One of the many benefits offered to participants in the AOPA Legal Services Plan is a one-time annual review and critique of certain aviation documents—in this case, a hangar lease agreement that a LSP participant has been asked to execute. By now we have seen many of them. These leases usually contain a provision limiting what may be stored in the hangar. Often the language is troubling because, read literally, it would bar what hangar lessees normally expect to keep in their hangar.
Airport and fixed-base operators who lease hangars usually are sympathetic to the concern, but they feel that they are required by the FAA to impose such a restriction based on the so-called Glendale case. A few years ago, the FAA found the City of Glendale in violation of an FAA grant agreement by allowing non-aeronautical use of airport hangars for storing nonaviation items. A follow-up letter by the FAA, in an attempt to distinguish items between aeronautical and nonaeronautical uses, became widely circulated and interpreted to require the restrictions in the hangar lease agreements. The Glendale letter has now been downplayed in rulemaking. The FAA now says, “Insofar as that letter suggested that all non-aeronautical items stored in a hangar would constitute a violation of the grant assurances, it applied to a specific situation at a specific airport and does not represent general agency policy.”
A more permanent solution is in sight. In July 2014 the FAA issued a proposed rule titled Policy on the Non-aeronautical Use of Airport Hangars. The policy, if adopted as proposed (or improved as some comments to FAA suggest), should help in the negotiation of more reasonable storage provisions.
Here is a selection of the terms of the proposed policy that should help in the negotiations. “Provided the hangar is used primarily for aeronautical purposes, an airport sponsor may permit limited, non-aeronautical items to be stored in hangars provided the items are incidental to aeronautical use of the hangar and occupy an insignificant amount of hangar space (e.g., a small refrigerator). Generally, items are considered incidental if they: do not interfere with the aeronautical use of the hangar; do not displace the aeronautical contents of the hangar; do not impede access to aircraft or other aeronautical contents of the hangar; do not require a larger hangar than would otherwise be necessary if such items were not present; occupy an insignificant amount of hangar space; [and] are owned by the hangar owner or tenant.” This is useful language. The proposed policy also says that hangars must not be used as a residence, but may be used as a typical pilot resting facility.
Short-term storage of nonoperational aircraft for purposes of maintenance, repair, or refurbishment is allowed as an aeronautical use, but to the chagrin of homebuilders and EAA, not all stages of building an aircraft are aeronautical—only the final assembly of aircraft is considered an aeronautical use. Hopefully, this will be fixed in the final policy (see “What’s In Your Hangar?” page 114).
Some wonder why the FAA is involved in what seemingly is a housekeeping matter within the control of the airport or fixed-base operator that leases hangars. Well, most airports have accepted federal airport aid that carries with it a list of assurances that FAA oversees. Grant Assurance 22 requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services. Grant Assurance 19 prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes. (These same restrictions apply to airports that were declared surplus by the federal government and subsequently turned over to a local government.) What precipitated the problem is that in FAA and GAO airport inspections and audits, it was found that some hangars intended for aircraft storage were used to store non-aeronautical items such as automobiles, motorcycles, recreational vehicles, and large household items, sometimes not sharing space with an aircraft, and all arguably in violation of these assurances.
Now we should be able to look forward to a policy as finally adopted that will lead to more reasonable hangar storage provisions. At the very least, the pesky Glendale precedent has been set aside.
John S. Yodice provides legal counsel for AOPA members through the Pilot Protection Services plan.