A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport (2015)

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3 A GUIDE FOR COMPLIANCE WITH GRANT AGREEMENT OBLIGATIONS TO PROVIDE REASONABLE ACCESS TO AN AIP-FUNDED PUBLIC USE GENERAL AVIATION AIRPORT By Kaplan Kirsch and Rockwell LLP and Aviation Management Consulting Group, Inc. I. INTRODUCTION A. Purpose of the Guide The purpose of this Guide is to describe how the Airport Sponsor Assurances and other federal obligations apply to limitations on access at gen- eral aviation (GA) airports. For purposes of this Guide, a limitation on access is any requirement, action, or practice that restricts an aeronautical user’s ability to conduct an aeronautical activity on an airport. In keeping with the goal of the Airport Coop- erative Research Program (ACRP) to conduct ap- plied research, this Guide is intended to be more practical than theoretical. This is accomplished by several means, including: 1) focusing on the prac- tical application of the Airport Sponsor Assur- ances and the means of resolving disputes, in ad- dition to the legal principles; 2) providing Aeronautical Activity Fact Sheets in Appendix A, which contain short summaries concerning the regulation of specific aeronautical activities; and 3) providing a Practical Guide to Leasing Airport Property in Appendix B, which contains a “best practices” approach to the lease and use of airport property. B. Overview of the Subject Area GA airports host a broad range of aeronautical activities. While the dominant activity at most GA airports is the takeoff and landing of fixed-wing aircraft, GA airports accommodate all manner of aircraft (e.g., helicopters, gliders, etc.) and a wide variety of aeronautical activities (e.g., skydiving, banner towing, air shows, etc.). GA airport operators may seek to limit access for a variety of reasons. The primary motivation is often to address a conflict or perceived conflict between or among different aeronautical activi- ties. For example, GA airport operators and pilots at some airports have expressed concerns about the safety and efficiency of on-airport parachute drop zones, banner towing activities, and agricul- tural operations. GA airport operators also may seek to limit ac- cess to address community concerns about the noise and other environmental impacts associated with aeronautical activities. Residents near some airports have complained about the repetitive na- ture of flight training operations and the days and times such operations occur. At other airports, neighbors have complained about the level of noise and air pollution associated with turbine- powered aircraft operations. Some residents in urban areas complain about noise attributable to news helicopters. In resort communities, some neighbors complain about the noise of helicopter and fixed-wing air tours. Although the motives may be clear, the solu- tions often are not. The question of whether a par- ticular aeronautical activity or combination of aeronautical activities are safe or unsafe is com- plex and does not lend itself to simple “yes” or “no” answers. Risk is often measured in probabili- ties and dependent on multiple variables (e.g., climatic conditions, airfield configuration, air- space constraints, etc.). Similarly, there are no simple answers when addressing noise and environmental impacts. While high noise levels, such as those experienced in areas surrounding primary commercial service airports that are large hubs, have been associated with negative health effects, the lower levels of cumulative noise often associated with GA air- ports are more typically associated with annoy- ance and other less tangible effects. Like ques- tions of safety, there is a high degree of subjectivity and often no consensus on whether a “noise problem” exists at a GA airport or can be attributed to a specific aeronautical activity. The regulation of aviation safety and aircraft noise is a shared responsibility among the Federal Aviation Administration (FAA), GA airport opera- tors, and aircraft owners and operators. Courts recognize that the federal government has pre- empted the field of aviation safety, and FAA acts as the “final arbiter” on questions of safety. How- ever, GA airport operators play an important role

4 in maintaining airport safety and addressing local noise and environmental issues. Of the many mechanisms available to GA air- port operators to address safety and noise con- cerns, this Guide will address only two. Specifi- cally, the Guide considers 1) restrictions on aeronautical activities and aircraft operations, and 2) limits on the lease and use of airport prop- erty that amount to limits on access. First, GA airport operators may seek to impose restrictions on aeronautical activities and aircraft operations. Examples of activities that could be restricted include skydiving onto an airport, using the airport for banner towing, and certain flight training activities (e.g., restricting the days of the week and times of day when flight training can occur or restricting specific types of flight training activities such as “touch-and-go”). Restrictions on aircraft operations may include restrictions on certain types of aircraft (e.g., jets) or the time of day when aircraft operations may be conducted. Second, GA airport operators lease property for aeronautical use, including tie-downs, hangars, offices, shops, and vacant land (for development of improvements). A GA airport operator’s leasing and rents and fees policies, and decisions on the lease and use of particular parcels, can have sig- nificant effects on the types and level of aeronau- tical activity occurring at an airport. A GA airport operator’s refusal to negotiate with prospective tenants and the imposition of unreasonable, ir- relevant, or unattainable conditions can amount to a limit on access and could constitute a viola- tion of the Airport Sponsor Assurances. C. Organization of This Guide This Guide is intended to cover the legal and practical application of the Airport Sponsor As- surances and other federal obligations to limits on access at GA airports. Section II provides back- ground information on GA airports and the char- acteristics of limits on access. Section III provides a detailed examination of relevant legal principles and their application to limits on access. This in- cludes an examination of relevant principles un- der the U.S. Constitution, federal law, and the Airport Sponsor Assurances. Section IV examines the practical application of these legal principles, including the role of FAA in considering access limits and the process of resolving disputes. Ap- pendix A contains Aeronautical Activity Fact Sheets, providing a summary of the legal princi- ples applicable to certain aeronautical activities and references for further research. Appendix B contains a Practical Guide to the Lease of Airport Property. D. Summary of Relevant ACRP Publications This publication adds to the extensive and growing body of work published as part of the ACRP. Several topics related to the subject of this Guide are addressed in other publications. The following table identifies, summarizes, and describes the relationship of other ACRP publica- tions and projects. In light of the availability of these resources, this Guide will not attempt to cover the same ground and instead refers readers to these publications for additional information. Table 1. Publication Summary of Content Relationship to This Guide ACRP Legal Research Digest 10: Analysis of Federal Laws, Regulations, and Case Law Regarding Airport Proprietary Rights (Sept. 2010) Legal Research Digest (LRD) 10 details the origin and principles underlying airport proprietary powers, including the power to restrict aeronautical activities. LRD 10 should be consulted as background on the foundational legal principles of this Guide. These principles will be summarized herein, but the content of LRD 10 will not be repeated. ACRP Report 58: Airport Industry Familiarization and Training for Part-Time Airport Policy Makers (Feb. 2012) ACRP 58 provides a summary of the roles and responsibilities of the airport operator in developing, maintaining, and operating airports. ACRP 58 includes ACRP 58 could be provided to help educate part-time airport policy makers about the subject of this Guide.

5 Publication Summary of Content Relationship to This Guide chapters on “What’s Expected of Airport Tenants and Users,” “Complying with Federal Grant Assurances,” and “Alternate Uses and Restrictions of Your Airport.” ACRP Synthesis 41: Conducting Aeronautical Special Events at Airports (May 2013) Synthesis 41 provides practical advice on the steps typically undertaken in planning, organizing, conducting, and returning to normal operations after a special event. The appendices include sample indemnification language and a sample use agreement. Synthesis 41 should be consulted for specific information on planning for and conducting special events. ACRP Legal Research Digest 11: Survey of Minimum Standards: Commercial Aeronautical Activities at Airports (Apr. 2011) LRD 11 explains the role of airport minimum standards in regulating commercial aeronautical activities at airports. LRD 11 should be consulted for further information on the regulation of commercial aeronautical activities. ACRP Legal Research Digest 8: The Right to Self-Fuel (Dec. 2009) LRD 8 details the origin and principles underlying the requirement to allow aircraft owners and operators to fuel their own aircraft. The digest provides citations and summaries of prior FAA and judicial decisions on self-fueling. Most relevant, the digest describes the legal principles applicable to the regulation of self-fueling by airport sponsors. LRD 8 should be consulted for more information on the regulation of self-fueling. ACRP Report 114: Guidebook for Through-the- Fence (TTF) Operations (Sept. 2014) ACRP Report 114 provides a guidebook on the subject of TTF operations, including specific resources and tools designed to help assess, structure, and manage TTF operations. The guidebook can be consulted for more detailed information on the regulation of TTF operations and specific types of associated TTF activities.