City of 

CasaGrande 

April25, 2016 

Office of the Chief Counsel 

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 Cas a Grande, Arizona 

Docket No. 16-16-01 

Dear Sir or Madam: 

Enclosed for filing please find an original and three copies of the City of Casa Grande's 

"Rebuttal in Opposition to 14 CFR Part 16 Complaint" in the 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 85122 
1 BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

2 WASHINGTON, D.C. 

3 LUTHER KURTZ and ) 

4 SKYDIVE COASTAL CALIFORNIA ) 

d/b/a PHOENIX 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 ) 

) 

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CITY OF CASAGRANDE'S REBUTTAL IN OPPOSITION 

11 TO 14 CFR PART 16 COMPLAINT 

12 Designation of Persons to Receive Service 

13 Please serve: 

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Brett D. 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 of misleading statements, started 

in his Part 13.1 Informal Complaint, designed to allow for his business to establish a PLA at an 

airport that the City simply believes isn't truly compatible with this activity as a result of its own 

unique configuration and air traffic concerns. Throughout the Response, however, Complainant 

continues to insist on using ambiguity and intentional rnischaracterization to portray a set of 

assertions that the facts themselves demonstrate simply are not true. 

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The majority of the remainder of the Response is predicated on an argument that seems to 

now insist that this body, who is empowered by the Regulations to be the fact fmder and decision 

maker, is somehow bound 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 of its Grant 

Assurances by not allowing Complainant to establish a PLA on the Airport. Perhaps this isn't 

surprising given Complainant's insistence on forum shopping - filing multiple complaints with 

the FAA on different fronts at the same time hoping to find a favorable result in one - but the 

FAA is certainly not bound in this Part 16 matter to reach the same conclusion. In fact, the City 

agrees that the FAA is indeed the arbiter in this case, as the Complainant repeatedly noted 

throughout the Response. But contrary to his position there, this body should be, and must be, 

independent decision maker with the. goal of determining whether the City's decision to limit 

skydiving by not permitting a PLA (as permitted under the Grant Assurance 22(i)) amounts to 

unjust discrimination, or isn't necessary for the safe operation of the airport or necessary to serve 

the civil aviation needs of the public. This is the purpose of the Part 16 Complaint process -to 

determine whether the sponsor is meeting its commitments. And to do that this body should loo 

at the facts themselves, not the misleading characterizations of those facts as asserted by 

Complainant; and not with any undue deference to any statements in the concurrent Part 13.1 

process. Especially since the preliminary decision in the Part 13 .I process itself was influenced 

by a misunderstanding generated by Complainant. 

Complainant's Business Continues Unimpeded 

Perhaps the best place to start is with a very simple fact that Complainant does not, and 

cannot refute, but nonetheless- apparently successfully- tries to imply. The fact is 

Complainant's company is jumping now as they have been since 2006, using the Airport to pack 

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its parachutes, store its equipment, take off and land, with its skydivers landing at the same offairport PLA they have used for the past several years. Yet throughout the process Complainant 

has used, and continues to use, terminology suggesting that his operations have somehow ceased 

as a result of the 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 

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procedures of the Part 13 Complaint, Mr. Garcia again asserted that the City had caused 

Complainant's business to shut down as a result of its actions. When Mr. Louis told Mr. Garcia 

that Complainant's company was in fact jumping- and had jumped 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 

misinlpression hoping 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 not permitted to argue that it is not in violation ofits Grant Assurances 

simply because the very person he misled opined that the City may be in violation as a result. 

The City Didn't Cause The Denial of New Office Space Near the PLA 

Complainant's misrepresentations didn't begin with the FAA proceedings. It started with 

his land use matter with Pinal County. Pinal County is a political subdivision of the State of 

Arizona. It has its own elected body that makes land use determinations pursuant to state law. 

Because some portions of unincorporated Pinal County (such as the area where Complainant's 

active off-Airport PLA lies) are within the municipal planning boundaries of the City of Casa 

Grande, the City receives notice of land use applications occurring in the planning boundaries. 

The City, if the 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 

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that certain land use protections be put in place if the County grants the application. The County, 

as an independent decision-maker, is free to ignore the City's observations. In fact, it regularly 

does so. 

In this case Complainant sought to build office space (a commercial use) near the PLA in 

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what the City has planned for rural activity in its General Plan. The City's Planning Department 

simply noted this fact in its letter to the County. Equally as or more important, the City's 

Planning Department was obligated to correct the misstatement made by Complainant in his 

application that the 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 by the authorized provider during an event, and only then if a mutual aid agreement 

is in place with the provider. Although the Planning Department did include a statement related 

to certain complaints received about communication practices with Complainant's operations at 

the Airport, the letter did not even request that the land use request be denied. (Complaint, 

Exhibit 13) Instead, the City merely requested that if the County approved the Special Use 

Permit, that a temporal limitation be placed on the operation that would effectively limit the term 

of the Permit concurrent with the jurisdiction over the land by Pinal County. The City did not 

OPPOSE the application or ask that it be 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 in the Response -that the City was 

the party that somehow prevented an independent political subdivision (that routinely grants land 

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use applications over even the objection of the City) from approving an application that 

contained untrue statements of fact. Complainant's assertions simply aren't true. 

Moreover, Complainant was not satisfied with simply implying to the FAA that the City 

was responsible for the denial by the County. Complainant further argues that the City's letterwhich did not even mention the PLA since it was not the subject of the Special Use Permit 

request to build a new office- not only caused the refusal but caused the County to start an 

action to prevent Complainant from using the land as a PLA. In fact, they not only reiterate this 

allegation in the Response, but they even quote from a letter authored by Mr. Garcia where he 

shows his own misunderstanding about the process as a result of Complainant's improper 

characterizations of the facts. The facts show that the City did not object to the location of the 

off-Airport PLA or ask in the letter that the County take any action to deny the office building, 

let alone initiate a separate action to evaluate whether the PLA was proper under the zoning of 

the County. And despite the implications to the contrary made by Complainant in both the Part 

13 and Part 16 actions, the undeniable fact is that the PLA is still in use today .

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The City Hasn't Unreasonably Refused to Provide Available Space to Complainant 

Complainant spends a great deal of time trying to create an impression that the City 

forced him out of his leased space at the Airport on a whim and without time to find an adequate 

replacement. By using the term "evict," and by claiming they were "never" allowed to rent 

space, and that space was "always" rented to others, Complainant tries to paint a picture as if the 

City had dozens of spaces become available but wouldn't make those available to Complainant. 

The fact is that the City only had 2 spaces become available throughout this process, not dozens. 

1 Ultimately Complainant rented office space in a commercial building near the PLAto run his operation out of. 

This use is compatible with the City's General Plan and is supported by the City. 

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The first of those 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 City to reuse the area without significant expense to convert the space to other 

uses, and allowed the City to maintain an existing aeronautical use of benefit to the Airport and 

the community. The second space was subject to a prior right of first refusal and was leased to a 

party that had requested the space well in advance of Complainant's request for the space. 

Nor was Complainant thrust out into the night as a result of some pernicious pre-textual 

eviction. Instead, as demonstrated through the lengthy exchange and process the lease was 

simply terminated under its tenns as a result of the City's tenninal renovations that took place 

and resulted in a planned reprogrannning of the space. Mr. Wilkie revised his lease termination 

notice to help aid Complainant in fmding a new location for his business, permitted Complainant 

to use favorable statements from Mr. Wilkie in his land use application with Pinal County, and 

ultimately allowed Complainant to remain on the 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 show that the "eviction" was actually a 

compromise and dialogue between the City and Complainant with the City working with 

Complainant to help him have adequate time to find new office space. 

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Finally, although Complainant elected not to take advantage of the opportunity, the City 

has always offered to enter into a hangar lease that would allow Complainant a long-term 

operation center on the airport and noted that there were several parcels available for sale in the 

City's adjacent Airport Industrial Park that may serve his needs as well. Although ultimately 

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Complainant elected not to utilize these options they were - and remain- available to him. The 

fact is the City neither evicted Complainant, nor unreasonably refused him space at the Airport.2 

The Safety Studies Speak for 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 at the 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 at least as a partial result of the 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- without the benefit 

of an evaluation - that it was unreasonable for the City to not permit a PLA on the Airport. That 

evaluation, however, noted that that skydiving could not be performed without significant 

disruption to other aeronautical uses without creating a hazard to aircraft. (Complaint, at Exhibit 

8). Although chiding the City for having the audacity to disagree with certain conclusions of a 

later safety evaluation, Complainant of course feels completely justified to ignore these 

conclusions of the FSDO. These conclusions, however, were based on the FSDO's own 

evaluation of the conditions of traffic at the Airport which, having been to the Airport numerous 

times, the FSDO was intimately familiar with. These conclusions also validated the justification 

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:ti the 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. 

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provided by the 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). 

Unhappy with the result of the FSDO evaluation since it did not support his conclusions, 

Complainant asked Mr. Garcia to conduct his own study of the Airport. Although the City does 

not doubt or question Mr. Garcia's qualifications, the City was concerned that Mr. Garcia 

participated in the evaluation, especially since he had previously already opined that he felt the 

City's actions (again, no doubt based on the mischaracterizations incited by Complainant) were 

not justified which could have led to an unintended bias in the evaluation process .. Even that 

evaluation, however, noted that five of the fourteen risk factors exceeded the desired low-risk 

level, with two of those risks rated as HIGH. (Complaint, at Exhibit 10.) And despite the 

mitigation measures recommended, the evaluation itself noted that the final risk assessment after 

implementation of the mitigation provided a final risk level of medium, albeit with the 

anticipation that after some time the risk could be lowered further to the desired low level. 

Although the City admits that the conclusion drawn by the evaluators was that 

parachuting could be implemented from a safety perspective, it is also clear that there are varied 

opinions within the FAA itself as to the viability of skydiving, its effect on other aeronautical 

activity at the Airport, and in the event the mitigation efforts suggested are not viable or 

effective, that the risks would be medium or high (specifically with respect to the mitigation 

suggestion that radio contact between the HEMS and Parachuting operation be established given 

this area created a high risk). Given the different possible interpretations of the 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 

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the data and disagreeing with its conclusions is not unreasonable and is not tantamount to a 

violation of the 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 in many areas, and certainly is true when 

evaluating whether an on-Airport PLA is appropriate at a given airport. Each proposal should be 

evaluated on the facts of that proposal. The other current uses of the airport. The potential 

hazards located in the area. The degree of risk at the airport, which will necessarily vary with th 

conditions of each 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 of legitimate concerns over safety or logistics (in 

fact, the City believes that at least one other and perhaps more of Complainant's own operations 

use off-site PLAs in other jurisdictions). 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 at the Casa Grande Airport. This isn't misleading. It's just 

untrue. 

In its response to the Informal Complaint (See Complaint, at Exhibit 6), the City 

specifically provided several examples of other airports that had parachuting operations with an 

on-site PLA, several in Arizona in nearby cities or cities of similar size. The City also 

specifically distinguished those PLA's froin the PLA proposed by Complainant at the Airport, 

noting that in many cases the PLA was significantly further removed from the taxiways and 

runways, that in cases where the PLA was located nearer the 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. 

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In an ideal world there would be a readily accessible PLA at the Airport that met some of 

the same criteria that makes them viable elsewhere. But in this case, as a result of the flight 

patterns where the vast majority of open space on the Airport exists, as a result of the relative 

inaccessibility of some of the possible PLA areas to vehicular travel, and as a result of the 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 retention basin, and 

location directly in the missed approach path, the PLA proposed at the CasaGrande Airport 

simply cannot be safely integrated into the Airport operations.3 

In this case, the proposed PLA is directly adjacent to a taxiway rather than having the 

separation present in the other areas the City evaluated, and a fair portion of the 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. 

If the City Airport were laid out differently or had less traffic, as is the case in many of the 

airports that can adequately support an on-site PLA, the analysis could be different. But the 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 of the PLA area was previously used as an informal illtralight area. 

The City, however, had already prior to receiving the Response taken action to cease any ultralight activity in this 

area as a result of concerns with portions of uneven terrain and holes present in the area. The City currently plans to 

paint the area as a non-use area because of those concerns. 

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Forum Shopping, Decision Making Authority, and the Actual Grant Assurances 

Throughout the Response Complainant seems to argue that somehow the 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 of its 

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Grant Assurance by not allowing the PLA on the Airport. As noted above, part of that 

determination was apparently made as a result of a beliefthat Complainant was being prevented 

from operating anywhere in the area, which simply isn't true. Equally as important, however, is 

that Complainant cannot be allowed to 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 of perverse 

res judicata- bound by that determination in the second Complaint he filed. Doing so 

demonstrates both that Complainant has not satisfied the good faith resolution procedures 

required by 14 CFR 16.21 and lacks capacity to bring this action at all, as well as does not truly 

believe his own assertion that the FAA is truly the arbiter of sponsor compliance issues. 

The Part 16 process is afforded not to allow a Complainant to forum shop by maintaining 

multiple proceedings within the FAA, but to decide as the final agency decision-maker, subject 

only to judicial review, disputes between sponsors and users concerning compliance with the 

sponsor's duties. The Part 16 process is an appeal process. A formal process. A process to 

determine not whether the Complainant feels bad about the way they have been treated, but 

4 In the Response Complainant argues that the City should have been required to file a corrective action plan despite 

the pendency of this Part 16 action. The City, however, sought direction Ji"om the FAA in the Part 13.1 action, filed 

a letter with the FAA in that regard and was notified that the Part 13.1 action was closed without the need for the 

filing of the corrective action plan. Copies of these letters are attached as Exhibit "A" hereto. 

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Grant Assurance through its efforts to accommodate Complainant through the leasing of hangar 

space, through conducting and participating in processes to determine the relative safety and 

effect on other aeronautical uses of the proposed PLA, and by its continuing pledge to review 

and take appropriate action on proposals at the Airport. 

The City understands its obligations under Grant Assurance 23. There aren't any facts 

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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't precluded one aeronautical use 

alone, one operator alone, one of anything. Instead the Airport has a mix of uses and a City 

determination that 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 of rhetoric, forum shopping, ambiguity, mischaracterizations, or veiled 

allegations of res judicata should change that. The City's actions were reasonable, even if slow, 

and the decision to deny an on-site PLA at this Airport is supported by the unique facts and 

layout of the Airport. The City respectfully requests that this body resist the temptation offered 

by Complainant to ignore its duty to independently determine this issue and instead provide an 

evaluation of the facts and serve as the arbiter concerning and the reasonableness of the City's 

decision. 

Relief Requested 

City respectfully requests that the FAA deny all relief requested by Complainant. 

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DATED this 25th day of April, 2016. 

City Of Cas a Grande, Arizona 

By 

Brettri. 

/~tlb~ Wallace 

! ~J- Attorney for Respondent 

City Of Casa Grande 

CERTIFICATE OF SERVICE 

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I hereby certify that I have this day served the foregoing City ofCasa Grande's Rebuttal in 

14 Opposition to 14 CFR Part 16 Complaint on the following person at the following address by 

mail: 

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Richard J. Durden 

Richard J. Durden, Attorney at Law 

27987 Richmond Hill Rd. 

Conifer, CO 80433 

Counsel for Complainant 

Dated thi;J~ay of April, 20 16 

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/-'! ') ' / '"\ ' '\ 

By: - /)A;UU I} 

Brett D. Wallace 

Attorney for Respondent 

City Of Casa Grande