B-108691, JUNE 4, 1952, 31 COMP. GEN. 637

B-108691: Jun 4, 1952

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1952: REFERENCE IS MADE TO YOUR LETTER OF MARCH 19. INSOFAR AS IT RELATES TO WHAT IS REFERRED TO IN A MEMORANDUM DATED MARCH 10. COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER. WHICH WAS DESIGNED AND CONSTRUCTED SO AS TO BE USABLE AS A SWIMMING POOL AS WELL AS FOR THE STORAGE OF WATER FOR FIRE FIGHTING PURPOSES.'. THE ADMINISTRATOR IS AUTHORIZED. FUNDS ARE AVAILABLE FOR PAYMENT OF THE UNITED STATES SHARE OF THE ALLOWABLE PROJECT COSTS. ONLY IF HE IS SATISFIED THAT THE PROJECT WILL CONTRIBUTE TO THE ACCOMPLISHMENT OF THE PURPOSES OF THIS CHAPTER. SHALL TRANSMIT TO THE SPONSOR OR SPONSORS OF THE PROJECT AN OFFER TO PAY THE UNITED STATES SHARE OF THE ALLOWABLE PROJECT COSTS OF SUCH PROJECT. * * * IF AND WHEN ANY SUCH OFFER IS ACCEPTED IN WRITING BY THE SPONSOR OR SPONSORS TO WHICH IT IS MADE.

B-108691, JUNE 4, 1952, 31 COMP. GEN. 637

FEDERAL AIRPORT ACT - GRANTS FOR DEVELOPMENT OF AIRPORTS - CONSTRUCTION OF UNRELATED FACILITIES UNDER THE FEDERAL AIRPORT ACT OF 1946 WHICH PROVIDES FOR "THE ESTABLISHMENT OF A NATION-WIDE SYSTEM OF PUBLIC AIRPORTS ADEQUATE TO MEET THE PRESENT AND FUTURE NEEDS OF CIVIL AERONAUTICS," THE DISCRETION GIVEN THE ADMINISTRATOR, CIVIL AERONAUTICS ADMINISTRATION, TO OBLIGATE THE GOVERNMENT UNDER A GRANT AGREEMENT TO SUPPLY FEDERAL FUNDS ON A MATCHING BASIS FOR CONSTRUCTION OF FACILITIES AT A MUNICIPAL AIRPORT DOES NOT EXTEND TO APPROVAL OF PLANS FOR THE CONSTRUCTION OF A PUBLIC AUDITORIUM, OR A SWIMMING POOL--- AS DISTINGUISHED FROM A RESERVOIR NEEDED FOR FIRE PROTECTION PURPOSES--- SUCH FACILITIES BEARING NO RELATION TO THE PURPOSES OF THE ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JUNE 4, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1952, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE VALIDITY OF A GRANT AGREEMENT, CONTRACT NO. C4CA-5800, EXECUTED UNDER AUTHORITY OF THE FEDERAL AIRPORT ACT, 49 U.S.C.A. 1101-1119, FOR CONSTRUCTION OF CERTAIN FACILITIES AT THE CLAYTON MUNICIPAL AIRPORT, CLAYTON, NEW MEXICO, INSOFAR AS IT RELATES TO WHAT IS REFERRED TO IN A MEMORANDUM DATED MARCH 10, 1952, FROM THE ADMINISTRATOR OF CIVIL AERONAUTICS TO YOU, COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER, AS "THAT PART OF THE ADMINISTRATION BUILDING THAT CONSTITUTES AN AUDITORIUM OR PILOTS' CLUB ROOM" AND "THE FIRE RESERVOIR, WHICH WAS DESIGNED AND CONSTRUCTED SO AS TO BE USABLE AS A SWIMMING POOL AS WELL AS FOR THE STORAGE OF WATER FOR FIRE FIGHTING PURPOSES.'

SECTION 4 OF THE FEDERAL AIRPORT ACT, 60 STAT. 171, PROVIDES AS FOLLOWS:

IN ORDER TO BRING ABOUT, IN CONFORMITY WITH THE NATIONAL AIRPORT PLAN PREPARED AND FROM TIME TO TIME REVISED AS PROVIDED IN THIS CHAPTER, THE ESTABLISHMENT OF A NATION-WIDE SYSTEM OF PUBLIC AIRPORTS ADEQUATE TO MEET THE PRESENT AND FUTURE NEEDS OF CIVIL AERONAUTICS, THE ADMINISTRATOR IS AUTHORIZED, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS MADE THEREFOR BY THE CONGRESS, TO MAKE GRANTS OF FUNDS (ON A MATCHING BASIS) TO SPONSORS FOR AIRPORT DEVELOPMENT AS HEREINAFTER PROVIDED. ( ITALICS SUPPLIED.)

SECTION 9, 60 STAT. 174, 175, PROVIDES:

(A) SUBMISSION.

SUBJECT TO THE PROVISIONS OF SUBSECTIONS (B) AND (C) OF THIS SECTION, ANY PUBLIC AGENCY, OR TWO OR MORE PUBLIC AGENCIES ACTING JOINTLY, MAY SUBMIT TO THE ADMINISTRATOR A PROJECT APPLICATION IN SUCH FORM, AND CONTAINING SUCH SUPPORTING INFORMATION, AS MAY BE PRESCRIBED BY THE ADMINISTRATOR AND SETTING FORTH THE AIRPORT DEVELOPMENT PROPOSED TO BE UNDERTAKEN.

(D) ALL SUCH PROJECTS SHALL BE SUBJECT TO THE APPROVAL OF THE ADMINISTRATOR, WHICH APPROVAL SHALL BE GIVEN ONLY IF, AT THE TIME OF APPROVAL, FUNDS ARE AVAILABLE FOR PAYMENT OF THE UNITED STATES SHARE OF THE ALLOWABLE PROJECT COSTS, AND ONLY IF HE IS SATISFIED THAT THE PROJECT WILL CONTRIBUTE TO THE ACCOMPLISHMENT OF THE PURPOSES OF THIS CHAPTER, * * * ( ITALICS SUPPLIED.)

SECTION 12, 60 STAT. 177, PROVIDES:

UPON APPROVING A PROJECT THE ADMINISTRATOR, ON BEHALF OF THE UNITED STATES, SHALL TRANSMIT TO THE SPONSOR OR SPONSORS OF THE PROJECT AN OFFER TO PAY THE UNITED STATES SHARE OF THE ALLOWABLE PROJECT COSTS OF SUCH PROJECT. * * * IF AND WHEN ANY SUCH OFFER IS ACCEPTED IN WRITING BY THE SPONSOR OR SPONSORS TO WHICH IT IS MADE, SUCH OFFER AND ACCEPTANCE SHALL COMPRISE A GRANT AGREEMENT CONSTITUTING AN OBLIGATION OF THE UNITED STATES AND OF THE SPONSOR OR SPONSORS SO ACCEPTING, * * *

SECTION 13, 60 STAT. 177, PROVIDES:

EXCEPT AS PROVIDED IN SECTION 113 OF THIS TITLE, THE UNITED STATES SHALL NOT PAY, OR BE OBLIGATED TO PAY, FROM AMOUNTS APPROPRIATED TO CARRY OUT THE PROVISIONS OF THIS CHAPTER, ANY PORTION OF A PROJECT COST INCURRED IN CARRYING OUT A PROJECT UNLESS THE ADMINISTRATOR HAS FIRST DETERMINED THAT SUCH COST IS ALLOWABLE. A PROJECT COST SHALL BE ALLOWABLE IF---

(1) IT WAS A NECESSARY COST INCURRED IN ACCOMPLISHING AIRPORT DEVELOPMENT IN CONFORMITY WITH APPROVED PLANS AND SPECIFICATIONS FOR AN APPROVED PROJECT AND WITH THE TERMS AND CONDITIONS OF THE GRANT AGREEMENT ENTERED INTO IN CONNECTION WITH SUCH PROJECT;

(2) IT WAS INCURRED SUBSEQUENT TO THE EXECUTION OF THE GRANT AGREEMENT WITH RESPECT TO THE PROJECT, AND IN CONNECTION WITH AIRPORT DEVELOPMENT ACCOMPLISHED UNDER SUCH PROJECT AFTER THE EXECUTION OF SUCH GRANT AGREEMENT; * * * ( ITALICS SUPPLIED.)

SECTION 14, 60 STAT. 178, PROVIDES:

* * * PAYMENTS UNDER A GRANT AGREEMENT, IN AN AGGREGATE AMOUNT OF NOT TO EXCEED 90 PERCENTUM OF THE UNITED STATES SHARE OF THE TOTAL ESTIMATED ALLOWABLE PROJECT COSTS OF THE PROJECT, MAY BE MADE FROM TIME TO TIME IN ADVANCE OF ACCOMPLISHMENT OF THE AIRPORT DEVELOPMENT TO WHICH SUCH PAYMENTS RELATE, PROVIDED, THAT THE SPONSOR CERTIFY TO THE ADMINISTRATOR THAT THE AGGREGATE OF EXPENDITURES TO BE MADE FROM SUCH ADVANCE PAYMENTS WILL NOT AT ANY TIME EXCEED THE COST OF THE AIRPORT DEVELOPMENT WORK WHICH HAS BEEN PERFORMED UP TO THAT TIME. ( ITALICS SUPPLIED.)

INSOFAR AS IT RELATES TO THE QUESTION HERE INVOLVED," AIRPORT DEVELOPMENT" IS DEFINED IN THE ACT AS "ANY WORK INVOLVED IN CONSTRUCTING, IMPROVING, OR REPAIRING A PUBLIC AIRPORT OR PORTION THEREOF, INCLUDING THE CONSTRUCTION, ALTERATION, AND REPAIR OF AIRPORT ADMINISTRATIVE BUILDINGS * * *.' THE TERM "AIRPORT" IS DEFINED THEREIN AS "ANY AREA OF LAND OR WATER WHICH IS USED, OR INTENDED FOR USE, FOR THE LANDING AND TAKE-OFF OF AIRCRAFT, AND ANY APPURTENANT AREAS WHICH ARE USED, OR INTENDED FOR USE, FOR AIRPORT BUILDINGS OR OTHER AIRPORT FACILITIES OR RIGHTS-OF-WAY, TOGETHER WITH ALL AIRPORT BUILDINGS AND FACILITIES LOCATED THEREON.' ITALICS SUPPLIED.)

THE GRANT AGREEMENT INVOLVED IS SHOWN TO HAVE BEEN CONSUMMATED ON JUNE 29, 1949, BY THE ACCEPTANCE BY THE TOWN OF CLAYTON, NEW MEXICO, OF AN OFFER TRANSMITTED TO IT BY THE ADMINISTRATOR OF CIVIL AERONAUTICS TO PAY ON BEHALF OF THE UNITED STATES 56.90 PERCENT OF ALL ALLOWABLE PROJECT COSTS INCURRED IN DEVELOPING AN AIRPORT AT CLAYTON, WITH THE PROVISION THAT THE MAXIMUM OBLIGATION OF THE UNITED STATES PAYABLE THEREUNDER WAS TO BE $100,000. THE PROJECT IS DESCRIBED IN THE GRANT AGREEMENT AS FOLLOWS:

GRADE NE/1SW RUNWAY, TAXIWAYS AND APRON; CONSTRUCT STABILIZED BASE FOR APRON AND APPROXIMATELY 1000 FEET ON EACH END OF RUNWAYS; CONSTRUCT FIRE RESERVOIR, ADMINISTRATION BUILDING, WATER LINE, POWER LINE AND ACCESS ROAD; TURFING ALL AS MORE PARTICULARLY DESCRIBED IN THE SURVEY MAP AND PLANS AND SPECIFICATIONS INCORPORATED IN THE SAID PROJECT APPLICATION;

IT IS UNDERSTOOD THAT THE ITEMS OF PROJECT COST HERE IN QUESTION ARE SHOWN IN DETAIL IN THE PLANS AND SPECIFICATIONS, REFERRED TO ABOVE.

IN HIS MEMORANDUM OF MARCH 10, 1952, TO YOU, THE ADMINISTRATOR OF CIVIL AERONAUTICS STATES THAT CONSTRUCTION WORK ON THE PROJECT WAS COMMENCED JULY 18, 1949, AND COMPLETED JULY 11, 1950; THAT PARTIAL PAYMENTS HAVE BEEN MADE TO THE SPONSOR BY THE GOVERNMENT FROM TIME TO TIME AS THE WORK PROGRESSED UNTIL PAYMENTS NOW TOTAL APPROXIMATELY 90 PERCENT OF THE GOVERNMENT'S SHARE OF TOTAL ESTIMATED COSTS OF THE PROJECT; AND THAT SPONSOR HAS REQUESTED FINAL PAYMENT, CONSISTING OF THE BALANCE OF THE GOVERNMENT'S SHARE OF THE TOTAL ACTUAL COSTS WHICH ARE FOUND TO BE ALLOWABLE PROJECT COSTS UNDER THE GRANT AGREEMENT AND THE FEDERAL AIRPORT ACT. IT APPEARS FROM INFORMATION OBTAINED INFORMALLY FROM THE CIVIL AERONAUTICS ADMINISTRATION THAT ACTUAL PROJECT COSTS AMOUNTED TO $154,770, OF WHICH AMOUNT $19,000 AT LEAST, REPRESENTED THE COST OF THE SWIMMING POOL AND $66,413 REPRESENTED THE COST OF THE ADMINISTRATION BUILDING; THAT, OF THE LATTER SUM, $37,385 WAS ALLOCABLE TO THE AUDITORIUM; AND THAT THE GOVERNMENT HAS PAID THE SPONSOR $84,269.02 TOWARD LIQUIDATION OF THE GOVERNMENT'S 56.90 PERCENT SHARE OF THE TOTAL ALLOWABLE COSTS.

THE QUESTION WHETHER THE UNITED STATES BECAME BOUND BY THE GRANT AGREEMENT TO BEAR ITS PROPORTIONATE SHARE OF THE COST OF THE ITEMS INVOLVED DEPENDS ON WHETHER SUCH ITEMS CONSTITUTE A TYPE OF FACILITY AS TO WHICH THE ADMINISTRATOR OF CIVIL AERONAUTICS WAS AUTHORIZED TO OBLIGATE THE GOVERNMENT UNDER THE TERMS OF THE FEDERAL AIRPORT ACT. AS INDICATED ABOVE, THE DISCRETION GIVEN TO THE ADMINISTRATOR UNDER THE ACT IS LIMITED TO THE APPROVAL OF ITEMS OF COST OF AIRPORT DEVELOPMENT WHICH WILL, IN HIS OPINION, CONTRIBUTE TO THE PURPOSES OF THE ACT, NAMELY,"THE ESTABLISHMENT OF A NATION-WIDE SYSTEM OF PUBLIC AIRPORTS ADEQUATE TO MEET THE PRESENT AND FUTURE NEEDS OF CIVIL AERONAUTICS.' MOREOVER, THE DEFINITIONS OF THE TERMS "AIRPORT DEVELOPMENT" AND "AIRPORT," AS GIVEN IN THE ACT, SHOW CLEARLY THE TYPES OF FACILITIES FOR WHICH THE STATUTE WAS DESIGNED TO AUTHORIZE FEDERAL AID, NAMELY, FACILITIES WHICH ARE REQUIRED IN CONNECTION WITH THE OPERATION OR PHYSICAL MAINTENANCE OF A PUBLIC AIRPORT AS SUCH.

PHOTOGRAPHS OF THE ITEMS INVOLVED, WHICH WERE FURNISHED TO THIS OFFICE BY THE CIVIL AERONAUTICS ADMINISTRATION, INDICATE THAT THE PART OF THE ADMINISTRATION BUILDING REPRESENTING AN AUDITORIUM IS AT LEAST TWICE AS LARGE AS THE ADMINISTRATION BUILDING PROPER. ALSO, THEY SHOW THE SO- CALLED RESERVOIR TO BE A CONVENTIONAL SWIMMING POOL, WITH SURROUNDING CONCRETE SIDEWALK AND BATHHOUSES. THE RECORD SHOWS THAT IT IS EQUIPPED WITH PUMP AND FIRE-HYDRANT OUTLET SO THAT THE WATER THEREIN COULD BE USED TO SOME EXTENT TO FIGHT FIRE AT THE AIRPORT.

THE RECORD, AS SUPPLEMENTED BY CERTAIN CORRESPONDENCE SUPPLIED BY THE CIVIL AERONAUTICS ADMINISTRATION, SHOWS THAT AT THE TIME THE GRANT AGREEMENT WAS CONSUMMATED THE PLANS CALLED FOR A ROOM IN THE ADMINISTRATION BUILDING OF THE DIMENSIONS 40 X 42 FEET, WHICH IS VARIOUSLY REFERRED TO AS A PILOTS' LOUNGE, CLUB ROOM, OR AUDITORIUM, BUT THAT AN INCREASE IN THE SIZE OF THIS ROOM TO 42 X 100 FEET WAS AUTHORIZED BY MEMORANDUM DATED NOVEMBER 9, 1949, FROM THE DIRECTOR, OFFICE OF AIRPORTS, TO THE REGIONAL ADMINISTRATOR, REGION IV, ON THE BASIS OF THE RECOMMENDATION CONTAINED IN A MEMORANDUM DATED NOVEMBER 4, 1949, FROM THE CHIEF, AIRPORTS DIVISION, REGION IV, TO THE DIRECTOR, OFFICE OF AIRPORTS. SAID MEMORANDUM STATES, WITH RESPECT TO ENLARGEMENT OF THE ROOM, THAT "THERE IS LITTLE DOUBT THAT THE PROPOSED ENLARGED ROOM IS IN FACT AN AUDITORIUM" AND THAT "WE DO FEEL THAT THE PROPOSED CONSTRUCTION WILL HELP PROMOTE COMMUNITY ACTIVITIES AT THE AIRPORT SITE AND IN THIS MANNER INDIRECTLY PROMOTE AVIATION.' ( ITALICS SUPPLIED.) IN THE FINAL INSPECTION REPORT OF THE CIVIL AERONAUTICS ADMINISTRATION IT IS STATED THAT THE CLAYTON MUNICIPAL AIRPORT WOULD BE PROVIDED WITH A VERY PLEASING AND SATISFACTORY FACILITY HOUSING, AMONG OTHER THINGS,"A LARGE CLUB ROOM AVAILABLE FOR MEETINGS OF CIVIC CLUBS * * * PERMITTING SERVING OF DINNERS OR BANQUETS, AND AT THE OPPOSITE END IS A SMALL STAGE WITH DRESSING ROOMS SO THAT ENTERTAINMENT CAN BE PROVIDED IF DESIRED AT MEETINGS HELD IN THE CLUB ROOM.'

THE RECORD FAILS TO SHOW HOW APPROVAL HAPPENED TO BE GIVEN ON NOVEMBER 9, 1949, FOR EXPANSION OF WHAT COULD HAVE BEEN REGARDED AS A PILOTS' LOUNGE INTO AN AUDITORIUM OF THE SIZE SHOWN IN THE PHOTOGRAPHS INASMUCH AS THE REGIONAL ADMINISTRATOR, REGION IV, HAD ADVISED CONGRESSMAN JOHN E. MILES BY LETTER OF NOVEMBER 7, 1949, WITH REFERENCE TO THE MATTER, AS FOLLOWS:

THE IMPROVEMENTS UNDER WAY AT CLAYTON INCLUDE AMONG OTHER THINGS AN ADMINISTRATION BUILDING. ONE OF THE COMPONENT PARTS OF THIS BUILDING IS A COMBINATION CLUB ROOM AND PILOTS' LOUNGE, SIZE 40 FT. X 42 FT. THE LATEST REQUEST OF MR. EDMONDSON AND WHICH WE PRESUME IS THE ONE TO WHICH YOU REFER IS THAT THE LENGTH OF THIS CLUB ROOM BE EXTENDED TO 100 FT. AND THE PLAN MODIFIED SO THAT IT CAN BE USED AS A PUBLIC AUDITORIUM. UNDER THE POLICIES ESTABLISHED BY THE ADMINISTRATOR OF CIVIL AERONAUTICS, A PUBLIC AUDITORIUM IS NOT ELIGIBLE FOR INCLUSION IN A FEDERAL AIRPORT PROJECT. A RESULT, WE HAVE BEEN FORCED TO ADVISE MR. EDMONDSON THAT WE WERE UNABLE TO APPROVE THE MODIFICATION AND ENLARGEMENT OF THE CLUB ROOM IN SUCH A MANNER AS TO PROVIDE AN AUDITORIUM.

AS I STATED ABOVE, WE ARE THOROUGHLY SYMPATHETIC WITH THE OBJECTIVES OF THE CITY IN THIS DEVELOPMENT, FOR WE FEEL THAT AN AIRPORT CAN QUITE PROPERLY BE MADE A SORT OF CIVIC CENTER AND THUS RESULT IN BENEFIT TO ALL OF THE PEOPLE; BUT SINCE IT HAS BEEN DETERMINED THAT CONSTRUCTION OF THE TYPE IMPROVEMENTS HE MENTIONS IS BEYOND THE INTENT OF THE FEDERAL AIRPORT ACT, WE FELT THAT WE HAD NO RECOURSE BUT TO DENY HIS REQUEST. ( ITALICS SUPPLIED.)

HOWEVER, REGARDLESS OF THE REASON FOR THE ABOUT-FACE OF THE CIVIL AERONAUTICS ADMINISTRATION WITH RESPECT TO THE APPROVAL OF THE AUDITORIUM AS AN ALLOWABLE ITEM OF PROJECT COSTS, THE DISCRETION GIVEN TO THE CIVIL AERONAUTICS ADMINISTRATOR UNDER THE FEDERAL AIRPORT ACT MAY NOT PROPERLY BE HELD TO EXTEND TO APPROVAL FOR FEDERAL AID OF FACILITIES WHICH MERELY MAY BE SAID TO ,INDIRECTLY PROMOTE AVIATION.' AS INDICATED ABOVE, THE LANGUAGE OF THE STATUTE COMPELS THE CONCLUSION THAT THE ADMINISTRATOR'S AUTHORITY IN THIS RESPECT IS LIMITED TO APPROVAL FOR FEDERAL AID OF BUILDINGS AND FACILITIES WHICH ARE REQUIRED IN CONNECTION WITH THE OPERATION OR PHYSICAL MAINTENANCE OF A PUBLIC AIRPORT AS SUCH. SINCE THE AUDITORIUM INVOLVED OBVIOUSLY CANNOT BE SAID TO BEAR ANY RELATION TO THE PURPOSES OF THE STATUTE, THE APPROVAL THEREOF BY THE ADMINISTRATOR IS A NULLITY AND DOES NOT OPERATE TO IMPOSE ANY OBLIGATION ON THE UNITED STATES TO BEAR ANY PART OF ITS COST UNDER THE GRANT AGREEMENT. SEE 43 AM. JUR., PUBLIC OFFICERS, SECTION 291; 54 AM. JUR., UNITED STATES, P. 570, SECTION 60; MANHATTAN GENERAL EQUIPMENT CO. V. COMMISSIONER OF INTERNAL REVENUE, 297 U.S. 129, 134; FEDERAL CROP INS. CORP. V. MERRILL, 332 U.S. 380, 384; BRANNAN V. STARK, 82 F.1SUPP. 614, 617, AFF. 185 F.2D 871, AFF. BY THE UNITED STATES SUPREME COURT ON MARCH 3, 1952; ST. PAUL FIRE AND MARINE INS. CO. V. REYNOLDS, 44 F.1SUPP. 863, 866; YOUNG V. JULIAN, 97 F.1SUPP. 370, 376. RELATIVE TO THE SWIMMING POOL, THE RECORD SHOWS THAT THE SUPERINTENDENT, AIRPORTS BRANCH, REGION IV, ADVISED THE CITY MANAGER OF CLAYTON BY LETTER OF JUNE 18, 1948, THAT PRELIMINARY PLANS FOR THE CLAYTON PROJECT SHOULD BE SUBMITTED TO THE DISTRICT AIRPORT ENGINEER AT SANTA FE IN ORDER THAT AN EFFORT MIGHT BE MADE TO OBTAIN A FIRM COMMITMENT FROM WASHINGTON ON THE QUESTIONABLE ITEMS OF COST INCLUDED THEREIN, AND THAT, IN SUPPORT OF THE PROPOSED "SWIMMING POOL," THE CITY MANAGER MIGHT POINT OUT "THE PLAN TO ATTRACT YOUNGSTERS TO THE AIRPARK IN ORDER THAT THEIR INTEREST IN AVIATION WOULD BE STIMULATED, AND YOUR INTENTION TO DEVOTE WHATEVER REVENUES THAT MAY BE RECEIVED FROM THE SWIMMING POOL TO THE OPERATION, MAINTENANCE AND DEVELOPMENT OF THE AIRPARK.'

THE CITY MANAGER, IN A LETTER DATED JULY 26, 1948, TO THE DISTRICT AIRPORT ENGINEER AT SANTA FE, ADVANCED SUBSTANTIALLY THE REASONS SUGGESTED IN THE ABOVE LETTER FOR APPROVING A SWIMMING POOL AS AN ALLOWABLE PROJECT COST AT CLAYTON. HOWEVER, IT APPEARS THAT, AFTER WRITING THE REFERRED-TO LETTER OF JUNE 18, 1948, TO THE CITY MANAGER OF CLAYTON, THE SUPERINTENDENT, AIRPORTS BRANCH, REGION IV, CONCLUDED THAT A SWIMMING POOL SHOULD NOT BE APPROVED, FOR THE ASSISTANT SUPERINTENDENT, AIRPORTS BRANCH, REGION IV, IN A MEMORANDUM DATED AUGUST 25, 1948, ADVISED THE ACTING DISTRICT AIRPORT ENGINEER THAT THERE APPEARED TO BE A QUESTION AS TO THE ELIGIBILITY OF THE COST OF A DEFINITE COMMITMENT BE GIVEN TO THE SPONSOR WITH RESPECT TO THE ELIGIBILITY OF THE ITEM. THE DISTRICT AIRPORT ENGINEER, APPARENTLY ACTING ON THE ADVICE CONTAINED IN SAID MEMORANDUM, ADVISED THE CITY MANAGER OF CLAYTON BY LETTER OF SEPTEMBER 7, 1948, THAT THERE APPEARED TO BE A VERY SERIOUS QUESTION AS TO THE ELIGIBILITY OF THE COST OF A SWIMMING POOL. HE INDICATED THAT THERE WERE PROBABLY TWO COURSES OF ACTION OPEN TO THE SPONSOR, NAMELY, TO CONSTRUCT THE SWIMMING POOL WITH THE SPONSOR'S OWN FUNDS, WITHOUT RECOURSE TO FEDERAL AID, OR TO PROCEED WITH THE DESIGN AND CONSTRUCTION OF THE SWIMMING POOL JUST AS THOUGH IT WERE AN ELIGIBLE FEDERAL AID PROJECT, WITH THE DEFINITE UNDERSTANDING THAT THE " REVIEW COMMITTEE" MIGHT DECIDE THAT SUCH PORTION OF THE PROJECT WAS INELIGIBLE FOR FEDERAL PARTICIPATION.

THE RECORD INDICATES THAT THERE WAS NO FURTHER CORRESPONDENCE RELATING TO THE APPROVAL OF THE SWIMMING POOL BETWEEN THE REGIONAL OFFICE AND THE DISTRICT OFFICE, OR BETWEEN EITHER OF THOSE TWO OFFICES AND THE SPONSOR OR THE WASHINGTON OFFICE OF THE CIVIL AERONAUTICS ADMINISTRATION, UNTIL THREE MONTHS LATER, NAMELY, DECEMBER 6, 1948. ON THAT DATE THE SUPERINTENDENT OF AIRPORTS, REGION IV, ADVISED THE ACTING ASSISTANT ADMINISTRATOR FOR AIRPORTS BY MEMORANDUM THAT THE SPONSOR WAS PREPARING A PROJECT FOR FEDERAL AID WHICH INCLUDED, AMONG OTHER THINGS,"EXTENSION OF A 4 INCH CITY WATER MAIN AT THE AIRPARK ($14,000), 120,000 GALLON WATER RESERVOIR AT THE AIRPARK ($46,000) * * " THE MEMORANDUM REQUESTED A PREDETERMINATION WITH RESPECT TO THE ELIGIBILITY OF THE RESERVOIR, WHICH, IT WAS STATED, WAS CONSIDERED NECESSARY BY THE SPONSOR FOR FIRE-FIGHTING PURPOSES IN ORDER TO HOLD INSURANCE PREMIUMS AT A MINIMUM "WHICH WOULD NOT BE THE CASE IF FIRE PROTECTION IS SOLELY DEPENDENT UPON THE FOUR-INCH WATER MAIN.' ALSO, THE MEMORANDUM STATED THAT IT WAS EXPECTED THAT PROVISION WOULD BE MADE FOR ADEQUATE PUMPING EQUIPMENT TO UTILIZE THE WATER IN THE RESERVOIR; THAT THE RESERVOIR WOULD BE USED AS AN ADJUNCT TO AN IRRIGATION SYSTEM WHICH, ALTHOUGH NOT PROPOSED IN THE INITIAL PROJECT, WOULD BE ESSENTIAL TO THE MAINTENANCE OF ADEQUATE TURF ON THE LANDING STRIPS; THAT THE QUESTION OF ELIGIBILITY AROSE FROM THE FACT THAT THE SPONSOR PROPOSED TO DESIGN THE RESERVOIR IN SUCH A WAY THAT IT MIGHT BE USED FOR A SWIMMING POOL, WHICH WOULD PROVE TO BE A VALUABLE ADJUNCT TO THE PROGRAM FOR FINANCING THE MAINTENANCE AND OPERATION OF THE AIRPORT; THAT THE INSTALLATION OF A WATER MAIN LARGE ENOUGH TO SATISFY THE REQUIREMENTS OF THE BOARD OF FIRE UNDERWRITERS FOR MINIMUM INSURANCE PREMIUMS WOULD PROBABLY COST WELL IN EXCESS OF THE COST OF THE RESERVOIR EVEN IF THE CAPACITY OF THE TOWN OF CLAYTON'S RESERVOIR WAS SUFFICIENT TO FIGHT A MAJOR HANGER FIRE, WHICH WAS DOUBTFUL; AND THAT IN VIEW OF THE FACT THAT THE PLANNED PROGRAM FOR THE STATE OF NEW MEXICO WOULD NOT ABSORB ALL OF THE APPORTIONED FUNDS WHICH WOULD ACCRUE TO THE STATE, IT DID NOT SEEM LIKELY THAT ANY CRITICISM COULD BE DIRECTED AT THE CIVIL AERONAUTICS ADMINISTRATION FOR DECLARING THE RESERVOIR AN ELIGIBLE ITEM OF WORK. ON THE SAME DATE, NAMELY, DECEMBER 6, 1948, THE SUPERINTENDENT, AIRPORTS BRANCH, ADVISED THE DISTRICT AIRPORT ENGINEER BY MEMORANDUM THAT HE WAS SUBMITTING THE QUESTION OF ELIGIBILITY OF THE RESERVOIR TO THE OFFICE OF AIRPORTS IN WASHINGTON, BUT THAT, EVEN IF AN AFFIRMATIVE ANSWER WAS RECEIVED FROM WASHINGTON, THE PROJECT, WHEN SUBMITTED, SHOULD CLEARLY ANSWER CERTAIN QUESTIONS FOR THE RECORD, INCLUDING THE FOLLOWING, TO-WIT, (1) WHY IT WAS NOT POSSIBLE OR PRACTICAL TO INSTALL A WATER LINE TO THE AIRPORT WHICH WOULD MAKE THE RESERVOIR UNNECESSARY; (2) WHAT PENALTIES WOULD OCCUR IN FIRE INSURANCE RATES BECAUSE OF HAVING THE FOUR-INCH WATER LINE IF THE RESERVOIR WERE NOT BUILT; AND (3) TO WHAT EXTENT THE WATER IN THE RESERVOIR WOULD BE USED FOR LANDING AREA IRRIGATION, AND HOW WAS IRRIGATION EXPECTED TO BE ACCOMPLISHED.

BY MEMORANDUM OF JANUARY 6, 1949, THE ASSISTANT ADMINISTRATOR FOR AIRPORTS ADVISED THE REGIONAL ADMINISTRATOR, REGION IV, THAT "WITH RESPECT TO THE RESERVOIR WHICH IS PLANNED FOR FIRE PROTECTION AND IRRIGATION, IT IS BELIEVED THAT SUCH ITEMS IN THIS WORK AS ARE NECESSARY FOR THESE PURPOSES CONSTITUTE AN ELIGIBLE PROJECT; HOWEVER, IT IS SUGGESTED THAT YOU SUBMIT PLANS FOR THIS WORK TOGETHER WITH JUSTIFICATION ON THAT BASIS FOR DETERMINATION OF ITS ELIGIBILITY.' ( ITALICS SUPPLIED.)

THE RECORD INDICATES THAT THE PLANS SHOWING THE "RESERVOIR" WERE NOT SUBMITTED TO WASHINGTON PRIOR TO THE CONSUMMATION OF THE GRANT AGREEMENT, AND THAT THE ONLY "JUSTIFICATION" PRESENTED IN SUPPORT OF THE APPROVAL OF THE "RESERVOIR" AS AN ALLOWABLE PROJECT COST WAS CONTAINED IN A LETTER FROM MR. F. TURNEY, OF THE ENGINEERING FIRM EMPLOYED BY THE SPONSOR TO PERFORM THE ENGINEERING WORK FOR THE PROJECT, TO THE DISTRICT AIRPORT ENGINEER, SANTA FE, NEW MEXICO. SAID LETTER DATED MAY 20, 1949, STATED THAT THE WATER LINE FROM THE SPONSOR'S WATER SYSTEM, WHICH WOULD CONSIST OF A FOUR-INCH PIPE,"WILL BE OF THE TYPE KNOWN AS A "DEAD END," THAT IS, THE SYSTEM IS NOT LOOPED AS IS CUSTOMARY ON ALL MUNICIPAL WATER SYSTEMS," AND SINCE IT WAS NECESSARY TO CUT OFF A SECTION OF LINE IN THE MUNICIPAL SYSTEM WHEN MAKING REPAIRS, CONNECTIONS, ETC., IN CERTAIN PARTS OF THE SYSTEM THERE WOULD BE INTERVALS WHEN THE PROJECT WOULD BE WITHOUT FIRE PROTECTION OF ANY KIND. IN THIS CONNECTION, IT WAS STATED THAT INSURANCE COMPANIES WOULD NOT WRITE THEIR RATES ON THE NORMAL CONDITIONS, BUT ON THE EXTREME CONDITION, OR THAT PERIOD WHEN NO WATER WAS AVAILABLE AT THE AIRPARK, WHICH MADE A STORAGE RESERVOIR MANDATORY ON SUCH TYPE OF SYSTEM. THE LETTER ALSO STATED THAT IN A FOUR-INCH LINE OF A LENGTH IN EXCESS OF 400 FEET THE HYDRAULIC FRICTION CAUSES A LOSS OF WATER FLOW WHICH RESULTS IN SUBNORMAL PRESSURE BEING DELIVERED AT THE HYDRANT, AND, FURTHER, THAT REGARDLESS OF THE SIZE OF THE CONDUIT TO THE PROJECT, THERE WOULD STILL BE PERIODS WHEN IT WOULD BE OUT OF OPERATION DUE TO CUT-OFFS TO MAKE REPAIRS, OTHER CONNECTION, ETC., BY REASON OF THE DEAD-END-FEATURE. WITH RESPECT TO USE OF THE WATER IN THE RESERVOIR FOR IRRIGATION PURPOSES, THE LETTER STATED THAT THERE WOULD BE A SMALL AMOUNT OF WASTE WATER FROM THE RESERVOIR, ENOUGH "ONLY FOR WATERING SHRUBBERY AROUND THE RESERVOIR AND ADMINISTRATION BUILDING.'

IT IS TO BE NOTED THAT THE LETTER CONTAINS NO INFORMATION WITH RESPECT TO THE CAPACITY OF THE SPONSOR'S RESERVOIR, THE COST OF INSTALLATION OF PIPE OF SUFFICIENT SIZE TO PROVIDE AN ADEQUATE FLOW OF WATER FOR NECESSARY FIRE -FIGHTING PURPOSES, AS COMPARED TO THE COST OF THE FOUR-INCH LINE, THE DIFFERENCE IN INSURANCE RATES ON THE FOUR-INCH LINE, OR A DEAD-END LINE OF ADEQUATE SIZE, AS COMPARED TO A LOOP LINE OF FOUR-INCH SIZE OR LARGER, ETC. SUCH INFORMATION WOULD APPEAR TO BE NECESSARY IN ORDER TO DETERMINE WHETHER A RESERVOIR WAS NEEDED FOR THE PROJECT.

THE FACT THAT THE NEED FOR A RESERVOIR WAS NOT ASSERTED UNTIL AFTER THE REGIONAL OFFICIALS OF THE CIVIL AERONAUTICS ADMINISTRATION HAD CONCLUDED THAT A DEFINITE COMMITMENT COULD NOT BE GIVEN TO THE SPONSOR FOR THE CONSTRUCTION OF A SWIMMING POOL, COUPLED WITH THE FACT THAT EVIDENCE OF THE KIND REQUESTED IN THE MEMORANDUM OF DECEMBER 6, 1948, FROM THE SUPERINTENDENT, AIRPORTS BRANCH, TO THE DISTRICT AIRPORT ENGINEER, WAS NOT FURNISHED IN SUPPORT OF THE ASSERTED NEED THEREFOR, INDICATES THAT THE OFFICIALS DIRECTLY CONCERNED WITH THE APPROVAL OF THE "RESERVOIR" MAY NOT HAVE MADE A BONA FIDE DETERMINATION IN CONCLUDING THAT A RESERVOIR WAS NEEDED. AT THE LEAST, THEY APPEAR TO HAVE ACTED WITHOUT HAVING IN MIND THEIR ADMINISTRATIVE RESPONSIBILITIES AND DUTIES UNDER THE STATUTE INVOLVED. IT IS NOTED THAT THE CIVIL AERONAUTICS ADMINISTRATOR HAS TAKEN STEPS TO PREVENT A REPETITION OF WHAT HAS HAPPENED IN THIS CASE.

HOWEVER, WHILE AUTHORITY IN THE ADMINISTRATOR TO APPROVE A RESERVOIR, IF HE FINDS IT NECESSARY AS AN ADJUNCT TO AN AIRPORT, MAY BE IMPLIED UNDER THE FEDERAL AIRPORT ACT, THE AUTHORITY TO APPROVE A SWIMMING POOL ON THE BASIS THAT IT CAN ALSO SERVE AS A RESERVOIR, REGARDLESS OF THE COMPARATIVE COSTS OF THE TWO FACILITIES, MAY NOT BE SO IMPLIED. A SWIMMING POOL COULD NOT MORE BE CONSIDERED AN ITEM OF "AIRPORT DEVELOPMENT" THAN THE AUDITORIUM HERE INVOLVED, AND FOR THE SAME REASONS. IN VIEW THEREOF, YOU ARE ADVISED THAT NO LEGAL BASIS EXISTS FOR PAYMENT UNDER THE GRANT AGREEMENT OF ANY AMOUNT IN EXCESS OF WHAT IS DETERMINED TO BE THE COST OF AN ORDINARY RESERVOIR OF A SIZE AND TYPE ADEQUATE FOR FIRE-PROTECTION PURPOSES AT THE CLAYTON MUNICIPAL AIRPORT.

ACCORDINGLY, SINCE IT APPEARS THAT THE TOWN OF CLAYTON HAS BEEN PAID ALL BUT APPROXIMATELY $3,800 OF THE AMOUNT OF $88,061.13, REPRESENTING 56.90 PERCENT OF THE TOTAL PROJECT COSTS OF $154,770, WHICH, AS INDICATED ABOVE, INCLUDES THE COST OF THE ITEMS INVOLVED, NO FURTHER PAYMENTS SHOULD BE MADE TO THE TOWN UNDER THE GRANT AGREEMENT, AND APPROPRIATE STEPS SHOULD BE TAKEN BY YOUR DEPARTMENT TO COLLECT FROM THE TOWN AN AMOUNT SUFFICIENT TO COVER THE UNAUTHORIZED COSTS HERE INVOLVED.