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Part of larger Ogden airport controversy, hangar eviction case reaches federal court

By Mark Shenefelt - | Jan 12, 2022

BEN DORGER, Standard-Examiner file photo

Ogden-Hinckley Airport is seen on Tuesday, Feb. 25, 2020. The city is considering putting the 1940s-built terminal building and tower on local and national historic registers.

OGDEN — In a new stage of legal conflict over Ogden-Hinckley Airport development plans, Ogden City is trying to evict a hangar lessee who is one of 73 tenants suing the city to keep their accommodations.

The escalating struggle pits the city, planning to upgrade the airport to generate more business and shore up the airport’s fiscal viability, against dozens of general aviation airport users who have long held leases to city-owned hangars and feel they are being illegally strong-armed aside.

Last year, the Ogden Regional Airport Association filed suit in U.S. District Court in Salt Lake City alleging that new airport management plans will allow the city to illegally take improvements built into hangars after leases are not renewed. The city countered that the move to require the city to “renew them into perpetuity” would convert the hangars into “permanent fee estates.” The case remains pending.

On Tuesday, attorneys for the hangar owners moved a specific lease eviction case into federal court as well, litigation that could affect other potential eviction actions at the airport.

Ogden City filed an eviction complaint in 2nd District Court on Dec. 21 against Wendy Marsell of Layton, owner of improvements in a hangar. The city said Marsell, one of the larger lawsuit’s plaintiffs, had not complied with a Sept. 8 notice of termination of tenancy and notice to vacate. The city filing said Marsell had not renewed her lease at the end of 2015.

The city said if Marsell does not remove improvements in the hangar they will be considered abandoned. The city said the lease agreements include a clause specifying the city “reserves the right to further improve the airport as it sees fit, regardless of the desires or views of the lessee and without interference or hindrance by the lessee.”

Then, on Tuesday, attorneys representing Marsell and other hangar owners filed a notice to have the city’s state court eviction suit transferred to U.S. District Court in Salt Lake City. In a separate filing, Marsell’s attorney, John E. Keiter, disputed the eviction suit and filed a counterclaim against the city.

He argued the city failed to comply with state law in its handling of the eviction matters and allegedly breached explicit and implied covenants governing the leases. The eviction “amounts to an unlawful taking without just compensation in violation of the Fifth and Fourteenth Amendments,” Keiter wrote.

The pattern of historical use demonstrates that leases for decades were automatically renewed on lessees’ request, he said. “The lease renewals have allowed for hangars to be passed down from generation to generation and in some cases put into family trusts for inheritance,” he said, and agreements provided a right of first refusal to renew at lease’s end.

The eviction challenge further repeated hangar lessees’ contentions that the city’s airport business plans constitute a “plot” to take over all hangars and create a monopoly as well in fuel and ground handling services.

“The city knows that its course of performance in consistently renewing ground leases has caused several hangar owners to invest hundreds of thousands or even millions of dollars into their hangars,” Keiter wrote. “Such an evisceration of property rights is a taking and requires just compensation.”

Marsell’s response also pointed out that a state judge earlier in 2021, citing faulty notices, threw out a separate city attempt to evict Mansell from another hangar.

Other sections of Marsell’s counterclaim accuse the city of bad faith, a lack of fair dealing and breach of contract, and it asks the federal court to issue an injunction barring the evictions. “The injunction is not adverse to the public interest; rather, it is in favor of the public interest because the city is knowingly depriving the rights of its own citizens at large,” the counterclaim said.

A federal magistrate has been assigned to handle initial stages of the eviction dispute.

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