UNITED STATES DEPARTMENT OF TRANSPORTATION 

FED E RA L AVI AT1 0 N ADM I N I STRATI ON 

WASH IN GTON , D .C . 

. 

Cedarhurst Air Charter, Inc. 1 

1 

COMPLAINANT 1 

1 

V. ) Docket No. 16-99-14 

County of Waukesha, Wisconsin ) 

RESPONDENT 1 

FINAL DECISION AND 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 in violation of Federal grant 

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 Respondent reiterates its position from 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 in the 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. 181 
On appeal, the FAA Associate Administrator for Airports finds that Director’s 

Determination is 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 in violation 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 approximately 2 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 

Exhibit 21 

The planning and development of Waukesha County Airport has been financed, 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. 5 47101 et. seq. Specifically, since 1984, the County has 

entered into numerous AIP 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 

assistance for Airport improvements through the State of Wisconsin’s participation 

in the 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 scheduled to expire in October 1998. 

On April 23, 1997, according to 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 individual or firm operating at an airport and pcoviding general aircraft 

services to the public 

2 
presented site plans and a narrative on the type of fuel system Cedarhurst was 

proposing to install at 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, but for 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 

limited to the proximity to 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 Commission to review the material 

presented by QuadlGraphics-Cedarhurst and 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 

Commission to further discuss Quad/Graphics proposal to install and operate an above 

ground aviation fueling system for aircraft owned and operated by Cedarhurst. The 

minutes of the meeting state the following: 

[Quad/Graphics] said that it would be much more economical for 

QuadlGraphics to have their 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. 

If the County allows the request by Quad/Graphics, where does the 

County recover the loss from the fixed base operator to cover 

maintenance. Commissioner Broadfoot mentioned that the lease 

agreement between the 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 

number of operators, fueling systems, fuel fees, and any other concerns 

could be addressed. Chairman Perry said this was an item that would 

require more time and research before the Commission could come to a 

decision, and that the request for proposal for fixed based operation 

services would also be taken into consideration. A motion was made by 

Vice-chairman Schober and seconded by Commissioner Krueger to 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 anyone from participating in providing services at the 

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

airport, what protection is there for the FBO? 

6A. We have created the Waukesha County minimum standards for 

Aeronautical Service Providers and any business would have to comply 

with those standards. Furthermore, it is our understanding of the federal 

regulations, that any additional fuel 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 other than 

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 and the 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 Cedarhurst filed a formal Notice of Circumstances of 

Claim with the Clerk of Waukesha County against the County in regard to “matters 

relating to the hangar building at the Waukesha County airport.” The Notice discusses 

the claims on the Hangar Facility improvements made by Cedarhurst, including the 

allegation that the County made verbal assurances that “if the improvements were 

made, the value of the Improvements would be factored 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 in the event there is not a satisfactory resolution of 

this dispute, CAC is entitled to legal relief against the County to obtain the 

benefit of the 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 

a judgment against the County in the amount of the value of the 

Improvements, to wit: an amount not less than $275,000.00. [DD Exhibit 

1, Item 3, exhibit 31 

A letter, dated March 4, 1999, from County’s counsel to Cedarhurst‘s counsel 

summarizes the state of negotiations between the parties for the lease or sale of the 

hangar facilities: 

Please be advised that.. . the Finance Committee. _. declined your 

proposal to 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 it was 

impossible and inappropriate to link that item to the existing sale. 

4 
Therefore, I have e-mailed you a proposed contract for sale and lease of 

the property which contains, as its primary terms, a sales price of 

$600,000.00 the abatement of rent through March 1999, and a lease for 

143,000 square feet at fourteen cents per square foot for 1999, at fifteen 

cents per square foot for 2000, an escalator based upon the CPI 

thereafter.. . 

At the same time that I am faxing you this letter I am faxing you a copy of 

a letter already sent by the County Executive to the Airport Commission 

directing them to develop 2 self-fueling policy for the Airpo rt.... 

It is important to note that these two items are not tied together legally, no 

promises are being made to 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-fueling would occur if 

permitted. This information is being provided to you only for the purposes 

of indicating that the County is now prepared to deal with its policy on this 

issue at sometime in the foreseeable future. [DD Exhibit 1, Item 1, 

exhibit B] 

On March 4, 1999, a letter was issued from the County Executive to the Airport 

Commission, directing the Airport Commission to develop a self-fueling policy. 

Specifically, the County’s counsel wrote that 

Another long-term issue for us at the airport has been the 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 new fixed based operator, we have 

not developed a policy to permit and regulate self-fueling. With these and 

other challenges at last behind us, I believe the time has come to develop 

such a policy. [DD Exhibit 1, Item 1, exhibit F] 

As reflected in the record, Cedarhurst filed a Complaint with the State of Wisconsin, 

Circuit Court, on September 1, 1999, claiming that “By refusing to lease or sell the 

Hangar to CAC at a price based on the fair market value of the Hangar before the 

improvements were made to the Hangar, the County has retained the benefit of the 

improvements to the Hangar without paying CAC for the value of the improvement. 

Such a retention on the part of the County without just compensation to CAC is 

inequitable.” [DD Exhibit 1, Item 3, exhibit 21 

5 
On 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 December 2, 1999. [DD Exhibit I, items 3, 4 & 51 

On February 7, 2000, Cedarhurst filed a motion for leave to file a response to the 

County's rebuttal. The proposed response was filed with the motion. On February 25, 

2000, the County filed an answer to Cedarhurst's motion. Cedarhurst's motion was 

granted. [DD Exhibit I, Item 61 

On April 6, 2000, the FAA issued a Director's Determination finding that the 

Respondent is in violation 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 by force 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 LAW AND FAA POLICY 

The Federal Aviation 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 

in the interests of safety, security, and development of civil aeronautics. The Federal 

role in encouraging and developing civil aviation has been augmented by various 

legislative actions, which authorize programs for providing funds and other assistance 

to local communities for the development of airport facilities. In each 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 comply with their sponsor assurances. 

6 
The planning and development of Waukesha County Airport has been financed, in part, 

with funds provided by the FAA under the Airport Improvement Program, authorized by 

the Airport and Airway Improvement Act of 1982, (AAIA), 49 U.S.C. 5 47101 et seg. 

This program provides financial assistance to an airport sponsor for airport 

development in exchange for binding commitments designed to assure that the public 

interest will be served. These commitments are set forth in the sponsor's applications 

for Federal assistance and in the grant agreement as 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 precedent to providing airport development assistance under the MIA, 

the Secretary of Transportation must receive certain assurances from the airport 

sponsor. 

The AAIA sets forth requirements to 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 

improvement grant agreement. Upon acceptance of an AIP grant by an airport 

sponsor, the assurances become a binding obligation between the airport sponsor and 

the Federal government. 

FAA Order 51 90.6A, Airport Compliance Requirements, (hereinafter Order) provides 

policies and procedures to be followed by the FAA in carrying out its legislatively 

mandated functions related to federally obligated airport owners' compliance with their 

sponsor assurances. 

Use on Reasonable and 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 reasonable terms, and 

without unjust discrimination, to all types, kinds, and classes of aeronautical uses." 

Assurance 22(a). 

"...will not exercise or grant any right or privilege which 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 limited to maintenance, repair, 

and fueling) that it may choose to perform." Assurance 22(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 necessary to serve the civil 

aviation needs of the 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 responsibilities that the owners of public-use airports 

developed with Federal assistance assume under Assurance 22. Among these is the 

obligation to treat in a uniform manner those users making the same or similar use of 

the airport and to make all airport facilities and services available on reasonable terms 

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. 4-1 3(a). The FAA considers it inappropriate to provide 

Federal assistance for improvements to 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 prohibits the 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 pay the same fuel flowage fee as those 

operators on the airport who provide fueling services to the public. See Order, Sec. 3- 

9(e)(2). 

Aircraft owners must be permitted to fuel, wash, repair and otherwise take care of their 

own aircraft with their own personnel, equipment 'and supplies. The sponsor, however, 

is obligated to operate the airport in a safe and efficient manner. The establishment of 

fair and reasonable rules, applied in a not unjustly discriminatory manner, governing the 

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 aircraft fueling operations to appropriate 

locations with equipment commensurate to the job being done. See Order, Sec. 3- 

9(e)(3). 

8 
The Prohibition Aqainst the Grantinlq of an Exclusive Right 

Section 308(a) of the 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” includes an “airport.” See 49 U.S.C. §§ 40102(a)(4), (9), (28). 

Section 51 l(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 of the airport by any person 

providing, or intending to provide, aeronautical services to the public.” 

Assurance 23, “Exclusive Rights,” of the 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 intending to 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 products whether .or 

not conducted in conjunction with other aeronautical activity, repair and 

maintenance of aircraft, sale of aircraft parts, and any other activities 

which because of their direct relationship to the operation of aircraft can 

be regarded as an aeronautical activity, and that it will 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.” 

In the 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 have taken 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 owners to 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. 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 

regarding the servicing of their own aircraft and equipment may be construed 

9 
as a violation of this policy (the prohibition on the granting of an exclusive 

right). Where no attempt has been made to 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 business to 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 owners to 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. Reasonable rules and regulations should be 

adopted to confine aircraft maintenance and fueling operations to 

appropriate locations with equipment commensurate to 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 responsibility for 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 agreements and 

instruments of conveyance in order to protect the public's interest in civil aviation and to 

ensure compliance with Federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a 

national system of safe and properly maintained public-use airports operated in a 

manner consistent with the airport owners' Federal obligations and the public's 

investment in civil aviation. The Airport Compliance Program does 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 exchange for 

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 procedures to be followed by FAA personnel in 

10 
carrying out the FAA’s responsibilities for ensuring airport compliance. It provides basic 

guidance for FAA personnel in interpreting and administering the various continuing 

commitments made to the United States by airport owners as a condition to the grant of 

Federal funds or the conveyance of Federal property for airport purposes. The Order, 

inter alia, analyzes the various obligations set forth in the standard airport sponsor 

assurances, addresses the nature of those assurances, addresses the application of 

these assurances in the operation of public-use airports, and facilitates interpretation of 

the assurances by FAA personnel. 

The Order covers all aspects of the airport compliance program except 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 

Administrator will issue a final decision on appeal from the Director’s determination. In 

each such case, it is the Associate Administrator’s responsibility to determine whether 

(1) the findings of fact made by the Director are supported by a preponderance of 

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 in April of 1957, but the 

Respondent deferred the matter for 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’s vote to 

indefinitely table the Complainant’s request to self-fuel to mean that County does not 

allow self-fueling on the airport and that a tenant could not reasonably presume how it 

might proceed with safe and efficient self-fueling, in terms of appropriate procedures 

and equipment [Final Decision and Order Exhibit 1, Item 1, p. 151; and nowhere in the 

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. 151 
The Director further explained that twenty-two months after the Respondent indefinitely 

tabled the matter of self-fueling, Thomas P. Farley, Corporation Counsel for Waukesha 

County wrote in a letter dated March 4, 1999: 

... no promises are being made to 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-fueling would occur if 

permitted. This information is being provided to you only for the purposes 

of indicating that the County is now prepared to deal with its policy on this 

issue at sometime in the 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 March 4, 1999. A tenant or prospective tenant would reasonably 

interpret this statement as an existing prohibition of 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. In fact, 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 

Based on 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 

potential tenants, including the Complainant, from making reasonable judgements 

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 Respondent asserts that the Director's findings are not supported by the 

record evidence. In support 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 utilizing tanks erected and maintained 

by the lessee at the airport central fuel farm.2 Although none of the lessees whose 

Prior to the commencement of this present case, the County entered into a lease with 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 of the 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 activities on the airport: 

The Lessor agrees to permit Lessee to 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 

following terms, conditions and regulations hereinafter set forth: 

12 
lease provided for self-fueling actually erected tanks and self-fueled, the right was 

extended in their 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 

Lease was sufficient to 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 personnel to 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, even though the 

County had no minimum standards or regulations relating to self-fueling activities, it had 

Lessee shall be responsible for the construction and maintenance of its individual fuel 

tank. 

Fuel shall be stored only in the area designated as a fuel farm by Lessor. 

Fuel shall be stored only in above-ground tanks. 

All fuel storage and handling operations shall conform to all applicable Federal, State and 

local codes, laws and regulations. 

The Lessor reserves the right to periodically inspect said fuel storage and dispensing 

activity. 

The Lessor agrees that it will, 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 

local governments or agencies. 

The Lessee agrees not to engage in the sale of gift of aviation fuel to others. 

The Lessee agrees to store only appropriate grades of aviation fuel on leased premises. 

The Lessee agrees that only trained personnel will be permitted to handle or dispense 

fuel fiom Lessee's tank. 

The Lessee agrees to hold the County harmless from any and all claims arising out of 

the storage, transfer, andlor dispensing of aviation fuel on Lessee's site,. In addition the 

Lessee shall maintain an insurance policy with a minimum coverage of Five Hundred 

Thousand and NOl100 ($500,000.00) Dollars for 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 restore the area to its original 

condition within 120 days. 

(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, Item 5, exhibit 41 

In addition, Section 6 of the 1987 Lease Agreement states the rights of the Lessor at the termination of the 

lease, stating "Lessor shall have the option of exercising the following termination action at Lessor's sole 

discretion.. . Take title to all structures, tanks and devices located on 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, Item 5, exhibit 41 

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

concluded that the language contained in the 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 in the findings and conclusions set forth by the 

Director. There is no doubt that the Director's Determination could have found the 

County in violation 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 shows that the County did not have a 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 Respondent on 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 Respondent stated: 

... The facts are that as early as October 1987 leases for 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 have this 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 have either 

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 Administrator finds that the provisions of the Select Lease are 

irrelevant to the issue of the Complainant's inability to conduct self-servicing activities at 

the Airport.. The fact that some tenants executed lease agreements with the County 

that contain provisions which allegedly permit self-fueling does not overcome the 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, including those presented on appeal, does the 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. In fact, the record indicates just 

the opposite. As noted by the Director in his determination, in March 1999 Corporation 

Counsel for the County advised the Complainant that 

... no promises are being made to 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-fueling would o&ur if 

14 
permitted. This information is being provided to you only for the purposes 

of indicating that 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 Assurance 22(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 if the 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 leaseholder to exercise the privilege of self-fueling. In addition to authorizing the 

lessee to store fuel at the fuel farm in above ground tanks and to dispense fuel for its 

own use utilizing trained personnel, Section 25 of the Select Lease also provides that 

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 likely to 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 response to a question regarding concerns about whether the 

County will provide protection to an FBO should someone want to have additional 

fueling tanks at the Airport, the County provided the following response. 

We have created the Waukesha County minimum standards for 

Aeronautical Service Providers and any business would have to comply 

with those standards. Furthermore, it is our understanding of the federal 

regulations, that any additional fuel tanks would only be allowed in the 

area desigi ated for fuel tanks. Since Waukesha County has not 

designated any additional areas for future bulk fuel storage other than 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. [Final Decision and 

Order Exhibit 1, Item 1, p. 5 - 61 

Based on review of the entire administrative record in this case, the Associate 

Administrator finds that the Director properly concluded that the Sponsork actions and 

lack of actions over several years in this matter have effectively prevented tenants or 

potential tenants, in( !uding the Complainant, from conducting safe and efficient self15 
fueling at the Airport. See e.g., Citv of Pompano Beach v. Federal Aviation 

Administration, 774 F.2d I529 (I Irh Cir. 1985) (unexplained delays in negotiations for 

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 right for an FBO). Consequently, on appeal, the Associate Administrator 

affirms that Director’s conclusion that the Respondent is in violation of Grant Assurance 

#22(f) and #23 in regard to its exercise of a right which 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 proposes to install at the hangar the 

Complainant is 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, Item 2, p. 21 

As discussed above, on appeal the Associate Administrator finds that the Respondent 

has ‘failed to 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 appeal the Respondent argues that the County has gone through an 

extensive process to re-evaluate the self-fueling authorized in leases. After 

considerable study 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 fuel farm. [Final Decision and Order Exhibit 1, 

Item 2, p. 21 

As discussed in the “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. In fact, the County never submitted a copy of the 

proposed ordinance to the Director with any of the pleadings it filed 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. 

Subsequent to the DD, the County submitted the adopted Ordinance for review to the FAA Minneapolis 

Airports District Office (MSPADO), as the corrective action ordered by the Director in his Determination. 

The MSPADO is reviewing the Ordinance to determine whether the self-fueling policies, procedures, 

andlor requirements set forth in the Ordinance are consistent with the County’s Federal obligation to allow 

safe and efficient self-se;viring of aircraft at the Airport. 

16 
IV. CONCLUSION 

Upon consideration of the appeal submissions and responses by the parties, the entire 

administrative record herein, and the applicable law and policy and for the reasons 

stated above, the FAA Associate Administrator for Airports concludes that the Director’s 

Determination, dated April 6, 2000, in the matter regarding Cedarhunt Air Charter, Inc. 

v. County of Waukesha, Wisconsin, FAA Docket No. 16-99-14, is supported by a 

preponderance of reliable, probative, and substantial evidence. The Respondent does 

not provide any basis for reversing the Director‘s Determination which concluded that 

the County is in violation of Federal grant assurances #22(f) in regard to its exercise of 

a right which operates to prevent self-fueling at the Airport, and Federal grant 

assurance #23 in regard to the unreasonable restriction on self-fueling that has resulted 

in the 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 may file a petition for review pursuant to 49 U.S.C. 

461 10, in the United States Court of Appeals for the District of Columbia or in the 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 r Acting Associate Administrator 

for Airports 

AUG -7 XKIO 

Date 

17