Boston Executive Helicopters v. Town of Norwood, Massachusetts and Norwood Airport Commission – No. 16-15-05
FAA Docket No:
FAA Docket No. 16-15-05
Westlaw Cite:
See also Boston Executive Helicopters, LLC v. Maguire, 196 F. Supp. 3d 134 (D. Mass. 2016).
Author:
Kevin C. Willis, Director, Office of Airport Compliance and Management Analysis
Complainant(s):
Boston Executive HelicoptersRespondent(s):
Town of Norwood Massachusetts, Norwood Airport CommissionAirport(s):
Norwood Memorial Airport (OWD)
History:
[Administrative Appeal Pending.]
Holding:
Violation of Grant Assurance 22, Economic Nondiscrimination, Grant Assurance 23, Exclusive Rights, and Grant Assurance 29, Airport Layout Plan.Abstract:
Boston Executive Helicopters, (“BEH”), Complainant, alleged that the airport sponsor violated several Grant Assurances by allowing one Fixed-Base Operator (“FBO”) to operate exclusively on the airport and by unreasonably delaying and withholding numerous reasonable requests by the Complainant for access to airport property for commercial tenants, as well as permission to conduct an FBO aviation business at the airport.
The Director considered four issues: (1) whether the town was in violation of Grant Assurance 22, Economic Nondiscrimination, by denying the Complainant reasonable access to the airport to conduct an aviation business, by discriminating against the Complainant in making facilities unavailable for aviation business at the airport, and in the application and enforcement of airport standards and policies; (2) whether the town and the airport commission were in violation of Grant Assurance 22, Economic Nondiscrimination, by imposing taxi lane and pedestrian access restrictions on the Complainant; (3) whether the town and the airport commission were in violation of Grant Assurance 22, Economic Nondiscrimination, by granting an exclusive right to another entity to provide FBO services at the airport and to use a federally funded ramp; and (4) whether the town and airport commission were in violation of Grant Assurance 29, Airport Layout Plan, by leasing airport land to a nonaeronautical tenant without FAA concurrence.
First, the Director found that the town was not in violation of 49 U.S.C. § 47107(a)(1) and related Grant Assurance 22, Economic Nondiscrimination, with respect to a dispute regarding ramp space, financial information, and lease term.
However, the Director found the sponsor to be in violation of Grant Assurance 22 “based upon the combined effects of its delaying tactics, unreasonable and unclear restrictions and requirements, along with the varied and intrusive excessive financial information requests. This pattern of conduct has had the effect of denying reasonable access to the Airport on reasonable terms for the purpose of conducting a commercial aeronautical activity (FBO access). The Town and the Commission’s action in this regard constitute an unreasonable denial of access and unjust economic discrimination.” (p. 27.)
The second issue decided by the Director was whether the Town and the Commission were in violation of Grant Assurance 22, Economic Nondiscrimination, by imposing taxi lane and pedestrian access restrictions on the Complainant. (p. 28.) The Director reasoned that, “[i]t was reasonable for an airport sponsor to take action to address a TOFA [taxiway object free area] standard. The record supports the Airport complied with FAA guidance on this matter.” (p. 30.) As to pedestrian access, the Director noted that the airport master plan identified a future need for improvement to a particular gate area, to include possibly adding “a tenant and customer access gates, to provide a more secure solution.” (p. 30.) However, the Director noted that the master plan is a planning document and “a sponsor is not obligated to complete every aspect of its Master Plan. Not adhering to a specific item on a Master Plan or making changes outside the Master Plan are not a violation of the federal obligations.” (p. 30.)
Third, the Director considered whether the town and the Commission were in violation of Grant Assurance 23, Exclusive Rights, by granting an exclusive right to an entity to provide FBO services at the airport and use of a federally funded ramp. (p. 31.) The Director found that, [w]hile the Commission worked with the Complainant toward its interest in a full-service FBO commercial permit, the vague, unclear, and inconsistent request for information to approve the permit served to delay unreasonably issuing an FBO permit to” the Complainant. (p. 32.) Moreover, the Director concluded that “the Commission’s actions and inaction unreasonably restricted [the Complainant’s] efforts to expand while aiding in the expansion of [another entity’s] already significant footprint at the Airport. The Town and Commission are in violation of Grant Assurance 23.” (p. 33.)
Finally, the Director evaluated whether the Town and Commission were in violation of Grant Assurance 29, Airport Layout Plan, by leasing airport land to a nonaeronautical tenant without FAA concurrence. (p. 33.) The Director found the Town and Commission in violation of Grant Assurance 29: “The FAA acknowledges that the Airport had previously self-disclosed putting this land into non-aeronautical use. However, the fact remains that having done so without the approval of the FAA amounts to a violation of the grant assurance.” (p. 35.)
See also Boston Executive Helicopters, LLC v. Town of Norwood, 2017 WL 5195867 (D. Mass. 2017) (permitting a jury trial to proceed against the Town and NAC Commissioners “under the ‘single-decision/act’ exception to policy and planning rule.”). See also Boston Executive Helicopters, LLC v. Maguire, 196 F. Supp. 3d 134 (D. Mass. 2016).
An administrative appeal is pending.