With the passage of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR-21), Congress required a 30-day public notice and comment period listed in the Federal Register before the waiver of any assurance on an interest of federally obligated airport property.
Tenants should consider the impact a release of airport property through either a sale or long-term lease for non-aeronautical purposes will have on the airport. Concerns and questions over the release of the property should be raised during the comment period. User input is crucial in determining impacts a property release will have on the airport.
A change in use of airport property has the potential to endanger the survival of the airport through incompatible land use, encroachment, safety implications, and loss of revenue, all combining to decrease the viability of the airport. This threat is why it is imperative that all parties involved in this process, including users, are familiar with both the implications of such an action and the procedures that have to be followed. Too often, AOPA has seen development projects on airports that subsequently create a precarious situation for the airport. This occurs when changes to the airport property are made with intentions other than to improve the viability of the airport. Such action thwarts the intent of the federal government when either a surplus property transfers or a grant agreement is executed.
The FAA will consider a change to the Airport Layout Plan (ALP) as long as the action protects, advances, or benefits the public interest in civil aviation. This means that there is a need for the sponsor, users, and the FAA to ascertain the benefit to aviation in real and documented terms. The interests of real-estate developers, businesses, or other non- aviation interests do not take precedence over the aviation interests, especially at a federally obligated airport.
When an airport sponsor requests a property release, the underlying reason needs to clearly lead to a benefit to aviation and the airport. The FAA will address the benefit to aviation according to established statutes, regulations, policies, and, of course, the obligations and grant assurances that are part of the contracts airport sponsors signed with the federal government when receiving AIP funds. The overriding factor is that the land in question cannot have current and/or planned aeronautical uses per the Airport Master Plan and/or Airport Layout Plan. For example, if the airport sponsor was planning another runway in that area, then the FAA may very well not accept the request for release because it conflicts with a planned aeronautical use. Among the other considerations that will be of concern to the FAA are use of revenue derived from the airport and land use that is compatible with the airport.
In many cases, use of airport property for non-aviation revenue-producing activities that provide revenue back to the airport is not necessarily an adverse activity. What is important is that the airport benefits from that activity, usually financially. Federal law, FAA regulations and orders, as well as current policies on revenue diversion, mandate that revenue produced by the sale, disposal, leasing, or any other revenue-producing activity of airport property stay at the airport for aeronautical improvements. This is, of course, an integral part of the "benefit to aviation." The FAA shall assess current versus proposed revenue to determine the highest reasonable return to the airport.
Another issue is that the FAA, as part of the conditions of receiving federal financial assistance, requires the airport owner to take appropriate zoning action to prevent noise and safety problems near the airport (grant assurance number 21). It is important to ensure that any development at or near the airport provides appropriate airport land-use compatibility, which primarily focuses on safety and noise-related issues. Creating land- use compatibility between airports and proposed developments near airports will help protect the airport's future viability.
Airport users are encouraged to provide comments to FAA on a property release. Furthermore, there should be no hesitation in contacting the FAA office publishing the release and asking questions regarding release procedures and seeking guidance from them as well. In determining the impact of a property release at your airport and organizing comments to the FAA, consider some of the following questions.
These actions will ensure that a property release at the airport will in fact benefit the airport, that the land is not needed for future aeronautical activities, and that the proposed usage is compatible with airport operations.
AOPA thanks our members for their continued support in protecting the freedom to fly.