FAA COMPLIANCE ENFORCEMENT, PART 16 AND RECENT LITIGATION

Transcription

1 30 th Annual AAAE Basics of Airport Law Workshop and 2014 Legal Update October 19-21, 2014 FAA COMPLIANCE ENFORCEMENT, PART 16 AND RECENT LITIGATION Desk Reference Chapter 10 W. Eric Pilsk Kaplan Kirsch & Rockwell Randall S. Fiertz FAA Office of Airport Compliance and Management Analysis Jonathan Cross FAA Office of Chief Counsel, Manager, Airports Law Branch

2 INTRODUCTION Part 16 Update Recent Part 16 Decisions Compliance Policy Initiatives 2 2

3 PART 16 STATISTICS Complaints Filed DDs Issued FADs Issued Court Decisions

4 PART 16 STATISTICS 4 4

5 SCOTT MEYER V. CITY OF CINCINNATI, FAA DOCKET NO (DIRECTOR S DETERMINATION SEPT. 12, 2014) 5 5

6 FOLLOW THE MONEY Scott Meyer v. City of Cincinnati, FAA Docket No (Director s Determination Sept. 12, 2014) Issue: Did City unlawfully divert revenue received from sale of a portion of Blue Ash Airport Before Closure of the Airport After Closure of the Airport 6 6

7 FOLLOW THE MONEY Determination: No Revenue Diversion City kept funds in a non-segregated account as required by state law City demonstrated that funds were not spent for non-airport purposes Subsequent rescission of sales agreement and closure of Airport made post-closure sale proceeds non-airport revenue 7 7

8 FRANK HINSHAW, SKY DIVING SCHOOL, INC. V. STATE OF HAWAII, FAA DOCKET NO (DIRECTOR S DETERMINATION AUG. 18, 2014) 8 8

9 WHEN UNWANTED GUESTS DROP IN Frank Hinshaw, Sky Diving School, Inc. v. State of Hawaii, FAA Docket No (Director s Determination Aug. 18, 2014) Issue: Whether State had to accommodate on-airport parachute landing area (PLA) despite local safety and operational concerns 9 9

10 WHEN UNWANTED GUESTS DROP IN Determination: State in violation of Assurances 22 and 23 FAA s safety determination trumped State s safety concerns State could not suspend consideration while FAA considered new PLA policy Allowing commercial helicopter operations without Airport Operating Rules but refusing to allow a PLA without Airport Operating Rules was unjustly discriminatory and created a constructive exclusive right 10 10

11 JIM DE VRIES V. CITY OF ST. CLAIR, MO., FAA DOCKET NO (DIRECTOR S DETERMINATION MAY 20, 2014) 11 11

12 STORE CLOSING! EVERYTHING MUST GO!! Jim De Vries v. City of St. Clair, Mo., FAA Docket No (Director s Determination May 20, 2014) Issue: Whether City violated Grant Assurances by failing to renew hangar leases while Sponsor contemplated closing the Airport Assurance 5 (Preserving Rights & Powers) Assurance 22 (Economic Nondiscrimination) Assurance 23 (Exclusive Rights) Assurance 24 (Fee and Rental Structure) Assurance 38 (Hangar Construction) 12 12

13 STORE CLOSING! EVERYTHING MUST GO!! Determinations: No Assurance 5 Violation because Sponsor did not cede power to another entity. Decision to suspend leasing pending closure was the Sponsor s own decision. No denial of reasonable access by refusing to negotiate lease renewal on Complainant s schedule. Leases were ultimately extended and complainants always had access to hangars

14 STORE CLOSING! EVERYTHING MUST GO!! No unjust discrimination or exclusive right by giving air ambulance operator a longer lease than hangar tenants because classes of users were not similarly situated. No unjust discrimination by refusing to permit construction of new hangars because no evidence that existing hangars were deficient or inadequate to meet demand

15 STORE CLOSING! EVERYTHING MUST GO!! No violation of Assurance 24 because there was no evidence that Sponsor lost rental income by not renewing leases earlier. No violation of Assurance 38 because Sponsor had no obligation to allow construction of private hangars

16 PROGRAM GUIDANCE LETTER 14-05, NOISE LAND MANAGEMENT AND REQUIREMENTS FOR DISPOSAL OF LAND ACQUIRED FOR AN AIRPORT PURPOSE FUNDED WITH AIP (JULY 2, 2014) 16 16

17 PROGRAM GUIDANCE LETTER 14-05, NOISE LAND MANAGEMENT AND REQUIREMENTS FOR DISPOSAL OF LAND ACQUIRED FOR AN AIRPORT PURPOSE FUNDED WITH AIP (JULY 2, 2014) Implements 2012 FAA Reauthorization provisions for land acquired for noise mitigation Replaces PGL Allows use of sales proceeds for certain eligible airport project costs Allows Noise Land to be used as a Noise Buffer Allows Noise Land to be leased at FMV for compatible development, with income used for approved Airport development projects Some reuse plans may need revision 17 17

18 [PROPOSED] POLICY ON THE NON-AERONAUTICAL USE OF AIRPORT HANGARS, 79 FED. REG (JULY 22, 2014) 18 18

19 [PROPOSED] POLICY ON THE NON-AERONAUTICAL USE OF AIRPORT HANGARS, 79 FED. REG (JULY 22, 2014) Hangars must be used or available for an aeronautical purpose unless otherwise approved by FAA. An Airport sponsor may permit limited, nonaeronautical items to be stored in hangars provided: Items are incidental to the aeronautical use (no interference), and Occupy an insignificant amount of hangar space. Where hangars are unoccupied and there is no current aeronautic demand for hangar space, FAA may approve an interim, non-aeronautical, use for a period of no more than 5 years. Comment period closed on October 6, FAA Considering final policy

20 POLICY AND PROCEDURES CONCERNING THE USE OF AIRPORT REVENUE; PROCEEDS FROM TAXES ON AVIATION FUEL, 78 FED. REG (NOV. 21, 2013) 20 20

21 POLICY AND PROCEDURES CONCERNING THE USE OF AIRPORT REVENUE; PROCEEDS FROM TAXES ON AVIATION FUEL, 78 FED. REG (NOV. 21, 2013) 49 USC 47107(b) and require that certain local taxes on aviation fuel be treated as airport revenue Proposed policy clarifies FAA s position that local taxes on aviation fuel includes Taxes levied by local governments and state governments All taxes that apply to aviation fuel, not just those specifically targeted to aviation fuel Policy will apply prospectively if adopted 21 21

22 COMPLIANCE QUESTIONS? Have your friend Text: