Airport “Through the Fence” operations and Residential Airparks at Publicly Funded Airports Researched and Authored by Bill Dunn Vice President Local Airport Advocacy

AOPA Over the past several years, members have contacted the Association with ques tions regarding Through

- the

- fence operations at public use airports. However, since the General Accounting Office (GAO) released a report 1 critical of the Federal Aviation Administration’s (FAA) failure to adequately oversee airport land use, the FAA has implemented an active program of conducting land use inspections at obligated airports. With these increased inspections, the FAA has identified (and continues to discover additional) airports that they believe are not following federal guidance on land u se. The Association is currently experiencing an increase in the frequency of issues surrounding land use and through the fence activity at publicly funded airports that are grant obligated to the FAA. Some FAA regions are more aggressive in seeking resolutions to this issue than others and actually prohibiting Through The Fence acc ess to the airport. Sponsors that do not prevent access from off

- airport property are having their fe deral grants withheld or denied
. If an airport is found be in non

- complianc e with federal grant obligations, the FAA will direct the airport sponsor to develop a “corrective action plan” to resolve the issues. Association members are squarely on both sides of this issue. Some favor through the fence access to the airport (most o f those are members who own off

- airport property or existing structures off

- airport) while members who are located on the airport paying the airport’s current rates and charges, do not necessarily favor off

- airport access to the airport since they believe the through the fence operator is not adequately funding the airport; especially in cases with the TTF access is legally deeded with little or no access fee paid to the airport. There can potentially be some po sitives for the airport and members with a properly structured and FAA approved access agreement that provides appropriate financial support to the airport. However, while the FAA does not have legal authority to actually prohibit such uses, the agency has historically “strongly discouraged” through the fence access to a publicly funded airport for a number of reasons specific to federal grant assurances. What is a Through the Fence Operation? Generally speaking, a Through the Fence (TTF) operation is defined by the Federal Aviation Administration (FAA) as any activity or use of real property of an aeronautical or non

aeronautical nature that is located outside (or off) of airport property but has access to the airport’s runway and/or taxiway system. Airport property is property owned by the airport sponsor and shown on an FAA approved Airport Layout Plan (ALP). Through the Fence operations occur from property that is immediately adjacent to the airport but which is owned by

1 GAO Report RCED

- 99

- 109corporations, businesses or private parties. These properties are not und er control in any manner

by the airport sponsor. The FAA views Through the Fence access as a privilege and not a right. Under existing federal law, there is no requirement for a public airport sponsor to provide access to the airport from private property adjacent to the airport. The FAA officially defines 2 Through the Fence as: “ Through

- the

- fence operations are those activities permitted by an airport sponsor through an agreement that permits access to the public landing area by independent entities or operations offering an aeronautical activity or to owners of aircraft based on land adjacent to, but not part of, the airport property. The obligation to make an airport available for the use and benefit of the public does not impose any requirement fo r the airport sponsor to permit ground access by aircraft from adjacent property. ” [emphasis added] Through the Fence applies to PROPERTY and not INDIVIDUALS . Individual activities such as independent aircraft mechanics and flight instructors are addresse d very specifically in the FAA Advisory Circular on Minimum Standards for Commercial Activities 3

. Types of Through the Fence Arrangements There are several different types of through the fence operations. The first is an airpark or residential environment where private parties construct a residence most often with an aircraft hangar and are provided access to the airport infrastructure. The second is a private party or company that owns land next to the airport with access to the airport infrastructure and constructs facilities with the intent of providing commercial aeronautical services to the public that often compete with existing on

- airport businesses. And the third is a business that owns property adjacent to the airport with access to the airport infrastructure but which does not provide any commercial services to the public and whose aircraft use of the airport is incidental to such business. The Agreement Access to the public airport is provided primarily through two different mechanisms. On e is what is referred to as “deeded access.” This means that the adjacent property owner, when purchasing the property was granted a real estate deed that very specifically outlined the property owner’s right to access the airport from his adjacent property. Deeded access is a legal right of passage governed and bound by state laws in the state where the transaction occurred. In some cases, deeded access does not have any fees attached for access to the airport. It is more of a property “right.” Deeded access is also referred to as an easement legally attached to the property deed recorded with local government agencies.

2 Advisory Circular 150/6190

- 7 (8

- 28

- 06)

– Minimum Standards for Commercial Aeronautical Activities, page 14 3 Advisory Circular 150/6190

- 7 (8

- 28

- 06)

– Minimum Standards fo r Commercial Aeronautical Activities page 6 section 1.3 Minimum Standards Apply By Activity 1.3a and 1.3bThe second mechanism is through an access agreement. This is a legal document entered into

between the specific parties much like a le ase. These agreements contain s the terms and conditions associated with granting access to the public airport. Access agreements may or may not have an annual fee associated with granting the access. Since at least 1989, the FAA has actively discouraged through the fence agreements at publicly funded airports. The FAA Order 5190.6A, also known as the Airports Compliance Handbook states as an agency position of the subject 4 “As a general principle, FAA will recommend that airport owners refrain from entering into any agreement which grants access to the public landing area by aircraft normally stored and serviced on adjacent property. Exceptions can be granted on a case

- by

- case basis where operating restrictions ensure safety and equitable compensation for use of the airport.” The FAA’s policy has not changed. What has changed is a mandate from Congress. As the FAA has worked to comply with this Congressional guidance 5 and actively pursue additional airport land use inspections, the agency has broadene d their examination of land use surrounding publicly funded airports past the federal mandate. The FAA has begun to inventory Through The Fence access at airports and identified a number of publicly funded, public use airports that they believe are in vio lation of certain federal grant assurances. The law also requires the FAA to submit a report to Congress annually that lists airports that are not in compliance with these federal grant obligations and the corrective actions planned to bring the airport b ack into compliance with federal grant obligations. This is an issue extremely important to AOPA and the health of public use airports that are supported financially by residential airparks adjacent to the airport. Federal Grant Obligations and the Compli ance Program When the sponsor of an airport that is eligible to receive federal funding under the FAA’s Airport Improvement Program (AIP) accepts federal funding, the airport sponsor is required to execute a contract with the FAA. This contract includes thirty

- nine (39) Grant Assurances

– a series of performance metrics

– that the airport sponsor agrees to abide by in operating the airport. Grant Assurances are codified in federal law 6 and can be found on the FAA’s web site 7

. Major components of the FAA ’s Grant Assurances include the following subject areas:

 Prohibition of exclusive rights
 Use of airport revenue
 Proper maintenance and operation of airport facilities
 Protection of approaches
 Keeping good title of airport property
 Compatible land use
 Availability of fair and reasonable terms without unjust discrimination

4 FAA Order 5190.6A, October 1, 1989 at section 6

- 6 paragraph d

– Agency Position 5 AIR

- 21 (HR 1000) section 737. (Public Law 106

- 181) and codified as USC Title 49 § 47131 6 United States Code (USC) Title 49 § 47107 (a) 7 http://www.faa.gov/airports_airtraffic/airports/aip/grant_assurances/ Adhering to the approved airport layout plan

 Self

- sustainability
 Sale or disposal of Federally acquired property
 Preserving rights and powers
 Using acceptable accounting and record

- keeping systems
 Compliance with civil rights requirements Congress has also provided the FAA with a mandate and the ability to “protect the federal investment” and to ensure that an airport sponsor abides by these assurances through penalties ranging from withholding future grants to implementing legal action through civil actions against the airport sponsor both administratively and in the federal judicial system. The FAA has a statutory mandate to ensure that airport owners comply with these assuranc es. 8 This is the FAA Grant Compliance Program. An overview of the FAA Compliance Program can be found on the agency’s web site 9

. Grant Obligations that apply regarding Through The Fence Operations Of the 39 federal grant assurances, in most cases, the FA A typically focuses on 4 or 5 assurances when reviewing Through The Fence issues. At the same time though, different FAA Regional Airport Division offices are applying varying interpretations of different grant assurances to Through the Fence access issues
. The assurances most often cited generally by the FAA during investigation of Through the Fence access include: Grant Assurance # 5

– Preserving Rights and Powers
a. “It [sponsor] will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in the grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary.” It is important to note that Assurances apply only to property owned and controlled by the airport sponsor as depi cted on the FAA approved Airport Layout Plan (ALP). Off

- airport, Through the Fence facilities do not have the same protections as those who are located on actual airport property. As such, rules, regulations and operating requirements do not apply to TTF operators. In actuality, the airport sponsor has no control or power over those off

- airport properties unless an access agreement has been executed by the parties that provide such control to the airport sponsor. By not having the ability to control TTF operators, the airport sponsor may be viewed by the FAA as having subrogated its responsibility and rights and powers. Grant Assurance #21

– Compatible Land Use “It [sponsor] will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including the

8 See 49 USC § 40101, 40103(c), 40113, 40114, 46101,46104, 46105, 46106, 46110, 47104, 47105(d), 47106(d) and 4710 6(e) 9 http://www.faa.gov/airports_airtraffic/airports/airport_obligations/overview/landing and takeoff of aircraft. In addition, if the project is for noi se compatibility

program implementation, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which federal funds were expended.” Since 1982, the FAA has emphasized the importance of avoiding the encroachment of residential development on public airports, and the Agency has spent more than $1.8 billion in Airport Improvement Program (AIP) funds to address land use incomp atibility issues. A substantial part of that amount was used to buy land and houses and to relocate the residents. The FAA’s policy on compatible land use adjacent to a publicly funded airport was further codified legally in a Part 16 ruling 10 issued January 19, 2007. This Directors Determination, at page 42, ruled: “The FAA generally discourages residential airparks adjacent to airport property because such airparks can create a compatible land use problem, especially with noise compatibility and zoning issues, in the future. Grant assurance 21, Compatible Land Use, requires airport sponsors to take appropriate action, including the adoption of zoning laws, to restrict the use of land adjacent to, or in the immediate vicinity of, the airport to activities and purposes compatible with normal airport operations, including landing and taking off of aircraft. The FAA recognizes residential development adjacent to airport property as an incompatible land use.” The determination went on to state, in relevant part: “In this case, the Respondent not only failed to object to establishing the residential airpark, but also is actively involved in promoting the development. The Respondent made airport property available to the developer of the airpark..... Having resid ential homes adjacent to the airport is an incompatible land use. The Director finds the Respondent is in violation of grant assurance 21, Compatible Land Use, by allowing and promoting the development of a residential airpark adjacent to the airport.” In some cases, the development of residential properties adjacent to the airport actually creates obstructions to the airport and associated Part 77 11 surfaces, airport Runway Protection Zones (RPZ) and Obstacle Free Areas (OFA) as required by the FAA. 12 Such impacts have a potential negative impact on the full utility of the airport as well as creating potential hazards to air navigation. Another thought concerning residential development surrounding a public use airport is that such uses, if approved by an airport sponsor, will make it much more difficult or even impossible for the airport sponsor to reject other proposed residential development surrounding the airport. Those developments may not be “airport friendly” developments. Grant Assurance #22

– Economic Nondiscrimination

10 M. Daniel Carey & Cliff Davenport v. Afton

- Lincoln County Municipal Airport Joint Powers Board Docket No. 16

- 06

- 06 11 14 CFR Part 77.25. Civil airport imaginary surfaces. These surfaces exist to provide an obstruction free environment around an airport. Penetration of these surfaces by an obstruction may adversely affect the airport by reducing usable runway length, increasing instrument approach minima, etc. 12 FAA A/C 150/5300

- 13 Change 10

– Airport Design Handbookh. “The sponsor may establish such reasonable, and not unjustly discriminatory,

conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport.” i. “The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public.” In a number of TTF agreements, the off

- airport operators gain access to the public use airport without paying a fee to the airport for that access. In most cases, the TTF access has been granted by a real estate easement granting the fee

- less access. At the same time, aircraft operators based on the airport property are subject to the airport sponsors rates and charges. Lack of a reasonable fee structure for access to the airport can create economic discrimination against the on

- airport tenants. Off

- airport individuals have an economic advantage in violation of grant assurances. Grant Assurance #24

– Fee and Rental Structure “It will maintain a fee and rental structure for the facilities and services at the airport which will make the airport as self

- sufficient as possible under the circumstances existin g at the particular airport, taking into account such factors as the volume of traffic and economy of collection. No part of the federal share of an airport development, airport planning or noise compatibility project for which a grant made under Title 49, United States Code, the Airport and Airway Improvement Act of 1982, the Federal Airport Act of the Airport and Airway Development Act of 1970 shall be included in the rate basis in establishing fees, rates, and charges for users of that airport.” The Fee and Rental Structure assurance requirement has led to a number of law suits against airport sponsors when the sponsor has attempted to implement access fees for TTF access to a publicly funded airport. While the TTF operators have no right under federal a ssurances, they have brought suit in state courts to prevent implementation of charges for access to the airport

– especially when access was granted to them by real estate deed easements. On airport tenants have often been forced to absorb the costs of these expensive legal proceedings. Portage County, OH and Addison, TX airports are examples. Additionally, in some cases, on airport tenants have brought formal complaints to the FAA under FAR Part 16 since they have had to pay fees that are not levied on TTF operators. 13 Additional assurances may apply in some situations including Assurance# 19

– Operation and Maintenance, Assurance# 20

– Hazard Removal and Mitigation and Assurance #23 relating to Exclusive Rights. The Application of FAA Policy on Through the Fence Operators If an airport is not federally grant obligated

– meaning that past obligations have expired; the airport has never accepted any FAA airport development funding; the airport is not bound by any federal surplus property Quit Claim Deed restrictions

– Through The Fence operations do not fall under the jurisdiction of the FAA in any manner.

13 See FAA Docket No. 16

- 06

- 01 and Docket No. 16

- 06

- 06However, if the public use airport (whether publicly or privately owned) is obligated to federal

grant assurances, then the FAA indeed has legal authority to become involved with the airport sponsor in working to develop a solution that is in the best interest of the airport. The FAA estimates that there are approximately 50 publicly funded, grant obligated public use airport that are affected by the A gency’s policies on Through The Fence operations which covers both residential and commercial developments on property adjacent to the publicly funded airport. In fact, the Agency has indicated on numerous occasions that they are not opposed to residential airparks at private use airports since these airports are operated for the benefit of the private owners. At the same time, the Agency has indicated that a public airport receiving Federal financial support is different because it operated for the benefi t of the general public. The FAA strongly discourages (and as noted previously, some regions outright prohibit) TTF operations because they claim to make it difficult for an airport operator to maintain control of airport operations and allocate airport c ost to all users. TTF arrangements also can complicate the control of vehicular and aircraft traffic. In any event, the local FAA Airport District Office (ADO) with oversight responsibility for the particular airport should be consulted BEFORE any TTF agreement is approved or modified. Negotiated access agreements should, in the eyes of the FAA, be for a finite period of time rather than perpetual in nature; providing the airport with the flexibility to terminate agreements if airport rules, regulations o r policies are not met or unsafe conditions exist. Potential Resolution Strategies to the FAA Policy. First, it is important to understand that there is no federal law, or FAA policy that requires an obligated airport sponsor to allow TTF operations. Th ere are a number of possible solutions which might potentially be implemented to resolve or mitigate FAA concerns. It is important that the FAA play an active role in seeking any resolution regarding off

- airport access to the publicly funded airport. Each identified TTF issue should be negotiated and resolved on an airport by airport basis. One size does not fit all. In July 2009, AOPA wrote to the Acting Associate Administrator of Airport at FAA in Washington, DC strongly encouraging the agency to work closely with airport sponsors and stakeholders while at the same time being flexible in seeking a resolution to the agency’s concerns regarding TTF access. It is important to note that, with the exception of airport revenue use compliance issues, the agen cy’s only recourse when a publicly funded airport is found to be in noncompliance with grant assurances, is to deny future funding to the airport sponsor. 1. Discontinue airport eligibility for receiving federal AIP airport development funding Probably the most effective strategy is to withdraw from the AIP development program. However, at that point, all future development projects will fall squarely on airport tenants, business and TTF operators to fund.This is the case in Oneida County, TN., where O neida County, the airport’s sponsor, is proposing

to develop a high

- end residential component adjacent to the airport with access to a taxiway on the airport. The FAA has advised the county that such a development would jeopardize future federal funding. Instead, the county has chosen to withdraw from the program. However, since grant assurances normally have a 20

- year obligation from the date of the last grant, the agency may not accept this option as a “final” resolution to a current TTF situation. Eve n so, with the exception of the FAA Policy and assurance relative to Revenue Diversion, the agency’s enforcement ability would indeed be limited to refusing future grants. Sand Point, ID also chose to remove the airport from future FAA grant eligibility and maintain their TTF access to the airport. 2. Establish economic uniformity between TTF and On

- airport users All stakeholders on the airport and off airport operators should be involved with the airport sponsor in developing a rates and fee structure ( including an access fee) that brings economic parity to all parties with access to the publicly funded airport. At those airports where no fee is charged for TTF access to the publicly funded airport, work with impacted parties to develop a structure accep table to the FAA. The sponsor of the Portage County Airport attempted to establish comparable fees for TTF operators as those already imposed on on

- airport tenants. The airport’s efforts were met with a series of lawsuits in State court, which upheld the TTF operators “deeded access” to the airport without financial compensation. Thereafter, in order to keep the airport open and solvent, the sponsor implemented a Airport Use Fee based on size of aircraft and number of annual operations broken into two Cat egories. An on airport tenant brought a formal complaint before the FAA claiming economic discrimination. 14 The FAA upheld the validity of the fee as reasonable. 3. Modification of access agreements and/or deeded access easements Modify any existing agreements or easements that provide access to the public airport so that TTF operators are legally bound to follow all airport procedures, rules and policies to include Minimum Standards. The application of a uniform “fee for access” to bring fiscal parity to both on - airport and TTF operators would be a part of these modifications. Additionally, residential property sales should include avigation easements recorded on property deeds named in favor of the airport. 4. Avoid any expansion of TTF access and facil ities The FAA has at times been willing to “accept”, although reluctantly, existing residential airpark developments, as they exist in number and size on a specific date at a publicly funded airport provided that the controlling entity enters into an agre ement with the FAA that will prevent any expansion of the airpark or add additional housing development from being built on the property. At the same time, the FAA will look to the airport sponsor to address any fiscal disparity with on - airport tenants an d to ensure the airport has a level of control of the access. 5. Removal of obstacles If a TTF facility has been deemed an obstacle to air navigation under the Part 77 process, it is likely that the mitigation measure has fallen to the airport in the form of higher traffic patterns,

14 See FAA Docket No. 16

- 05

- 14 R/T

- 182 v Portage County Regional Airport Authoritychanges to traffic pattern flow or direction, or the raising of airport approach minima; sometimes

to a height that may make an IFR approach no better than a VFR day approach. The FAA’s only “legal” recourse in mitigating the impacts of a hazard determination is to penalize the airport. Any off

- airport development should comply fully with the obstruction evaluation process and not pose a safety hazard or hazard to air navigation to other aircraft operating at the airport. 6. A change in federal law covering FAA Grant Assurances. 15 Changes to the FAA grant assurances would likely be met with some significant challenges especially relating to Assurance #21

– Compatible Land Use. If changes were made to allow residential airpark development adjacent to a publicly funded airport, such change would severely hamper or even potentially eliminate the agency’s ability to object to an airport sponsor’s approval of a residential development in close proximity to a public airport that did not have airport access. One of the biggest challenges to public use airports is an airport sponsor’s approval of residential development near an airport. In most cases, when these are constructed, the new residents complain to city and county officials about noise emanating from the airport and call for restriction or curfews at the airport. Another factor to consider is that some states already have statutes on the books that discourage or even prohibit residential development within a certain distance from the airport. Note again that none of this applies IF the public use airport, whether privately or publicly owned, has not accepted federal grant monies or does not intend to seek federal airport development funding. For more information contact AO PA’s Airports and State Advocacy office at 301

- 695

- 2200.

15 United States Code title 49 § 47107 provides the legal basis for FAA Gra nt Assurances