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Dade County Airport Must Justify Exclusion of Second FBO

BMI Salvage Corp. v. Federal Aviation Administration, Slip Copy, 2008 WL 927900 (C.A. 11, Apr. 8, 2008)

Miami-Dade County (“County”) owns and operates Opa-Locka Airport (“Airport”). Because the County received the Airport pursuant to the federal Surplus Property Act of 1944, and receives federal grants to support the Airport under the Airport Improvement Program (the “AIP”), the County is obligated to comply with certain federal “sponsor assurances” which incorporate federal laws. One of these assurances, Federal Grant Assurance 22, requires that the County make the Airport available “for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical activities...”.

In 1999, BMI Salvage, Inc., a small aviation business engaged in salvage demolition of aircraft, entered into a five-year lease for space at the Airport on a concrete ramp to conduct operations. The leased property did not include a building or utilities. Despite numerous requests from BMI, the County refused to give BMI a new lease that included a building. BMI's five-year lease expired and BMI continued to operate from the concrete ramp on a month-to-month tenancy.

BMI’s owner also owned Blueside Services, which provided aircraft fuel and repair services. In 2004, Blueside entered into an agreement with Opa-Locka Community Development Corporation (“CDC”) to sublet property at the Airport on CDC's 30-year lease with the County, and it was Blueside's plan to construct a building on this subleased property to conduct both the BMI salvage operations and the Blueside service operations. However, the sublease required the County's approval which had not been given.

BMI and Blueside complained to the FAA that the County violated Federal Grant Assurance 22 by withholding leases which would permit BMI and Blueside to occupy or build facilities at the Airport, while granting such leases to other similarly-situated tenants. The FAA Associate Administrator for Airports (the “Administrator”) denied the complaint, and BMI and Blueside petitioned the Eleventh Circuit for review.

First, BMI and Blueside alleged that they were discriminated against in favor of a similarly-situated tenant Clero Aviation. The Administrator held that BMI/Blueside and Clero Aviations were not in fact similarly-situated, so that disparate treatment was permissible. The distinctions included that BMI/Blueside wanted to conduct a new rather than an existing repair business, and BMI/Blueside did aircraft demolition in addition to repair.

The Court of Appeals concluded that the distinctions were irrelevant. The Court further found that BMI/Blueside had been treated disparately, given that Clero Aviation’s lease gave it access to a building whereas BMI/Blueside was denied such access.

Next, BMI alleged that it was unjustly discriminated against in favor of Miami Executive Aviation (“MEA”). It alleged that the County entered into a 35-year development lease with MEA following the expiration of its 5-year lease, which was precisely what the County refused to do for BMI/Blueside.

Although the Administrator found that MEA was not similarly-situated with BMI/Blueside, the Court of Appeals again found no material distinction between the businesses, and that they were treated disparately.

The Court observed that the record merely indicated that the County denied a competitive lease to BMI/Blueside on the basis that there was already a similar service at the Airport. The Court stated that reason alone was insufficient, but the record did not disclose if there were valid reasons why another operator should not be permitted. The Court reversed the FAA's decision and remanded the matter to the FAA to either negotiate in good faith for a long-term lease with BMI/Blueside, or demonstrate sufficient factual reasons why there should not be two similar operators at the Airport.
 

 

Judge(s): Fay
Jurisdiction: U.S. Court of Appeals, Eleventh Circuit
Related Categories: Transportation
 
Appellant Lawyer(s) Appellant Law Firm(s)
Ted Bartelstone Ted H. Bartelstone PA

 
Appellee Lawyer(s) Appellee Law Firm(s)
Thomas P. Abbott Miami-Dade County Attorney's Office
Cynji Antoinette Lee Miami-Dade County Attorney's Office
Michael Jay Singer U.S. Department of Justice
Constance A. Wynn U.S. Department of Justice

 

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fully realized due to inherent restrictions on aeronautical activities. unstated in the record what relevance the different business purposes have to the from aeronautical to non-aeronautical use. value for the use of airport facilities for non-aeronautical purposes; the requirement to operate county agreed to do in the case of clero aviation. contained no constructed facilities, plumbing or access to utilities, bmi made evidence, are conclusive."). we consider the record in its entirety "including the eleventh circuit airport. record is not clear regarding which corporate entity wishes to establish a new through various legislative acts designed to develop airport facilities. under merely stating that one business is an existing tenant while another is a proposed a short-term lease by entering into a long-term lease. in contrast, since bmi's associated with re-certifying and refurbishing the condemned building, as the necessary to serve the civil aviation needs of the public." federal government, and the faa has a statutory obligation to ensure that airport absence of such, corrective steps should be ordered. unsupported by the record. likewise, a party who has asserted an affirmative defense has the burden of procedure act, 5 u.s.c. 706 (west 2008), when reviewing a final decision of the ________________________ business, the record is silent on what effect the proposed expansion has on we note that blueside finally secured a long-term development by entering into a sublease with an approved developer. however, more than three years later, exactly the same business purpose. aside from any confusion regarding the entity the 1999 lease expired by its terms on december 31, 2004. despite county and its management of the airport, including claims that the county 16 petitioners, unreturned for several years. in march 2002, appellant sent a facsimile to a bmi is a small aviation business specializing in the deconstruction and leases and determined that the county's treatment of bmi and blueside did not blueside a five-year lease to occupy space on a ramp at the airport. the lease for the safe and efficient operation of the airport." grant assurance 22(h). moreover, under is necessarily balanced by provisions permitting the county "to establish such reasonable, and if the county can provide further evidence that the 30-day clause is standard negotiations for this lease appear to have stalled. there is some indication that 3 lease . . . in an effort to open a new aircraft repair station business" is not necessarily inconsistent appellant argues that the county's defense that leases offered to bmi and demolition business that gave the county a sufficient basis to discriminate in favor corporation, a fixed-base operator is a commercial entity providing aeronautical services, such as5 clero aviation is in the aircraft repair business. thus, leases between these parties the alleged violations had any impact on its decision whether to grant bmi and blueside leases to building 137 while negotiations were simultaneously underway with the county interest in entering into a long-term lease that would enable bmi to expand and which enlarged the airport ramp space available to bmi on a month-to-month administrator concluded that mea is not similarly situated with bmi and sometime shortly before appellant filed his complaint, the county offered purposes, and only for such purposes, on reasonable terms and without unjust discrimination." supports, bmi made proposals to expand its operation and add an aircraft repair a long-term lease to operate a fixed-base operator business. further, we read the april 8, 2008 currently has a three-year lease for a separate building (building 137) including an ("mea"). according to appellant, the county granted a 35-year development iii. discussion under the law to deny an applicant the opportunity to operate at the airport simply u.s. court of appeals 21 switches to statements regarding bmi, only then to jump back to statements reversed and remanded with instructions. explanations for its differential treatment of bmi and blueside as compared to airport's sponsor or owner is bound by certain obligations, either through contract garvey, 208 f.3d 555, 558 (6th cir. 2000). only logistically feasible, place for such a business to operate is within the yet, we find no evidence in the record regarding the relevance of this corporate names and presenting indistinct business plans. however, certain record there is potential confusion regarding the corporate name under which that blueside. with the opa-locka community development corporation ("cdc"), which has a five-year lease to occupy a condemned building (building 66). when that alone raises serious questions about the lack of "good faith." this record is simply on a new long-term lease. however, there is no evidence that the airport has treatment, the administrator concluded that bmi and clero aviation were not for the eleventh circuit 7 for clero aviation to construct a new facility on airport property. the record also five-year lease. however, the proposed lease does not grant blueside access to an tenant, or that one business is a fixed-base operator while another is a demolition disparate treatment in this case to be deficient.14 the site of bmi's business for demolition to begin. therefore, the natural, perhaps executed a sublease agreement to develop and construct facilities at the airport ________ because there is an existing operator present. there may be some maximum the director reviewed the record evidence concerning appellant's new three-year lease for a separate condemned building (building 137). the ("blueside"), alleging that miami-dade county, florida has violated applicable competence in the specific area of activity, the ability to comply with the laws and purposes of leasing a condemned building. substantial evidence in the record also relocate clause. bmi and clero aviation operate are in fact comparable. bmi operated on a ramp 20 16.23(b)(3, 4) (west 2008) . clause is a standard provision in airport leases. even so, notwithstanding the record reflects nothing of the sort. what we are holding is that it is not adequate this record contains no such evidence. it may be that some existing buildings are before birch and fay, circuit judges, and hinkle,* district judge. 27 some of which the county or third parties are likely in a better position to provide regarding blueside. the administrator used this inconsistency to suggest that the allegedly unjust discrimination in awarding certain airport tenants leases to maintain and operate the airport facilities safely, efficiently, and in accordance importantly, the decision below also concluded that the leases under which or a restrictive covenant in the property deed or conveyance instrument, to blueside sublease is due, at least in part, to a default on cdc's development lease level of investment and business aspects are dissimilar, the faa may find the bmi and blueside, initiated this case by filing a formal complaint on behalf of the airport. indicates that bmi and clero aviation's leases are not comparable. 5 wl 2512974, at *10 (dep't transp. july 25, 2006) (director's determination). aeronautical areas of the airport that must be used for aeronautical purposes, unless specifically 15 similarly situated tenants and, in any event, the bmi and clero aviation leases disclaimed any unarticulated motives and relying only on those discussed above, aeronautical businesses, we must address appellant's allegations that the county in 1961, pursuant to the surplus property act of 1944, the federal evidence deemed inconsistent by the administrator is not, in our view, contrary to program provides financial assistance to airport sponsors in exchange for binding the airport receives federal funds under such a program: the aip. this not required to use an approved developer. however, as with clero aviation, the resulting in the aircraft never flying again, while clero aviation repairs in the united states court of appeals discriminated against bmi and blueside in favor of miami executive aviation according to appellant, the administrator erred when he accepted the demolition of numerous categories of aircraft. in 1999, after relocating to the federal aviation administration, pompano beach, fl., faa docket no. 16-00-14, 2002 wl 1821882 (july 10, two specific tenants alleged to have received favorable treatment are clero florida corporation and 30-day relocate or vacate clause. however, once the five-year lease expired, the grant assurance 22(i), the county may "prohibit or limit any given type, kind or class of would partially offset such costs with lease credits. that request was not granted county. the county has not approved cdc's sublease with blueside. there is furthermore, as the sponsor for federal grants received by the airport as part of occupy or develop constructed airport facilities to similarly-situated tenants, similarly-situated with tenants who received allegedly favorable leases. further, mea and clero aviation. county, ariz., faa docket no. 16-02-02, 2003 wl 1524500, at *27-28 (march basis. by substantial evidence, but the agency's nonfactual analysis, including its particular new fixed-base operator should not be treated the same way as this the decision below clarified that bmi obtains aircraft and dismantles them, appellant points to the county's failure to approve, or even offer a lease 2002) (final agency decision). federal assistance is not available for the faa's definition of aeronautical activities does not explicitly rule out the13 appears similar, if not identical for all intents and purposes, to the 1999 lease. agree on a lease that will enable appellant to occupy or develop constructed facilities at the executive aviation, a policy that awards leases merely based on whether a lessee comparable to, blueside's sublease with cdc. less damaging to a lessee where the lessor agrees to assume certain costs glaringly different in a fundamental way: clero is granted access to a building and into the specifics of the default or the reasons for the county's delay in approving appellant made several requests, first through bmi then through blueside, for a operating the airport for aeronautical use is a sponsor's primary obligation. 7, 2003) (director's determination). in this case, however, we do not believe the (april 8, 2008) serv., inc. v. nlrb, 522 u.s. 359, 377, 118 s.ct. 818, 139 l.ed.2d 797 (1998) details about mea and blueside that can serve as legitimate justifications for merely because they are established businesses would erect a potentially extracting from the record that bmi and blueside wish to occupy or appellant's express plans to eventually merge bmi and blueside. we are able to record as clearly demonstrating that appellant attempted numerous times in vain substantially affected by the things done or omitted by the airport sponsor. see 14 cfr to eventually absorb bmi's demolition business. in october 2004, blueside5 alleged violations, if they had been considered by the county, could be a basis for denying or towards executing a lease that will accommodate appellant's business needs. we are proving the affirmative defense. this standard burden of proof is consistent with personal friction between appellant and various county employees. yet, having the county has not proffered valid, particularized reasons for denying bmi and further, such a policy could be implemented in a way that would violate federal grant16 the non-aeronautical element of bmi's business is at most de minimis in unsurmountable barrier to entry for new operators. blueside were comparable to leases awarded to similarly-situated tenants is blueside may be rejecting the lease solely due to the five-year term and the 30-day for example, as noted by the administrator, when describing how the 2008). federal aviation administration dismissing a complaint filed under part 16. still find that the agency's factual findings are supported by substantial evidence. conclusion must also be reasonable and not arbitrary and capricious. see south decision below noted there existed a non-aeronautical element to bmi's aircraft absent further explanation, we find the alleged non-aeronautical aspects of director of the office of airport safety and standards ("director") do not probe refurbishment and re-certification of those condemned buildings. ("aaia"), as amended, 49 u.s.c. 47101, et seq. unjust discrimination, to all types, kinds, and classes of aeronautical activities, with federal law and related faa sponsor assurances. see 49 u.s.c. 47107.3 business is not specifically included on the list of aeronautical activities; however, the list is by repeatedly delayed or denied bmi and blueside leases to occupy or develop complaint, appellant has waived his right to argue such a violation in this court. demolition, along with a reasonable time period after the aircraft is last parked containers and a mobile office. beginning in 2002, because bmi's ramp faa no. 16-05-16 evidence paints a picture that over numerous years bmi and blueside have been to refrain from granting exclusive rights to certain tenants. aircraft repair business was to operate. however, there can be no mistake that act, 49 u.s.c. 46110(c) (west 2008), and by default, the administrative the faa concedes that "the receipt of aircraft onto the leasehold for in the interest of safety, security and development of civil aeronautics, the federal4 clerk county have been thwarted due to cdc's actions and not by any fault of blueside. in august 2005, stephen o'neal ("appellant"), the owner and president of and maintain the airport in a safe and serviceable condition; and retaining the ability to develop challenges for the management of the airport. we must consider these challenges airport from nearby miami international airport, bmi executed a five-year lease were in fact comparable. the administrator reasoned that clero aviation was not body of evidence opposed to the [faa's] view," when reviewing the record for aircraft repair business. the record may be lacking in certain specific details, designated aeronautical area of the airport. not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary with 30-day relocate clauses to successfully develop airport property, blueside number of fixed-base operations that the activity at the airport would support, but 24 airport. bmi alleges that the county ignored, delayed responding to or denied its we review a final decision of the associate administrator for airports (the (the "1999 lease") and began operating from 2.2 acres of a large concrete ramp at unpersuaded by the county's claims that the 30-day clause was included merely finding the current record lacks sufficient evidence for a meaningful would permit bmi to occupy existing or develop new constructed facilities at the 9 federal aviation administration the sublease. sufficient particularity his allegations that the county unjustly discriminated contrast, has never had a lease with the airport and was proposing to introduce a the record sheds no light on why bmi's demolition business is sufficiently administrator affirmed the director's decision and dismissed the complaint. in contrast, the record shows that the county provided clero aviation a airport property for aeronautical use. see united states constr. corp. v. city of he wanted to develop property at the airport in a letter complaining that his phone support the conclusion that bmi and clero aviation are not similarly situated for fay, circuit judge: nature of any aircraft salvage or demolition operation understandably presents in all airport leases and that similarly situated tenants have used five-year leases even if two different conclusions can be drawn from the evidence, we may under the federal aviation act, the administration's findings of fact are operates an existing business or a new business likely violates the county's duty unfairly due to rule violations allegedly committed by bmi with respect to derelict aircraft and similarly situated because it entered into a lease to operate its existing repair county may have had in denying bmi and blueside the right to occupy or develop 11 justifications for its refusal or delay in awarding bmi and blueside the continuously denied without legitimate justification the right to occupy or develop aviation and miami executive aviation. we begin with clero aviation. 25 building because the former has a non-aeronautical element. similarly situated, the record includes what could be considered conflicting statements from bmi and blueside. 19 possibility that a business such as bmi's is a completely aeronautical activity. a demolition applicable federal laws, regulations, executive orders, statute-based assurances, the aip was authorized by the airport and airway improvement act of 19823 reserve aeronautical facilities for aeronautical activities; the requirement to charge fair-market record sufficiently demonstrates that bmi and blueside are comparing themselves made, this case could become moot if the parties were to set aside their past disagreements and available to bmi under its month-to-month lease. nevertheless, the record statements reflect both failed past efforts to expand bmi and present efforts to from obtaining the requisite financing necessary to develop constructed facilities we note that the county stated that it was "ready, willing and available" to work18 8 22 themselves a disservice by muddying the record with the revolving use of some evidence in the record to the effect that the county's failure to approve the may give the county the opportunity to present legally and factually sufficient quitclaim deed issued under the surplus property act. property deeds issued under that act each allegation. the complaint must also describe how the complainant was directly and county provided mea an opportunity to avoid the potential risk of developing on building failed inspection, the county and clero aviation promptly entered into a develop constructed facilities at the airport for the purpose of operating including commercial aeronautical activities offering services to the public at the in 2002, on at least two occasions, appellant expressed to the county an and the record provides no reason. aeronautical element, if there is one, is a reasonable justification to distinguish specifically, bmi and blueside claim the county violated grant assurance 22 ii. standard of review condemned building bmi offered to renovate at its own cost provided the county refurbishing a condemned building. if bmi proposed to offer aircraft repair teardown services." bmi's business to be an unpersuasive basis on which to conclude that the parties 13 appellant compares the county's treatment of blueside, but then suddenly and bmi operates from a ramp on a month-to-month basis. entitled to file a complaint with the faa. see 14 cfr 16.23 (west 2008) ("part 16"). the standard five-year lease with a 30-day relocate or vacate clause. clero aviation for bmi's benefit (in which case the clause could be drafted to grant bmi a blueside the right to occupy or develop constructed facilities at the airport. ________________________ bmi and blueside claim in general that they are similarly situated with the of clero aviation, which does not have a non-aeronautical element to its business. occupy a condemned building, we find the current explanation for the apparently administrator significant responsibilities for the regulation of air commerce. a person directly on the ramp. quitclaim deed incorporating legal duties that arise from the surplus property act.2 discriminating in favor of the established business over the new business. offer additional services through blueside, which plans to possibly absorb bmi in aeronautical areas of the airport for purely aeronautical activities. grant assurance 24 includes federal obligations.12 to an entity with dissimilar business aspects or levels of investment. we do not refute the obvious fact that the two businesses are engaged in if the county were permitted to rely on this proffered reason alone, it would review, we remand to the administrator in order to give the parties the opportunity exists merely for the benefit of the lessee, the county should be willing at skydance operations, inc. v. sedona oak-creek airport auth. and yavapai "gives the agency the benefit of the doubt, since it requires not the degree of under its own power, is an aeronautical activity." bmi salvage corp. & blueside new fixed-base operator business. the decisions below relied on this distinction calls to county-approved developers authorized to provide a long-term lease went negotiations for a new long-term lease that occurred from october 2004 to august ________________________ the decision below gives dramatic consideration to the fact that mea is a the director suggested the county could simultaneously accommodate bmi's14 will have less footing from which to argue that the proposed lease is from the record we are able to discern that, prior to receiving a long-term current tenant operating an established fixed-base operator business. blueside, in see 49 u.s.c. 47151-53.1 2 the issues on appeal have been distilled from the sweeping allegations in we turn next to appellant's allegations that the county has unjustly iv. conclusion in addition to clero aviation's operation of an existing repair station, the these claims had not been clearly, concisely, or completely described as required a condemned building. further, as we discuss below with respect to miami authorized by faa pursuant to a possible alp change and notice to the public of the change i. background we do not suggest that the county has avoided negotiating in good faith constructed facilities at the airport. the record provides abundant instances of the record is devoid of any such evidence.17 distinct from mea's to justify differential treatment regarding the right to receive 18 versus 4 regulations governing such activity and similar fundamentals. however, this reconcile many of these seeming inconsistencies by recognizing that these violated specific provisions of federal law and related faa sponsor assurances as noted, the county's operation of the airport is also bound by the terms of a8 the airport, to provide fixed-base operator and aircraft repair services, as well as 35-year lease, mea conducted business through a standard five-year lease with a proof." 5 u.s.c. 556(d) (west 2008). therefore, we believe the county should services, the parties' business purposes are less distinct. with the county. the decision of the administrator and the determination of the federal law and related faa sponsor assurances by engaging in unjust blueside services, inc., a florida airport is a prerequisite for bmi's demolition business. aircraft must be flown to we must apply the standard of review articulated in the federal aviation ramp at the airport. in fact, twice during the proceedings below, in may and the implication, however, is that at some point in the demolition process bmi is between bmi and clero aviation. it is our understanding that presence at the to conclude that blueside is not similarly situated with mea. we find this option for an extension and a 30-day relocate or vacate clause. airport." grant assurance 22(a) (implementing 49 u.s.c. 47107(a)(1)).8 9 appeal from an order of the sponsors comply with their sponsor assurances. see 49 u.s.c. 47122 (west improvements to airports where the benefits of such improvements will not be distinction correctly, a demolition business is not similarly-situated with an between the facts found and the decision made by the agency. see bowman demolition business and assure compliance with its federal grant assurances by providing a time aeronautical areas in the airport. until the county can explain how the hybrid commitments were detailed in the county's applications for federal assistance and the record indeed indicates that the county has offered blueside a direct commitments designed to ensure that the public interest is served. these7 simply beyond refurbishing. but this record is silent in that regard. negotiations cdc. thus, there is scant evidence to conclude that the county's reliance on themselves at the airport. there is no record evidence to explain why this16 degree which could satisfy a reasonable factfinder." allentown mack sales & in this case, appellant alleges that the county has violated federal grant airport. yet, blueside currently does not operate at the airport. against bmi and blueside by refusing to grant either company a lease to occupy or distinct from mea's fixed-base operator business to justify differential treatment a long-term lease to develop constructed facilities, blueside and mea have (11th cir. 1983). thus, not only must the agency's factual findings be supported the purpose of opening an aircraft repair business. we are not in a position to speculate concerning unarticulated motives the corp. & blueside services, inc., faa docket no. 16-05-16, 2006 wl 2512974, at *14 (dep't particular established fixed-base operator. because a lease for constructed and occupy condemned buildings. if, as the county argues and the record even assuming arguendo that bmi's demolition business is sufficiently when it awarded certain tenants, but not others, leases to occupy or develop distinction to the county's decision whether to award an existing tenant access to develop constructed facilities at the airport. the proponent of a motion, request, or order has the burden of proof. as otherwise provided by statute, the proponent of a rule or order has the burden of government conveyed opa-locka airport (the "airport"), a public-use, general discrimination in its operation of the opa-locka airport. by failing to raise a violation of grant assurance 23 (exclusive rights) in his10 lease to mea, which is a similarly situated aeronautical service provider that was 17 10 in the context of reviewing a complaint alleging a violation of an airport sponsor's we find the current record lacks sufficient legal and factual justification to the complaint. in this court, appellant focuses his argument on the county's6 constructed airport facilities.10 appears to demonstrate that the county agreed to finance, at least in part, the (11th cir. 1985) (quoting universal camera v. nlrb, 340 u.s. 474, 488, 71 s.ct. our reading of the record clearly shows that bmi is an established aircraft than bmi or blueside. nevertheless, we believe appellant has stated with aircraft notification procedures. we do not address these allegations because the county denies to present additional evidence. should miami-dade county (the "county") fail to sublease agreements entered into by cdc require the approval of the obligations arise from the deed or contractual sponsor assurances because the analysis would be the assurances become a binding obligation between the airport sponsor and the with bmi and blueside. the decisions below noted that the county had offered to 30-day relocate or vacate clause, which he argued prevents bmi from obtaining lease to occupy or develop constructed facilities at the airport in order to open an proposing to offer aircraft repair services, the record clearly shows that blueside ratification by the county is required even though cdc is an approved developer at15 the miami-dade aviation department ("mdad") actually operates the airport. for simplicity, 14 the requirement to charge non-aeronautical, fair-market value rates for non-aeronautical activities business, is alone insufficient to justify differential treatment. aircraft repair station. a separate entity established by appellant for the primary purpose of entering into must make the airport available "for public use on reasonable terms, and without it would seem rather basic that the county would require all applicants who discrimination. * honorable robert l. hinkle, united states chief district judge for the northern district of lease with the county. nevertheless, the record shows only superficial efforts by we must agree that while arguing their case below bmi and blueside did different business purposes was a legitimate justification to refuse to approve have a chilling effect on new businesses and operators seeking to establish assurance 22 (economic nondiscrimination), which provides that the county nature of bmi's business is crucial to its decision whether to award a lease to inadequate for us to make a meaningful review. "administrator") of the federal aviation administration ("faa") dismissing the our references to the county include mdad. by part 16. further complicating the effort to determine whether the tenants are by april 2005, the county was in the process of awarding a 35-year work through various issues and even had expanded the amount of ramp space with "blueside is proposing to offer [fixed-base operator] services, which includes the creation of against appellant's plans to develop at the airport over the long-term. interpretation of the governing statute, application of that statute to the facts, and and the county would apply to businesses with different purposes. however, it is evidence which satisfies the court that the requisite fact exists, but merely the complaint must provide a concise but complete statement of the facts relied upon to substantiate 26 the future.11 aviation act of 1958, as amended, 49 u.s.c. 40101, et seq., delegates to the faa facilities is essential to establish a fixed-base operation, the record should include complaint filed by bmi salvage corporation ("bmi") and blueside services, inc. desired to do business at the airport to provide evidence of financial stability, numerous formal and informal requests to the county to enter into a new lease that when aeronautical tenants propose the same or similar use of the airport, if the blueside's request to revise the proposed lease to make the clause unilateral. provide in relevant part that "the property transferred hereby . . . shall be used for public airport constructed facilities at the airport. 12 at the airport pursuant to a standard five-year lease with a 30-day relocate or can go on for extended periods. however, when they go on for years, that fact relief should be ordered. 30-year lease with the county that enables it to develop significant portions of the 2008) ("findings of fact by the . . . administrator, if supported by substantial with specified conditions. proposed to offer fixed-base operator services under a long-term sublease with substantial evidence. nlrb v. s. fla. hotel & motel ass'n, 751 f.2d 1571, 1579 offer aircraft repair services. in february 2002, appellant notified the county that see s. fla. hotel & motel ass'n, 751 f.2d at 1579. substantial evidence review assurance 23 (exclusive rights) by granting exclusive rights to existing businesses. vacate clause. clero aviation initially operated in building 66 pursuant to a such leases. in addition to citing evidence that the county awarded leases to services, inc. v. miami-dade county, florida, faa docket no. 16-05-16, 2006 both companies with the faa. the complaint alleged many grievances with the4 assurance 22 (economic nondiscrimination). on administrative appeal, the appellant rejected the proposed lease because he argues that the lease is whether bmi and clero aviation are similarly situated for purposes of leasing and thomas k. kahn requiring it to make the airport available to the public without unjust county allegedly favored fixed-base operator miami executive aviation, the county to accommodate blueside's plans to develop, which according to the december 2005, the county and bmi executed two lease modification letters, although the county is owner of and sponsor for federal grants received by the airport,2 part of this primary obligation is the opportunity for leaseholders to develop according to the director, the challenges for a sponsor include the requirement to12 aeronautical users are not similarly situated. see skydance helicopters, inc. d/b/a development lease to mea, which is a fixed-base operator. we understand that demolition business that made numerous requests to obtain a more permanent different activities at the airport. bmi is in the aircraft demolition business, while identical for purposes of our review. in the face of what could be reasonably interpreted as discriminatory as the basis for legitimate distinctions, but we fail to see them in the record. repair business and possibly continue its existing demolition business. this deed covenant mirrors grant assurance 22 thus, we do not address whether the county's 23 limit to remove non-aeronautical parts from designated aeronautical areas. see bmi salvage and other requirements binding on the county. after acceptance of an aip grant, federal case law and the administrative procedure act provision stating, "[e]xcept its terms not exhaustive. see appendix 5 of faa order 5190.6a, airport compliance occupy or develop constructed facilities. therefore, we refrain from addressing whether such at the airport. further, the county's property deed and its airport layout plan (alp) designate no. 07-12058 aeronautical use of the airport if such action is necessary for the safe operation of the airport or in addition, we must ascertain whether there is a rational connection delaying the approval of the desired leases. and substantially affected by an airport sponsor's alleged noncompliance with its legal duties is allegations of unjust discrimination in the awarding of long-term development support its actions with non-discriminatory justifications, corrective steps and the county has not ratified that sublease thereby preventing blueside from in the grant agreement, which includes a list of sponsor assurances incorporating fueling, maintenance, storage, ground and flight instruction to the public. see faa order administrator and director both acknowledged, however, that facts supporting taken action to remove bmi from its premises. bmi continues to operate from a unilateral right), it appears from the record that the 30-day relocate or vacate numerous requests. since 1999, bmi has operated on the ramp from 13 temporary work the obligation to make the airport available to the public without unjust discrimination9 the airport. presence of a 30-day relocate or vacate clause in both leases, the leases are opportunity to occupy or develop constructed facilities at the airport. in the18 encouraged by this statement and, given that several years have passed since this statement was distinction troubling. permitting the county to award favorable leases to parties with respect to a long-term lease. there may be numerous factors that could serve discriminatory. and, if the county's claim is genuine that the 30-day clause17 station business, whereas the purpose of bmi's request was to open a new aircraft [do not publish] programs that provide funds and surplus federal property to local communities, an the airport improvement program (the "aip"), the county is obligated to comply _________________________ respondents. during oral argument, appellant emphasized the crippling nature of the 589 f.2d 307, 310 (7th cir. 1978). are not similarly situated. the record provides no reason why the non-13 442, 42 l.ed.2d 447 (1974); nat'l wildlife fed'n v. marsh, 721 f.2d 767, 780 aviation airport, to the county. as a result, the county is bound by the terms of a1 appellant established blueside, a florida corporation and proposed tenant at 2005, bmi currently operates on a month-to-month lease by operation of law. five-year lease expired, the county has not offered bmi a similar long-term lease county has not approved the sublease because cdc is currently in default on its for example, the statement: "bmi salvage corporation made repeated requests to11 6 the secretary of transportation is authorized to prescribe project sponsorship7 conclusive if supported by substantial evidence. see 49 u.s.c. 46110(c) (west bmi salvage corporation, a requirements to ensure compliance with the aaia. see 49 u.s.c. 47107(g)(1) (west 2008). occupy or develop constructed airport facilities, but refusing bmi and blueside dakota v. civil aeronautics bd., 740 f.2d 619, 621 (8th cir.1984); starr v. faa, accordingly, we remand this case to the administrator in order that he decision whether to grant these particular existing tenants the right to refurbish blueside's long-term development sublease. existing building. further, the lease is drafted for a term of five years, working inadequate due to the five-year term and an opt-out provision that precludes him (italics omitted). developing at the airport. there is testimony in the record stating that the15 aircraft repair business for purposes of awarding a lease to occupy a condemned leasing arrangement at the airport. the record also clearly shows that blueside is have the opportunity to supplement the record, if it can, with legitimate transp., inc. v. arkansas-best freight sys., inc., 419 u.s. 281, 285, 95 s.ct. 438, the federal government plays an important role in developing civil aviation requirements. as a reasonable mind might accept as adequate to support a conclusion." singer v. airport tenants who received favorable leases from the county. the county's legally insufficient reasons to explain why bmi and blueside are not county official requesting permission to lease building 407 at the airport , a 5190.6a, airport compliance requirements (october 2, 1989). violate its federal obligations under 49 u.s.c. 47107(a) and related grant 456, 465, 95 l.ed. 456 (1951)). "substantial evidence is such relevant evidence light of the need to locate an aircraft demolition business in proximity to no longer engaged in a completely aeronautical activity. the arguably hybrid constructed facilities while granting such leases to similarly situated tenants. the more than two years after the filing of the complaint, there has been no agreement appellant's complaint included claims that the county was treating bmi and blueside6 filed miami-dade county, fl, transp. july 25, 2006) (director's determination). bmi is denied access to a building. further, a 30-day relocate or vacate clause is non-flyable aircraft, permitting the aircraft to fly again. if we understand this to obtain permission to occupy or develop constructed facilities at the airport for financing to refurbish or construct facilities at the airport. while we are a . . . repair station which are totally different services from bmi, which [presently] offers aircraft recitals to the three-year lease state that clero aviation intended to occupy florida, sitting by designation.


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