Lexis Cite:
2000 FAA LEXIS 150
Westlaw Cite:
2000 WL 132770
Author:
Bennett, David L., Director
Complainant(s):
Ashton, Kent J.
Respondent(s):
Concord (N.C.)
Airport(s):
Concord Regional Airport (JQF)
History:
Affirmed by Final Decision and Order of July 3, 2000. See Determination No. 67.
Holding:
Dismissing complaint.
Abstract:
Complainant Kent J. Ashton filed a complaint against Respondent City of Concord, NC, sponsor of the Concord Regional Airport, alleging violations of Grant Assurance 22 and Grant Assurance 23. Complainant parked his experimental aircraft on the ramp at the Airport. A year later he became dissatisfied with the services offered by airport management. Complainant alleged that Respondent violated its grant assurances by (1) restricting certain aeronautical activities through the establishment of unreasonable rules and procedures and the failure to provide certain facilities and services, (2) unjustly discriminating against certain aeronautical users, and (3) granting a constructive exclusive right through these discriminatory practices. Director found Respondent not in violation and dismissed the Complaint.|Unreasonable Restriction of Access:|Respondent's requirement that aircraft stored at the Airport be airworthy did not unreasonably restrict access to the Airport in violation of Grant Assurance 22(a), because "storage of aircraft parts is not a protected aeronautical activity under the grant assurances, leaving the Sponsor with the discretion to regulate such storage in leaseholds." (p. 18). "Restricting final-stage experimental aircraft assembly to particular locations on the Airport, and requiring that the nonairworthy components be delivered to the Airport at a certain level of construction are reasonable requirements separately and cumulatively and do not constitute a denial of access for an aeronautical activity." (p. 19).|Respondent's restriction of maintenance operations to designated areas only (and not to users' storage areas) was not an unreasonable restriction. It was a reasonable exercise of a Sponsor's discretion under Grant Assurance 22(h) and (i) to determine that to protect the safety and welfare of tenants and users, and for environmental protection, liability and managerial reasons, the Airport was best served by requiring maintenance to be performed only in designated areas. (pp. 19-20).|It was not an unreasonable restriction to prohibit painting aircraft in the aircraft storage areas, because "an airport owner 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 the airport facilities by others." (pp. 20-21).|Respondent's private hangar building rules, which required significant investment, did not unreasonably restrict access in violation of Grant Assurance 22(a); "the fact that some people may not be able to afford to meet the minimum standards is not tantamount to an unreasonable restriction to aeronautical access." (p. 21). Moreover, Complainant did not establish that Respondent turned down any reasonable proposal for the leasing of available space appropriate for building. (pp. 21-22). Finally, constructing an aircraft was not an aeronautical activity and did not enjoy the same protections by the grant assurances as did self-maintenance of aircraft. (p. 22).|A Sponsor's discretion to manage its airport as stated in Grant Assurance 22(h) and (i) clearly included the ability to restrict T-hangar storage to single aircraft. (p. 22).|Respondent's decision not to offer auto fuel was a business decision within its rights to make and it was not obligated to provide any further justification. (p. 23).|Complainant's allegation that use of the designated maintenance area was inconvenient or impractical was insufficient for a claim of unreasonable restriction where Complainant and other users used the facility regularly. A Sponsor may require the aeronautical user to use equipment commensurate to the job being done, but does not require the Sponsor to provide such equipment, nor does the Sponsor have to provide facilities to perform hazardous operations, absent a proposal to pay for such a facility and the availability of space to locate such a facility. (p. 23).|Respondent's requirement that Complainant waive rights to recover damages against it and that Respondent be named an Additional Insured on Complainant's insurance policy were not unreasonable restrictions in violation of Grant Assurance 22. "It is consistent with the Sponsor's grant assurances for the sponsor to protect itself against exposure to the liability associated with public use of airport property. The Sponsor may protect its ability to remain a going concern, while continuing to make itself available on a fair, reasonable and not unjustly discriminatory basis, by establishing general liability insurance requirements for users of the airport . . . ." (pp. 24-25).|FAA would not order Respondent to cease and desist from limiting or restricting the access of members of the general public to use the Airport. "Providing protection to an individual from the consequences of his or her nonaeronautical activity, such as being cited for trespassing, is not the responsibility of the Sponsor under the Grant Assurances and is not within the jurisdiction of the FAA." (p. 25).|"The FAA notes that the Sponsor's obligation to make the airport available to the public, does not mean that the sponsor is obligated to provide a specific level of service or level of convenience." (p. 25).|Economic Nondiscrimination (Grant Assurance 22):|"Management issues such as economy of collection and efficient use of the airport's limited facilities can be justifications for differing treatment of differing users of the airport." (p. 26).|". . . incidental or isolated failings to treat all users exactly the same are not sufficient to determine that the Sponsor is in noncompliance." (p. 26). "[I]ncidental noncompliance by Airport users does not constitute a Sponsor's unjust economic discrimination." (p. 30).|Where Respondent had provided private building opportunities to certain parties on the Airport through individual lease agreements, Respondent was not automatically obligated to also offer such private building opportunities to all other users. "If the Sponsor has a demand for a particular private aeronautical use of the facilities, and the proponents of that use are willing and eager to pay for that use, then the Sponsor is not obligated to withhold suitable property for the convenience of some other individual aeronautical use." (p. 27).|Respondent had not unjustly discriminated against Complainant by failing to provide certain services (on-grass parking, condominium hangars, shadeports, auto-fuel). Since none of these facilities and/or services were available on the Airport, there could be no unjust discrimination among users of the Airport. (pp. 27-28).|It was consistent with Grant Assurance 22(h), which allowed the sponsor to provide for the safe and efficient operation of the airport, to limit the usage of T-hangars to the storage of a single, airworthy aircraft. (p. 28).|The fact that an owner of a corporate jet was permitted by its lease to perform maintenance in its hangar while Complainant was not, was not unjust discrimination where Complainant and owner of a corporate jet were not similarly situated. "This lease provision constitutes an increased level of convenience that is afforded the tenant due to the appropriate nature of the hangar and the fact that the tenant is paying a fee for the increased level of convenience." (p. 29).|"The grant assurances, and long-standing FAA policy recognize that leaseholders, based at the Airport, are not similarly situated to transient users." Therefore, requiring leaseholders, but not transient users, to carry liability insurance was not unjustly discriminatory. (p. 31).|Exclusive Rights (Grant Assurance 23):|None of the above-described restrictions were so unreasonable as to rise to the level of granting an exclusive right. (p. 33).
Index Terms:
Denial of access|Unjust economic discrimination|Economic Nondiscrimination (Grant Assurance 22)|Exclusive Rights (Grant Assurance 23)|Insurance|Aeronautical activity|Jurisdiction - Part 16|Similarly situated|Safety|Hangar lease|Isolated incident|Demand for aeronautical services|Criminal law|Bad behavior