In 1989, the FAA issued a notice concerning through the fence operations, explaining how they are to be treated and the manner in which they should be considered. Although the circular is aimed at airports which have received federal grants or expect to receive them in the future, the comments are still valid and can be of value to anyone looking at such possibilities.
Many state agencies fail to take into account the differences between public and private airports in regard to such through the fence operations and as a result private airpark operators sometimes have a hard time explaining the issue adequately.
The FAA circular, order 5190.6A (since replaced by 5190.6B), is reprinted in its entirety:
6-6. AGREEMENTS GRANTING ACCESS TO LANDING AREA FROM ADJACENT PROPERTY (THROUGH-THE-FENCE OPERATOR). There are times when the owner of an airport will enter into an agreement which permits access to the public landing area by aircraft based on land adjacent to, but not a part of, the airport property. In some cases, special taxiways have been built for this purpose. This type of an arrangement has frequently been referred to as a “through-the-fence” operation even though the perimeter fencing may be imaginary. In reviewing a lease or contract which proposes this type of arrangement, the following guidelines should be followed:
1. Rights and duties of the airport owner. The obligation to make an airport available for the use and benefit of the public does not impose any requirement to permit access by aircraft from adjacent property. The existence of such an arrangement could place an encumbrance upon the airport property unless the airport owner retains the legal right to, and in fact does, require the off-site property owner or occupant to conform in all respects to the requirements of any existing or proposed grant agreement.
2. Practical considerations. The owner of an airport is entitled to seek recovery of initial and continuing costs of providing a public use landing area. The development of aeronautical enterprises on land uncontrolled by the owner of the public airport can result in a competitive advantage for the “through-the-fence” operator to the detriment of on airport operators. To equalize this imbalance the airport owner should obtain from any off-base enterprise a fair return for its use of the landing area.
3. Safety considerations. Arrangements that permit aircraft to gain access to a public landing area from off-site properties complicate the control of vehicular and aircraft traffic. Special safety operational requirements may need to be incorporated in the “through-the-fence” agreement.
4. Agency position. As a general principle, FAA will recommend that airport operators 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. Examples include:
1. Where a bonafide airport tenant has already leased a site from the airport owner and has negotiated airfield use privileges, but also desires to move aircraft to and from a hangar or manufacturing plant on adjacent, off-airport property. In this case actual access will be gained through the area provided by the airport owner.
2. Where an individual or corporation, actually residing or doing business on an adjacent tract of land, proposes to gain access to the landing area solely for aircraft use incidental to such residence or business without offering any aeronautical services to the public. This situation is commonly encountered where an industrial airpark is developed in conjunction with the airport.
5. Determinations. The existence of arrangements granting access to a public landing area from off-site locations contrary to FAA recommendations shall be reported to regional Airports divisions with a full statement of the circumstances. If the regional Airports division determines that the existence of such an agreement circumvents the attainment of the public benefit for which the airport was developed, the owner of the airport will be notified that the airport may be in violation of his agreement with the Government.