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Not for Sale

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40 Guidebook for Developing and Leasing Airport Property the context of this Guidebook, though the FAA does offer guidance to the airport sponsor in nav- igating environmental policy complexities as they pertain to airport sponsors. This guidance can be found in the following FAA publications: National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions (Order 5050.4B); FAA Environmental Desk Reference for Airport Actions; and Environmental Impacts: Policies and Procedures (Order 1050.1E CHG 1). 3.2.8 Through-the-Fence Agreements A through-the-fence (TTF) agreement is unlike a land or facility lease in that it does not involve airport-owned property. Instead, a TTF agreement authorizes access to the airport from privately- owned property adjacent to the airport. The decision of whether or not to allow TTF access to prop- erty owners is for the airport sponsor to decide, as the airport is not required to grant direct access to adjacent property owners. Both positive and negative examples of TTF agreements can be found. Note that this discussion is directed toward commercial aeronautical application of TTF access. TTF access to residential dwellings, with or without hangars, is discouraged by the FAA and cur- rently under policy review at the time of this writing. The FAA provides guidance on TTF agree- ment in the FAA Airport Compliance Manual (Order 5190.6) and advises against such agreements, but does not forbid them. Specific FAA positions on this subject include: The existence of such an arrangement could place an encumbrance upon the airport property unless the airport owner retains the legal right to access the land. The FAA does counsel the off-airport property owner to conform in all respects to the requirements of any existing or proposed grant agreement(s). The development of aeronautical enterprises on land uncontrolled by the owner of the pub- lic airport can result in a competitive advantage for the TTF operator to the detriment of on-airport operators. Arrangements that permit aircraft to gain access to a public landing area from off-airport properties complicate the control of vehicular and aircraft traffic. This is not to say that an airport should shy away from entering into these agreements; struc- tured properly, a TTF agreement can be beneficial for both the airport and the property owner, and land constraints of the airport sponsor may present solid rationale for a TTF arrangement. The concerns outlined above can be addressed, or at least mitigated, through a well-constructed agreement between both parties. Any TTF agreement should include rates and charges presented to other users, tenants, and operators at the airport and give consideration to the following: Airport expenses for the construction and maintenance of airport infrastructure such as access taxiways, roads, and access gates must be reflected in the access agreement and passed on to the off-airport property owner. Any competitive advantages that the off-airport commercial entity realizes in relation to on-airport tenants should be accounted for in the agreement. Safety concerns should also be addressed within the agreement. These issues and requirements will vary based upon the location and type of activity associated with the TTF application and should be incorporated on an agreement-specific, case-by-case basis. 3.3 Minimum Standards and Rules and Regulations Two important documents for any airport sponsor to adopt and keep updated are Minimum Standards and a set of Rules and Regulations. Minimum Standards set the facility, operational, and functional standards for the provision of aeronautical services, and Rules and Regulations

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Airport Owner/Sponsor Role 41 are the standards for conduct and doing business on airport lands. The combination of these two documents provides clarification on how the airport will do business and helps avoid con- fusion and misunderstanding about tenant activity and business operations. The balance for the airport sponsor is to have these foundational documents in place and that they are stringent enough and set the threshold high enough for the type of services it wants from aviation-related businesses, but not so stringent as to discourage airport development. These documents should ideally be developed prior to concluding a lease, and referenced in the lease agreement as an exhibit, along with language to the effect that Minimum Standards and Rules and Regulations are subject to change from time to time. Since these two foundational documents are living instruments that can change as the airport matures, and a lease may span multiple decades, it's important to both acknowledge and allow for occasional changes. The caution to change is that an increase to standards and rules is much easier than a reduction. If a tenant has made signif- icant investment to meet a set of Minimum Standards, and then the standards are lowered to allow easier access to competitors, the tenant may conclude that the airport handled the lease in bad faith. On the other hand, increasing the standards to make the threshold for entry higher, and then grandfathering the tenant that has already made the investment, generally appeals to the sense of fairness. Both the Minimum Standards and the Rules and Regulations documents should evolve over time, just as the ALP is changed to reflect current conditions and changing ultimate solutions. Regular updates help modify expectations for investment, operation, and service to the aviation public as the airport matures. By way of example, a set of minimum standards that requires a broad range of services for an FBO to provide (line service, avionics, flight instruction, charter operations, airframe and power plant repair) may have been quite acceptable 10 to 20 years ago, but may well preclude a new operator from coming to an airport today. Specialized aviation ser- vices have evolved over that same 10- to 20-year timeframe, so fewer FBOs are equipped for, and fewer markets can support, this broad-brushed FBO model. A more contemporary set of mini- mum standards is likely to list a menu of specialized aviation services and require a specific num- ber of those services be provided in order to meet the minimum standards for an FBO, thereby allowing an operator the flexibility to focus on its own core strengths rather than subsidize below-par services that the operator may be ill-equipped to provide. Maintaining a current Min- imum Standards document will adjust to a changing industry and encourage appropriate air- port development when opportunities present themselves. The two documents should also be synchronized as new or additional leases are developed. All in all, small, justifiable changes are generally more acceptable to the members of an air- port's community than broad, sweeping changes that come after many years. Guidance on developing an Airport Minimum Standards document can be found in the following two publications: FAA Advisory Circular AC 150/5190-7, Minimum Standards for Commercial Aeronautical Activities; and ACRP Report 16: Guidebook for Managing Small Airports. Routinely updating an airport's Rules and Regulations document is equally important. For example, changing insurance requirements may increase the importance of visual inspections and preclude the storage of certain solvents and materials. An airport sponsor may be taxed to include, or even anticipate, the need for specific language that addresses unforeseen issues that may occur in the future. Coordination of such language in all of its leases would be tedious, but an airport sponsor can easily reference its Rules & Regulations in its leases, and that they may be updated from time to time. This approach allows the airport to respond to contemporary issues by simply updating its Regulations and then applying the new requirements consistently to all tenants without rewriting leases.