Occhiuzzo v. City of Westfield, Massachusetts - No. 16-21-02

FAA Docket No:

16-21-02

Author:

Kevin C. Willis, Director of Airport Compliance

Complainant(s):

Respondent(s):

Airport(s):

Westfield-Barnes Regional Airport (BAF)

Holding:

Abstract:

Complainant, an individual, alleged that the City of Westfield, Massachusetts (City) violated Grant Assurance 22, Economic Nondiscrimination, and Grant Assurance 23, Exclusive Rights, when it: (1) allowed its fixed-based operator (FBO) tenant, Ross Aviation (Ross Aviation) and its subsidiary Ross Rectrix Aviation BAF, LLC (Rectrix) (collectively Ross Aviation), to sublease similar T-hangars at different rates; (2) allowed Ross Aviation to relocate Complainant to a different T-hangar against his wishes; and (3) granted exclusive rights to Rectrix and subsequently Ross Aviation when it allowed Rectrix to absorb the Five Star Jet Center in November 2014. (Director’s Determination, p. 1.)

In response, the City denied that its tenant, Ross Aviation, provided preferential license terms to any of its T-hangar lessees; and stated that Ross Aviation charged rental rates for its T-hangars based on the relative condition of each T-hangar. (Director’s Determination, p. 1.) The City further asserted that the rate differential also was justified because other subtenants entered into a written Aircraft Storage and Service Agreements with Ross Aviation and Complainant did not. (Director’s Determination, p. 1.) Therefore, the City denied that Ross Aviation’s attempts to relocate Complainant’s T-hangar were unfair or discriminatory. (Director’s Determination, p. 1.) Last, the City denied that it granted Ross Aviation an exclusive right to provide FBO services at the relevant airport. (Director’s Determination, p. 2.)

Whether the City Violated Grant Assurance 22, Economic Nondiscrimination, by Allowing Ross Aviation to Lease Similar T-hangars at Different Rates

The Director found that Mr. Occhiuzzo failed to carry his burden of showing how differences in July 2017 T-hangar rental rates constituted unjust economic discrimination against him that obligated the City to act on his behalf. Mr. Occhiuzzo presented no evidence to support the existence of previous or current rent differentials between T-hangar lessees that trigger the City’s federal obligations. (Director’s Determination, pp. 7-8.) While the record showed lower rents for similar facilities in 2017, the absence of identical rents, in and of itself, was not evidence of unreasonableness or unjust economic discrimination. (Director’s Determination, p. 8.) Mr. Occhiuzzo provided no evidence to support a claim that there were any unjustly discriminatory rent differentials in February 2021, when he brought this dispute to the City’s attention, nor was there an unjustly discriminatory rent differential among Ross Aviation’s subtenant, the Director stated. (Director’s Determination, p. 8.) Mr. Occhiuzzo had reasonable access to the airport at all pertinent times via a month-to-month T-hangar rental arrangement and neither the City nor Ross Aviation adopted unjustly discriminatory conditions as a method to limit airport access to Mr. Occhiuzzo in violation of Grant Assurance 22, according to the Director. (Director’s Determination, p. 8.) Consequently, the Director found that the City was in compliance with Grant Assurance 22, Economic Nondiscrimination, and moreover, that the City had taken action to address its federal grant obligations with respect to Ross Aviation, which had assumed the terms of a 1985 FBO Agreement, including Section 23, Non-Discrimination. (Director’s Determination, p. 8.)

Whether the City Violated Grant Assurance 22, Economic Nondiscrimination, by Allowing Ross Aviation to Relocate Mr. Occhiuzzo to a Different T-hangar Against His Wishes

Mr. Occhiuzzo alleged the City violated Grant Assurance 22, Economic Nondiscrimination, by allowing Ross Aviation to relocate him from T-hangar 8 to T-hangar 2 to accommodate a flight school. (Director’s Determination, p. 9.) Mr. Occhiuzzo stated that he “informally denied” Ross Aviation’s request to move him to another T-hangar because the new location was unacceptable to him, and in a letter to Ross Aviation’s chief operating officer Mr. Occhiuzzo wrote, “I want to keep my hangar because of 15 years of memories (including memories with my father), and the view of operations which is very important to me.” (Director’s Determination, p. 9.) Mr. Occhiuzzo further opined that Ross Aviation’s decision to relocate him to another hangar is “. . . very disheartening, hurtful, and brutally inconsiderate. . .” (Director’s Determination, p. 9.) Mr. Occhiuzzo further argued that the City’s refusal to correct this alleged unreasonable and discriminatory practice by Ross Aviation constituted an unfair denial of access in violation of Grant Assurance 22, Economic Nondiscrimination. (Director’s Determination, p. 9.)

The City countered that neither Ross Aviation’s business decision to relocate Mr. Occhiuzzo to a different T-hangar to accommodate a flight school nor Mr. Occhiuzzo’s personal connection to T-hangar 8 implicated the nondiscrimination provisions of Grant Assurance 22. (Director’s Determination, p. 9.) The City further asserted that T-hangar 8 and T-hangar 2 were identical except for location (T-hangar 2 is landside and 300’ from the taxiway, T-hangar 8 is airside). (Director’s Determination, p. 9.) Last, the City asserted that this “landlord-tenant dispute did not implicate the City’s Grant Assurances and that it is within its rights to decline to intervene.” (Director’s Determination, p. 9.)

The Director agreed with the City in that neither Ross Aviation’s business decision to relocate Mr. Occhiuzzo to a different T-hangar to accommodate a flight school nor Mr. Occhiuzzo’s personal attachment to T-hangar 8 implicated the nondiscrimination provisions of Grant Assurance 22. (Director’s Determination, p. 9.)

To support his decision, the Director noted that Ross Aviation notified Mr. Occhiuzzo several times of its intent to relocate his aircraft. In a February 2020 letter, for example, Ross Aviation explained its intention to rent a set of T-hangars, including the one rented by Mr. Occhiuzzo, to a flight school at the airport, noting that it was relocating Mr. Occhiuzzo’s aircraft to a like-kind T-hangar to optimize operational efficiencies. (Director’s Determination, p. 10.) Additionally, in November 2020, Ross Aviation notified Mr. Occhiuzzo of its intent to evaluate T-hangar occupancy and make location adjustments based on optimization of operations and usage. (Director’s Determination, p. 10.)

Altogether, according to the Director, the record demonstrated that the City had not denied Mr. Occhiuzzo reasonable access to the airport and the City’s tenant, Ross Aviation, offered Mr. Occhiuzzo reasonable accommodation in T-hangar 2. (Director’s Determination, p. 10.) In contrast, Mr. Occhiuzzo presented no evidence that the relocation to T-hangar 2 was sufficiently inadequate to constitute an unreasonable restriction or denial of access to the airport; rather, Mr. Occhiuzzo explained his reasons for wanting to remain at T-hangar 8 were personal, and in any event, apparently entered into an aircraft storage agreement with a different hangar operator on the airport, Whip City Aviation. (Director’s Determination, p. 10.)

Accordingly, the Director found that the City was in compliance with Grant Assurance 22, Economic Nondiscrimination, because it took action to address its federal grant obligations with respect to Ross Aviation. (Director’s Determination, p. 10.)

Whether the City Violated Grant Assurance 23, Exclusive Rights, by Allowing Ross Aviation to Relocate Mr. Occhiuzzo to a Different T-hangar Against His Wishes

Mr. Occhiuzzo claimed that Ross Aviation forcibly relocated him to another T-hangar on the airport in favor of a flight school and this relocation violated Grant Assurance 23, Exclusive Rights. (Director’s Determination, p. 11.) Mr. Occhiuzzo asserted the City refused to act to correct this alleged unreasonable and discriminatory practice of Ross Aviation. (Director’s Determination, p. 11.)

The City countered that Mr. Occhiuzzo made no valid argument concerning the alleged violation of Grant Assurance 23, and that Mr. Occhiuzzo failed to make out any claim that the City permitted an exclusive right at the airport or how he had been directly or substantially affected by any such exclusive right. (Director’s Determination, p. 11.)

The Director agreed, finding that Mr. Occhiuzzo failed to carry his burden of showing how the City violated Grant Assurance 23. (Director’s Determination, p. 11.) Mr. Occhiuzzo failed to identify how Ross Aviation’s proposal to relocate his aircraft to a nearly identical T-hangar on the airport was the grant of an exclusive right to a flight school. In addition to repeating that Mr. Occhiuzzo had only provided reasons of personal attachment to the T-hangar to protest relocation, the Director reasoned that, “exclusive rights prohibition does not guarantee Mr. Occhiuzzo the right to access a specific T-hangar location on the airport. It does ensure that airport users have the right to access the airport to conduct aeronautical activities .... The exclusive rights prohibition applies to both commercial entities engaging in providing aeronautical services and individual aeronautical users of the airport …. Relocating Mr. Occhiuzzo to another T-hangar space to accommodate a commercial flight school does not result in the flight school being granted an exclusive right to the airport to Mr. Occhiuzzo’s detriment.” (Director’s Determination, p. 11.)

Whether the City Violated Grant Assurance 23, Exclusive Rights, by Allowing Ross Aviation to Become the Sole FBO at the Airport

Finally, Mr. Occhiuzzo alleged that because the City allowed Rectrix FBO to absorb Five Star Jet Center in 2015, it granted Rectrix, and subsequently Ross Aviation, an exclusive right to provide FBO services at BAF. (Director’s Determination, p. 12.)

The City denied that it had granted an exclusive right to Ross Aviation and noted that its Agreement with Ross Aviation contained a provision that prohibits the grant of an impermissible exclusive right. (Director’s Determination, p. 12.) According to the City, moreover, that Agreement provided, “[n]othing contained herein shall be construed as granting to [Ross Aviation] an exclusive right to establish, maintain and operate a fixed based operation at Westfield-Barnes Airport.” (Director’s Determination, p. 12.) The City thus asserted that the provision prohibited it from denying a qualified FBO applicant the opportunity to be an aeronautical service provider at the airport and did not prohibit two fixed-based operators from merging to form a single FBO at the airport. (Director’s Determination, p. 11.) Last, the City asserted that Ross Aviation’s provision of most or all on-airport aeronautical services was not, in itself, evidence of an exclusive rights violation and that, in any case, the City has not denied any FBO applicant the opportunity to operate at the airport, nor had Mr. Occhiuzzo suggested that the City had done so. (Director’s Determination, p. 12.)

On the record summarized above, the Director found that Mr. Occhiuzzo failed to carry his burden of showing the City violated Grant Assurance 23 in that he failed to show how Ross Aviation’s acquisition of Rectrix Aviation in 2015 was tantamount to a current violation of Grant Assurance 23. (Director’s Determination, p. 12.) “The fact that a single business or enterprise may provide most or all of the on-airport aeronautical services is not evidence of an exclusive rights violation. An exclusive rights violation is the denial by the airport sponsor to afford other qualified parties an opportunity to be an on airport aeronautical service provider,” the Director wrote, citing FAA Advisory Circular 150/5190-6, “Exclusive Rights at Federally Obligated Airports.” (Director’s Determination, pp. 12-13.)

Consequently, the Director found the City was in compliance because it had taken action to comply with its federal grant obligations and Ross Aviation assumed the terms of the applicable FBO Agreement, including the exclusive rights provisions. (Director’s Determination, p. 13.)

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