How Come the people who run the Barnstable Municipal Airport can write leases for forty and sixty years when Massachusetts laws limits municipalities to ten year, and airports to twenty year leases?

Is Michael Dunning above the law?

Yesterday’s post included a YouTube video that featured Attorney Michael Dunning during a June Airport Commission meeting explaining the 40-year lease of the Kmart Mall that is ready to expire next year.

In the video he told us that the lease has a 20-year renewal option…

Today we have posted a YouTube video of BMAC Attorney Bruce Gilmore telling the Barnstable Zoning Board of Appeals, that the

airport "owns" the Kmart Plaza, which is pure unadulterated bullshit, because it implies that the BMAC can sell the Kmart Plaza, and every other piece of property outside the airporhttp://www.youtube.com/watch?v=t fences...Listen to Gilmore yourself at the ZBA in July by clinking the YouTube link. http://www.youtube.com/watch?v=YJEwAeWZm7g

Dunning, as a practicing attorney, should have some understanding of Massachusetts General Laws…

For example;

CHAPTER 40. POWERS AND DUTIES OF CITIES AND TOWNS

Chapter 40: Section 3. Towns; power to hold, lease and convey property

Section 3. A town may hold real estate for the public use of the inhabitants and may convey the same by a deed of its selectmen thereto duly authorized, or by a deed of a committee or agent thereto duly authorized; may by its selectmen let or lease for not more than ten years.

I’m assuming this law was on the books prior to 1968, when the original Kmart Mall lease was signed, because Ch. 40, Section 10 was repealed in 1965.

Chapter 40, Section 3, also goes on about leasing school properties and how those properties can be leased for 25 year terms.

Dunning, who is up for reappointment as Airport Commissioner on September 20th, argues that the Kmart Mall lease can extend to sixty years (40 years plus a 20-year option period?)

Massachusetts Law governing airports limits lease terms;

Chapter 90: Section 51F. Leasing of land at airports

Section 51F. Any airport commission may let or lease, for a period not exceeding twenty years, those land areas at any airport under its control which are used for airport purposes, under such terms and conditions as it may prescribe, for hangars, shops, storage, industrial purposes, offices and other space rental, and for concessions, and may lease any other areas at such an airport for any purpose.

Chapter 90 is consistent with Chapter 44, Section 53 1/2 F, the Enterprise Fund law, that restricts leases to land

“under the control” of the airport.

When was the last time anyone saw an airplane landing, taking off, or even tied down, at the Kmart Mall?

There is no provision under either law to lawfully permits sixty-year term lease.

The Constitution prohibits Boards of Selectmen, Councils, and Mayors from imposing conditions on future boards.

How can 1968 selectmen bind the will of the town council in 2008?

“Keep-your-options-open” Smith knows no limits to state laws applicable to the town of Barnstable, and it looks like his malady has affected both Bruce Gilmore and Dunning.

“Where lawlessness abounds, there’s chaos”, and the Kmart Mall property is no exception.

If the taxpayers in this town want to sanction a trade of $10 million in non-levied cash every year

for a bulding that will enable a bunch of grunts,

who fly to Nantucket every day with lunch pails as luggage

to relieve themselves in a $35 million toilet,

so be it.

But I want to see a popular vote,

not as a decision by a handful of appointed creeps.

Another of Michael Dunning's acts that should disqualify him from reappointment is a violation of;

Chapter 93: Section 5. Monopolies

Section 5. It shall be unlawful for any person or persons to monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce in the commonwealth.

Rectrix Aviation is in the charter jet airplane business, and is a commercial enterprise.

The BMAC in 1988 contracted with the FAA through an agreement that it would treat all fixed base operators (FBO’s) equally.

The four other FBO’s at the airport either sell or self fuel their aircraft.

Under Dunning’s term as an Airport Commissioner the BMAC conspired to create a monopoly on the sale of jet fuel that is still in effect today.

Dunning’s Airport Commission withheld copies of the agreement from the Rectrix lease and forced the company to buy fuel from the BMAC for more than

double the wholesale price ($2.00 - $4.26 a gallon).

At those prices how can Rectrix stay in business?

Dunning and others on the BMAC have been sued by Rectrix for

violations of the Sherman Anti-Trust Act,

as well as the Racketeer Influenced and Corrupt Organizations Act, RICO Act.

If Rectrix wins its lawsuit, the U.S. Attorney will have a criminal case packaged in a neat little box with a bright red ribbon tied around it.

Dunning's actions put taxpayers at risk by having potentially finance a

$60 million judgment,

and millions in attorney's fees.

What does a person have to do to convince the turkeys on the Barnstable Town Council that he or she is a complete screw up?

Dunning's non-appointment to the Airport Commission would also put a stop to all attempts to sell or renegotiate the Kmart Mall lease, and stop the give-away of $10 million in cash each year.

Not reelecting Hank Farnham to a new term on the Council will also go a long way to stopping the property transfer,

as his name is always included in talk of the sale of the property.

Wheatley has since moved to Mashpee, and is no longer an Airport Commissioner,

so Dunning is next in line.

Hopefully Mosby won't be far behind Dunning.

http://www.youtube.com/watch?v=RTSQ5nR3kPo

DUNNING is the Airport Commissioner who is speaking;

And now were back to the business of the potential sale of the Kmart Plaza which is a subject that we’ve been here before. 

The basic background is that the Kmart Plaza was and action pursuant to an action by the town Airport Commission and the Town of Barnstable back in the sixties.

And there was a provision for; I think it was a forty year lease with a twenty-year renewal period, or something along those lines.  And the bottom line is that this obviously the price was reasonable back in nineteen sixty eight and it was quite a bargain unintelligible, and that the value of that property has gone up considerably.

UNINTELLIGIBLE...And there’s been talk about the possibility of selling that particular parcel and we discussed that theory and what would be required to do that.  Whether or not we’d have to buy out the existing lease to make it palatable for a new buyer, or whether or not the new buyer would be willing to take it subject to the old lease subject to some type of arrangement.

UNINTELLIGIBLE...In any event I’d like to point out that we discussed with Mr. Farnham whether the property could be sold with town council approval.

And we discussed the details about the possible sale.  In any event we’re a long way from that, but something has come up from time to time, and it was the opinion of the real estate sub-committee that we want to make sure that if there is a sale we want to make sure that the proceeds go to something tangible permanent value

And then we discussed with Hank Farnham whether there should be a sale or just to renegotiate the lease.

UNINTELLIGIBLE...And that was pretty much it. 

 

Comments

A Niedzweicki pronouncement:

The airport terminal will be built now that he's head of CCC!

Monday 9\10- There are currently 9 certified charter candidates, the bare minimum for a commission. There are 14 "candidates" that have to certify to get on the ballot and lose the quotation marks. There were 19 names in '88, 22 the last time. Without a critical mass of candidates the process suffers and may even fail. There is now one week left for anybody to get onto the ballot. It's time to come forward.

OK so say I'm the company that holds the KMart lease.

What I'm reading here is that, despite the fact town officials signed the lease almost 40 years ago, presumably with the advice of the town attorney(s), its provisions, with respect to the renewal option, are invalid? Indeed, the town can break the lease TODAY because it was signed with more than a initial 20 year term?

If the town broke the lease on this basis here comes a lawsuit from the present leasee for damages which would make the Rectrix suit appear to be chump change.

IMHO, the land is emcumbered with a below market lease for the twenty year option term. The lease is worth the present value of discounted cash flow. This greatly deminishes the current value of the underlying land.

I'm not in real estate but maybe JJ will pipe in as to what rights the present leasee has.

It looks like the whole BBB-Joakim affair is set to erupt again.

They don't need to break the original lease because it runs out next year.

The option can be blown out of the water.

[the lazy eye]

Here's an idea for tangible permanent value - give our kids a decent education!

Send the kids to Cape Cod Academy.

[BarnstableBlogBlasters]

Joakim has been reported to the SEC (again). Let it rest.

Someone on CCL is claiming the Charter deadline is 9\21. According to the Patriot the deadline is 9\17. Can COG or CCL confirm 9\17? In any event what is gaining by waiting until the last minute to confirm signatures? It royally ticks off the staff in the clerk's office. Some people clearly recall Hutchenrider saying 9\17. Is someone putting out false information? It could cause someone to miss the real deadline. Why take the chance?

I deleted those two comments on CCL. This is the sort of misinformation that Farnham, Munafo and the airport commissioners thrive on.

At the Council meeting the clerk said the deadline for drawing charter commission papers is 9/14 and return 9/17. The clerk asked for a short lead time and that's one day folks.

[NDM]

To 3:24:

Ya, blame Schwaabie's error on Munafo, Farnham & the Airport Commission. It MUST be their fault...

Some people are unbelievable!

Get a life, fool.

[Aviation Legal]

Let me see, MGL Chapter 90 allows airport commissions to only grant leases for a period of 20 years? That may very well be true, but two questions loom: When was this provision added to MGL? When was the KMart Lease signed by both the airport commission and the town? HELLLLLOOOO!

There is a provision that allows the airport commission to extend their leases longer if the LOCAL town legislature approves, which the Town of Barnstable Councilors did approve. Hmmmmmmm,and nobody picked up on that huh? Wow, and the great Gary Lopez just keeps opening his mouth without facts! So Gary decides to dump on Mike Dunning when in fact the KMart was signed and sealed long before Dunning was even thought of as an airport commissioner! Of course Gary has to dump on somebody, because that is the kind of miserable person that he is! You say this site may close down in a week or so? Goodbye my friend! Sorry you stayed so long. Of course you'll just open another site so who the hell are you trying to fool?

[Gary Lopez]

Aviation Legal;

I never cry over spilt milk, so don't accuse me of complaining about events that occurred in the past.

Three weeks ago at the Appointments Committee meeting when Dunning was nominated by Gary Brown, Dunning replied to a question by Tom Rugo regarding the Kmart Plaza, "it's worthless, because the lessee has a twenty-year option at the end of next year."

If there was an error 40 years ago so be it, but the error doesn't need to extend beyond the end of the lease.

If the lessee has an option, the town also has an option to not honor the lessee's option.

If the issue needs to go to court, then it should go now, not a year and a half from now when the primary lease is over.

The airport is wrong collecting lease revenue it's not entitled to according to the Enterprise Fund law, and now I find out it's not entitled to collect this revenue because now federal funds were used to acquire the airport.

Anyone who would sell the Kmart Plaza in light of the $10 million potential annual lease revenue of $10 million, is a dickhead.

No one, especially you, will ever convince me otherwise.

[Airport Legal]

well damn Gary I can finally say we agree on something! To sell the KMart property when you could keep collecting the annual revenue is a good idea. I won't say the seller would be a dickhead as you call it, but it would be stupid as hell! Now one point you have to understand: the airport commissioners and town counselors who signed the lease back in 1968 should be hung out to dry! The "Lessee" (KMart) has the sole right to renew the lease for two, not one, but two 10-year periods. And I guarantee you at the current lease rates why wouldn't they? And they can extend the lease with no approval from the town or the airport commission and they are the ones who authored the lease back in 1968. I do know from a very good source that Mosby is trying to find ways to break this lease somehow to get it up to current market rates. Well hell, I have to give the man his props for that! If he can make that happen, he's a hell of lot smarter than I first thought!

[Gary Lopez]

I know two dozen lawyers who would have no trouble winning the issue in court because the lessee has broken the lease a dozen times with new constructions.

A lease is nothing more than a contract, and Dunning and Wheatley are practicing attorneys.

There are many methods of breaking the lease, one of them is the inequities of the failure to include an factor to adjust for inflation, which somehow significantly benefited the lessee, but not the property owners.

Courts are about equity, not one party getting away with sticking it to the other.

The lessee would look like an idiot defending his contention that it is equitable for both parties to exercise the option.