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Federal Aviation
Administration
DEC 1 7 2C07
Mr. Garry L. Montanari
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Drive, Suite 110
Westlake Village, CA 913 59
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Enclosed is a copy of the Final Decision and Order of the Federal Aviation
Administration (FAA) with respect to the above-referenced matter.
Based on the record in this proceeding, FAA finds that the Determination made by the
Director of Airport Safety and Standards is supported by a preponderance of reliable,
probative, and substantial evidence. I affirm the Director's Determination that the City
of Los Angeles is not currently in violation of its federal grant assurances relative to the
issues argued in the Complaint.
The reasons for upholding the Director's Determination are set forth in the enclosed
Final Decision and Order.
Sincerely,
D. K(rk Shaffer
Associate Administrator
for Airports
Enclosure
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Page 2
The Respondents are not currently in violation of their federal obligations including grant assurances 5, Preserving Rights and Powers, 22, Economic
Nondiscrimination, 23 Exclusive Rights, and 24, Fee and Rental Structure, as
well as the 1949 Quitclaim D e e d - a s a result of Respondents' actions in
redeveloping the aeronautical property where Complainants have been renting a
hangar for their propeller aircraft.
While Respondents have historically used aeronautical property for
nonaeronautical purposes without FAA approval, these actions did not prevent
Complainants from having access to Van Nuys Airport on fair and reasonable
terms. The FAA Western-Pacific Region is monitoring compliance with the
Respondents' land use requirements at Van Nuys Airport. [FAA Exhibit 1, Item
20, page 2.]
' The Complainants named multiple respondents, including the County of Los Angeles, the Los Angeles
Board of Airport Commissioners and Los Angeles World Airports. Thermco refers to these parties as the
"Respondents." The Respondent refers to itself as 'the City.' The City of Los Angeles (City) is the sponsor
of Van Nuys Airport.
Page 3
^ As stated above, Complainants are Thermco Aviation and A-26 Company. Complainants throughout
refer to themselves as "Thermco." The DD refers to Thermco Aviation and A-26 Company as "Thermco"
or "Complainants." This document adheres to this practice.
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Page 5
requests for proposals for the Jet Center property: one on November 3, 2003, and a
subsequent one on May 1, 2006.
On November 3, 2003, the Airport issued a "Request for Proposals for Lease of
Hangar Complex Located at 16200 Daily Drive at Van Nuys Airport" (November
2003 RFP). [FAA Exhibit 1, Item 10, exhibit 7.] The November 2003 RFP did not
require the demolition of structures on the site, but did permit the proposer to offer a
plan that included redeveloping the property.^ Although the Airport sponsor
recommended that a proposal in response to this November 2003 RFP be accepted,
the Board of Airport Commissioners did not accept the proposal. [See FAA Exhibit
1, Item 10, exhibit 10, pages 12 and 19-20.]
On May 1, 2006, the Airport issued a subsequent "Request for Proposals for the
Demolition of the Hangar Complex Located at 16200 Daily Drive and Development
of a New Aviation Facility at Van Nuys Airport Notice Inviting Proposals" (May
2006 RFP). The May 2006 RFP required the Lessee to "purchase and demolish
existing structures, and to then design, construct and operate a high quality aviationrelated business that will serve the local community." [FAA Exhibit 1, Item 10,
exhibit 13, Part I - General Information, page 1.] '*
The November 2003 RFP states, "The successful Proposer will execute a Lease for land, hangar, office
space and/or a redevelopment plan upon which successful Proposer or Lessee will operate a high-quality
aviation/aeronautical related business." [FAA Exhibit 1, Item 10, exhibit 7, Part I - General Information,
page 1.]
The City determined the demolition was necessary to permit airport improvements in the redevelopment
area consistent with the Airport's Strategic Business Plan and its goal to develop a "modem, more
economically viable airport." [See FAA Exhibit 1, Item 10, exhibit 12.]
These facts established during the Director's investigation by a phone call to the City's attorney on March
20, 2007, to confirm that the request-for-proposals for the Propeller Park had been issued and that
another section of the Airport was currently available for use by propeller aircraft.
Page 6
* This nonaeronautical business is referred to throughout the administrative record variously as "C&M
Trucking," "C&M Relocation Company," and "C&M Relocation Services." For purposes of this
determination, we refer to it consistently as "C&M Relocation Services."
^ The administrative record includes a letter dated August 29,2006, advising C&M Relocation Services that
its lease would be terminated on December 31, 2006, and the property must be vacated by that date. A
similar letter was sent to JEC Enterprises August 23, 2006. [FAA Exhibit 1, Item 10, exhibits 2 and J.]
Page 7
Airport property and to implement a plan to convert the Aerolease parcel to aviation uses
without fiirther delay. [FAA Exhibit 1, Item 10, exhibit 1.] The City terminated the two
nonaeronautical leases with C&M Relations Services and JEC Enterprises. [See FAA
Exhibit 1, Item 10, exhibits 2 and 3.] In addition, the City stated it has negotiated a new
lease with Aerolease Associates that prohibits all nonaeronautical activities on the leased
site. [FAA Exhibit 1, Item 10, page 3.] [See Also FAA Exhibit 1, Item 20, pages 25-26]
The City stated that the non-aviation uses have been eliminated or are appropriate under
the Airport Master Plan.
As noted above, the leases for Galpin Ford,^ C&M Relocation Services, and JEC
Enterprises were terminated prior to this Director's Determination.
The City admitted that Balboa Brick & Supply, Balboa Equipment Rentals, and
Valley Sod Farms continue to lease Airport property, but state these businesses are
on sites without Airport access and are properly designated for nonaeronautical use
on the Airport Master Plan. [FAA Exhibit 1, Item 16, page 8.]
The City stated Parkwood Landscape Maintenance is no longer at the Airport.
[FAA Exhibit 1, Item 16, page 8.]
Procedural History
Complainants filed the current Complaint July 12, 2006, received by the FAA on July 14,
2006. [FAA Exhibit 1, Item 5.]
The City submitted their Answer to the Complaint, received by the FAA September 26,
2006. At the same time, the City filed a Motion to Dismiss. [FAA Exhibit 1, Items 10
and 11.]
Complainants filed their Reply to Respondents' Answer and Motion to Dismiss, received
October 11, 2006. [FAA Exhibit 1, Item 13.]
The City filed their Rebuttal, received October 17, 2006. [FAA Exhibit 1, Item 16.]
The FAA issued the Director's Determination on June 21, 2007. [FAA Exhibit 1, Item 20.]
On August 22, 2007, Complainants appealed the Director's Determination. [FAA Exhibit
Litem 21.]
On September 13, 2007, the City submitted a Reply to Appeal of Director's
Determination. [FAA Exhibit 1, Item 22.]
' The Aerolease parcel consists of seven acres of land with a ramp and warehouse at the northeast comer of
the Airport.
' As stated by the City, "the City terminated the Galpin leases, effective June 21, 2004 for the West Side
parcel and August 8, 2005 for the East Side parcel. The [Airport Master Plan] designates the Galpin
Ford sites for aviation use in connection with the development of a new propeller aircraft park
("Propeller Park")." [FAA Exhibit 1 Item 10, page 3]
Page 8
See the Federal Aviation Act of 1958, as amended and recodified. Title 49 U.S.C. 40101 et seq.
Page 9
where the benefits of such improvements will not be fiilly realized due to inherent
restrictions on aeronautical activities.
Grant Assurance 5, Preserving Rights and Powers
Grant assurance 5, Preserving Rights and Powers, requires the airport owner or sponsor
to retain all rights and powers necessary to ensure the continued operation of the airport
consistent with its federal obligations. This assurance implements the provisions of 49
U.S.C. 47107 et seq., and requires, in pertinent part, that the owner or sponsor of a
federally obligated airport "...will not take or permit any action which would operate to
deprive it of any of the rights and powers necessary to perform any or all of the terms,
conditions, and assurances in the grant agreement without the written approval of the
Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights
or claims of right of others which would interfere with such performance by the sponsor."
Grant assurance 5 states in pertinent part:
a. [The airport owner or sponsor] will not take or permit any action which would
operate to deprive it of any of the rights and powers necessary to perform any
or all of the terms, conditions, and assurances in the grant agreement without
the written approval of the Secretary, and will act promptly to acquire,
extinguish or modify any outstanding rights or claims of right of others which
would interfere with such performance by the sponsor. This shall be done in a
maimer acceptable to the Secretary.
b. [The airport owner or sponsor] will not sell, lease, encumber, or otherwise
transfer or dispose of any part of its title or other interests in the property
shown on Exhibit A to this application or, for a noise compatibility program
project, that portion of the property upon which federal funds have been
expended, for the duration of the terms, conditions, and assurances in the
grant agreement without approval by the Secretary. If the transferee is found
by the Secretary to be eligible imder Title 49, United States Code, to assume
the obligations of the grant agreement and to have the power, authority, and
financial resources to carry out all such obligations, the sponsor shall insert in
the contract or document transferring or disposing of the sponsor's interest,
and make binding upon the transferee all of the terms, conditions, and
assurances contained in this grant agreement.
The Order describes the responsibilities under grant assurance 5 assumed by the owners
or sponsors of public-use airports developed with federal assistance. Among these is the
responsibility for enforcing adequate rules, regulations, or ordinances as are necessary to
ensure the safe and efficient operation of the airport. [See Order 5190.6A, Sees. 4-7 and
4-8.]
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such restrictions when those restrictions deny or limit access to, or use of, the airport.
[FAA Order 5190.6A, para. 4-8.]
Grant Assurance 23, Exclusive Rights
Title 49 U.S.C. 40103(e), provides, in relevant part, that "there shall be no exclusive
right for the use of any landing area or air navigation facility upon which federal ftmds
have been expended."
Title 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."
Grant assurance 23, Exclusive Rights, of the prescribed sponsor assurances implements
both statutory provisions, and states in its entirety:
[The airport owner or sponsor] will permit no exclusive right for the use of the
airport by any person providing, or intending to provide, aeronautical services to
the public. For purposes of this paragraph, the providing of the services at an
airport by a single fixed-base operator shall not be construed as an exclusive right
if both of the following apply:
a. It would be imreasonably costly, burdensome, or impractical for more than
one fixed-base operator to provide such services, and
b. If allowing more than one fixed-base operator to provide such services
would require the reduction of space leased pursuant to an existing
agreement between such single fixed-base operator and such airport.
[The airport owner or sponsor] fiarther 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.
Grant Assurance 24, Fee and Rental Structure
Grant assurance 24, Fee and Rental Structure, addresses fees the owner or sponsor levies
on airport users in exchange for the services the airport provides.
Page 12
Section 47107(a)(13) of 49 U.S.C. requires, in pertinent part, that the owner or sponsor of
a federally obligated airport "will maintain a fee and rental structure for the facilities and
services being provided to airport users which will make the airport as self-sustaining as
possible under the circumstances existing at that particular airport." In addition, under
47107(a), fees levied on aeronautical activities must be reasonable and not unjustly
discriminatory.
Grant assurance 24 satisfies the requirements of 47107(a)(13). It provides, in pertinent
part, that the owner or sponsor of a federally-obligated airport agrees that it will maintain
a fee and rental structure consistent with assurances 22, Economic Nondiscrimination,
and 23, Exclusive Rights. The airport owner or sponsor agrees to establish a fee and
rental structure that will make the airport as self-sustaining as possible under the
circimastances existing at the particular airport, taking into accoimt such factors as the
volume of traffic and economy of collection. The intent of the assurance is for the airport
operator to charge fees that are sufficient to cover as much of the airport's costs as is
feasible.
Moreover, the Order states that the owner or sponsor's obligation to make an airport
available for public use does not preclude the owner or sponsor from recovering the cost
of providing the facility. The owner or sponsor is expected to recover its costs through
the establishment of fair and reasonable fees, rentals, or other user charges that will make
the airport as self-sustaining as possible under the circumstances existing at the particular
airport. [See Order, 4-l4(a).]
Surplus Property Obligations
The City of Los Angeles is also obligated by the restrictive deed covenants that arise from
the 1949 conveyance of land imder the February 10, 1949 quitclaim deed (1949 Quitclaim
Deed) executed under the powers and authority contained in the provisions of the Surplus
Property Act of 1944 (Public Law 80-289), as amended, 49 U.S.C. 47151-153."
Surplus property instruments of transfer issued by the War Assets Administration (WAA)
and its successor, the General Services Administration (GSA), are one of the means by
which the federal government provides airport development assistance to public airport
sponsors. The conveyance of surplus federal land to public agencies for airport purposes
is administered by the FAA in conjunction with the U.S. Department of Defense and the
GSA and pursuant to 49 U.S.C. 47151, 47152, and, 47153. Pursuant to 49 U.S.C.
47151, the FAA has the statutory power to ensure that airport owners comply with their
federal obligations contained within surplus property deeds of conveyance.
Under each surplus property conveyance, the airport sponsor assumes certain obligations,
reservations, and conditions. These usually occur in the property deeds and conveyance
instruments in the form of restrictive covenants to maintain and operate the airport
" This 1949 Quitclaim Deed is the surplus airport property instrument of disposal for Van Nuys Airport.
[See FAA Exhibit 1, Item 5, exhibit A.]
Page 13
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substantially affected by the things done or omitted by the respondents. [14 CFR, Part 16,
16.23(b)(3,4).]
If, based on the pleadings, there appears to be a reasonable basis for ftirther investigation,
the FAA will investigate the subject matter of the complaint. In rendering its initial
determination, the FAA may rely entirely on the complaint and the responsive pleadings
provided. Each party shall file documents that it considers sufficient to present all relevant
facts and arguments necessary for the FAA to determine whether the sponsor is in
compliance. [14 CFR, Part 16, 16.29.]
The proponent of a motion, request, or order has the burden of proof. A party who has
asserted an affirmative defense has the burden of proving the affirmative defense. This
standard burden of proof is consistent with the Administrative Procedure Act (APA) and
federal case law. The APA provision states, "[ejxcept as otherwise provided by statute, the
proponent of a rule or order has the burden of proof." [5 U.S.C. 556(d).] [See also.
Director, Office of Worker's Compensation Programs, Department of Labor v. Greenwich
Collieries, 512 US 267, 272 (1994); Air Canada et al. v. Department of Transportation, 148
F3d 1142, 1155 (DC Cir, 1998).] Title 14 CFR 16.229(b) is consistent with 14 CFR
16.23, which requires that the complainant submit all documents then available to support
his or her complaint. Similarly, 14 CFR 16.29 states that "[e]ach party shall file
documents that it considers sufficient to present all relevant facts and argument necessary
for the FAA to determine whether the sponsor is in compliance."
Right to Appeal the Director's Determination
A party to the Complaint adversely affected by the Director's Determination may file an
appeal with the Associate Administrator within 30 days after the date of service of the
initial determination. If no appeal is filed within the time period specified, the Director's
Determination becomes the final decision and order of the FAA without further action. A
Director's Determination that becomes final because there is no administrative appeal is
not judicially reviewable. [14 CFR, Part 16, 16.33]
Part 16 requires all relevant facts to be presented in the complaint documents. [14 CFR,
Part 16, 16.23(b)(3).] New allegations or issues should not be presented on appeal.
Review by the Associate Administrator is limited to an examination of the Director's
Determination and the administrative record upon which such determination was based.
Under Part 16, Complainants are required to provide with the complaint and reply all
supporting documentation upon which it relied to substantiate its claims. Failure to raise
all issues and allegations in the original complaint documents may be cause for such
issues and allegations to be deemed waived and not reviewable upon appeal. This is
consistent with the Supreme Court's recognition that courts may require administrative
issue exhaustion as a general rule because it is usually appropriate under an
[administrative] agency's practice for contestants in an adversarial proceeding before it to
develop fully all issues there. The Court concluded that where parties are expected to
develop the issues in an adversarial administi-ative proceeding, the rationale for requiring
issue exhaustion is at its greatest. [See Sims v. Apfel, 530 US 103, 108-110 (2000) citing
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Hormel v. Helvering, 312 US 552 (1941) and US v. LA Tucker Truck Lines. 344 US 33,
(1952).]
FAA's Responsibility with Regard to an Appeal
Pursuant to 14 CFR, Part 16, 16.33, the Associate Administrator will issue a final
decision on appeal from the Director's Determination, without a hearing, where the
complaint is dismissed after investigation.
In such cases, it is the Associate Administrator's responsibility to determine whether (a)
the findings of fact made by the Director are supported by a preponderance of reliable,
probative, and substantial evidence, and (b) each conclusion of law is made in accordance
with applicable law, precedent, and public policy. [See e.g. Ricks v Millington Municipal
Airport. FAA Docket No. 16-98-19, (December 30, 1999) (Final Decision and Order)
page 21; and 14 CFR, Part 16, 16.227.]
Page 17
"Jet Center " redevelopment. In its Director's Determination, the FAA properly
found that the City has the right to allocate Airport land between competing
aeronautical activities; that it is not unreasonable for the City to modernize the
Jet Center facilities; and that the City has no obligation to yield to Thermco's
desire to remain in Hangar #3. [FAA Exhibit 1, Item 22, pages 1-2.]
Thermco makes five allegations regarding the Director's Determination:
1. The Director's findings are contrary to the substantial evidence that Thermco will
be displaced from its hangar.
2. The remedy of an interim propeller park is conjecture.
3. The Director fails to consider the substantial evidence of discrimination against
piston-type aircraft such as Thermco's.
4. The Director ignores the long history of non-aviation uses which remained at the
time of the filing of this complaint.
5. The new RFP (request-for-proposal) is discriminatory as to the tenant and runs
counter to LAWA's business plan. [FAA Exhibit 1, Item 21, page 2.]
As stated in the above five points, Thermco does not clearly state how the Director relied
on faulty facts, or, specifically, misapplied Federal law. Instead, Thermco focuses on
how the Director made incorrect conclusions, generally, from the facts and finds fault
with these conclusions. More broadly, the Appeal questions the Director's conclusions
regarding:
A)
B)
C)
D)
As discussed below, the Associate Administrator's review of the record concurs with the
Director's finding of the facts and the application of law and FAA policy.
A. Reasonable Access to Aircraft Storage
Allegation #1: The Director's findings are contrary to the substantial evidence that
Thermco will be displaced from its hangar. (Current Occupancy)
Thermco's Appeal focuses on the original allegation of an unreasonable denial of access
under grant assurance 22, in regard to the loss of Thermco's occupancy of Hangar #3,
discussed as Issue 4 in the DD.
On appeal, Thermco states that despite the alleged 'certainty' of Thermco's loss of
occupancy of Hangar #3, "the Determination nevertheless characterizes the loss of hangar
issue as 'conjecture.'.... This reliance is misplaced." [FAA Exhibit 1, Item 21, page 4.]
Page 18
The City answers, "The Director properly concluded - given the evidence that Thermco
is currently operating at the Airport and the absence of any proof that access will be
denied in the future - that Thermco had not proven a current violation of the City's grant
assurances (Director's Determination at 22-23). Accordingly, the Director rejected
Thermco's denial of access claims." [FAA Exhibit 1, Item 22, pages 2-3.]
The Director accepted the premise that Thermco is likely to lose occupancy of Hangar
#3. However, the Director notes that Thermco currently enjoys occupancy at the
Airport under reasonable terms. The Director stated that it is not clear that the loss
Hangar #3, along with the prospective development of the Airport and other options for
hangar occupancy, will deprive Thermco of reasonable access, without unjust economic
discrimination, to aircraft storage at the Airport:
Complainants do not allege they were denied access to the Airport. In fact, they
leased Hangar #3 under a sublease agreement. ... Complainants did remain in
Hangar #3 under the sublease agreement throughout the RFP process, but would
ultimately be displaced by the redevelopment of the Jet Center....
Neither grant assurance 22 nor the 1949 Quitclaim Deed obligates the Airport
sponsor to enter into specific lease arrangements to suit a particular Airport
tenant so long as the aeronautical user is provided access on reasonable,
nondiscriminatory terms. Complainants acknowledge the sponsor is not
obligated to agree to a specific lease proposal, but argue the Respondents must
provide facilities in a manner consistent with their federal obligations. [FAA
Exhibit 1, Item 13, page 18.] The Respondents 'federal obligations require them
to make the airport available to all types, kinds, and classes of aeronautical
users on reasonable, nondiscriminatory terms. The administrative record shows
Complainants had reasonable access. In fact, at the time Complainants filed this
Complaint, they were Airport tenants in Hangar #3. The terms of their
agreement have not been shown to be unreasonable or discriminatory. [FAA
Exhibit 1, Item 20, pages 20-21]
Standards for reasonable terms of airport access do not include a guarantee of occupancy
by tenants and subtenants in their current hangar facilities. In fact, the FAA recognizes
the value in airport sponsors retaining flexibility to provide for the fiiture development of
aeronautical facilities and the need to periodically demolish and reconstruct existing
facilities to respond to change in the civil aviation market. Simply put, the grant
assurances and federal obligations do not require that an airport sponsor recognize past
occupancy as a preference for fiiture occupancy. Nor do the federal obligations require
sponsors to adhere to the location preferences of current tenants and subtenants when
planning for the fiature development of the airport. [See Santa Monica Airport
Association, Krueger Aviation, Inc. and Santa Monica Air Center v. City of Santa
Monica, FAA Docket No. 16-99-21 (February 4, 2003) (Final Decision and Order)
[Santa Monica], discussed more fiilly, below.]
'* Thermco quotes the Director's Determination in its Appeal: "'In this case, it is known that Hangar
#3 will be demolished and that Complainants will be displaced...' [DD at p. 22]" [FAA Exhibit 1,
Item 21, page 4.]
Page 19
The record, in this case, does not display a pattern of behavior by the City that is so
capricious, confounding or deceptive as to constitute an unreasonable denial of access.'^
The Associate Administrator finds the Director did not err in concluding that the City is
not currently denying access to aircraft storage to Thermco.
Allegation #2: The remedy of a propeller park is conjecture (Future Access)
As stated in its Appeal, Thermco is most concerned about fixture hangar occupancy.
[FAA Exhibit 1, Item 21, page 4.]
The Director recognized this as the central concern, stating, "In this particular case.
Complainants have expressed concern that in the fiiture they may not have suitable
hangar space for their propeller aircraft once Hangar #3 in the redevelopment area is
demolished." [FAA Exhibit 1, Item 20, page 21] [See FAA Exhibit 1, Item 5, page 3.]
On appeal, Thermco states, "Respondents and the Director essentially acknowledge the
access issues in connection with propeller aircraft by their reference to the 'propeller
park.' [Propeller Park]... The park is nothing more than a concept which is years away
from reality." [FAA Exhibit 1, Item 21, page 5.]
In its Answer, the City states, "Although Thermco will be displaced from Hangar #3
when the Jet Center is redeveloped, it is not known when that will occur eind what options
Thermco will have at that time to park its aircraft elsewhere at the Airport." [FAA
Exhibit 1, Item 22, page 3.] Here, the City recognizes the possible options beyond those
discussed most directly in the record: continued occupancy of Hangar #3 or occupancy in
the proposed Propeller Park.
Thermco fails to show an error in regard to the Director's discussion and decision on the
Propeller Park. The Director discusses the proposed Propeller Park as proffered by the
City as one of the many future developments that may provide a reasonable opportunity
for access for Thermco and others. With regard to the Propeller Park, the Director stated:
Respondents further state the Airport Master Plan designates an area previously
usedfor a nonaeronautical purpose to be developed as a new propeller aircraft
park (Propeller Park). [FAA Exhibit 1, Item 10, page 3.] The Respondents state
they expected to issue a request-for-proposals to develop the Propeller Park
before the end of 2006. They indicated another section of the Airport would be
used as a short-term propeller aircraft area while the Propeller Park is being
developed. [FAA Exhibit I, Item 10, pages 3-4.J[AA Exhibit 1, Item 20, page
21.]
" The issues of the RFP, leasing and planning processes are discussed below.
Page 20
However, in the interest of thoroughness, the Director explored the support behind this
suggestion by the City. A footnote in the Director's Determination stated:
We placed a phone call to Respondents' attorney on March 20, 2007, to confirm
that the request-for-proposals for the Propeller Park had been issued and that
another section of the Airport was currently available for use by propeller
aircraft. Respondents' attorney confirmed on April II, 2007, that the Propeller
Park request-for-proposals had been issued and proposals were due on May 31,
2007. At the same time. Respondents' attorney confirmed that two interim
propeller park leases were on target to go to the Boardfor approval on May 7,
2007. Respondents' attorney also stated Respondents had processed a consent to
sublease for Complainants to lease space from another tenant. In the meantime.
Respondents' attorney stated that Complainants remain in Hangar #3 in the Jet
Center pending results of the May 2006 request-for-proposals for the Jet Center.
[See FAA Exhibit 1, Item 19.] Complainants' attorney confirmed on March 20,
2007, and again on June 19, 2007, that Complainants remain in Hangar #3. [See
FAA Exhibit 1, Item 19.] As such, the fact that the request-for-proposals for the
Propeller Park or the establishment of the interim propeller aircraft area may or
may not have proceeded on schedule has not prevented Complainants from
operating at the Airport at the time of this determination. Nonetheless, the
Director will ask the FAA Western-Pacific Region to follow up with the Airport
sponsor to ensure propeller aircraft access is maintained at Van Nuys Airport.
[FAA Exhibit 1, Item 21, page 21, fii. 16.]
The Director's findings in the Determination do not rely on the certainty that the
Propeller Park will be developed for seekers of propeller aircraft storage. The evidence
that the City is moving forward with many possible solutions to the question of propeller
aircraft occupancy is relevant to the findings. The existence of fiiture plans (or lack
thereof) does not alter a sponsor's ongoing obligation to provide reasonable aeronautical
access. The Propeller Park is one option. Again, the City has the proprietary right to
market the Airport to specific types of aeronautical users, and may make plans to market
the Airport in a marmer that current tenants dislike.
The Director correctly observes that the circumstances under which Thermco may be
denied access to the Airport, or unjustly discriminated against, in the future, is conjecture.
[FAA Exhibit 1, Item 20, page 30.] In any case, the exact circumstances under which
Thermco might be denied access in the fiiture is not described in the record, because the
circumstances have not yet occurred. In fact, the FAA has examined numerous
circumstances in formal Part 16 complaints in which a complainant has lost all or some
degree of access to an airport. On occasion, the FAA has found that a denial of access is
reasonable, therefore, not a violation of the grant assurances. Such a determination
depends on the exact circumstances of the denial. The record in this case does not
support the notion that Thermco is, or will be, denied reasonable access, simply because
it is not a jet operator. Even if the Director were to suspect that the City would deny
access in the future (and the Associate Administrator does not make that conclusion
Page 21
here), the Director would be unable to make such a finding of noncompliance because
there is no preponderance of evidence upon which to base such a finding.
In fact, the Director recognized this when stating in the Determination, "If Complainants
are unable to obtain hangar space in the future that they believe is suitable for their
propeller aircraft after the redevelopment, the FAA would address that issue at that time."
[FAA Exhibit 1, Item 20, page 23.]
The record in this case does not establish a pattern of deception in producing plans or
terms for fiiture tenancy or in selecting developer/tenants (see below). In fact, the record
supports the conclusion that the City is making plans to accommodate seekers of aircraft
storage (see below). The FAA acknowledges that redevelopment and construction of
aeronautical facilities may create displacement and inconvenience for existing tenants
and subtenants. [See Pacific Coast Flyers. Inc. v. County of San Diego, FAA Docket No.
16-04-08 (July 25, 2005) (Director's Determination) [Pacific Coast], discussed more
fully, below.] The City's actions thus far, do not constitute an unreasonable denial of
airport access or unjust economic discrimination and the Director did not err.
Summary of Reasonable Access to Hangar Occupancy
The FAA acknowledges the different interests of aeronautical tenants and subtenants and
airport operators responding to changes to the aviation market. Each party wishes to
optimize their interests. Thermco seeks to maintain its long-term, advantageous
occupancy in Hangar #3. The Airport sponsor seeks to maximize the utility of the
Airport to respond to new aeronautical opportunities. The grant assurances do play a role
in this balance of interests. In this case, as stated by the Director and established by the
record, the City has not acted to unreasonably deny access to the Airport or unjustly
discriminate against Thermco. Finally, the City's federal obligations do not require that
past occupancy establishes preference for fiiture occupancy by a tenant or subtenant of
the same aeronautical facility.
Thermco has presented evidence that it now enjoys reasonable access to the Airport.
Also, Thermco has not presented a preponderance of substantial evidence that the City
will deny Thermco access under reasonable terms in the fiiture, because such evidence
does not exist. Thermco has the burden of proof to show unreasonable denial of access,
not just denial of access to the facility it desires to lease. The City does not have to prove
how it will accommodate Thermco in the fiiture. Finally, if Thermco is not
accommodated on the Airport in the fiiture that, itself, may not amount to a grant
assurance violation. [See Robert Kihlstrom v. Port of Orcas, FAA Docket No. 16-02-07
(September 1, 2004) (Director's Determination, page 26.) (Orcas)] Such a finding would
depend on the specific facts, which are not evident at this time. In any case, without
regard to the circumstances of development, the City remains obligated to provide
Airport access on reasonable terms. As stated by the Director:
Grant assurance 22, Economic Nondiscrimination, and the 1949 Quitclaim Deed
obligate the Airport sponsor to provide Airport access; they do not obligate the
Page 22
'* The Director did not 'ignore the long history of non-aviation uses.' The Director summarized the landuses; the FAA action to achieve voluntary compliance in a manner consistent with our policy and practice;
and the City's steps to achieve corrective action. [See Background Section of this Decision for extensive
quotations of the Determination.]
Page 23
The Director acknowledged the issues with nonaeronautical use of certain airport parcels
at the Airport. As stated above, Thermco's primary concerns are the pending demolition
of the hangar it currently occupies and the possibility that the City will not accommodate
Thermco's preference for aircraft storage in the future. With regard to these concerns,
the Director noted:
These may be legitimate concerns. However, Complainants do not relate either
of these situations to the Airport's history of allowing nonaeronautical tenants to
lease Airport property that should be reservedfor aeronautical uses. Indeed,
while the Airport has had a history of using Airport property improperly, the
Complainants have, nonetheless, had a hangar for their aeronautical business.
The fact that their continued use of this hangar is in jeopardy is related to the
planned redevelopment of the area, not to the sponsor's use ofAirport property
for nonaeronautical purposes. In fact, the redevelopment of the area in question
- which will result in the demolition of Complainants' current hangar - is for
aeronautical purposes. [FAA Exhibit 1, Item 20, page 20]
On Appeal, Thermco does not dispute the facts, but rather, contests the Director's
reasoning and conclusions. Thermco states:
The Director repeatedly asserts that only current, not past, violations are
relevant. This 'snapshot' evaluation fails to consider Thermco has been seeking
a permanent hangar since 2003 while the non-aviation uses continued to thrive.
Thermco was not consideredfor airport property while moving companies, car
dealerships, masonry and building material suppliers were occupying airport
property
None of this non-aeronautical space was made available to
Thermco or to any other propeller aircraft operator.'^ [FAA Exhibit 1, Item 21,
page 11]
The City states in its Reply to the Appeal:
Even if the alleged violations [of nonaeronautical land-use] had persisted, the
Director correctly found that Thermco would have no standing to challenge
them. As the Director accurately pointed out, Thermco has use of Hangar #3
when, it is alleged, the City improperly devoted Airport property to non-aviation
uses; the fact that Thermco's use of Hangar #3 is now in jeopardy is related to
" Thermco does not state, or demonstrate, that it requestedfi-omthe City specific aeronautically-suitable
parcels for long-term lease and development and that the City denied Thermco in favor of a
nonaeronautical use. Rather, Thermco states here: "space was not made available to Thermco." Also,
Thermco does not object to the Director's observation:
The administrative record shows Complainants requested to negotiate a direct lease with the Airport
sponsor for Hangar #3 ... [FAA Exhibit 1, Item 5, exhibit C ] ... While Complainants show they
requested a lease with Respondents, they do not present supporting evidence to show they were denied
a lease at any time in favor of a nonaeronautical tenant or that they were denied a lease because
aeronautical space was not available. On the contrary, the record shows Complainants have leased
Airport property under various sublease agreements since 1987. [FAA Exhibit 1, Item 5, pages 2 and
5.] [FAA Exhibit 1, Item 20, page 27]
Page 24
the planned redevelopment of the Jet Center for aeronautical purposes. [FAA
Exhibit 1, Item 22, page 5]
As stated above, the record does not support that the City was or is required to provide
Thermco with a long-term lease specifically for Hangar #3 in order to ensure reasonable
aeronautical access.'* The record shows and Thermco admits that it has had a short-term
lease to Hangar #3. Thermco has failed to show that it does not enjoy a long-term hangar
lease at the Airport because of the City's past land-use practices. In fact, Thermco fails
to show that it has proposed a specific long-term lease of any Airport property other than
Hangar #3. Finally, Thermco fails to show it was denied a lease in favor of a nonaeronautical use. Consequently, the Director correctly exercised his discretion,
determining that Thermco had not shovm that it was directly and substantially affected by
the City's failure to use Airport property for strictly aviation uses. Also, the record,
itself, fails to establish an unreasonable denial of access or unjust economic
discrimination against Thermco in relationship to the occupancy or development of
Airport property.
In its Appeal, Thermco questions the validity of this 'geographical' distinction: "Should
it be any less of a violation simply because a proponent of aeronautical development is
denied development at a different location?" [FAA Exhibit 1, Item 21, page 9.] The
Director cannot make a finding of a violation, because the record does not establish
exactly what type of development Thermco would have proposed at some other location
or how it should be valued. Since Thermco never made such a proposal, there is no
rational answer to Thermco's question.
Finally, the Director summarized the City's actions in pursuit of cortective action with
regard to federal land-use obligations. [See Background Section of this Final Decision,
pp. 7-8.] The City's voluntary corrective action appears appropriate. In its Appeal,
Thermco finds fault with the Director's reasoning, citing that the Director's use of
precedence is 'dicta.' [FAA Exhibit 1, Item 21, page 10.] Regardless of Thermco's
opinion, the Director may exercise his discretion over what he finds persuasive. Here,
the Director relies on established FAA policy, stating:
The FAA Compliance program is designed to achieve voluntary compliance with
federal obligations accepted by owners and/or operators of public-use airports
developed with FAA-administered assistance. Therefore, in addressing
allegations of noncompliance, the FAA will make a determination as to whether
an airport sponsor is currently in compliance with the applicable federal
" A sponsor may maintain flexibility to alter and develop its airport to maximize utility, business success
and the interests of the community in aviation. In Jimsair Aviation Services. Inc.. v. San Diego County
Regional Airport Authority. FAA Docket No. 16-06-8 (April 12, 2007) (Director's Determination), the
FAA agreed with the airport sponsor that it would be unwise to negotiate a lease extension prematurely for
a facility expansion when the facility may need to be relocated.
" Thermco simply states in its Complaint, "THERMCO and A-26 through their conunon ownership have
offered to lease the hangar and its land for the 30-year term with rental income to LAWA at a net present
value in excess of $5 million. Petitioners have also offered to make improvements on the hangar, if
necessary." [FAA Exhibit 1, Item 5, page 7.]
Page 25
Page 27
Page 28
Rent for the new improvements/structures [for the Jet Center] commences in
thirty (30) years only after the improvements revert to the respondents. Rent for
the existing structures ceases at demolition....
The Director recounts that for aeronautical uses, the self-sustaining element is
satisfied by cost recovery. However, respondents own strategic business plan
states that a "key objective " is "to achieve the highest net return on hangars by
January 1, 2006. " [FAA Exhibit 1, Item 21, page 12.] ^
The City replies:
Thermco concludes by asserting that the City will receive less rent at the Jet
Center under the May 2006 RFP than it would receive if it were to continue
leasing the present hangars. The Director concluded that this was not evidence
that the RFP violated the City's obligation to maintain a self-sustaining rental
structure at the Airport. Thermco does not challenge this conclusion. [FAA
Exhibit 1, Item 22, page 6.]
Although Thermco alleges that the Director erred, its Appeal fails to explain how the
Director erred. In fact, the Director's conclusions with regard to the City's RFP process
appear correct. The Director stated:
While Complainants may disagree with the financial business decisions of the
Respondents regarding the development of Van Nuys Airport, the Respondents
retain the proprietary right to make such decisions. The May 2006 RFP clearly
indicates the Airport must receive fair market value for the existing structures to
be demolished. The administrative record contains nothing to suggest the
Respondents 'financial business decisions regarding the May 2006 RFP are
inconsistent with grant assurance 24. The Director finds the Respondents are
not currently in violation ofgrant assurance 24, Fee and Rental Structure, as a
result of issuing a request-for-proposals that includes the purchase and
demolition of existing Airport structures rather than to accept Complainants' 30year lease offer. [FAA Exhibit 1, Item 20, page 17]
The City's federal obligations allow, but do not require, the City to pursue fair-market
value for aeronautical use of airport property. Fair-market value and bidding allows the
market to determine the best use of the property among competing aeronautical uses. As
discussed above, the competing interests for the exclusive development and business use
of the Jet Center property are aeronautical interests.
^^ The Associate Administrator notes, however, that Thermco also makes a point to argue in its Complaint
that the City is incorrect to insist that the proposer 'purchase' the buildings before demolishing them:
"There is no other known proposal at [the Airport] which has required the tenant to first purchase existing
structures at a cost of $3.5 million and then demolish those improvements at a cost certainly exceeding
$500,000." [FAA Exhibit 1, Item 5, page 7.]
Page 29
hi Robert Kihlstrom v. Port of Orcas, FAA Docket No. 16-02-07 (September 1, 2004)
(Director's Determination) [Orcas], the Director discussed lease rates, bidding and fairmarket value for hangar development:
Federal grant assurance 24 requires that the sponsor establish a rental structure
for the facilities at the airport, which will make the airport as self-sustaining as
possible. While the sponsor is not required to demandfair market value for nonairfield aeronautical fees, ^' it may do so and thus may consider leasing or
selling non-airfield aeronautical facilities to the highest bidder making
aeronautical use of the facilities. A sponsor is not required to disregard
competing interests for the use of non-airfield aeronautical facilities. The FAA
has found, as demonstrated by the common industry practice of issuing Requestsfor-Proposals, providing a widely circulated call for aeronautical interest in
airport facilities is an appropriate method of ensuring the highest and best use
for limited airport facilities. [Orcas DD, page 26.]
Finally, Thermco states that the City's 'own strategic business plan, upon which the
"May 2006" RFP is based, is inconsistent with demolition of Hangar 3 and the long term
interruption or diminution of rental revenues contemplated by the RFP."^^ The federal
obligations do not require the City to adhere to any strategic business plan. The
allegation that the City may have diverted from such a plan does not undermine the
Director's conclusions regarding the City's RFP process.
Summary of RFP findings
The Director concluded:
Complainants understandably disagree with airport business decisions regarding
the redevelopment process that will ultimately cause Complainants to lose their
current hangar space. Nonetheless, those airport business decisions are within the
airport sponsor's proprietary right to make and, based on the administrative
record, are not in conflict with the Respondents 'federal obligations.
-
The administrative record does not contain evidence sufficient to show the
Respondents 'financial business decisions regarding the requests-forproposals - including the decision not to lease vacant hangars in the
redevelopment area pending the outcome of the request-for-proposals process
- are inconsistent with grant assurance 24, the FAA's Revenue Use Policy, or
the 1949 Quitclaim Deed. The Director finds the Respondents are not
currently in violation ofgrant assurance 24, Fee and Rental Structure, or the
^' In this context, this refers specifically to exclusive-use leaseholds of airport property for hangar
development.
^^ However, as stated above, Thermco specifically complains that the May 2006 RFP required the
successftil proposer to purchase and then demolish existing structures in the Jet Center area. Thermco
suggests that its 'offer' to lease Hangar #3 had a greater net-present value than that suggested by the May
2006 RFP.
Page 30
As discussed above, the Associate Administrator finds that the Director did not err in the
use of his discretion determining that the record did not support Thermco's allegations
that the City had unreasonably denied access to Thermco or unjustly discriminated
against Thermco under grant assurance 22 by its RFP process. Also, the Director did not
err determining that the City has not failed to make the Airport as self-sufficient as
possible according to the requirements of grant assurance 24.
D: Discrimination against piston-type aircraft.
Allegation #3: The Director fails to consider the substantial evidence of
discrimination against piston-type aircraft such as Thermco's.
Thermco states in its Appeal, "The Director fails to consider the substantial evidence of
discrimination against piston-type aircraft." [FAA Exhibit 1, Item 21, page 6] However,
Thermco does not point to any factual evidence that the Director failed to consider. The
Director did extensively consider Thermco's allegations. The Director did find the facts
in this case and apply federal law, policy and obligations, appropriately. Specifically,
Thermco states, "Thermco's continuing precarious possession of Hangar 3 does not
negate the unjust discrimination and propeller aircraft access issues which arise from the
plarmed demolition and dispossession and the acknowledged present inadequacy of
facilities for propeller aircraft." [FAA Exhibit 1, Item 21, page 7.] Thermco does not
point to or mention any evidence of lack-of-access to propeller aircraft in this section of
its Appeal, other than the facts and findings discussed herein and in the Director's
Determination.
The City replies, stating, "Even on appeal... Thermco has been unable to offer any
coherent proof of discrimination that might conceivably undermine the Director's finding
that the City properly exercised its proprietary rights in allocating airport land between jet
and propeller aircraft use." [FAA Exhibit 1, Item 22, page 3.]
Page 31
In addressing the Director's reasoning, Thermco offers two Part 16 cases: Bombardier
Aerospace Corp., and Dassault Falcon Jet Corp. v. City of Santa Monica, FAA Docket
No. 16-03-11 [Bombardier], and Henrihetta and Lindsay Tulloch v. City of Harlingen,
Texas, FAA Docket No. 16-05-07 [Tulloch].
Citing Bombardier, Thermco states:
Where a sponsor's landing fee ordinance discriminated against jet aircraft, the
FAA ruled against the sponsor. [Bombardier Aerospace Corp., and Dassault
Falcon Jet Corp. v. City of Santa Monica, FAA Docket No. 16-03-11 (January 3,
2005)(DD).]... In Bombardier, the Director stated that continued access and
even a slight increase in jet operations under the challenged ordinance did not
negate the unjust discrimination. [Bombardier at p. 47-48] [FAA Exhibit 1, Item
21, pages 6-7.]
The Associate Administrator finds that Bombardier is not applicable to the case at bar.
Specifically, in Bombardier, the Director stated,
the Director finds that the ... landing fees, as currently implemented by the City,
constitute unjust discrimination as it imposes all of the airfield pavement
maintenance costs on one group of aviation users while exempting another group
of aviation users from any costs for airfield pavement maintenance.
[Bombardier. DD, page 52.]
First, Bombardier applies to unjust discrimination concerning the application of airport
landing fees. In a proposed distribution of benefits and costs, in Bombardier, there was
an unreasonable application of landing fees to one group of aeronautical users and not to
another group of aeronautical users. The case at bar involves exclusive-use lease rates.
The landing fee allocation method employed in Bombardier is not in practice here.
Consequently, Bombardier is not inconsistent with the Director's Determination in the
case at bar.
Thermco's Appeal also cites Tulloch:
In Henrihetta and Lindsay Tulloch v. City of Harlingen. Texas, FAA Docket No.
16-05-07 (DD), [Tulloch] the Director found no unjust discrimination in the
planned demolition of a hangar, where the hangar was a sixty year oldformer
military hangar which had "surpassed its useful life, " and where the demolition
of the hangar had been recommended in Airport Master Plans for a decade.
Contrast that scenario with the case at bar: a 20 year old hangar the demolition
of which has only recently been suggested (for the purpose of adding another jet
facility), and the additional issue of airport access ^ and hangar access by
propeller aircraft. [FAA Exhibit 1, Item 21, page 7.]
^ The Associate Administrator notes that Thermco does not point to an instance where any propeller
aircraft have been denied access to the Airport, other than the hangar development and lease issues
Page 32
The City replies, "Thermco misreads Tulloch, which clearly supports the Director's
Determination in this case that the City is well within its proprietary rights to develop the
Jet Center." [FAA Exhibit 1, Item 22, page 4.]
In Tulloch, the Director stated:
Complainants allege that the City unjustly discriminated against them by
threatening to tear down the Emair hangar. FAA disagrees. The City has stated
that the Emair hangar is a 60-year-old military hangar that has surpassed its
useful life and is scheduledfor demolition. The Record indicates that the 1991
and 2000 Airport Master Plan updates both recommend the demolition of the
Emair hangar. It is within the City's rights and powers and its responsibility for
the planning and development of the Airport to determine how land and public
facilities should best be used to support the planning and development of the
Airport. [Tulloch, DD, page 20.]
The Associate Administrator notes that, in some respects, Tulloch does differ from the
case at bar. However the findings in Tulloch are not inconsistent with the findings in this
case. Specifically, the difference in hangar age between the case in Tulloch and the case
at bar does not undermine the Director's Determination. Moreover, Tulloch stands for
the proposition that a sponsor has the right and responsibility to determine the best use of
airport land for airport development. That is the opinion of the Director. [Tulloch, DD,
page 20.] The Associate Administrator agrees with this well established proposition.
Although Thermco raises Bombardier and Tulloch, it applies them incorrectly and fails to
show how the findings in these cases are inconsistent with the case at bar. The Associate
Administrator also points to Pacific Coast Flyers, Inc. v. County of San Diego, FAA
Docket No. 16-04-08 (July 25, 2005) (Director's Determination) [Pacific Coast]. In
Pacific Coast, the Complainant alleged that the Sponsor's airport development plans
discriminated against small piston aircraft types by reducing accessibility through
leasehold development in favor of jet aircraft. [Pacific Coast, DD, page 32]
In Pacific Coast, the Director stated:
The proposed new facilities will accommodate both types ofGA operations,
albeit not in the ratio the Complainant would expect, i.e. accommodating all
existing small piston aircraft types. One class of aeronautical user cannot expect
to indefinitely lay claim to airport facilities at the expense of another class of
aeronautical users or jeopardize the airport's ability to manage its facilities....
[Pacific Coast, DD, page 34.]
The thresholdfor assessing an alleged compliance violation lies with the
County's action in reasonably accommodating the demandfor all types and
classes or aeronautical users. The County, as the airport sponsor, may
discussed at length elsewhere. The record does not establish that a propeller aircraft has been turned away
fi'om the Airport.
Page 33
accommodate the needs of the small piston aircraft operators in any variety of
means... That is, some small piston aircraft operators may be accommodated on
other leaseholds at [the Airport] or other County airports. There is no Federal
requirement that all existing tenants on the existing PAC/Burrows leasehold must
be accommodated in the future PAC/Burrows facility.
The Director recognizes that the current [Airport Master Plan], as the County's
"vision "for the future of the airport, plays a role in its decision-making process,
andfor development of the airport. Having said that, the Director also notes
that deviating from the [master plan], to accommodate changing airport
conditions or new requirements, is not only permissible, but may be necessary
and expected. ^
Therefore, based on the record and analysis presented above, the Director
finds that the County's action in replacing certain substandardfacilities'^ with
newer ones, even if it results in the relocation of some tenants in those
substandardfacilities is not inconsistent with the County's Federal obligations
and in addressing the future needs of all classes of aeronautical users, the
County is acting in a reasonable manner in meeting its responsibilities as an
airport sponsor. [Pacific Coast, DD, pages 35-36.]
In light of the above analysis, the Associate Administrator concurs with the Director's
application of FAA precedent, federal law and policy, and the City's federal obligations
to the facts established by the record. Also, the Associate Administrator finds the
Director did not ert in concluding that the City's actions regarding its treatment of pistontype aircraft do not currently constitute unjust economic discrimination in violation of
grant assurances 22, Economic Nondiscrimination.
VII. CONCLUSION
The FAA's role in this Appeal is to determine whether the Director erred in findings of
fact or conclusions of law in issuing the Director's Determination. In fact, much of the
Appeal, discussed above, does not posit an allegation of error, but rather states
disagreement with the discretion of the Director. Despite this, the Associate
Administrator addressed the issues raised by Thermco and finds that the Director has not
erred.
Specifically, upon an appeal of a Part 16 Director's Determination, the Associate
Administrator must determine whether (a) the findings of fact made by the Director are
supported by a preponderance of reliable, probative, and substantial evidence, and (b)
each conclusion of law is made in accordance with applicable law, precedent, and public
^* The plaiming processes employed by the sponsor in Pacific Coast are much more fiilly developed than in
the case at bar. However, as the Director noted in Pacific Coast, strict adherence to a planning process is
not required for compliance.
" In Pacific Coast, the record established that the hangars in question were substandard. [Pacific Coast,
DD, page 34.] However, as discussed above, this fact does not contradict a sponsor's ability to remove
newer facilities as a business decision to reconfigure the airport.
Page 34
policy. [See e.g. Ricks v Millington Municipal Airport, FAA Docket No. 16-98-19
(December 30, 1999) (Final Decision and Order), page 21, and 14 CFR 16.227.]
In arriving at a final decision on this Appeal, the FAA has reexamined the record,
including the Director's Determination, the administrative record supporting the
Director's Determination, the Appeal and Reply submitted by the parties, and applicable
law and policy. Based on this reexamination, the Associate Administrator concludes that
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.
The Appeal does not contain persuasive arguments sufficient to reverse any portion of the
Director's Determination.
The Associate Administrator affirms the Director's Determination. This decision
constitutes the final decision of the Associate Administrator for Airports pursuant to 14
CFR 16.33(a).
ORDER
ACCORDINGLY, it is hereby ORDERED that (1) the Director's Determination is
affirmed, and (2) the Appeal is dismissed, pursuant to 14 CFR 16.33.
RIGHT OF APPEAL
A party to this decision disclosing a substantial interest in the Final Decision and Order
of the Federal Aviation Administration may file a petition for review pursuant to 49
U.S.C. 46110, in the United States Court of Appeals for the District of Columbia
Circuit 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 a Final Decision and Order has been served on the party. [14 CFR, Part 16,
16.247(a).]
ii^n^oy
-
Date
Associate Administrator
for Airports
Page 35
FAA Exhibit 1
Docket No. 16-06-07
Index of Administrative Record
Final Agency Decision
Item 1
Item 2
Grant History
Item 3
exhibit B
Item 4
Item 5
exhibit B
Page 36
exhibit C
exhibit D
exhibit E
June 23, 2006, letter to Lynn Mayo, Deputy City Attorney, from
Garry Montanari regarding efforts to resolve issues informally.
exhibit F
July 10, 2006, letter to Garry Montanari from Lynn Mayo, Deputy
City Attorney, regarding "Proposed Amended Part 16 Complaint
Against LAWA."
Item 6
Item 7
Item 8
Item 9
Item 10
exhibit 1
exhibit 2
exhibit 3
Page 37
exhibit 4
exhibit 5
exhibit 6
exhibit 7
exhibit 8
June 10, 2003, letter to Ron Domash, Property Manager, Van Nuys
Airport, from Robert B. Mays, President, Western Commander
Associates, regarding "Land & Leasehold Improvements covered
under lease #LAA-1119."
exhibit 9
exhibit 10
exhibit 11
exhibit 12
exhibit 13
Item 11
Item 12
Page 38
Item 13
Item 14
exhibit A
exhibit B
exhibit C
exhibit D
exhibit E
Various reports for Van Nuys Airport for the 12 months ending
June 30:
Air Traffic Activity (years 2001-2015);
Profit & Loss (years 2001-2015);
Revenues (yezirs 2001-2015);
Building Rentals (years 2006-2015);
Ground Lease (years 2006-2015);
Fuel Flowage Fee and Landing Fees (years 2001-2015);
Expenses (years 2001-2015);
Salaries and Benefits Forecast (years 2005-2015);
FY 2005 Budget Expenses.
Page 39
exhibit F
exhibit G
exhibit H
exhibit I
exhibit J
Item 15
Item 16
Item 17
Item 18
Item 19
June 19, 2007, Memorandum for the Record, regarding telephone contacts
with attorneys for Respondents and Complainants to confirm whether or
not Complainants currently (a) remain on the Airport in Hangar #3, (b)
have been relocated to another site on the Airport, or (c) are no longer
tenants on the Airport.
Item 20
Item 21
Item 22
Item 23
November, 15, 2007, Notice of Extension of Time of the due date of the
Final Agency Decision to December 21, 2007.
Page 40
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 18, 2007,1 caused to be placed in the United
States mail (first class mail, postage paid) a true copy of the foregoing document
addressed to:
Mr. Scott P. Lewis,
Mr. Timothy J. Roskelley
ANDERSON & KREIGER LLP
One Canal Park, Suite 200
Cambridge, MA 02141
Mr. Rockard J. Delgadillo
Mr. Eduardo A. Angeles
Ms. M. Lynn Mayo
OFFICE OF THE LOS ANGELES CITY ATTORNEY
AIRPORT DIVISION
Los Angeles World Airports
One World Way
P.O. Box 92216
Los Angeles, CA 90009-2216
Mr. Garry L. Montanari
Mr. Nathan B. Rand
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Drive, Suite 110
Westlake Village, CA 91359
FAA Part 16 Airport Proceedings Docket
David F. Cu:
Airport Com