BEFORE THE UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

MANSFIELD HELIFLIGHT, INC. 

Complainant, 

V. 

CITY OF BURLINGTON, 

VERMONT 

Respondent. 

Docket No. 16-14-06 

ANSWER IN OPPOSITION TO MOTION TO SUPPLEMENT 

Pursuant to 14 C.F .R. § 16.19( c ), Respondent, the City of Burlington, Vermont ("City"), 

submits this Answer in Opposition to the Motion to Supplement filed by Mansfield Heliflight, 

Inc. ("Complainant") on April 7, 2015. The City incorporates all of the arguments made in, and 

exhibits submitted with, its Consolidated Answer, Motion for Summary Judgment, and Motion to 

Dismiss ("Answer"), as well as the arguments made in its Rebuttal, and reiterates those 

arguments as if restated herein. To the extent Complainant raises new allegations in its Motion 

to Supplement that are not expressly addressed herein, such allegations are hereby denied. 

I. INTRODUCTION 

Complainant seeks to include additional information in the administrative record to 

bolster its claim that the City "has allowed Heritage ... to 'land bank' valuable leaseholds at the 

[Airport] in order to prevent competition- i.e., a second FBO - from gaining a foothold at the 

Airport." Motion to Supplement at 1. As the City explained in the Answer and again in the 
Reply, there is no land banking. The City understands that Complainant wants access to certain 

existing facilities, but those facilities are leased to, and generally being used by, the incumbent 

FBO. For that reason and to accommodate Complainant, the City instead offered Complainant 

Airport land on which Complainant could develop its own facilities. In its Motion to 

Supplement, Complainant merely restates its belief that the Grant Assurances require an airport 

sponsor to 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 own facilities on airport land. That cannot be. 

The City does not believe FAA should consider Complainant's new evidence because it 

lacks probative value, does not present new, relevant facts, and fails to support what 

Complainant alleges. The City is satisfied that Heritage is using its space in accordance with its 

contractual obligations. But even if Heritage's leasehold were in some way improper (an 

allegation that the City denies), Complainant has failed to show that there is no space elsewhere 

at the Airport available for it to 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-an advertisement 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-that does not further its 

allegations and therefore need not be considered as part of the record. Complainant states that its 

new evidence provides additional proof that Heritage is not utilizing the space it leases from the 

City. Motion to Supplement at 3. However, the City already had represented to FAA that it 

believed Heritage was in negotiations with a tenant for office space in the ASH Hangar, Rebuttal 

at 4-5 n.5 ("upon information and belief, Heritage is in active negotiations with a tenant to 

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occupy much of [ASH Hangar office space]"), so this is not new information; it has been in the 

administrative record since the City submitted its Rebuttal. Complainant also suggests that the 

City believed that Heritage was planning to make space available to Complainant, Motion to 

Supplement at 3, but Complainant does not allege how this piece of evidence supports its claims 

that the City is in violation of its Federal obligations. 

To the extent that FAA finds the new evidence submitted by Complainant relevant to this 

investigation, the City respectfully requests that FAA also consider Exhibit 1, attached hereto. 

The City believes that Exhibit 1 supplements the evidence submitted by Complainant by 

providing a more detailed account of the roles played by the City and Heritage in the events 

highlighted by Complainant that would similarly assist FAA' s investigation. 

III. THE CITY BELIEVES THAT HERITAGE IS USING ITS LEASED 

SPACE IN ACCORDANCE WITH CONTRACTUAL TERMS 

The City reiterates that it believes 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 not put its leased space to productive use. Answer at 13-14, ~~ 3, 6; Answer 

at 26, ~ 120. Although Complainant has 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 

proposed business in its listed properties. Motion to Supplement Exs. A, C. Complainant 

alleges that Heritage told Complainant it was not interested in granting a sublease to 

Complainant after Complainant "made it clear that it would be looking to provide aeronautical 

services therefrom." Motion to Supplement at 3. However, neither the Motion to Supplement 

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

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wanted to provide. More importantly, Complainant has not shown (or alleged) that the office 

space that Heritage had available for lease in the ASH Hangar was suitable for Complainant's 

intended aeronautical services, whatever they may be. 1 It should be noted that the City took no 

part in Complainant's discussions with Heritage regarding the space in question. 

Complainant also seeks to introduce evidence that Airport Director Gene Richards 

discussed notifying Complainant that Heritage is leasing space, Motion to Supplement Ex. B, for 

the proposition that the City is "operating under the mistaken assumption that Heritage would 

make this empty space available to Mansfield." Motion to 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 even more attenuated than Complainant's prior theories: the 

record reflects the City's efforts to find space for Complainant at the Airport-both in existing 

facilities and on undeveloped land, see, e.g., Complaint Ex. 24 at 2 (describing available 

facilities and offering possibility of constructing new facilities); Complaint Ex. 28 at 1-2 

(providing information about leasing various facilities); Complaint Ex. 40 at 1 (notifying 

Complainant that the City is working on its office lease); Answer Ex. 1, i! 4 (suggestion that 

Complainant consider developing a new site )-and the statement that Complainant now points to 

is an extension of the City's good faith efforts to accommodate Complainant, given the limited 

information that the City has about the business that Complainant wants to operate, as well as the 

1 Although, as noted in the Answer and Rebuttal, the purpose for which Complainant has sought space at the Airport 

has changed over time, Answer at 8-12, Rebuttal at 3-4, Complainant now suggests-without expressly stating sothat it may have wanted to run a competing FBO as Heritage's subtenant. See, e.g., Motion to Supplement at 1 

(alleging that the City is trying to "prevent competition- i.e., a second FBO"). But if Complainant wanted to 

operate an FBO out of the facilities subleased from Heritage, Complainant has not shown that the office space 

described in its Motion to Supplement Ex. A (described as "Class A office space") by itself would be suitable and 

sufficient for that kind of business. Complainant appears to be under the impression that all it needs to operate an 

FBO is office space in some building with access to the 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. 

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City's concern that Heritage prioritize aeronautical subtenants in leasing its space. Answer in 

Opposition Ex. 1 at 2.2 

IV. COMPLAINANT HAS NOT BEEN DENIED ACCESS TO THE AIRPORT 

Although, as Complainant notes, Motion to Supplement at 2, the City has taken the 

position that there are no existing facilities suitable for an FBO at the Airport, the City has 

denied (and continues to deny) that Heritage's lease excluded Complainant from the Airport, 

Answer at 26, if 120. Whether there is suitable space for Complainants at the Airport-not 

whether there is space in Complainant's preferred existing facility, which happens to be fully 

leased by a competing tenant-should be the relevant inquiry to evaluate an exclusive rights 

claim. Roadhouse Aviation v. City ofTulsa, FAA Docket No. 16-05-08, Director's 

Determination at 29 (Dec. 14, 2006), aff'd, Final Decision and Order (June 26, 2007) (the "intent 

of Grant Assurance 23 and companion guidance language in FAA Order 5 l 90.6A 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 can be evidence of an intent to exclude others unless it can be demonstrated that the entire 

leased area is presently required. See Ricks v. Millington Mun. Airport Auth., FAA Docket No. 

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 consider the evidence submitted with it. However, if FAA concludes that the new evidence is 

admissible, the City believes that Exhibit 1 hereto provides a fuller picture of what transpired-at least as it relates 

to the City's Federal ob ligations. Exhibit 1 shows a string of emails between a representative of Heritage and 

Airport staff in January 201.5. Compare Answer in Opposition Ex. 1 with Rebuttal at 5 n.5 (asse1ting that the City 

believed that Heritage was in active negotiations with an Airport tenant 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 show that the City leased all available 

Airport land to Heritage. Even assuming Complainant's allegations that Heritage has more space 

than it needs were true and sufficiently supported by Complainant's evidence (which the City 

does not concede), the record evidence does not show that the City leased "all available land to 

one FBO thereby granting an exclusive right" to Heritage. See Bisti Aviation, Inc. v. City of 

Farmington, NM, FAA Docket No. 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 in violation of the 

exclusive rights prohibition if the service provider is banking land ... and/or the vacant property 

controlled by the service provider denies a competitor from gaining entry onto the airport") 

(emphasis added). On the contrary, record evidence shows that the City offered Complainant the 

opportunity to 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 with the opportunity to 

develop its own facilities not long before it filed its Part 16 Complaint. Complaint Ex. 34. 

Complainant argues that it has been denied access to the Airport and that Heritage 

controls the only existing facilities suitable for FBO operations, Motion to Supplement at 4, but 

the City has shown that there is Airport land available on which new FBO facilities could be 

built, and that land was offered to Complainant. No evidence that Complainant now seeks to 

introduce contradicts that fact or suggests that the available Airport land is in some way 

inadequate for Complainant. 

V. CONCLUSION 

For the foregoing reasons, the City respectfully requests that the Motion to Supplement 

be denied, and that the Complaint be summarily dismissed as requested in the City's prior 

motions or, in the alternative, that it be dismissed after full investigation. The evidence 

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Complainant offers in its Motion to Supplement does not provide factual support for 

Complainant's arguments, and, as a matter oflaw, the City has 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 of Burlington, Vermont 

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EXHIBIT 1 
From: 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-thank you very much for the contact info for Eric. I will reach out to him on behalf of Heritage 

and connect him to Brad as well. I will 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 thank you 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; Marie J. 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 our due 

diligence in making sure that we have exhausted all known possibilities in putting in aeronautical uses 

entities, it would be great to 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 off the 

phone with Brad to get an idea of what is coming, and it looks like a nice stream of interest. 

Thanks for your 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.aero 
From: 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 of Aviation 

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 way to do it better .. Find it " 

-Thomas Edison 

On Jan 21, 2015, at 12:25 PM, Dave Stiller <Dave.Stiller@FL YHERIT AGE.COM> wrote: 

Understood. Thank you very much. 

I have not had the opportunity to meet Mr. Chase before, but I would be happy to reach 

out to him. If anyone could provide contact information, that would be helpful, 

otherwise I will pursue his information separately. 

Dave 

From: Gene Richards [mailto:grichards@btv.aero] 

Sent: Wednesday, January 21, 2015 12:18 PM 

To: Dave Stiller 

2 
Cc: Gregg Meyer; Nicolas Longo; Marie J. 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 If Eric Chase is still looking for space . You may 

want to reach out to him. 

Thank you for your email 

My best 

Gene Richards 

Director of Aviation 

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 way to do it better .. Find it" 

-Thomas Edison 

On Jan 21, 2015, at 12:04 PM, Dave Stiller 

<Dave.Stiller@FL YHERIT AGE.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 getting you and your team any information you want and 

having any conversations that would be helpful when possible. 

Dave 

Also-with your guidance I would be happy to initiate any conversation 

with VEDA or forward any documents on to Tom Porter that would be 

helpful, but I presume just to work with you for now unless directed 

otherwise. 

3 
From: 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 

Forwarding this 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 

reducing the 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 and thank you! 

Brad 

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Certificate of Service 

I hereby certify that I have today, the 14th day of April, 2015, caused the foregoing 

Answer in Opposition to Motion to Supplement to be served electronically, on the following: 

Benjamin H. Klein 

The Klein Law Firm, LLC 

61 Broadway, Suite 2125 

New York, NY 10006 

bklein@thekleinfirm.com 

Attorney for Complainant 

2i~l Pablo 0. Ntiesch