UNITED STATES DEPARTMENTOF TRANSPORTATION FED

### ERAL AVIAT10N ADMINISTRATI ON 

### WASH

### INGTON

### , D

### .C



## . .

CedarhurstAir Charter, 

### Inc. 

### 1 

## 1 COMPLAINANT 

### 1


## 1 V. ) Docket No. 16-99-14
County of Waukesha,Wisconsin )

RESPONDENT 

### 1

FINAL DECISIONAND ORDER

I. INTRODUCTION

This matter is before the Federal Aviation Administration (FAA)Associate Administrator for Airports, as an appeal by the County of Waukesha,Wisconsin (County/Respondent), from the Director's Determination of April 6, 2000, issued by the Director of the 

### FAA Office of Airport Safety and Standards, pursuant to the Rules of Practice for Federally-Assisted Airport Proceedings (FAA Rules of Practice), 14 C.F.R. Part 16.

The Director's Determination (DD) found the Respondent

### is inviolation of Federalgrant
assurances 

### #22(f), preventing an airport sponsor's prevention of self-servicing and Federal grant assurance

### 823, prohibiting an airport sponsor's granting of an exclusive right by force of an unreasonable restriction 

### on self-servicing. [Final Decision and Order Exhibit 1, Item 1, p. 21
In its appeal, the Respondentreiterates its positionfrom the Director's Determination that it has never had a policy against self-fueling, has authorized self-fueling in leases with airport users, and is inthe process 

### of authorizing 

### a formal self-fueling policy consistent with self-fueling at the fuel farm. [Final Decision and Order Exhibit 

### 1
, Item 2, p. 21 In its reply to the appeal, the Complainant contends that the Respondent's appeal provides no basis for reversing the Director's Determination; the Director's Determination is supported by a preponderance of reliable, probative and substantial evidence, and is consistent with applicable law, precedent and 

### FAA policy. [Final Decision and Order Exhibit 1, Item 3, p. 181On appeal, the 

### FAA Associate Administrator for Airports finds that Director’s Determinationis supported by a preponderance of reliable, probative, and substantial evidence. The Respondent’s appeal did not contain persuasive arguments sufficient to
reverse any portion of the Director’s Determination.

II. 

### ISSUES 

### ON APPEAL

The Respondent raises the following issue on appeal:

0 Whether the Director’s Determination, finding the County inviolation of Federal grant assurances 

### #22(f) and #23, is supported by the record evidence.

111. AIRPORT

Waukesha County Airport, which 

### is also known as Crites Field, is a public-use airport located approximately2 miles north of Waukesha, Wisconsin. The airport is owned and operated by the County 

### of Waukesha. As of 1997, Waukesha County Airport had approximately 185 based aircraft with 86,665 annual operations. [DD Exhibit21

The planning and development of Waukesha County Airport has beenfinanced, in part, with funds provided by the 

### FAA under the Airport Improvement Program (AIP), authorized by the Airport and Airway Improvement Act of 1982,as amended, recodified at 49 U.S.C. 

## 547101 

### et. seq. Specifically, since 1984,the County has entered into numerousAIP grant agreements with the FAA and has received a total of $10,838,041 in federal airport development assistance directly from the 

### FAA. [DO Exhibit 

### 31 Since 1997,the County continues to receive Federal grant assistancefor Airport improvements through the State 

### of Wisconsin’s participation inthe State Block Grant Program.

IV. BACKGROUND

On January 15, 1997, Complainant, Cedarhurst, subleased a hangar and adjacent land (Hangar Facilities) for its own general aviation purposes from Waukesha Flying Services, Inc. 

### (WFS), the only Fixed Base Operator 

### (FBO)’ at the Airport. 

### WFS’s lease
was scheduledto expire in October 1998.

On April 23, 1997, accordingto the Waukesha County Airport Commission Meeting Minutes, QuadlGraphics, on behalf of Cedarhurst, while still 

### a sub-tenant of WFS,



### ’ A Fixed Base Operator is an individualor firm operating at an airport and pcoviding general aircraft services to the public



### 2presented site plans and 

### a narrative on the type of fuel system Cedarhurst was proposing to installat the Airport to be used exclusively by Cedarhurst. Mr. Costello of Quad/Graphics stated that I‘... the plans submitted to the Commission were not for approval at this time, butfor their consideration and suggestions from the Commission were desirable at this time.” The minutes reflect that safety and environmental issues about fueling at the Airport were a concern for the Commission, including, but not limitedto the proximityto buildings, insurance requirements, cost 

### of insurance, fuel spills, metering of fuel, sharing of fueling facilities.” 

### [DD Exhibit 1, Item 1,exhibit D]

A motion passed that no action be taken at that time and that this question of selffueling, as discussed, be continued, allowing the Commissionto review the material presented by QuadlGraphics-Cedarhurstand request more information if necessary. 

### [DD Exhibit 1, Item 

### 3, exhibit I]

On May 21, 1997, Quad/Graphics, on behalf of Cedarhurst, again appeared before the Commissionto further discuss Quad/Graphics proposalto install and operate an above ground aviation fueling systemfor aircraft owned and operated by Cedarhurst. The minutes of the meeting state the following:
[Quad/Graphics] said that it would be much more economicalfor QuadlGraphics to havetheir own fueling system at the Airport.

. . . Vice Chairman Schober pointed out that fuel fees paid to the county by the

. fixed based operator go towards the maintenance of the airport facilities. Ifthe County allows the request by Quad/Graphics, where doesthe County recover the loss from the fixed base operator to cover maintenance. Commissioner Broadfoot mentionedthat the lease agreement betweenthe County and Waukesha Flying Services will be ending soon and that the County will send out a request for proposal for fixed base operation services. Perhaps at this time issues such as the numberof operators, fueling systems, fuel fees, and any other concerns could be addressed. Chairman Perry said this was an itemthat would require moretime and research before the Commission could cometo a decision, and that the requestfor proposal for fixed based operation serviceswould also betaken into consideration. A motion was made by Vice-chairman Schober and seconded by Commissioner Kruegerto table this agenda item indefinitely. The motion passed unanimously. 

### [DD Exhibit 1, Item 1, exhibit E]

On March 13, 1998, the County issued Amendment No. 1 to RFP No. F-9810-R for FBO services at the airport, “Notice to Proposers.” The notice provides answers to questions raised as a result of the request for 

### FBO proposals. The Amendment, in relevant part, indicates the following question and the County’s answer:

6Q. Since the County has accepted Federal funds which do not allow the County to exclude anyonefrom participating in providing services at the

3Airport, should someone want to have additional fueling tanks at the airport, what protection 

### isthere for the FBO?

6A. We have created the Waukesha County minimum standardsfor Aeronautical Service Providers and any businesswould have to comply with those standards. Furthermore, it is our understanding of the federal regulations, that any additionalfuel tanks would only be allowed in the
area designated for fuel tanks. Since Waukesha County has not designated any additional areas for future bulk fuel storage otherthan the fuel farm that the FBO will be leasing,this occurrence is unlikely. It is our desire to create a level playing field for FBO services.

As admitted by the parties, on March 1 1999, Cedarhurst andthe County held a meeting. Cedarhurst alleges that the County reiterated its refusal to permit self-fueling. 

### [DD Exhibit 1 item 1, para. 

### 111 The County admits that it “questioned the impact selffueling would have on the FBO.” [DD Exhibit 1, Item 3, para 121

On’March 3, 1999 Counsel to Cedarhurstfiled a formal Notice of Circumstances of Claim with the Clerk of Waukesha County against the County in regard to “matters relatingto the hangar building at the Waukesha County airport.” The Notice discusses the claims on the Hangar Facility improvements made by Cedarhurst, includingthe allegation that the County madeverbal assurances that “ifthe improvements were made, the value of the Improvements would befactored into a lease or purchase agreement between CAC (Cedarhurst) and the County for the hangar building.” The Notice goes on to state:

Please be advised that inthe event there is not a satisfactory resolution of this dispute, CAC is entitled to legal relief against the County to obtainthe benefit ofthe bargain, to wit: the fair market value of the Improvements. If the County sells the hangar building to the third party and retains the portion of the purchase price attributed 

### to the Improvements made by CAC, the County would be unjustly enriched and CAC would be entitled to
ajudgment against the County inthe amount of thevalue of the Improvements,to wit: an amount not less than $275,000.00. 

### [DD Exhibit 1, Item 3, exhibit 

### 31

A letter, dated March4, 1999, from County’s counselto Cedarhurst‘s counsel summarizesthe state of negotiations between the parties for the lease or sale of the hangar facilities:

Please be advised that..

. the Finance Committee.

_. declinedyour proposalto link the County’s policy creation on self-fueling to the sale of the existing hangar. The Committee and County Executive Dan Finley

. saw the merits to developing a policy for self-fueling but felt itwas impossibleand inappropriate to link that itemto the existing sale.

4Therefore, I havee-mailed you a proposed contract for sale and lease of the property which contains, as its primary terms, a sales price of $600,000.00the abatement of rent through March 1999, and a leasefor 143,000 square feet at fourteen cents per square foot for 1999, at fifteen cents per square foot for 2000, an escalator based uponthe CPI thereafter..

.
At the same time that Iam faxing you this letter I am faxing you a copy of a letter already sent by the County Executiveto the Airport Commission directing them to develop 2 self-fueling policy for the Airport....

It is importantto note that these 

### two items are not tied together legally, no promises are being madeto you or your client that self-fueling will be allowed inthe foreseeable future or ever, and no promises are being made as to the conditions under which self-fuelingwould occur if permitted. This information is being providedto you only for the purposes of indicating that the County is now prepared to deal with its policy onthis issue at sometime in the foreseeable future. [DD Exhibit 1, Item 1, exhibit B]

On March4, 1999, a letter was issued from the County Executiveto the Airport Commission, directing the Airport Commissionto develop a self-fueling policy. Specifically, the County’s counselwrote that

Another long-term issue for us at the airport has beenthe prospect of selffueling private aircraft. For more than ten years a number of our major gasoline purchasers have requested this option.

Because of the necessary remediation of our old fuel tanks, construction of the fuel farm and negotiations for a newfixed based operator,we have not developed a policy to permit and regulate self-fueling. With these and other challenges at last behind us, 

### I believethe time has cometo develop such a policy. 

### [DD Exhibit 1, Item 1, exhibit 

### F]

As reflected inthe record, Cedarhurst filed a Complaint with the State of Wisconsin, Circuit Court, on September 1, 1999, claiming that “By refusingto lease or sell the Hangar to CAC at a price based onthe fair market value of the Hangar beforethe improvementswere madeto the Hangar, the County has retained the benefit of the improvementsto the Hangar without paying CAC for the value of the improvement. Such a retention on the part of the Countywithout just compensationto CAC is inequitable.” 

### [DD Exhibit 1, Item 

### 3, exhibit 21

5On September 30, 1999, Cedarhurst filed with the FAA a formal complaint against the County pursuant to the Rules of Practice under 14 C.F.R. Part 16. On October 12, 1999, the 

### FAA issued a notice informing the County of the filed complaint. [DD Exhibit 1, Item 11

The County filed an answer to Cedarhurst's formal complaint on November 3, 1999. On November 19,1999, Cedarhurst filed a reply to the County's answer. The County filed a rebuttal on December2, 1999. [DD Exhibit 

### I,items 3, 4 & 

### 51
On February7, 2000, Cedarhurst filed a motionfor leaveto file a responseto the County's rebuttal. The proposed response was filed with the motion. On February 25, 2000, the County filed an answerto Cedarhurst's motion. Cedarhurst's motionwas granted. [DD Exhibit 

### I, Item

### 61
On April 6, 

### 2000, the FAA issued a Director's Determination finding that the Respondent is inviolation of Federal grant assurances #22(f), prohibiting an airport sponsor's prevention of self-servicing, and Federal grant assurance #23, prohibiting an airport sponsor's granting of an exclusive right byforce of an unreasonable restriction
on self-servicing. [Final Decision and Order Exhibit I,Item 1, p. 21

On May 15, 2000, the County of Waukesha filed an appeal to the Director's Determination dated April 6, 2000. [Final Decision and Order Exhibit 1, Item

### 21

On June 5, 2000, Cedarhurst filed its reply to the County's appeal. [Final Decision and Order Exhibit 1, Item 

### 31

V. APPLICABLE FEDERAL LAWAND FAA POLICY

The FederalAviation Act of 1958, as amended (FAAct), 49 U.S.C. 

## 5 40101 et seq., assigns the FAA Administrator broad responsibilities for the regulation of air commerce inthe interests of safety, security, and development of civil aeronautics. The Federal role 

### in encouraging and developing civil aviation has been augmented byvarious legislative actions,which authorize programs for providing funds and other assistance to local communities for the development of airport facilities. 

### Ineach such program,the airport sponsor assumes certain obligations, either by contract or by restrictive covenants in property deeds and conveyance instruments,to maintain and operate its airport facilities safely, efficiently, and in accordance with specified conditions. Commitments assumed by airport sponsors in property conveyance or grant agreements are important factors 

### in maintaining a high degree of safety and efficiency in airport design, construction, operation and maintenance as well as ensuring the public reasonable access to the airport. Pursuant to 49 U.S.C. § 47122, the FAA has a statutory mandate to ensure that airport owners complywith their sponsor assurances.

6The planning and developmentof Waukesha County Airport has beenfinanced, in part, with funds provided by the 

### FAA under the Airport Improvement Program, authorized by the Airport and Airway ImprovementAct of 1982, (AAIA), 49 U.S.C.

## 5 47101 et seg. This programprovides financial assistance to an airport sponsor for airport development in exchange for binding commitmentsdesigned to assure that the public interest 

### will be served. These commitmentsare set forth inthe sponsor's applications for Federal assistance and 

### inthe grant agreementas sponsor assurances, i.e.,a list of applicable Federal laws, regulations, executive orders, statute-based assurances, and other requirements, binding the sponsor upon acceptance of the Federal assistance.
The Airport Sponsor Assurances

As a condition precedentto providing airport developmentassistance under the MIA, the Secretary of Transportation must receive certain assurances from the airport sponsor.

The AAIA sets forth requirementsto which an airport sponsor receiving Federal financial assistance must agree as 

### a condition precedent to receipt of such assistance. These sponsorship requirements are included as assurances in every airport improvementgrant agreement. Uponacceptance of an AIP grant by an airport sponsor, the assurances becomea binding obligation betweenthe airport sponsor and the Federal government.

FAA Order 51 90.6A, Airport Compliance Requirements, (hereinafter Order) provides policies and proceduresto befollowed by the FAA in carrying out its legislatively mandatedfunctions related to federally obligated airport owners' compliance with their sponsor assurances.

Use on Reasonableand Not Uniustlv Discriminatow Terms

Assurance 22, "Economic Nondiscrimination," of the prescribed sponsor assurances implements the provisions of 49 U.S.C. 

## 95 47107(a)(l) through 

### (6), and requires, in pertinent part, that the sponsor of a federally obligated airport:

"...will make its airport available as an airport for public use on reasonableterms, and without unjust discrimination, to all types, kinds, and classes of aeronautical uses." Assurance 22(a).

"...will not exercise or grant any right or privilegewhich operates to prevent any person, firm, or corporation operating aircraft on the airport from performing any services on its
own aircraft with its own employees (including, but not limitedto maintenance, repair, and fueling) that it may choose to perform." Assurance22(f).

7"...may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport." Assurance 22(h).
"...may...limit any given type, kind, or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessaryto serve the civil aviation needs ofthe public." Assurance 22(i).

Subsection (h) qualifies sub-sections (a) and 

## (9,and subsection 

### (i)represents an exception to subsection (a) to permit the sponsor to exercise control 

### of the airport sufficient to preclude unsafe and inefficient conditions, which would be detrimental to the civil aviation needs of the public.

The Order describes the responsibilitiesthat the owners of public-use airports developed with Federal assistance assume under Assurance 22. Among these is the obligation to treat in a uniform mannerthose users makingthe same or similar use of the airport and to make all airport facilities and services available on reasonableterms without unjust discrimination. See Order, Secs. 4-14(a)(2) and 3-1.

The owner of any airport developed with Federal grant assistance is required to operate the airport for the use and benefit of the public and to make it available to all types, kinds and classes of aeronautical activity on reasonable terms and without unjust discrimination. See Order, Sec. 4-13(a). The FAA considers it inappropriateto provide Federal assistancefor improvementsto airports where the benefits of such improvements will not be fully realized due to inherent restrictions on aeronautical activities. See Order, Sec. 3-8(a).

Assurance 22(9 prohibitsthe establishment of any unreasonable restriction on the
owners or operators of aircraft regarding the servicing of their own aircraft and equipment. See Order, Sec. 3-9(e)(l). The airport, however, may require the selffueler, both individuals and operators, to paythe same fuel flowage fee as those operators onthe airport who provide fueling services to the public. See Order, Sec. 

### 3- 9(e)(2).

Aircraft owners must be permittedto fuel, wash, repair and otherwise take care of their
own aircraft with their own personnel, equipment'and supplies. The sponsor, however, isobligated to operate the airport in a safe and efficient manner. The establishment of fair and reasonable rules, applied in a not unjustly discriminatory manner, governingthe introduction of equipment, personnel or practices which,would be unsafe, unsightly, detrimental to the public welfare, or which would affect the efficient use of airport facilities by others, would not be unreasonable. In addition, reasonable rules and regulations should be adopted to confine aircraftfueling operations to appropriate locations with equipmentcommensurateto thejob being done. See Order, Sec. 

### 3- 9(e)(3).

8The Prohibition Aqainst the Grantinlq of an Exclusive Right

Section 308(a) ofthe 

### FAA Act, 49 U.S.C. § 40103(e), provides, 

### in relevant part, that “[a] person does not have an exclusive right to use an air navigation facility on which Government money has been expended.” 49 U.S.C. § 40103(e). An “air navigation facility” includesan “airport.” See 

### 49 U.S.C. §§ 40102(a)(4), (9), (28).

Section 51l(a)(2) of the 

### MIA,49 

### U.S.C.§ 47107(a)(4), similarly provides, in pertinent part, that “there will be no exclusive right for the use ofthe airport by any person providing, or intending to provide, aeronautical servicesto the public.”

Assurance 23, “Exclusive Rights,” 

### ofthe prescribed sponsor assurances requires, in pertinent part,that the sponsor of a Federally obligated airport:

‘I... will permit no exclusive right

### for the use of the airport by any persons providing,or intendingto provide, aeronautical services to the public

... It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum productswhether .or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because oftheir direct relationship to the operation of aircraft can be regarded as an aeronautical activity, and that itwill terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code.”

Inthe Order,the FAA discusses its exclusive rights policy and broadly identified aeronautical activities as subject 

### to the statutory prohibition against exclusive rights. While public use airports may impose qualifications and minimum standards upon those who engage in aeronautical activities, we havetaken the position that the application of any unreasonable requirement or any standard that is applied 

### in an unjustly discriminatory manner may constitute the constructive grant of an exclusive right. However,a sponsor is under no obligation to permit aircraft ownersto introduce on the airport equipment, personnel, or practices which would be unsafe, unsightly, detrimental to the public welfare, orwhich would affect the efficient use of airport facilities. See Order, Sec.3-9(e). .

Specifically in reference to restrictions on self-service, the Order states:
Any unreasonable restriction imposed on the owners or operators of aircraft regardingthe servicing oftheir own aircraft and equipment may be construed

9as a violation of this policy (the prohibitionon the granting of an exclusive right). Where no attempt has been madeto perform such services for others, aircraft owners should be permitted to fuel, wash, repair, paint and otherwise take care 

### of their own aircraft. A restriction which has the effect of diverting such businessto a commercial operator amounts to an exclusive monopoly of an aeronautical activity contrary to law. See Order, Sec. 3-9(e)(l).

However, the Sponsor is also obligated to operate the airport in a safe and efficient
manner. Accordingly, a Sponsor is under

...no obligation to permit aircraft ownersto introduce on the airport equipment, personnel or practices which would be unsafe, unsightly, detrimental to the public welfare, or which would affect the efficient use of airport facilities by others. Reasonablerules and regulations should be adopted to confine aircraft maintenanceand fueling operationsto appropriate locationswith equipment commensurateto the job being done. Unless the aircraft owner is in a position to meet such standards with his own equipment and personnel, his right to service his own aircraft does not override the prerogative of the airport owner to control the
sources of providing fuel and other aeronautical services. See Order, Sec. 3-9(e)(3).

The FAA Airport Compliance Program

The FAA discharges its responsibilityfor ensuring airport owners' compliance with their Federal obligations through its Airport Compliance Program. The FAA's airport compliance efforts are based on consensual obligations, which an airport owner accepts when receiving Federal grant funds or the transfer of Federal property for airport purposes. These obligations are incorporated in grant agreementsand instruments of conveyanceinorder 

### to protectthe public's interest in civil aviation and to
ensure compliance with Federal laws.

The FAAAirport Compliance Programis designed to ensure the availability of a national system of safe and properly maintained public-use airports operated in a manner consistentwith the airport owners' Federal obligations and the public's investment in civil aviation. The Airport Compliance Programdoes not control or direct the operation of airports; rather, it monitors the administration of the valuable rights pledged by airport sponsors to the people of the United States in exchangefor monetary grants and donations of Federal property to ensure that the public interest is being served.

The Order sets forth policies and procedures for the FAA Airport Compliance Program: The Order is not regulatory and is not controlling with regard to airport sponsor conduct; rather it establishes the policies and proceduresto be followed by FAA personnel in

10carrying out the FAA’s responsibilitiesfor ensuring airport compliance. It provides basic guidance for FAA personnel in interpreting and administering the various continuing commitments madeto the United States by airport owners as a condition to the grant of Federalfunds or the conveyance of Federal property for airport purposes. The Order, 

### inter alia,analyzesthe various obligations set forth in the standard airport sponsor assurances, addresses the nature of those assurances, addresses the application of these assurances inthe operation of public-use airports, and facilitates interpretation of the assurances by FAA personnel.

The Order covers all aspects of the airport compliance programexcept enforcement procedures. Enforcement procedures regarding airport compliance matters are set forth in the FAA Rules of Practice for Federally-Assisted Airport Proceedings, 14 CFR Part 16.
Appeals Process

Pursuant to 14 Code of Federal Regulations, Part 16, Section 16.33,the Associate Administratorwill issue a final decision on appeal from the Director’s determination. In each such case, it is the Associate Administrator’s responsibilityto determinewhether (1)the findings of fact made by the Director are supported by a preponderanceof reliable, probative, and substantial evidence, and (2) each conclusion of law is made in accordance with applicable law, precedent, and public policy.



### Vi. DISCUSSION AND ANALYSIS

The Director’s Determination (DD), dated April 6, 2000, found the Respondent is in violation of Federal grant assurances 

### #Z(f), prohibiting an airport sponsor’s prevention of self-sewicing, and Federal grant assurance #23, prohibiting an airport sponsor’s granting 

### of an exclusive right by force of an unreasonable restriction on self-sewicing. [Final Decision and Order Exhibit 

### 1, Item 

### 1, p. 

### 21

To support his findings, the Director determined that Complainant requested the Respondent consider extending self-fueling privileges to it inApril of 

### 1957, butthe Respondent deferred the matterfor further consideration and review as to what type of self-fueling would be appropriate; [Final Decision and Order Exhibit 1, Item I, p. 141; the Respondent unanimously voted to indefinitely table a subsequent request for selffueling privileges made by the Complainant in May 1997 [Final Decision and Order Exhibit 1, Item 1, p. 151; a tenant would reasonably interpret the Respondent’svote to indefinitelytable the Complainant’s request to self-fuel to meanthat County does not allow self-fueling on the airport and that a tenant could not reasonably presume how it might proceedwith safe and efficient self-fueling, interms of appropriate procedures and equipment [Final Decision and Order Exhibit 1, Item 1,p. 151; and nowhere inthe record does the County allege that the Complainant has ever had the privilege to selffuel at the Airport [Final Decision and Order Exhibit 1, Item 1, p. 151The Directorfurther explained that twenty-two months after the Respondent indefinitely tabled the matter of self-fueling, Thomas P. Farley, Corporation Counsel for Waukesha Countywrote in a letter dated March4, 1999:

...no promises are being madeto you or your client that self-fueling will be allowed inthe foreseeable future or ever, and no promises are being made as to the conditions underwhich self-fueling would occur if permitted. This information is being providedto you only for the purposes of indicating that the County is now preparedto deal with its policy on this issue at sometime inthe foreseeable future. [Final Decision ad Order Exhibit 1, Item 1, page 

### 151
According to the Director, the aforementioned language used by the County's Corporation Counsel substantiates that the Complainant was not allowed to self-fuel on the Airport as of March4, 1999. A tenant or prospectivetenant would reasonably interpret this statement as an existing prohibitionof self-fueling at the Airport and a tenant or prospective tenant could not reasonably presume how 

### it might proceed with safe and efficient self-fueling. The record does not contain any evidence that the County ever provided guidance to an aircraft owner during this twenty-two month period about that owner's ability to self-fuel at the Airport. Infact, the record indicates that the Sponsor may have intended to prevent self-fueling at the Airport. [Final Decision and Order Exhibit 1, Item 1, p. 

### 151

Basedon the foregoing, the Director concluded that the Respondent's actions and lack of action over several years in this matter effectively have prevented tenants or potentialtenants, including the Complainant,from making reasonablejudgements about the appropriate procedures

### to exercise and equipment to purchase, in order to conduct safe and efficient self-fueling on the Airport; and the Respondent's vague and unreliable position regarding self-fueling, in itself, constitutes the exercise of a privilege (to set policy on the safe and efficient use of the Airport) which operates 

### to prevent selffueling at the Airport. [Final Decision and Order Exhibit 1
, Item 1, p. 161 ,

On appeal, the Respondentasserts that the Director's findings are not supported by the record evidence. Insupport of its argument, the County states that it has authorized self-fueling in its leases, as exemplified by the 1987 lease with Select Leasing, Inc. (Select),which provides explicitly for self-fueling utilizingtanks erected and maintained by the lessee at the airport central fuel farm.2 Although none of the lessees whose

Priorto the commencementof this present case, the County entered into a leasewith Select on October 19, 1987,for land at the Airport for hangar construction (Select Lease). The DD noted relevant sections of the lease agreement. Section 25 ofthe Select Lease, "Storage of Aviation Fuel by Lessee," is quoted in full to record how extensively the term regulates the actual conduct of self-fueling activitieson the airport: The Lessor agreesto permit Lesseeto store aviation fuel at the Waukesha County-Crites Field Airport on a fuel farm to be designated by Lessor.. Said permission is granted subject to the followingterms, conditions and regulations hereinafter set forth:

12lease providedfor self-fueling actually erected tanks and self-fueled, the right was extended intheir leases. [Final Decision and Order Exhibit 1, Item

### 2, pages 1-21

The County asserts that the Director's conclusion in Footnote 7 of the Director's Determination,which states that the FAA is not convinced that Section 25 

### of the Select Leasewas sufficientto allow self-fueling, is not supported by the record evidence. The County argues the Select Lease provision could not be clearer. Section 25 specifically "...authorizes, among other things: 

### (1) the lessee to store fuel at the fuel farm in above ground tanks; 

### (2) dispense fuel for its own use utilizing trained personnelto handle or dispense the fuel." Against this background,the County reiterates its position that it has never had a policy against self-fueling and has authorized self-fueling in leases with airport users. [Final Decision and Order Exhibit 1, Item 

### 2, p. 1-21

In its reply to the appeal, the Complainant argues that the obvious intended purpose of the County's submission of the Select Lease was to suggest that, eventhough the County had no minimum standards or regulations relating to self-fueling activities, it had

Lessee shall be responsiblefor the constructionand maintenance of its individualfuel tank. Fuelshall be stored only inthe area designated as a fuel farm by Lessor. Fuelshall be stored only in above-ground tanks. All fuel storage and handlingoperations shall conform to all applicable Federal, State and local codes, laws and regulations. The Lessor reservesthe right to periodically inspect said fuel storage and dispensing activity. The Lessoragrees that itwill, at its own expense, modify its fuel storage and dispensing facility to comply with any future regulation that may be promulgated by Federal, State or localgovernments or agencies. The Lessee agrees not to engage in the sale of gift of aviationfuel to others. The Lessee agrees to store only appropriategrades of aviation fuel on leased premises. The Lesseeagrees that only trained personnelwill be permittedto handleor dispense fuelfiom Lessee's tank. The Lesseeagrees to hold the County harmless from any and all claims arising out of the storage, transfer, andlor dispensingof aviationfuel on Lessee'ssite,. Inaddition the Lessee shall maintain an insurance policywitha minimumcoverage of Five Hundred Thousand and NOl100 ($500,000.00) Dollarsfor the fuel storage facility. Should the Lessee at any time discontinue or abandon fuel operations,the Lessee shall: (1) Offer said fuel storage tanks for sale to interested parties. Said parties shall be approved by Lessor. Said approval shall not be unreasonably withheld or; Remove said fuel storage tanks and restorethe area to its original condition within 120days. (2)

Should Lessee no longer operate a hangar facility but continue to base an aircraft at the Waukesha County Airport, Lessee shall be entitled to continued use of said fuel tank. [DD Exhibit 1, Item5, exhibit 41 In addition, Section 6 of the 1987 LeaseAgreement states the rights of the Lessor at the terminationof the lease, stating "Lessor shall have the option of exercisingthe following termination action at Lessor's sole discretion..

. Take title to all structures, tanks and devices locatedon leased premises." Section 8 states, "The Lessee agrees to observe and obey.,

, all laws, ordinances, rules and regulations promulgated and enforced by the Lessor...."[DD Exhibit 1, Item5, exhibit 41

13no explicit policy prohibiting self-fueling. The Director's Determination properly

. concluded that the language contained inthe one lease was insufficient to create the standards by which Select or any other aircraft owner or operator could exercise its right of self-fueling. Further, it is clear that the footnote about which the County now complains 

### did not play a dispositive,role

### inthe findings and conclusions set forth by the Director. There is no doubt that the Director's Determinationcould havefound the County inviolation of Grant Assurances 

### Z(f) and 23 even if the FAA had accepted, at face value, the County's representations about the effect of the Select Lease. Even 

### if,
as the County asserts, the Select Lease showsthat the County did not havea formal

. policy prohibiting self-fueling at the Airport, the evidence demonstrated, without question, that the County has in fact operated in such a way as to prevent such activities by Cedarhurst or anyone other than the existing 

### FBO. [Final Decision and Order Exhibit 1, Item 3, p. 11-1 

### 31

As observed 

### by Complainant, the lease provisions cited by the Respondenton appeal were presented by the Respondent, in its Rebuttal,to establish that it does not have a policy prohibiting self-fueling

. In its Rebuttal the Respondentstated:

... The facts are that as early as October 1987 leasesfor airport hangar facilities at the Waukesha County Airport included language permitting self-fueling, and at least a half dozen leases with this precise language remain in effect today.

... Admittedly, the new editions of the lease generally utilized by Waukesha for leasing airport facilities to airport users do not havethis same language, although they do provide for storage of gasoline in bulk quantities at the Airport Fuel Farm. However, in any event, the leases between Waukesha and airport users haveeither explicitly permitted self-fueling, or have been silent on the subject, but not prohibited self-fueling. [DD Exhibit 

### 1,Item 

### 5, p. 1 

### J
On appeal, the Associate Administratorfinds that the provisionsof the Select Lease are irrelevantto the issue of the Complainant's inabilityto conduct self-servicing activities at the Airport.. The fact that some tenants executed lease agreements with the County that contain provisionswhich allegedly permit self-fuelingdoes not overcomethe record evidence that shows the County has operated to prevent the Complainant, and possibly other airport users from enjoying safe and efficient self-fueling privileges at the Airport. Nowhere in any of its briefs, includingthose presented on appeal, doesthe Respondent assert any argument or provide any evidence that the Complainant was provided guidance on how it could self-fuel its aircraft at the Airport under any circumstances; not
even under the terms contained in the Select Lease. Infact, the record indicatesjust the opposite. As noted by the Director in his determination, in March 1999 Corporation Counselfor the County advised the Complainant that

...no promises are being madeto you or your client that self-fueling will be allowed in the foreseeable future or ever, and no promises are being made as to the conditions under which self-fuelingwould o&ur if

14permitted. This information is being provided to you only for the purposes of indicatingthat the County is now prepared to deal with its policy on this issue at sometime in the foreseeable future.” [Final Decision and Order Exhibit 1, Item 1, p. 

### 151

The Director need not show that an airport sponsor has a formal policy preventing all airport users from self-fueling at

### a Federally-assisted airport in order to establish a violation of Grant Assurance22(f). As stated by the Director at page 

### 16 of the Determination, the existence or lack of existence of a policy is not the standard by which compliance with grant assurance #22(f) is determined. The fact that there is no policy prohibiting self-fueling does not mitigate the fact that the County has effectively operated to prevent the Complainant, and possibly others from self-fueling at the Airport.

Even ifthe Select Lease provisions were relevant, the Associate Administrator, like the Director, is not convinced that that Section 25 of the Select Lease is sufficient to allow the leaseholderto exercise the privilege of self-fueling. In additionto authorizing the lessee to store fuel at the fuel farm in above ground tanks and to dispense fuel for its
own use utilizingtrained personnel, Section 25 of the Select Lease also providesthat the “[fluel shall be stored only in the area designated as a fuel farm by Lessor.” [DD Exhibit 1, Item 5, Exhibit 41 However,the record evidence indicates that no such fuel farm is likelyto be available for use by tenants other than the sole fixed based operator (FBO) at the Airport.

As noted in the Director’s Determination, on March 13, 1998,the County issued Amendment No. 1 to RFP No. 

### F-9810-R for 

### FBO services at the Airport, “Notices to Proposers.” The notice provides answers to questions raised as a result of the request for FBO proposals. In responseto a question regarding concerns about whether the Countywill provide protection to an FBO should someonewant to have additional fueling tanks at the Airport, the County providedthe following response.

We havecreatedthe Waukesha County minimumstandardsfor Aeronautical Service Providers and any businesswould have to comply with those standards. Furthermore, it is our understanding of the federal regulations, that any additionalfuel tanks would only be allowed inthe
area desigi atedfor fuel tanks. Since Waukesha County has not designated any additional areas for future bulk fuel storage other than the fuel farm that the 

### FBOwill be leasing,this occurrence is unlikely. It is our desire to create a level playing field for FBO services. [Final Decision and Order Exhibit 1, Item 1, p. 

### 5 

### -61

Based on review of the entire administrative record inthis case, the Associate Administrator finds that the Director properly concluded that the Sponsork actions and lack of actions over several years inthis matter have effectively prevented tenants or potential tenants, in( !uding the Complainant, from conducting safe and efficient self15fueling at the Airport. See e.g.,Citv of Pompano Beachv. Federal Aviation Administration, 

### 774 F.2d 

### I529 (IIrhCir. 

### 1985)(unexplained delays in negotiationsfor
an airport user’s federally-protected activities are unreasonable and have the effect, contrary to Federal law, of unjustly discriminating against the user and promoting an exclusive rightfor an 

### FBO). Consequently, on appeal,the Associate Administrator affirms that Director’s conclusion that the Respondent is inviolation of Grant Assurance 

### #22(f) and #23 in regard to its exercise of a rightwhich operates to prevent self-fueling at the Airport.

In its appeal, the Respondent argues that what Complainant is seeking from the County is self-fueling from a fuel tank the Complainant proposesto install at the hangarthe Complainantis seeking to lease from the’county, and not self-fueling from a fuel tank located at the fuel farm. Thus, what the Complainant is requesting is a departure from the established methodology for self-fueling as set forth in prior leases. [Final Decision and Order, Exhibit 1, Item2, p. 

### 21

As discussed above, on appealthe Associate Administratorfinds that the Respondent has‘failedto present any evidence that the Complainant was provided guidance that it could self-fuel its aircraft at the Airport under any circumstances. Consequently,the Associate Administrator finds the County’s argument without merit.

. Finally, on appealthe Respondent argues that the County has gone through an extensive processto re-evaluatethe self-fueling authorized in leases. After considerablestudy and appropriate legislative process,the County adopted an Ordinance on April 11, 2000, reaffirming self-fueling utilizing above ground storage tanks erected by lessees at the fuelfarm. [Final Decisionand Order Exhibit 1, Item2, p. 21

As discussed inthe “Background” section above, the Director’s Determination regarding this matter was issued on April 6, 2000, prior to the County’s adoption

### of the Ordinance of April 11, 2000. Consequently, the adopted Ordinance was not part of the record evidence reviewed by the Director. Infact, the County never submitted a copy of the proposed ordinance to the Director with any of the pleadings itfiled prior to the Director’s Determinati~n.~ Consequently,the Associate Administrator cannot reasonably conclude that the Ordinance, adopted subsequent to the FAA’s Director’s Determination, justifies reversal of said ’Determination.

Subsequentto the DD, the County submitted the adopted Ordinancefor review to the FAA Minneapolis Airports DistrictOffice (MSPADO), as the corrective action ordered by the Director in his Determination. The MSPADO is reviewingthe Ordinance to determine whether the self-fueling policies, procedures, andlor requirements set forth in the Ordinance are consistent withthe County’s Federalobligation to allow safe and efficientself-se;viringof aircraftat the Airport.

16IV. CONCLUSION
Upon consideration of the appeal submissions and responses by the parties, the entire administrative record herein, andthe applicable law and policy and for the reasons stated above,the FAA Associate Administratorfor Airports concludes that the Director’s Determination, dated April 6, 2000, in the matter regarding 

### CedarhuntAir Charter, Inc.
v. Countyof Waukesha,

### Wisconsin, FAA Docket No. 16-99-14, is supported by a preponderance of reliable, probative, and substantial evidence. The Respondentdoes not provide any basis for reversingthe Director‘s Determination which concluded that the County is inviolation of Federal grant assurances #22(f) in regardto its exercise of
a right which operatesto prevent self-fueling at the Airport, and Federal grant
assurance#23 in regardto the unreasonable restriction on self-fueling that has resulted inthe County granting an exclusive right to the Airport’s only 

### FBO.

APPEAL RIGHTS

A person disclosing a substantial interest 

### in this final agency decision and order of the Federal Aviation Administration mayfile a petition for review pursuantto 49 U.S.C. 46110, inthe United States Court of Appeals for the District of Columbia or inthe court of appeals of the United States for the Circuit in which the person resides or has its principal place of business The petition must be filed 

### not later than 

### 60 days after the order is dismissed.

A



## n : Woodie Woodward Acting Associate Administrator 

# r
for Airports 

## AUG -7 

## XKIO
Date

17