# City 

# of CasaGrande

April25, 2016

Office ofthe ChiefCounsel Attn: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 

## RECEIVED MAY 

## -2 2016 PART 16 DOCKETS



### Re: 

### Luther Kurtz and Skydive Coastal California d/b/a Phoenix Area Skydiving vs. The City of Casa Grande, Arizona DocketNo. 16-16-01 Dear Sir or Madam: Enclosed for filing please find an original and three copies ofthe City of Casa Grande's "Rebuttal in Opposition to 14 CFR Part 16 Complaint" inthe captioned matter. 

# r;·} Jj_

Brett D. Wallace Casa Grande City Attorney

enclosures

cc: Richard 

### J. Durden

Telephone: 520/421-8600

- Telefacsimile: 520/421-8602

- TDD: 520/421-8623



### City Hall: 510 East Florence Boulevard

- Casa Grande, Arizona 851221 BEFORE THE FEDERAL AVIATION ADMINISTRATION 2 WASHINGTON, D.C. 3 LUTHER KURTZ and 

### ) 4 SKYDIVE COASTAL CALIFORNIA 

### ) d/b/aPHOENIX AREA SKYDIVING 

### ) 5 

### ) DocketNo.: 16-16-01 Complainant, ) 6 ) 

## RECEIVED vs. 

### ) 7 ) 

### MAY -2 

## 2016 THE CITY OF CASA GRANDE 

### ) 8 ) 

### PART 16 DOCKETS Respondent. 

### ) 9 

### ) ) 10 CITY OF CASAGRANDE'S REBUTTAL IN OPPOSITION 11 TO 14 CFRPART 16 COMPLAINT 12 Designation ofPersons to Receive Service 13 Please serve: 14 15 16 17 18 19 20 21 22 23 24 25 BrettD. Wallace City Attorney's Office 510 E. Florence Blvd. CasaGrande, Arizona 85122 T: 520-421-8613 bwallace@casagrandeaz.gov Counsel for Respondent Richard J. Durden Richard J. Durden, Attorney at Law 27987 Richmond Hill Rd. Conifer, Colorado 80433 T: 616-901-6516 avlawyer@yahoo.com Counsel for Complainant INTRODUCTION Complainant's Response continues a disturbing pattern ofmisleading statements, started inhis Part 13.1 Informal Complaint, designed to allow for his business to establish a PLA at an airport that the City simply believes isn'ttruly compatible withthis activity as aresult ofits own unique configuration and air traffic concerns. Throughout the Response, however, Complainant continues to insist onusing ambiguity and intentional rnischaracterizationto portray a set of assertions thatthe facts themselves demonstrate simply are nottrue.

-1-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Themajority ofthe remainder ofthe Response is predicated on an argumentthat seems to

now insistthat this body, who is empowered bythe Regulations to be the fact fmder and decision maker, is somehowbound by statements and findings made by one FAA employee who asserted, prior to even asking for the first safety study, that the City was in violation ofits Grant Assurances bynot allowing Complainantto establish a PLA onthe Airport. Perhaps this isn't surprising given Complainant's insistence on forum shopping

- filing multiple complaints with the FAA on different fronts atthe sametime hoping to find a favorable result in one - but the FAAis certainly notbound in this Part 16 matter to reachthe same conclusion. In fact, the City agrees that the FAA is indeed the arbiter inthis case, as the Complainant repeatedly noted throughout the Response. Butcontrary to his position there, this body should be, and must be, independent decisionmaker withthe.goal ofdetermining whether the City's decisionto limit skydiving bynotpermitting a PLA (as permitted under the Grant Assurance 22(i)) amounts to unjust discrimination, or isn'tnecessary for the safe operation ofthe airport or necessaryto serve the civil aviationneeds ofthe public. This is the purpose ofthe Part 16 Complaintprocess -to determine whether the sponsor is meeting its commitments. And to do thatthis body should loo at the facts themselves, not the misleading characterizations ofthose facts as asserted by Complainant; andnot with any undue deference to any statements inthe concurrent Part 13.1 process. Especially since the preliminary decision inthe Part 13.I process itselfwas influenced by a misunderstanding generatedby Complainant. Complainant's Business Continues Unimpeded Perhaps the best place to start is with a very simple fact that Complainant does not, and cannotrefute, butnonetheless- apparently successfully- tries to imply. The fact is Complainant's company isjumping now as they have been since 2006, using the Airport to pack

-2-1 2 3 4 5 its parachutes, store its equipment, take offand land, with its skydivers landing at the same offairport PLA they have used for the past several years. Yetthroughout the process Complainant has used, and continues to use, terminology suggesting that his operations have somehow ceased

as a result ofthe City's action in not permitting the PLA on the airport. In fact, in a recent conversation with Kevin Louis, the current Airport Manager for the City, relating to the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 procedures ofthe Part 13 Complaint, Mr. Garcia again asserted thatthe Cityhad caused Complainant's business to shut down as a result ofits actions. When Mr. Louis told Mr. Garcia that Complainant's company was in factjumping- and hadjumped that very day- Mr. Garcia admitted that he was unaware that there was even an active operation. Sinlply put, throughout the process Complainant has consistently used phrases designed to convey that very misinlpressionhoping to bootstrap that misinlpression into a determination the City had violated its Grant Assurances. And having successfully done so, Complainant now demands in the Response that the City is notpermittedto argue that it is not in violation ofits Grant Assurances simplybecause the very person he misled opined that the City may be in violation as a result. The City Didn't Cause The Denial ofNew Office Space Near the PLA Complainant's misrepresentations didn'tbegin with the FAA proceedings. It started with his land use matter with Pinal County. Pinal County is a political subdivision ofthe State of Arizona. It has its own elected body that makes land use determinations pursuant to state law. Because some portions ofunincorporated Pinal County (such as the area where Complainant's active off-Airport PLA lies) are withinthe municipal planning boundaries ofthe City ofCasa Grande, the City receives notice ofland use applications occurring inthe planning boundaries. The City, ifthe land use application with the County conflicts with the City's General Plan, regularly provides the County with a letter noting the conflict and recommending to the County

-3-1 2 3 4 that certain land use protections be put in place ifthe County grants the application. The County,

as anindependent decision-maker, is free to ignore the City's observations. Infact, itregularly does so. Inthis case Complainant sought to build office space (a commercial use) nearthe PLA in 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what the City has planned for rural activity in its GeneralPlan. The City's Planning Department simplynotedthis fact in its letterto the County. Equally as ormore important, the City's Planning Departmentwas obligated to correct the misstatementmade by Complainant inhis application thatthe City would be providing police, fire, and rescue services to his office and PLA as the City is unable to and does not provide these services outside the City limits except if requested to bythe authorized provider during an event, and only then ifa mutual aid agreement is inplace withthe provider. Although the Planning Department did include a statement related to certain complaints received about communicationpractices with Complainant's operations at the Airport, the letter did not even request thatthe land use request be denied. (Complaint, Exhibit 13) Instead, the City merely requested that ifthe County approved the Special Use Permit, that a temporal limitation be placed onthe operation that would effectively limit the term ofthe Permit concurrent with thejurisdiction overthe landby Pinal County. The City did not OPPOSE the application or askthat itbe denied despite Complainant routinely using this terminology throughout his multiple processes. Moreover, while the County ultimately did not approve the Special Use Permit, the County was free to grant it, condition it, or deny it, and the City has no more influence than any other party commenting on a pending application. Yet Complainant has routinely argued

- and continues to argue inthe Response -thatthe City was the partythat somehow prevented an independent political subdivision (thatroutinely grants land

-4-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 use applications over eventhe objection ofthe City) from approving an application that contained untrue statements offact. Complainant's assertions simply aren't true. Moreover, Complainant was not satisfied with simply implying to the FAAthatthe City

was responsible for the denial bythe County. Complainant further argues thatthe City's letterwhich did not evenmention the PLA since it was not the subject ofthe Special Use Permit requestto build a new office- not only caused the refusal but caused the Countyto start an action to prevent Complainantfrom using the land as a PLA. Infact, they not only reiterate this allegation 

### in the Response, butthey even quote from a letter authoredby Mr. Garcia where he shows his ownmisunderstanding about the process as a result ofComplainant's improper characterizations ofthe facts. The facts show thatthe City did not object to the location ofthe off-Airport PLA or ask inthe letter that the County take any action to deny the office building, let alone initiate a separate actionto evaluate whether the PLA was proper under the zoning of the County. And despite the implications to the contrary made by Complainant inboththe Part 13 and Part 16 actions, the undeniable fact is that the PLAis still inuse today. 1 The City Hasn't Unreasonably Refused to Provide Available Space to Complainant Complainant spends a great deal oftime trying to create an impression that the City forced 

### him out ofhis leased space atthe Airport on a whim and without time to find an adequate replacement. By using the term "evict," andby claiming they were "never" allowed to rent space, and that space was "always" rented to others, Complainant tries to paint a picture as ifthe Cityhad dozens ofspaces become available but wouldn't make those available to Complainant. The fact is that the City only had 2 spaces become available throughoutthis process, not dozens.

1 Ultimately Complainantrented office space in a commercial building nearthe PLAtorun his operation out of. This use is compatible withthe City's General Plan and is supportedby the City.

-5-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 The first ofthose was vacated by a medical evacuation operation and the replacement tenant that

was selected was a medical evacuation operation because the site was best suited for a similar use, allowed the Cityto reuse the area without significant expenseto convertthe space to other uses, and allowed the Cityto maintain an existing aeronautical use ofbenefitto the Airport and the community. The second space was subject to a priorright offirst refusal and was leased to a party that hadrequested the space well in advance ofComplainant's request for the space. Nor was Complainant thrust outinto the night as a result ofsome pernicious pre-textual eviction. Instead, as demonstrated throughthe lengthy exchange and process the lease was simplyterminated under its tenns as a result ofthe City'stenninalrenovations that took place and resulted in a planned reprogrannning ofthe space. Mr. Wilkie revised his lease termination notice to help aid Complainant infmding a new location for his business, permitted Complainant to use favorable statements from Mr. Wilkie inhis land use application with Pinal County, and ultimately allowed Complainant to remain onthe airport for an additional several months beyond the 30-days the lease would have allowed the City to terminate and remove Complainant's operations. (Complaint, at Exhibit 1.) The facts showthat the "eviction" was actually a compromise and dialogue between the City and Complainantwiththe City working with Complainantto help him have adequate time to find new office space. 19 20 21 22 23 24 25 Finally, although Complainant elected notto take advantage ofthe opportunity, the City has always offered to enter into a hangar lease that wouldallow Complainant a long-term operation center onthe airport and notedthat there were several parcels available for sale inthe City's adjacent Airport Industrial Park that may serve his needs as well. Although ultimately

-6-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Complainant elected not to utilize these options they were - and remain- available to him. The fact is the City neither evicted Complainant, nor unreasonablyrefused him space at the Airport.2 The Safety Studies Speakfor Themselves and Don't Unequivocally Support Complainant's Arguments Complainant throughout this process asserts that the FAA safety evaluations demonstrate that skydiving can be done using a PLA located atthe Airport. In doing so Complainant completely disregards the initial safety evaluation by the FSDO, which was actually requested by 

### Mr. Garcia. Unfortunately, and no doubt atleast as a partial result ofthe mischaracterizations by Complainant that his business had been completely shut down, Mr. Garcia only ordered this safety evaluation after he had already predetermined and notified the City- withoutthe benefit ofan evaluation

- that itwas unreasonable for the City to not permit a PLA onthe Airport. That evaluation, however, noted thatthat skydiving could not be performed without significant disruption to other aeronautical uses without creating a hazard to aircraft. (Complaint, atExhibit 8). Although chiding the City for having the audacity to disagree with certain conclusions ofa later safety evaluation, Complainant ofcourse feels completelyjustifiedto ignore these conclusions ofthe FSDO. These conclusions, however, were based onthe FSDO's own evaluation ofthe conditions oftraffic at the Airport which, having beento the Airport numerous times, the FSDO was intimately familiar with. These conclusions also validated thejustification

2 Mr. Wilkie continues to deny that he denied Complainant permission to fly from the Airport at any time. Although

no one at the City was involved i:tithe Airport during 2006 when Complainant was apparently initially denied the right to fly, the City has for the past decade recognized that restriction is inappropriate and has not advanced that position since.

-7-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provided bythe City to object to an on-Airport PLA (especially when adequate areas for an offsite PLA are readily available in close proximity to the Airport). Unhappywith the result ofthe FSDO evaluation since it did not support his conclusions, Complainant asked Mr. Garciato conduct his own study ofthe Airport. Althoughthe City does not doubt or question Mr. Garcia's qualifications, the Citywas concerned that Mr. Garcia participated inthe evaluation, especially since he hadpreviously already opined that he felt the City's actions (again, no doubt based onthe mischaracterizations incited by Complainant) were notjustifiedwhich could have led to anunintended bias 

### in the evaluationprocess.. Eventhat evaluation, however, noted that five ofthe fourteen risk factors exceeded the desired low-risk level, with two ofthose risks rated as HIGH. (Complaint, at Exhibit 10.) And despite the mitigation measures recommended, the evaluation itselfnoted that the final risk assessment after implementation ofthe mitigation provided a final risk level ofmedium, albeit withthe anticipation that after some time the risk could be lowered further to the desired low level. Althoughthe City admits thatthe conclusion drawn bythe evaluators was that parachuting could be implemented from a safety perspective, it is also clear thatthere are varied opinions within the FAA itselfas to the viability ofskydiving, its effect on other aeronautical activity at the Airport, and inthe event the mitigation efforts suggested are not viable or effective, that the risks would be medium orhigh (specifically withrespect to the mitigation suggestion that radio contact betweenthe HEMS and Parachuting operation be established given this area created a high risk). Given the different possible interpretations ofthe evaluations they simply do not unequivocally demonstrate that parachuting can be safely and effectively integrated with an on-Airport PLA and the City's desire to further evaluate these conclusions

was a reasonable response and consistent with its grant obligations. Completing an evaluation of

-8-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the data and disagreeing with its conclusions is not unreasonable and is nottantamountto a violation ofthe Grant Assurances, let alone an intentional violation as alleged by Complainant. This PLA Should Not Be Permitted At The Airport One size does not fit all. This is a truism inmany areas, and certainly is true when evaluating whether an on-Airport PLA is appropriate at a given airport. Eachproposal should be evaluated on the facts ofthat proposal. The other currentuses ofthe airport. The potential hazards located inthe area. The degree ofrisk at the airport, which will necessarily vary withth conditions ofeach airport. Complainant, however, notes that many other airports support PLA's

on the airport property. Complainant cannot be heard to argue, however, that many other airports do not allow a PLA on site as a result oflegitimate concerns over safety or logistics (in fact, the City believes that at least one other and perhaps more ofComplainant's own operations

use off-site PLAs in otherjurisdictions). Amazingly, however, Complaint inexplicably states in the Response that the City did not even provide any comparisons with other drop zones in the country when denying the PLA atthe Casa Grande Airport. This isn'tmisleading. It'sjust untrue. In its response to the Informal Complaint (See Complaint, at Exhibit 6), the City specifically provided several examples ofother airports that had parachuting operations with an on-site PLA, several in Arizona innearby cities or cities ofsimilar size. The City also specifically distinguished those PLA's froin the PLA proposed by Complainant at the Airport, noting that inmany cases the PLA was significantly further removed from the taxiways and runways, that in cases where the PLAwas locatednearerthe runway the average number of operations was substantially less than at the Casa Grande Airport, and providing relevant data on runway sizes and airport layout photos.

-9-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In an ideal worldthere would be a readily accessible PLA at the Airport that met some of the same criteriathat makes them viable elsewhere. Butin this case, as a result ofthe flight patterns where the vast majority ofopen space onthe Airport exists, as a result ofthe relative inaccessibility ofsome ofthe possible PLA areas to vehiculartravel, and as a result ofthe layout which essentially limits the potentially viable PLAto an area that includes a large portion of unusable land due to its uneven terrain, use as a functioning stormwater retentionbasin, and location directly in the missed approachpath, the PLAproposed at the CasaGrande Airport simply cannot be safely integrated into the Airport operations. 3 Inthis case, the proposed PLA is directly adjacent to a taxiway rather thanhaving the separation present inthe other areas the City evaluated, and a fair portion ofthe PLA area would require landing in the retention basin, which has significant shrubbery and is designed to accept drainage from the Airport during storm events and is not available as a functional landing area. Ifthe City Airport were laid out differently orhad less traffic, as is the case in many ofthe airports that can adequately support an on-site PLA, the analysis could be different. Butthe City respectfully believes that this PLA cannot be operated safely without significant disruption to the other existing operations at the Airport, whereas the off-site PLA provides a ready means of allowing Complainant to operate a successful business and provides the safest and most efficient operations for all involved.

3 Complainant in the Response notes that some ofthe PLA area was previously used as an informal illtralight area. The City, however, had already priorto receiving the Response taken action to cease any ultralight activity in this

area as a result ofconcerns withportions ofuneventerrain and holespresent in the area. The City currently plans to paint the area as anon-use area because ofthose concerns.

-10-1 2 3 4 5 Forum Shopping, Decision Making Authority, and the Actual Grant Assurances Throughout the Response Complainant seems to argue that somehowthe detennination that was made during the Part 13.1 Complaint is binding on the City. That, despite filing this Part 16 action and the City's own ability to seek redress under Part 16, the City should be bound by a preliminary detennination in the Part 13 .1 proceeding that the City may be in violation ofits 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Grant Assurance by not allowing the PLA onthe Airport. As noted above, part ofthat determination was apparently made as a result ofa beliefthat Complainant was being prevented from operating anywhere inthe area, which simplyisn'ttrue. Equally as important, however, is that Complainant cannot be allowedto forum shop for a favorable determination in the Part 13.1 proceeding and then, prior to its conclusion 4

, assert that the City is -as some form ofperverse resjudicata- bound by that determination inthe second Complainthe filed. Doing so demonstrates boththat Complainanthas not satisfied the good faith resolution procedures required by 14 CFR 16.21 andlacks capacity to bring this action at all, as well as does nottruly believe his own assertionthat the FAA is truly the arbiter ofsponsor compliance issues. The Part 16 process is afforded not to allow a Complainantto forum shop by maintaining multiple proceedings within the FAA, butto decide as the final agency decision-maker, subject only tojudicialreview, disputes between sponsors and users concerning compliance with the sponsor's duties. The Part 16 process is an appeal process. A formal process. A processto determine not whetherthe Complainant feels bad about the way they have beentreated, but

4 In the Response Complainant argues that the City should have beenrequiredto file a corrective action plan despite the pendency ofthis Part 16 action. The City, however, sought direction Ji"omthe FAA in the Part 13.1 action, filed

a letter withthe FAA in that regard and was notifiedthatthe Part 13.1 action was closed without the need for the filing ofthe corrective action plan. Copies ofthese letters are attached as Exhibit "A" hereto.

-11-1 2 3 4 5 Grant Assurance through its efforts to accommodate Complainant through the leasing ofhangar space, through conducting and participating in processes to determine the relative safety and effect on other aeronautical uses ofthe proposed PLA, and by its continuing pledge to review and take appropriate action onproposals atthe Airport. The City understands its obligations under GrantAssurance 23. There aren't any facts 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that even suggest that the City has granted exclusive rights to the Airport. The City hasn't precluded one skydiving operation to allow another. It hasn'tprecluded one aeronautical use alone, one operator alone, one ofanything. Instead the Airport has a mix ofuses and a City determinationthat is appropriate under Assurance 22(i) cannot be the basis for an Assurance 23 violation or every decision made under Assurance 22(i) would necessarily violate Assurance 23. CONCLUSION The City respectfully asserts that the facts show that the City hasn't violated its Grant Assurances. No amount ofrhetoric, forum shopping, ambiguity, mischaracterizations, or veiled allegations ofresjudicata should change that. The City's actions were reasonable, even ifslow, and the decision to deny an on-site PLA atthis Airport is supported by the unique facts and layout ofthe Airport. The City respectfully requests thatthis bodyresistthe temptation offered by Complainantto ignore its duty to independently determine this issue and instead provide an evaluation ofthe facts and serve as the arbiter concerning and the reasonableness ofthe City's decision. ReliefRequested City respectfully requests thatthe FAA deny all reliefrequested by Complainant.

-13-1 2 3 4 5 6 7 8 9 10 11 12 DATED this 

### 25th day ofApril, 

### 2016. City OfCasa Grande, Arizona 

### By



# /~tlb~

# !

**~J-** Brettri. Wallace Attorney for Respondent City OfCasa Grande



### CERTIFICATE OF SERVICE 13 I hereby certify that I have this day served the foregoing City ofCasaGrande's Rebuttal in 14 Opposition to 

### 14 CFR

### Part 16 Complaint onthe following person at the following address by mail: 15 16 17 18 19 20 21 22 23 24 25 Richard J. Durden Richard J. Durden, Attorney at Law 27987 Richmond Hill Rd. Conifer, CO 80433 Counsel for Complainant

Dated



# thi;J~ay ofApril, 

### 20 16

-14- /-'! 

# ') ' 

## / '"\ ' 

## '\ By:

-

# /)A;UU I} Brett 

### D. Wallace Attorney for Respondent City OfCasa Grande