Mike Wilson v. City of Marina, California – No. 16-21-13

Author:

Shannetta R. Griffin, Associate Administrator for Airports

Complainant(s):

Respondent(s):

Airport(s):

Marina Municipal Airport (OAR)

History:

Order (11/30/21)

Holding:

Abstract:

Complainant alleged that the City “engaged in a series of acts designed to privatize the airport into an exclusive rights airport for the benefit of just one tenant, to the exclusion of all other [Specialized Aviation Service Operations] SASOs, Fixed Based Operators (FBOs), tenants, hangar owners, pilots, and aircraft owners seeking to use and maintain a permanent presence at the Marina Municipal Airport.” (Director’s Determination, p. 4.) He further argued that in spite of his efforts to obtain a lease to build aircraft hangars, he was unable to get the City to openly negotiate a ground lease with him. (Director’s Determination, p. 5.) Altogether, he alleged such conduct by the City violated Grant Assurances 22, 23, 29, and 38 by not offering a ground lease. (Director’s Determination, p. 5.)

First, Complainant stated that he made substantial, repeated, and reasonable good faith efforts to resolve the disputed matter, but that the City engaged in a long series of excuses and delays, including avoiding attempts to meet and negotiate for the construction of hangars and a ground lease. (Director’s Determination, p. 8.) However, the Director observed the parties were in the process of negotiating the concept of building hangars on the airport and that it appeared from the pleadings that Complainant wanted a ground lease before providing engineering and other construction information. (Director’s Determination, p. 8.) “What is clear is that negotiations were ongoing, albeit not complete. Grant Assurance 22 does not require an airport sponsor to respond to a proposal in a certain time period. In this case, there was regular communication on Mr. Wilson’s proposal; but as noted above, the proposals changed over time. The fact that it was not in the time frame preferred by Mr. Wilson does not rise to a violation of Grant Assurance 22.” (Director’s Determination, p. 9.)

The Director also found that “[i]t is apparent that Mr. Wilson has not submitted specific information on the type of hangar development he is proposing. Mr. Wilson demands a ground lease before providing this information. The City is under no obligation to grant a ground lease for a proposal that has not been made with clarity or in sufficient detail—it is clear that Mr. Wilson has changed his proposals several times. Although the Director finds the City in compliance with Grant Assurance 22, it would be helpful for the City to develop minimum standards or lease requirements for potential tenants to review and avoid a situation where it may be unclear what is required to obtain a lease on the Airport.” (Director’s Determination, p. 9.)

Next, and related to the determination under Grant Assurance 23, the Director found that Complainant had argued, but not substantiated, its allegation that the City was in violation of Grant Assurance 23. “There is no evidence presented that land is not available for additional development. It is clear the City was in discussions with Mr. Wilson to build hangars. The fact that the discussions were either incomplete or terminated does not prove that the City granted an exclusive right or is in violation of Grant Assurance 23.” (Director’s Determination, p. 10.) As such, Complainant had failed to meet his burden of proof to establish his allegations by a preponderance of substantial and reliable evidence.

Third, Complainant alleged that the City violated Grant Assurance 29, Airport Layout Plan, (“ALP”), but similarly failed to provide any additional information or evidence to allow the Director to review this allegation. The only statement made in the Complaint stated, “The City of Marina’s existing ALP and the City’s Resolution 2001-157 provides for private ownership and leaseholds for hangar owners, developers, and other members of the public. However, the City has chosen to ignore its ALP and Resolution preventing private ownership and leaseholds … without a public hearing or modification to the ALP.” (Director’s Determination, p. 8.) Consequently, Complainant had failed to provide any evidence that the City was in violation of Grant Assurance 29, which requires the City to keep an updated ALP, other than to allege that enforcement of the Resolution is somehow connected to the ALP. (Director’s Determination, p. 8.) “No part of Grant Assurance 29 requires the City to document the types of hangar ownership and leaseholds the City provides.” (Director’s Determination, p. 9.)

Finally, Complainant also failed to provide any evidence that the City violated Grant Assurance 38, which requires that the “airport owner or operator and a person who owns an aircraft agree that the hangar is to be constructed at the airport for the aircraft at the owner’s expense ....” (Director’s Determination, p. 11.) Complainant stated numerous times in his complaint that he and the City had not entered into an agreement. As such, “[w]ithout an agreement there cannot be any action required to provide for a long-term lease. Therefore, there is no argument or evidence presented that would allow the Director to examine this allegation. … First person accounts of conversations and argumentative opinion and criticism do not equate to substantial and credible evidence.” (Director’s Determination, p. 9.)

Appeal—Affirmed (with Concerns Regarding City’s Approach to Aeronautical Demand)

The Associate Administrator held that the Complainant’s appeal contained no persuasive arguments sufficient to reverse the Director’s Determination. (Final Agency Decision, p. 12.) However, the Associate Director elaborated that a detailed review of the record “raises some concerns on how active and interested the City has been in accommodating existing aeronautical demand at the Airport.” (Final Agency Decision, p. 12.)

Specifically, the Associate Director noted that the “City’s prime obligations under the grant assurances and the surplus property obligations, is to accommodate existing and future aeronautical demand and needs before consenting to non-aeronautical development.” (Final Agency Decision, p. 12.) That obligation is possible at an airport such as Marina, the Associate Director observed:

Certainly at an airport like Marina, where there is ample improved and unimproved land, accommodating new hangar proposals (e.g., box hangars, T-Hangars) and addressing existing aeronautical needs/demands (e.g., 60+ aircraft on the City’s waiting list, additional FBOs, maintenance provider) should not be an issue. Indeed, as validated by the record, the City represents its airport as “the newest general aviation airport on the Monterey Peninsula” consisting of “845.5 acres of property,” which indicates that there is plenty of improved and unimproved property that can be made available for aeronautical use, including a potential and properly documented project by Complainant. In addition, … the City adopted a policy designed to promote and increase “the development and construction of private aviation hangar facilities” at the Airport “by encouraging and agreeing to consider in good faith proposals and requests from developers of private aviation hangar facilities.” Certainly, against this background, the expectation is that the City would be eager to get such developments at the Airport underway and completed. (Final Agency Decision, p. 12.) (Emphasis added.)

As such, the Associate Administrator expressed the FAA’s expectations that the City remain in compliance with its grant assurances and surplus property obligations and avoid potential future complaints. That is, “the FAA expects the City to consider and act upon, without undue delay, any reasonably detailed proposal (e.g., business plan, services/rates to be offered, engineering data/drawings, insurance, financial backing, costs to City, such as utilities, if needed, etc.) that Wilson or any other service provider or aeronautical user may propose at the Airport. To this end, the City needs to provide prospective service providers or users, with the exact written information/data that needs to be submitted for proper consideration.” (Final Agency Decision, p. 13.)

Additionally, the Associate Administrator further required the City “to expedite the implementation of new reasonable leasing policies, related minimum standards to address service providers, including hangar construction, and designate areas for aeronautical development in a manner that is consistent with the City’s Federal obligations. Finally, because there appears to be room for and will to achieve reasonable resolution, the Associate Administrator encourages both parties to continue negotiations in good faith.” (Final Agency Decision, p. 13.)

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