Port Meeting Sept. 23: FAA Amends Compliance Regulations & Port TTF Fee Proposal on Agenda

This Thursday, the Orcas Island Port Commission will hold a public meeting regarding the Port’s compliance with Federal Aviation Authority FAA regulations — in particular, the possibility that non-compliance with land use restrictions may mean a loss of federal funding.

The FAA, Orcas Port District Commissioners and interested District citizens (among them, Port “neighbors” owning property adjacent to the airport) have been involved in a complex and at times heated debate regarding [intlink id=”5881″ type=”post”]FAA funds and compliance with regulated land use[/intlink] by airport “neighbors.” The lightning rod in the current debate is the Port Commission’s stance on a fee for “Through-the-Fence” (TTF) use, to be paid by the neighbors of adjoining Port property.

As Port Commission Chair Bret Thurman said earlier this month, “The Port has faced a longstanding compliance issue with the FAA regarding TTF access.”

The Sept. 23 meeting at noon will bring Attorneys Frank Chmelik and Matthew Stamps of Chmelik Sitkin & Davis PS to Orcas to address the matter. The issue of a TTF fee and the rights of “Ferris Deed” property-holders will also be addressed at the open meeting.

For the last 18 months, the Port has again taken up the matter of the FAA’s requirement that the Port institute a plan to disallow residential “hangar homes” and to require the TTF access fees.

In the FAA manual of Sept. 30 2009, such homes were described as “incompatible land use.” Those property owners affected by the prohibition have protested the TTF fee, citing the legitimacy of their deeds allowing airport access at no cost and the FAA’s own exceptions to the prohibition. (In the past seven years, the FAA has on least three instances allowed “hangar homes” and other Orcas property development on adjacent land with deeded airport access.)

At the same time, the FAA has provided grant funds to airports such as Orcas, to implement their improvement plans. Now, Port Commissioners are trying to safeguard those grant awards, by assuring the FAA that they will implement a TTF “fee” or “tariff” to insure compliance with FAA policy.

Prior to its Sept. 9 meeting, Port Commission Chair Bret Thurman informed the public, that the FAA has proposed an amendment to the Residential Through-the-Fence [TTF] Policy.

In a regulatory alert issued Sept. 8 by the American Association of Airport Executives (AAAE), “to clarify FAA policy concerning TTF access to a federally obligated airport from adjacent or nearby property, when that property is used as a residence and permits continuation of existing access subject to certain standards … this action also proposes to… prohibit new residential TTF access to a federally obligated airport.”

The Sept. 8 statement from the AAAE goes on to propose modification of Airport Improvement Program (AIP) “to clarify that airport sponsors are prohibited from permitting new TTF access from residential properties.”

At the Sept. 9 regular Port of Orcas meeting, Port Commissioners and their neighbors – nearby property holders – again discussed the Port’s position on a fee. A new resolution by the commissioners was introduced at the meeting, proposing a TTF fee “equal to one-half of the Port’s annual Aircraft Tiedown Fee, as such fee may be amended from time to time,” for “each aircraft that accesses the runway… from adjacent private property.”

At the Sept. 9 meeting, there was much comment about the statement in the AAAE’s Sept. 8 alert which reads, “The FAA will not consider sponsors of …. airports to be in violation of current grant assurances if the airport sponsor meets certain standards for control of airport operations and development; self-sustaining and nondiscriminatory airport rates; and compatible land use.”

Attendees at the Sept. 9 port meeting asked why the commission was proceeding with implementation of a tariff. Eric Gourley asked, “Does the Port want this fee, or does the FAA?”

Thurman said, “In light of the recent documents from the FAA, we feel that some changes will be made to the tariff and resolution, but in large the substance will remain.” He urged interested stakeholders to read the latest revision to the FAA’s requirements, and emphasized that the meeting on Sept. 9 and the meeting with attorneys Frank Chmelik and Matthew Stamps on Sept. 23 would entertain their comments.

Thurman asked the gathering to contact the FAA by Oct. 25, 2010, when the comment period ends. He said, “We’re fairly unique; [we] need the Port to have latitude to decide;  [we] need some language of our specific situation. I encourage everyone to write to the FAA.”

He also encouraged all interested parties to read the FAA directive (FAA-2010-0831-0001), which can be found at www.regulations.gov/search/Regs/home.html Docket Number: FAA-2010-0831 and “make their comments immediately.”