Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.” 77 Fed.Reg. 44515, Monday, July 30, 2012. FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports.
The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012. Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions. 77 Fed.Reg. 44516. Sponsors of commercial service airports, however, are treated quite differently.
GA airports must meet the following conditions established by Congress in § 136:
(1) The property owner must pay access charges that the sponsor determines to be comparable to those fees charged to tenants and operators on-airport making similar use of the airport;
(2) The property owner must bear the cost of building and maintaining the infrastructure that the sponsor determines is necessary to provide access to the airfield from property located adjacent to or near the airport;
(3) The property owner must maintain the property for residential, noncommercial use for the duration of the agreement;
(4) The property owner must prohibit access to the airport from other properties through the property of the property owner; and
(5) The property owner must not provide aircraft refueling on the property.
GA airports with existing through-the-fence agreements will be given until September 30, 2013 to establish that their agreements meet the standards set forth in § 136, 77 Fed.Reg. 44517, and will be evaluated on a case by case basis. GA airports proposing new agreements will be asked to establish compliance prior to executing an agreement. Id. This difference arises from FAA’s acknowledgement of the legal enforceability of some forms of “through-the-fence” agreements (e.g., easements in some forms) under state land use law.
The proposed policy is less conclusive, and less tolerant, with respect to commercial service airports. It applies to commercial service airports with existing “through-the-fence” agreements, but continues to prohibit commercial service airports that do not have such agreements from entering into them. See also, Revised Sponsor Grant Assurances, Assurance 5g, 77 Fed.Reg. 22576, April 13, 2012, which clarifies that sponsors of commercial service airports are not permitted to enter into residential through-the-fence arrangements.
In addition to the standards set forth in FMRA § 136, commercial service airports with existing agreements must meet the following standards proposed by FAA:
(1) The sponsor must have sufficient control of access points and operations across airport boundaries to maintain safe operations, and to make changes in airport land use to meet future needs;
(2) By rule, or by agreement with the sponsor, through-the-fence users are obligated to comply with the airport’s rules and standards;
(3) The sponsor can and does collect fees from through-the-fence users comparable to those charged to airport tenants;
(4) Sponsors must be assured that operations at the airport will not be affected by hangars and residences on the airport boundary, at present or in the future;
(5) The potential for noncompatible land use adjacent to the airport boundary must be minimized consistent with Grant Assurance 21, Compatible Land Use.
Finally, the extension of existing “through-the-fence” agreements is held to an even higher standard. Sponsors must ensure not only that the agreement complies with § 136, and, at minimum, Grant Assurances 5 and 21, but also includes, but is not limited to, the following:
(1) The term of the access does not exceed 20 years;
(2) The residential development will not interfere with future airport expansion plans, as submitted in a current Airport Master Plan;
(3) The sponsor will impose and enforce safety and operating rules on through the fence residents utilizing the access while on the airport identical to those imposed on airport tenant and transient users;
(4) Through-the-fence residents will grant the sponsor a perpetual avigation easement for overflight, including unobstructed flight through the airspace necessary for takeoff and landing at the airport;
(5) Through-the-fence residents will waive any right to bring an action against the sponsor for existing and future operations and activities at the airport associated with aircraft noise and emissions;
(6) The sponsor will have a mechanism for ensuring that through-the-fence residents building houses or other structures will file FAA Form 7460-1, Notice of Proposed Construction or Alternation, to comply with FAA’s Part 77 obstruction requirements;
(7) The sponsor has a mechanism for ensuring through-the-fence residents do not create or permit conditions or engage in practices that could result in airport hazards, including wildlife attractants;
(8) Sponsors will impose future limits on the “through-the-fence” properties to aviation related uses such as “hangar homes,” through such mechanisms as zoning or mandatory deed restrictions, where legally tenable;
(9) The access agreement will be subordinate to the sponsor’s current and future grant assurances; and
(10) The sponsor has or will develop a process for educating “through-the-fence” residents about their rights and responsibilities.
Comments on the proposed policy will accepted until August 29, 2012.
** Update: On Tuesday, August 28, 2012, a "Correction" was issued relating to an inadvertent omission in the Addresses paragraph in the Proposed Policy and the comment period has been extended to September 14, 2012 [77 Fed.Reg. 51948-51949].