Thru-the-fence agreements questioned again

The ongoing question of "thru-the-fence" operations continues and recently we heard from a Colorado individual who received a negative letter from the FAA in the Northwest Region. Brain Krahmer’s letter follows along with the FAA’s letter. We also have included an FAA circular from 1989 relating to such operations.

It seems obvious that different FAA regions and local offices read and interpret the material in different ways and hopefully we can get an FAA-wide clarification on the issue. We know of several thru-the-fence projects that have been developed on public airports which have received FAA funding. The latest of which we are aware is Sandy’s Farm at the Clermont County Airport in Batavia, Ohio.

Here’s Krahmer’s letter:

I have been recently trying to find a public airport where I could develop a residential airpark. When talking to the city administrator of Buena Vista, CO, I ran into a hitch. He said that his contact at the FAA said that they would not support a residential TTF agreement.

I talked to the FAA, and got the attached information. Unless policy is reversed, this means there will be no more residential airparks allowed at any public airports where FAA funding is involved. I would ask that you make a post on your site regarding this issue.
Brian Krahmer

Letter from FAA to Oregon Airport Commission

Following is the FAA letter to which Krahmer is referring. It was sent to Gerry Meyer, the executive director of the Port of St. Helens, Oregon, and no date is shown on the letter. It reads:

Thank you for the opportunity to clarify the FAA’s policy on residential airpark development. We understand that the Commission is considering a proposal for an off airport residential airpark development with a through-the-fence access on to Scappoose Industrial Airpark.

The FAA is on record opposing the development of residential airparks with through-the-fence access to public-use, federally obligated airports. In fact, FAA has denied future funding to airports that have permitted airfield access from off-airport residential airparks. Such developments can conflict with Title 49 USC-47107(a)(10), Grant Assurance 21, Compatible Land Use and possibly other grant assurances. A federally obligated airport must ensure, to the best of its ability, compatible land use both on and off airport. An airport sponsor will not be successful in defending its airport from incompatible residential development if the sponsor is also promoting residential airparks on or next to the airport. A residential dwelling with an attached hangar is still a residential dwelling and once introduced can lead to additional residential encroachment.

Since 1983, FAA has invested over $4,328,502 in Airport Improvement Program funds to improve and develop the airport as a part of the National Airport System. Residential development adjacent to the airport undermines the federal investment.

FAA does not oppose residential airparks at private use airports. Private use airports are operated for the benefit of the private owners, and the owners are free to make any change to the airport’s operation, including imposing restrictions on aeronautical activity. A public use airport receiving federal financial assistance is different. It operates for the benefit of the public and in no way should become subordinate to the private interests of airpark residents erecting residential structures whose value is tied to the airport. The two interests, public and private, are not compatible in this case.

Finally, and more importantly, if an airport sponsor elects to promote or permit through-the-fence access on to the airport from an off-airport residential airpark, it is possibly jeopardizing receipt of all future Airport Improvement Program (AIP) grant funds. The FAA strongly recommends that the Commission not compromise the future funding of this public asset by permitting through-the-fence access to the proposed residential airpark.

Charles Erhard
Manager, Airports Compliane Division
FAA Office of Airport Safety and Standards
Washington, DC

Finally, here’s the 1989 circular from the FAA:
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, 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.

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