Port Commissioners Dial Back the Volume on Thru-the-Fence Confrontation

Updated Oct. 29 at 6:50 a.m.

On Thursday, Oct. 22, Port of Orcas Commissioners called a special meeting to discuss the Through-the-Fence issue that has troubled the Port District for years, and has reached a new boiling point, with adjoining land owners considering a lawsuit over the matter.

The Federal Aviation Adminstration (FAA) has informed the Port of Orcas that it must charge Through-the -Fence (TTF) private property owners a fee for access to Port property.

Private property owners adjacent to the airport claim that the Ferris Deed of 1958 guarantees deeded access that “may not be extinguishable without the consent of the deed holders.”

At the special meeting, which filled port offices,  Port Commission Chair Garth Eimers explained that no votes would be taken, that the meeting was more of a workshop, and that the next meeting at which action may be taken is Nov. 12.

Regarding the FAA requirement that the Port develop a policy regarding compensation from adjacent property owners, Eimers said, “New information comes forth at every meeting.” Following a lengthy 80-minute discussion among the Port’s Board and General Manager Bea vonTobel, the board listened to comments from the public.

Eimers said that on Sept. 30, 2009, the FAA issued a new compliance manual that was 691 pages, with about 15 pages devoted to the TTF issue. The public is invited to comment on the manual for the next 90 days.

Past Port Commission Chair Jack Becker, who was not present at the meeting, had been in contact with Aircraft Owners and Pilots Association (AOPA), a not-for-profit individual membership association. AOPA has taken an interest in the Port of Orcas case and is working on the TTF issue nationally.

AOPA has also been a part of the development of the new FAA manual, issued 20 years after the former manual, which has been 94 pages, and devoted 3 pages to the TTF issue.

The manual is available online, and the relevant sections are Sections 16 and 20, regarding airport accessibility and the process for retrieving grant monies if the grant assurances were not fulfilled.

Eimers said that in Section 20 of the manual, “residences on private property adjacent to airports” are defined as “Incompatible uses.” Such residences include hangar homes within the port fence and properties bordering on the airport. Eimers said that the FAA asks for a plan and “evidence that we’re considering the plan in good faith.”

Commissioner Bret Thurman brought up an excerpt from the manual that was repeated many times throughout the evening: “If the airport sponsor does not have authority to control local land use, FAA will not hold the actions of independent land use authorities against the airport sponsor.”

Commissioner Al Edwards asked if a response was required, or if the Port’s response would be seen as a challenge. He suggested that the Port continue its “wait-and-see” policy, and respond to the FAA saying, “We’re happy with the TTF participation.”

Eimers said “It’s unconscionable to kick the can down the road,”  by avoiding the issue once again.

Thurman said, “The problem with delay is it gives us and our neighbors an air of uncertainty.”

He described three recent exceptions allowed by the FAA that appear to be in conflict with their stated policy:

• The Parnell residence attached to a hangar, permitted in 2001
• The Lantec property on the western border of the Port, allowed in 2005
• The Perimeter wildlife fence, ordered to be erected in 2002.

“I’m ready to propose the Port of Orcas go it alone and negotiate with the FAA for release of grant assurances because I don’t see how we can comply; they’re not giving us the ability to make exceptions so we have no tools to comply,” said Thurman.

Commissioner Ulanah McCoy said, “Fighting the FAA is a losing battle; should we spend more time exploring the other options?”

Edwards suggested that the overlay expense may be the next large capital project. The airport pavement is 20 years old and has only had crack sealing done to it. He added that if there is no date for compliance with the FAA plan.

Commissioner Steve Hopkins said that the only options are to comply with the FAA’s policy as stated in the manual, or to refuse to comply and decline the funding the FAA gives the Port (approximately $150,000 non-discretionary funds annually). Hopkins said the commissioners have a responsibility to port district taxpayers and to port users for upkeep. “Things fall apart and where would the money come from?”

McCoy said, “Fighting against things is not productive. We need to figure out our vision and how we’re going to pay for it. Over time, not having the shackles of the FAA will allow non-aviation uses that won’t fall under their regulation.”

Eimers said there were two “watershed decisions” facing the Port Commissioners:

• Whether to disconnect from the FAA or not
• Whether the port has the ability to charge for TTF access at all.

Port Manager Bea vonTobel suggested that the Port write into their plan that it is amenable to continue to receive FAA funding, and that the FAA’s assertion that the adjoining neighbors’ land is an “incompatible use” is “not in their best interest.”

The FAA has consistently notified the port that it is in violation of the grant assurances, but has also issued exemptions to their own policies – “It’s a recipe for a big fat fight,” said Thurman.

Eimers stated that he intends to pursue discussions with FAA experts to get an opinion on disconnecting from the FAA. “If we go down this path [of not responding to the FAA’s requirement for a plan] the next course would be to request relief from the grant assurances.”

McCoy said that if the port district charged the full amount of allowable taxes, they would be able to finance port operations, but there would be no money for capital projects.

The meeting was then opened for public comments.

Paul Vierthaler suggested that the Port would realize more money if donations to the Port were requested rather than fees required. He also suggested that if the Port disengages from the FAA, maintenance costs would be less, as the port could avoid the regulations of federally-funded jobs.

Bob Waunch said, “You’re home free if you read the appropriate section in the new manual: if you can’t control it, you don’t have to be in compliance – that’s their language.”

Eric Gourley said that the FAA’s manual — while its purpose is to promote the general good of the airport and support aviation uses — doesn’t need to be taken verbatim.

“It may not be so easy to disconnect,” Gourley said. He suggested that the Port present a plan to the FAA, noting the part of the regulations that the Port can’t comply with. “It’s difficult to decide the legality with the deed [of adjoining property owners] already granted.”

“Let them say, ‘Your funding may be at risk.’

“There’s a lot of goodwill here, and you’d be very wise to use it. There’s plenty of time to say you don’t want their money.”  Gourley suggested that the Port communicate to the FAA that it needs more clarification on the FAA’s part, particularly about Land Use exceptions.

Vierthaler said that he had spoken to an AOPA official, John Collins, who said that the input and changes for the new manual are still being considered, and that it was “written for places unlike us that don’t have deeded access.” Collin also told Vierthaler that, to his knowledge, the FAA never made anyone pay back grant assurances.

The matter is scheduled for further discussion at the next Port meeting on Nov. 12, at which time the Port’s annual budget will also be voted on for approval.