ex. 1, 

## i! 4 (suggestionthat Complainant consider developing a new site)-andthe statementthat Complainantnowpoints to is an extension ofthe City's good faith efforts to accommodate Complainant, given the limited informationthat the City has about the business that Complainantwants to operate, as well as the

1Although, as noted in the Answer and Rebuttal, the purpose for which Complainant has sought space at the Airport has changed overtime, Answer at 8-12, Rebuttal at 3-4, Complainantnow suggests-withoutexpressly stating sothat it mayhave wanted to run a competing FBO as Heritage's subtenant. See, e.g., Motion to Supplement at 1 (allegingthat the City is tryingto "preventcompetition- i.e., a second FBO"). ButifComplainant wanted to operate an FBO out ofthe facilities subleased from Heritage, Complainant has not shown that the office space described in its Motionto SupplementEx. A (described as "Class A office space") by itselfwould be suitable and sufficient for thatkind ofbusiness. Complainant appears to be underthe impression that all itneeds to operate an FBO is office space in somebuilding with access tothe airfield, without also obtaining space in which it can perform aircraft services (hangar space, apron space, tiedowns, etc.) and in which it can install and build a fuel farm.

4

### City's concernthat Heritageprioritize aeronautical subtenants in leasing its space. Answer in OppositionEx. 1 at 2.2 

### IV. COMPLAINANT HAS NOT BEEN DENIED ACCESS TO THE AIRPORT Although, as Complainantnotes, Motion to Supplement at 2, the City has takenthe positionthat there are no existing facilities suitable for an FBO at the Airport, the Cityhas denied (and continues to deny) that Heritage's lease excluded Complainantfrom the Airport, Answer at 26, 

## if 120. Whether there is suitable space for Complainants atthe Airport-not whether there is space in Complainant's preferred existing facility, which happens to be fully leased by a competingtenant-shouldbe the relevant inquiry to evaluate an exclusive rights claim. RoadhouseAviation v. City ofTulsa, FAA DocketNo. 16-05-08, Director's Determination at 29 (Dec. 14, 2006), aff'd, Final Decision and Order (June 26, 2007) (the "intent ofGrant Assurance 23 and companion guidance language in FAA Order 5 l90.6A is that an airport sponsor not lease all available land to one FBO, thereby granting an exclusive right"). The City understands that leasing all available Airport land and improvements to one entity canbe evidence ofan intentto exclude others unless it canbe demonstrated thatthe entire leased areais presentlyrequired. See Ricks v. Millington Mun. AirportAuth., FAA DocketNo. 16-98-19, Director's Determination at 24 (July 1, 1999). Complainant focuses on the second element (arguing that Heritage's entire leased area is not being used by Heritage), while ignoring

2 As argued above in Section II, the City believes that FAA should not grant Complainant's Motion to Supplement and should not considerthe evidence submitted with it. However, ifFAA concludes that the new evidence is admissible, the City believes that Exhibit 1hereto provides a fuller picture ofwhat transpired-at least as it relates to the City's Federal obligations. Exhibit 1 shows a string ofemails between a representative ofHeritage and Airport staffin January 201.5. Compare Answer in Opposition Ex. 1with Rebuttal at 5 n.5 (asse1ting that the City believed that Heritage was in active negotiations with an Airporttenant for office space). As shown in Exhibit 1, the City asked Heritage to reach out to Complainant, provided Heritage with Complainant's contact information, and told Heritage that it needed to first try to rent the available office space to aeronautical users.
5

### the first and principal element. Complainant fails to showthat the City leased all available Airport landto Heritage. Even assuming Complainant's allegations that Heritage has more space than itneeds were true and sufficiently supported by Complainant's evidence (which the City does not concede), the record evidence does not showthatthe City leased "all available land to

one FBO thereby granting an exclusive right" to Heritage. See BistiAviation, Inc. 

# v. City of Farmington, NM, FAA DocketNo. 16-07-01, Director's Determination at 18 (Dec. 4, 2007); see also FAA Order 5190.6B, 

## if 8.7.b (2009) ("FAA may find the sponsor inviolation ofthe exclusive rights prohibition ifthe serviceprovider is banking land

... and/or the vacantproperty controlledby the serviceprovider denies a competitor from gaining entry onto the airport") (emphasis added). On the contrary, record evidence shows that the City offered Complainantthe opportunityto develop its own space from which to offer aeronautical services elsewhere at the Airport. Complaint Ex. 24 at 3; Complaint Ex. 28 at 1, 4; Answer Ex. 1, 

## if 4; Answer Ex. 4. The evidence further shows that Complainant agreed to move forward withthe opportunityto develop its own facilities not long before itfiled its Part 16 Complaint. ComplaintEx. 34. Complainant argues that it has been denied access to the Airport and that Heritage controls the only existing facilities suitable for FBO operations, Motionto Supplement at 4, but the Cityhas shownthatthere is Airport land available on which newFBO facilities couldbe built, and that land was offeredto Complainant. No evidence that Complainantnow seeks to introduce contradicts that fact or suggests that the available Airport land is in some way inadequate for Complainant. 

### V. CONCLUSION Forthe foregoing reasons, the City respectfully requests that the Motion to Supplement be denied, and thatthe Complaintbe summarily dismissed as requested inthe City'sprior motions or, in the alternative, that it be dismissed after full investigation. The evidence 6Complainant offers in its Motionto Supplementdoes notprovide factual support for Complainant's arguments, and, as a matter oflaw, the Cityhas not granted an exclusive right, actual or constructive, for aeronautical services.

April 14, 2015 Respectfully submitted,

Jessica R. Bell Spiegel & McDiarmid LLP 1875 Eye Street, N.W. Suite 700 Washington, DC 20006 Email: pablo.nuesch@spiegelmcd.com Phone: 202-879-4000 Fax: 202-393-2866 Attorneys for the City ofBurlington, Vermont

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## EXHIBIT 

# 1From: Dave Stiller [mailto:Dave.Stiller@FLYHERITAGE.COM] Sent: Wednesday, January 21, 2015 3:04 PM To: Nicolas Longo Subject: RE: Aviation Avenue space Nie, Great-thankyou very much for the contact info for Eric. I will reach out to him on behalfof Heritage and connect him to Brad as well. Iwill keep you updated. Understood regarding non-aeronautical requests, and thanks for speaking with Brad directly. Don't hesitate to let me know what else I can assist with, and thankyou for considering our requests. Dave

From: Nicolas Longo [mailto:nlongo@btv.aero] Sent: Wednesday, January 21, 2015 1:55 PM To: Gene Richards; Dave Stiller Cc: Gregg Meyer; MarieJ. Friedman; Erin Knapp; Robert McEwing Subject: RE: Aviation Avenue space David, So you have information regarding Eric Chase and Mansfield Heliflight, and so we all do ourdue diligence in making sure that we have exhausted all known possibilities in putting in aeronautical uses entities, it would be greatto touch base with them regarding this. His contact Information: Eric Chase, President, Mansfield Heliflight, 802-893-1003 x222 We will review all requests for subleases that are non-aeronautical in nature, we did just get offthe phone with Brad to get an idea ofwhat is coming, and it looks like a nice stream of interest. Thanks foryour help, Nicolas Longo Accounting Assistant Airport Grants Administrator Burlington International Airport 1200 Airport Drive, Suite 1 South Burlington, Vermont Office: 802-863-2874 x236 Cell: 802-503-7368 Email: nlongo@btv.aero www.btv.aeroFrom: Gene Richards Sent: Wednesday, January 21, 2015 12:32 PM To: Dave Stiller Cc: Gregg Meyer; Nicolas Longo; Marie J. Friedman; Erin Knapp; Robert McEwing Subject: Re: Aviation Avenue space David Thank you We need to make sure there are no aviation uses available. He had at one time express a need for more space at BTV He has filed a complaint to the FAA that we have not made open space available to him

. We need to offer it to all aviation uses first My best Gene Richards Director ofAviation Burlington International Airport grichards@btv.aero 1200 Airport Drive,# 1 South Burlington, VT 05403 Phone: 802-863-2874 ext. 200 Cell: 802-343-9909 Fax: 802-863-7947 "There is always a wayto do it better

.. Find it " -Thomas Edison

On Jan 21, 2015, at 12:25 PM, Dave Stiller <Dave.Stiller@FLYHERITAGE.COM> wrote: Understood. Thank you very much. I have not had the opportunity to meet Mr. Chase before, but Iwould be happy to reach out to him. If anyone could provide contact information, that would be helpful, otherwise Iwill pursue his information separately. Dave From: Gene Richards [mailto:grichards@btv.aero] Sent: Wednesday, January 21, 2015 12:18 PM To: Dave Stiller

2Cc: Gregg Meyer; Nicolas Longo; MarieJ. Friedman; Erin Knapp; Robert McEwing Subject: Re: Aviation Avenue space Good Afternoon I have been working with the city attorney office and the CAO to move your request forward

. I have included Nie Longo and Gregg Myers on this email to keep you updated on the progress . Do you know IfEric Chase is still looking for space . You may wantto reach out to him. Thank you for your email Mybest Gene Richards Director ofAviation Burlington International Airport grichards@btv.aero 1200 Airport Drive,# 1 South Burlington, VT 05403 Phone: 802-863-2874 ext. 200 Cell: 802-343-9909 Fax: 802-863-7947 "There is always a wayto do it better

.. Find it" -Thomas Edison

On Jan 21, 2015, at 12:04 PM, Dave Stiller <Dave.Stiller@FLYHERITAGE.COM> wrote: Gene, Here is just a little follow up on the Real Estate email from the other day-we have some tenants ready to go pending approval, and we are interested in gettingyou and yourteam any information you want and having any conversations that would be helpful when possible. Dave Also-with your guidance Iwould be happy to initiate any conversation with VEDA orforward any documents on to Tom Porterthat would be helpful, but I presume justto work with you for now unless directed otherwise.

3From: Brad Worthen [mailto:bradw@vtcommercial.com] Sent: Wednesday, January 21, 2015 11:19 AM To: Dave Stiller; Carol Betz Cc: Tim Shea; Jamie Soulia Subject: Fwd: Aviation Avenue space Dave and Carol Forwardingthis email to you reflecting Connect Benefits desire to execute the lease. They have decided not to request any modifications and to accept the space as currently configured. So the edited draft provided by their attorney Scott McAllister reducingthe square footage is accurate. Their attorney has been in communication with your attorney and I believe the remaining lease draft issues have been reviewed and ready for your approval. The only additional request they have is the same as Martti's: to utilize the existing furniture during tenancy. Please advise andthank you! Brad

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### Certificate ofService

I hereby certify that Ihave today, the 14th day ofApril, 2015, caused the foregoing Answer in Oppositionto Motion to Supplementto be served electronically, onthe following: BenjaminH. Klein The Klein LawFirm, LLC 61 Broadway, Suite 2125 NewYork, NY 10006 bklein@thekleinfirm.com Attorney for Complainant

# 2i~l Pablo 0. 

### Ntiesch