Frank Casares v. City of Longmont, Colorado – No. 16-19-03

Author:

Shannetta R. Griffin, Associate Administrator for Airports

Complainant(s):

Respondent(s):

Airport(s):

Vance Brand Airport (LMO)

History:

Director's Determination (1/22/21)

Holding:

Abstract:

Complainant, a firm conducting commercial skydiving operations at the airport, contended that Respondent restricted the size of its parachute drop zone (“PDZ”) and changed the fees it was charged by establishing a unique, per-square-foot fee for nonexclusive use of the PDZ. (Director’s Determination, p. 2.) The Complainant further asserted that the airport violated its federal obligations because of its “arbitrary establishment of the PDZ location and minimum size tied in with a per-square foot nonexclusive access fee, as well as a reporting requirement for every landing even an inch outside the PDZ boundary (on open, safe land).” (Director’s Determination, p. 3.) What is more, Complainant averred that the airport’s “minimum standards and rules regarding the PDZ are not reasonable and that [the airport] arbitrarily set the size of the new PDZ based on a draft FAA guidance … and created potentially serious safety hazards.” (Director’s Determination, p. 3.) Complainant also alleged that the airport had granted an exclusive right because it targeted skydiving in general and the Complainant in particular, and that the airport increased the fee to deny the Complainant access by making the terms of access untenable. (Director’s Determination, p. 3.)

The airport acknowledged that it changed the size of the PDZ when Complainant’s jumpers could not consistently hit the target areas within the previous PDZ. (Director’s Determination, p. 3.) The airport also conceded that it charged a per-square-foot rate for the use of the PDZ. (Director’s Determination, p. 3.) But, the airport denied that the charge was unreasonable, arguing instead that the PDZ was appropriately sized, and the Complainant had, in fact, been operating for months, paying the fee and using the PDZ without any apparent disruption. (Director’s Determination, p. 3-4.)

Grant Assurance 22, Economic Nondiscrimination

The Director first considered whether the airport was in violation of Grant Assurance 22, Economic Nondiscrimination, by establishing a PDZ location and size tied in with a per-square-foot nonexclusive access fee and/or by establishing a reporting criterion for every landing outside the PDZ.

The Director found no violation. The Director “agree[d] with [the airport] that it is the airport’s responsibility to consider what is a reasonable fee that the jumpers and/or their organizations can pay for using airport property.” (Director’s Determination, p. 11.) In this regard, the Director noted that the airport explored various scenarios of charging and arrived at a figure that was reasonable and did not unjustly discriminate against the Complainant. (Director’s Determination, p. 12.) Continued the Director: “It may not be the perfect methodology or commonly used but it does not rise to the level of a violation. The weaknesses in the methodology, however, are not fatal because the methodology results in a reasonable per day jump and per jump outcome.” (Director’s Determination, p. 12.)

That said, the Director cautioned that “the logic of applying a fee to a large swath of airport property should be clearly justified in terms of usage and take into account those instances where the property is not used for extended periods of time. The failure to consider usage, could in other circumstances, result in unreasonable fees from a per day or per jump perspective. Whether the use of the PDZ is exclusive or non-exclusive may also be an issue.” (Director’s Determination, p. 12.)

In all, the Director found that the Complainant had presented insufficient proof to determine that a violation of Grant Assurance 22 had occurred as “[a]irports are allowed to establish reasonable rates, to establish a PDZ and develop minimum standards to ensure safety requirements are met.” (Director’s Determination, p. 14.) That said, “to avoid violating Grant Assurance 22, [the airport] should not assume an enforcement role beyond FAA guidance and expertise, or act in a manner that actually introduces safety risks. A restriction or condition that is unsafe or penalizing an operator that operates in compliance with FAA regulations and guidance would be unreasonable within the context of Grant Assurance 22.” (Director’s Determination, p. 14.)

Grant Assurance 23, Exclusive Rights

Finally, the Director considered whether the airport was in violation of Grant Assurance 23, Exclusive Rights, by unreasonably restricting skydiving through an arbitrary and unreasonable fee, arbitrary restriction of available landing area, and off-PDZ reporting structure. (Director’s Determination, p. 14.) The Director found that the airport was not in violation because it had not established a policy of unreasonably restricting or prohibiting new aeronautical activities that did not use the paved surfaces of the airport. (Director's Determination, p. 15-16.) The airport also was not granting a prohibited exclusive right by establishing a per-square-foot fee as that fee was not arbitrary or unreasonable, and did not result in an arbitrary restriction of the PDZ. (Director’s Determination, p. 16.) What is more, monitoring off-site landings of parachutists or monitoring other activities at the airport was not per se contrary to the airport’s grant assurances or analogous to granting an exclusive right. (Director’s Determination, p. 16.)

Though finding no violation, the Director emphasized that “how a rule is set or enforced concerning off-PDZ landings can contribute to unsafe conditions or introduce safety risks” and that “[a] restriction or condition that is unsafe or penalizing an operator that operates in compliance with FAA regulations and guidance would be unreasonable within the context of Grant Assurance 22.” (Director’s Determination, p. 16.) Indeed, the Director cautioned that “certain practices contemplated by [the airport] can have a detrimental impact on operational safety. Such procedures should not be implemented because they could jeopardize reasonable access without unjust discrimination within the context of [the airport’s] federal obligations. Longmont must not apply excessive terms and conditions for use of the PDZ. The Director also expects the parties to cooperate, in good faith, to ensure safe operations.” (Director’s Determination, p. 1-2).

Finally, the Director “require[d] that Longmont provide reasonable access without unjust discrimination and without excessive terms and conditions, and to observe and adhere to FAA’s safety review provided by Flight Standards (AFS-830) and referenced the determination. Failure to do so may result in the Director initiating a follow-up 14 C.F.R. Part 16 Notice of Investigation under Subpart D – Special Rules Applicable to Proceedings Initiated by the FAA under the rule.” (Director’s Determination, p. 16.)

Appeal

Complainant appealed, raising three issues: (1) whether the Director improperly approved a flawed fee setting methodology for the PDZ; (2) whether the Director improperly relied on discarded and nonprofessional materials; and (3) whether the Director failed to address whether the reduction in the PDZ was reasonable.

Respondent replied that, “Mile-Hi does not challenge [the Director’s] findings [which reject Mile-Hi’s general claim that it was singled out and targeted for unfair treatment], but focuses its appeal on the Director’s decision that the Public Use Area Permit Fee is reasonable and that the current PDZ [parachute drop zone] is safe. None of Mile-Hi’s arguments have merit and Mile-Hi has failed to demonstrate any basis for the Associate Administrator to reverse or remand the Director’s Determination.” (Final Agency Decision, p. 1.)

The Associate Administrator agreed, holding that each of the Director’s rulings was supported by a preponderance of reliable, probative, and substantial evidence, and was consistent with applicable law, precedent, and the FAA policy. As to issue 1, for example, Mile-Hi alleged that the Director erred in upholding the fee setting methodology, but it failed to indicate what it believed would be an acceptable methodology. (Final Agency Decision, p. 5.) What is more, “Mile-Hi has not demonstrated that the methodology used by the City to adjust the PDZ permit rate is unreasonable, or results in an unreasonable fee.” (Final Agency Decision, p. 5.)

Likewise, as to the second issue on appeal, the Associate Administrator found that “the Director did an extensive analysis of the size and consequent safety of the PDZ using the FAA’s Office of Airport agreed-upon protocol.” (Final Agency Decision, p. 6.) Thus, “[i]n the absence of evidence that the Director erred in his analysis of the size reduction of the PDZ, the Associate Administrator cannot reverse or remand this issue as requested by Mile-Hi. It is clear that Mile-Hi objects to the size of the PDZ and to how the ultimate size was determined but it is has not presented evidence of a safety risk or use of unprofessional or discarded materials.” (Final Agency Decision, p. 7.)

Finally, as to the reasonableness of the reduced PDZ zone, the Associate Administrator was “not persuaded that the Director erred in his analysis regarding the size of the PDZ and its consequent level of safety. Mile-Hi admits that the current size of the PDZ meets minimum safety standards. An airport sponsor has the discretion to identify, relocate or otherwise adjust resources to accommodate its users, which Mile-Hi acknowledges.” (Final Agency Decision, p. 8.) What is more, “[a]ccess to the PDZ and the airport has not been denied to Mile-Hi,” thus no violation of Grant Assurance 22, Economic Nondiscrimination, or Grant Assurance 23, Exclusive Rights. (Final Agency Decision, p. 8.)

Index Terms: