Court decision lands in airports favor

May 6, 2012
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A Kent County Circuit Court judge recently ruled that two tenants at the Gerald R. Ford International Airport had no legal standing to compel the Gerald R. Ford International Airport Board to follow its own rules regarding how it votes on agenda items.

The tenants and plaintiffs at the show-cause hearing, Northern Air Inc. and the Grand Rapids Air Center, argued that the board allowed its chairman, Joseph Tomaselli, to cast his vote at two separate meetings, which led to Rothbury Executive Air being granted a long-term lease at the airport in an area the plaintiffs claimed was reserved for private corporate operations in the 2004 master plan. Rothbury offers a charter service for freight and business travelers.

The plaintiffs asked 17th Circuit Court Judge James Redford to grant them mandamus and injunctive relief. Instead, Redford dismissed the complaint and entered a declaratory judgment in favor of the airport board. Redford cited seven cases in Michigan law on which he based his mandamus ruling.

“(The) plaintiffs claim they have a clear legal right to force the airport board, a municipal body, to strictly adhere to its own internal parliamentary procedures. The court is satisfied based on the above-mentioned case law that the standing rules which govern the parliamentary procedure of the board do not, as a matter of law, confer any such rights on any party, much less the plaintiffs. Thus, mandamus relief is not appropriate,” wrote Redford in his nine-page opinion.

In layman’s terms, seeking mandamus relief is asking a higher authority to mandate or compel an entity or an individual to perform or not perform a certain action. In this case, Northern Air and the GR Air Center wanted Redford to instruct the airport board to strictly adhere to Section 7.3 of its rules, which, in part, says the chairperson can only vote to break a tie or to create one.

On two occasions, Tomaselli voted in Rothbury Executive Air’s favor when the board’s vote wasn’t tied and his votes didn’t result in a tie. But Redford wrote that Tomaselli’s votes “were not necessary, as the measures passed regardless” and no member of the board asked to have the vote reviewed.

Redford also denied the plaintiff’s request for a preliminary injunction. “In the instant case, (the) plaintiff has failed to adequately articulate how they will be harmed irreparably if the injunction is denied,” wrote Redford.

“Additionally, if a preliminary injunction is issued, (the) defendants will suffer significant financial losses associated with the time and resources expended in planning, negotiating and executing the FBO lease. The court finds the financial damages that (the) defendants would be exposed to should an injunction (be) issue(d) to outweigh any harm to (the) plaintiffs in having to compete with Executive Air,” the judge added.

Had Redford granted a preliminary injunction, it would have prevented the lease from going forward until further court action.

“We are pleased by the court’s affirmation that the Gerald R. Ford International Airport Board acted properly in all matters related to the votes taken at the two meetings in question,” said Tomaselli in a statement.

Rothbury Executive Air has entered into a 10-year lease with three 10-year options with the airport. The lease requires the Muskegon-based company to make capital improvements of $6.5 million to its location and pay $155,000 annually in rent and fuel fees.

“Rothbury Executive Air is very pleased the Gerald R. Ford International Airport is supporting our project. We anticipated today’s favorable outcome of the show-cause hearing last week and look forward to moving forward with our exciting project,” said the company in response to the ruling.

Despite Redford’s ruling, the issue hasn’t been completely put to bed. Northern Air and GR Air Center filed a formal complaint with the Federal Aviation Administration last year claiming the vote to grant the lease violated the airport’s master plan. The FAA is still reviewing the complaint. If the agency agrees that a violation has occurred, the airport could lose some federal funding for 2013, up to $43 million.

“Our filings with the FAA spell out in detail what we believe to be discriminatory practices giving preferential treatment to Rothbury Executive Air and its proposed new FBO, which go far beyond the voting procedures involved in the Circuit Court case,” said Todd Dickinson, a local attorney representing Northern Air, in a statement.

“We remain confident that the FAA will respond favorably to our complaint and require the airport board to correct these discriminatory practices or face the loss of federal funding, including the airport’s estimated $43 million, five-year improvement plan.”

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