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 questions regarding

Through-the-fence operations at public use airports. However, since the General Accounting

Office (GAO) released a report1critical 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 use. 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 access to the

airport. Sponsors that do not prevent access from off-airport property are having their federal

grants withheld or denied. If an airport is found be in non-compliance 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 of 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 positives 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 nonaeronautical 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-99-109
corporations, businesses or private parties. These properties are not under 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 defines2Through 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 for 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 addressed very specifically in the FAA

Advisory Circular on Minimum Standards for Commercial Activities3.

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. One 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 for Commercial Aeronautical Activities page 6

section 1.3 Minimum Standards Apply By Activity 1.3a and 1.3b
The second mechanism is through an access agreement. This is a legal document entered into

between the specific parties much like a lease. These agreements contains 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 subject4

“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 guidance5and actively pursue

additional airport land use inspections, the agency has broadened 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 violation 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 back 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 Compliance 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 law6and can be found on the FAA’s web site7.

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 assurances.

8

This is the FAA

Grant Compliance Program. An overview of the FAA Compliance Program can be found on the

agency’s web site9.

Grant Obligations that apply regarding Through The Fence Operations

Of the 39 federal grant assurances, in most cases, the FAA 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 depicted 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 47106(e)

9

http://www.faa.gov/airports_airtraffic/airports/airport_obligations/overview/
landing and takeoff of aircraft. In addition, if the project is for noise 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 incompatibility 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 ruling10 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 residential

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 7711 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 Handbook
h. “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 existing

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 assurances, 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. 16-06-06
However, 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 Agency’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 benefit 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 cost 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 or 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.

There 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

agency’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 Oneida 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. Even 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 acceptable 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 Categories. 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 facilities

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 agreement 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 and 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 Authority
changes 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 AOPA’s Airports and State Advocacy office at 301-695-2200.

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