On a yearly basis, a significant number of airports ask the Federal Aviation Administration (FAA) for approval to release airport property for non-aeronautical use. If not done properly, such requests, if approved, can have a serious negative impact on the airport. If properly done, the impact on the airport may be positive with all income going to airport improvement projects.
As a result of AOPA's efforts in Congress, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), Public Law 106-181, requires that a 30-day public notice must be provided before the Secretary may waive any condition imposed on an interest in surplus property. In short, FAA, through a notice on the Federal Register, is require by law (AIR-21) to ask users for comments when airport property is being considered for release. Therefore, we urge you to take the time to review the FAA notices posted below in addition to the following lines in order to assess the impact a property release may have on your airport.
A change in use of airport property has the potential to undoubtedly endanger the airport through incompatible land-use, encroachment, safety implications and loss of revenue — all combining to decrease the viability of the airport. This is why it is imperative to ensure 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. Non-aviation changes in the interest of maximizing the short-term use of the airport property, whether political or economic, are allowed to take precedent over the interest of the airport and its future. Such action thwarts the intent of the federal government when either a surplus property transfer or grant agreement was executed.
All airports are an important component of the national airport system. That is the reason why, in many instances, airports receive federal financial assistance in the form of Airport Improvement Program (AIP) grants, surplus or non-surplus property for aviation purposes. This source of federal assistance, when accepted by the airport sponsor, constitutes a contract with the Federal Aviation Administration (FAA) and comes with specific obligations on the part of the airport sponsor. Simply put, the airport has to be used for aviation purposes. The FAA has to approve the sponsor's request for a release or non-aviation usage of the land in question.
In situations such as the one at your airport, 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 in 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 assurances that are part of the contracts airport sponsors signed with the federal government. The overriding factor is that the land in question cannot have current and planned aeronautical uses per the Master Plan and/or ALP. 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 provides 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 "benefit to aviation." The FAA will assess current vs. proposed revenue to determine highest reasonable return to the airport. This means in this particular case that unless airport revenue is generated to the airport by using the acreage in question, the FAA will not accept the proposal. FAA revenue diversion policy does not consent with using airport land for non-aviation use as non-revenue generating land.
Therefore, it is important to review the proposed and attached property release. Other interested parties at the airport should know about this and if users or other parties think that it will not be in the interest of the airport, comments should be provided to FAA before the deadline listed in the notice. Furthermore, there should be no hesitation in contacting FAA and ask questions regarding release procedures and seek guidance from them as well.
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.
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