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45 APPENDIX B: QUESTIONNAIRE RESPONSES Number of Airport Entities Responding: 46. Types of Airport Entities Represented: Municipal (city, county); state; airport authority; airport or special district; joint board or commission; transportation district; port; development authority. States Where Airport Entities Located: Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, South Carolina, Texas, Tennessee, Virginia, Washington, West Virginia, Wisconsin. ************************************************************************************** 1. Does your airport impose a Customer Facility Charge (CFC)? Yes: 34. No: 12. Sample Explanations: CFCs were imposed based on: an airport districtâs agreements with the rental car companies (with no state legislation); a board resolution of the airport authority based on general state rates and charges legis- lation; by agreement between the port and rental car operations after initial authorization in state statute; state legislation; the City Council has delegated authority to the aviation department to set a CFC rate; air- port authority resolution; state enabling legislation and a port ordinance; state legislation and a city ordi- nance were required; adopted by a vote of the airport commission; imposed by county ordinance as a rental car facility charge of $1 per day; imposed by county ordinance; authorization of the airport authorityâs board of directors; enacted by aviation authority ordinance; imposed by city ordinance; airport rates and charges resolution; authorized by a city bond ordinance; set by the state DOT commission. 2. Are your airport operations fully independent from management and oversight by other governmen- tal entities? Yes: 27. No: 18. Mostly: 1. Sample areas in which another entity imposes requirements on the airport: The airport entity is governed by city ordinances. Only the airportâs budget must be approved by the City Council. The city appoints airport authority board members and approves the annual budget. The City Council and Mayor provide oversight of aviation department functions, including budgetary matters. An airport authority board is appointed by county leadership. The City Council approves all contracts over $25,000. The port authorityâs board is the same as the board of county commissioners, and the airport is a dependent special district of the county even though it is a separate legal entity. The airport authority relies on one of its participating municipalities for fire, police, and construction oversight, and its state enabling legislation is somewhat vague. The airport is a city department tied to the cityâs finance, purchasing, and legal departments. The airport is a city agency and its powers are specified in city ordinance; the city council
46 reserves some powers for itself such as bonding, property transactions, and budget approval. The airport is an enterprise fund of a city and county, and the city performs some functions on the airportâs behalf such as issuing bonds. The airport director reports to a county manager, who reports to an elected county board. The airport is subject to state requirements for grants and operating certificates. The state audits the air- port. The airport authority coordinates with the state aeronautics division regarding grant issues and is not subject to local control. The airport authority is established by state statute as an independent special dis- trict. The state transportation commissioner is the chair of the transportation authority that operates the airport, and the state also provides environmental oversight. The airport authority is independent with the exception of selling property or leases longer than 40 years. FAA rules and regulations. 3. Does your airport make use of any type of local tax revenue, such as property taxes, fuel taxes, privi- lege taxes, tourism taxes, etc.? Yes: 9. No: 37. Sample types of tax revenue used: Proceeds from a county-imposed rental car tax. Property tax revenue from a county-wide levy. Property taxes, fuel taxes, and real estate taxes. The airport authority is not yet self sufficient and relies on govern- ment member contributions. Aviation fuel taxes and other fuel tax revenues fund state grants for airport construction. An allocated portion of sales taxes on fuel. Real and personal property taxes involving the county and state. 4. Identify significant land use laws that affect your airportâs operations, and who imposes them? (Please give the specific name and citation of each law). Sample Explanations: Zoning and comprehensive plans and land development regulations, building permits of the city and county. State growth management act and state environmental protection act. The city and county each have land use and zoning authority. The airport authority is exempt from local land use laws. By state stat- ute the airport is excluded from any land use laws such as zoning. Municipal general plans that allow in- compatible use encroachment and potentially restrict trips under a climate action plan, and a state envi- ronmental quality act that allows neighboring cities and residents to potentially functionally veto airport projects. A state environmental policy act and public waterfront act limit the airport authorityâs eminent domain powers near the airport. All land use issues are decided by the airport commission. Helpful height limitation zoning ordinances. The airport uses military airfield facilities on a joint-use basis. Storm water and other regulations. An intergovernmental agreement restricts types of development on airport property. There is a state/county airport land use committee. Federal laws affecting land use, including sovereignty and use of the airspace, structures interfering with air commerce, and grant assurances, as well as local land use laws. 5. Does your airport assert governmental immunity protection when defending tort litigation? Yes: 28. No: 15. Unknown: 3.
47 If your response is âYes,â please describe whether your courts have questioned the application of these laws to your airport, and summarize any significant litigation and the holdings that occurred in recent years. Sample Explanations: It would probably be upheld. Sovereign immunity has limitations. An airport authority does not assert governmental immunity. Governmental immunity has never been questioned with respect to airports within the state. In a recent case the courts determined that an airport authority exercised public and governmen- tal functions for a public purpose and as a matter of public necessity, and the airport authority was a gov- ernmental entity covered by the stateâs tort claims act (the act provides immunity arising from the perform- ance of governmental functions). This state tort act caps damages, but it also provides a limited waiver of the cap to the extent of excess liability insurance purchased (up to the amount of coverage and only for in- sured risks). An administrative law judge for the Federal Maritime Commission recently held that the stateâs 11th Amendment immunity claim was invalid. There is a limited waiver of immunity under state statutes but no issues have arisen; these laws apply to the state, counties, municipalities, and special dis- tricts. In all but one case involving claims for injury or police misconduct the defense was successful; one case involved property damage on a runway and is regarded as an aberration. The airport carries general liability insurance despite immunity provisions. Immunity was recognized in a published case to which the airport authority was a party. The airport prevailed in a recent case applying the governmental immunity law and holding the plaintiff failed to meet notice requirements. The city is not protected by a tort claims immunity statute, but there is unqualified immunity for some governmental actions as well as a statute of limitations and notice requirement. 6. What restrictions, if any, does state law impose on your airportâs procurement practices, whether in connection with land, construction, concessions, or otherwise? Sample Explanations: Procurement policies are required to be materially consistent with state law. All procurement for conces- sions and construction must be bid. State laws apply to supplies and equipment and public works. Bonding requirements are restricted by the state. The state government code and fair political practices act. City pro- curement and land acquisition laws of a home rule city, and state wage and hour laws for construction pro- jects. The airport authority must competitively bid construction under state law and must have its own pro- curement policy for other items. State purchasing laws apply to commodities, services, printing, public construction, and rentals, but no professional service contracts. State laws govern the section of designers for public buildings and construction awards for different delivery methods. The state is the certifying body for Disadvantaged Business Enterprise firms. The state is the airportâs agent for state or federal grants. State nondiscrimination statutes. For leasing, the lease duration correlates to the value of the improve- ments made. No state requirements, only local and federal. State law governs all airport procurement (in- cluding leases). Some bid requirements and impact agreements. 7. Does your airport have the legal authority to award concessions for business activities on airport property that may compete with other businesses in the vicinity? Yes: 44. No: 2. If your response is âYes,â have there been impediments (community and/or political pressure) that pre- vented you from pursuing these concessions? Include in your response whether these impediments continue to exist.
48 Sample Explanations: The high cost of doing business at the airport may impose some impediment, but there have been no other real impediments. A city has imposed a broad living wage ordinance and complex regulatory scheme unique to the airport that could be deemed to have a chilling effect on acquiring competitive concessions. Some po- litical pressure occasionally. Some pressure from off-airport rental car companies complaining that the air- portâs minimum qualifications prevent very small companies from being on the airport (space is con- strained). Concessionaires and contractors who have lost bids have contacted the mayor and city directors; they are usually referred back to airport staff and there is an increase in paperwork to provide justifications. We do not offer facilities that are now available. An intergovernmental agreement is involved in these de- velopments and there are other political pressures. Some political pressures apply but the awarding body awards recommended contracts anyway. Community or political pressure has not prevented the city from pursuing concessions; the city uses an anti-lobbying policy when conducting large procurements to ensure a level playing field. Most political pressure applies only to real estate development activities. (Many respon- dents also answered that they had not experienced political pressure.) 8. Who provides law enforcement officers to your airport? In your response indicate any limitations on the authority of the officers (e.g. lack of full peace officer authority, ability to investigate felonies, presence and type of weapons, etc.) The airport uses the police officers that are not directly under the airportâs control: 20. The airport uses its own police officers: 26. Some limitations include: authority is limited to the airportâs jurisdiction; the county handles investigations and prosecutions; state law is unclear regarding whether the authority may create an independent law enforcement agency and an appropriate adjudication mechanism; officers are security officers only; 9. Has your agency experienced legal issues in recent years involving public access to the airport, or ac- cess for ground transportation vehicles (please describe)? No issues: 38. Some issues: 8. Sample Explanations: Minor issues involving the First Amendment such as lodging, loitering, and protesting on tenant lease- holds. Recent case holding that fees imposed by the authority on bus and other surface transportation enti- ties per trip for stops at the airport did not violate the federal bus statute (49 U.S.C.S. 14505). A past com- plaint that parking garage facilities did not provide access to disabled patrons (the authority entered a settlement agreement and made changes to signage, including posting real-time information on its website about disabled parking). Occasionally disabled passengers are denied access to shuttle bus service due to inadequate bus operator training or lift device malfunction. When the authority decided to require permits and impose fees for some forms of ground transportation (not taxicabs), the providers questioned its author- ity to impose fees (resolved without legal action). An airport authority was sued over rental cars coming onto the airport and not compensating the airport. Three unsuccessful lawsuits were brought by taxi operators challenging an airport authorityâs ability to control commercial access to the airport. An airport entered an intergovernmental agreement to implement a commuter rail project. The Transportation Security Admini- strationâs guidelines have led to stricter rules, which have been passed on to ground transportation. Occa- sional complaints by providers.
49 10. Do you know whether any state or municipal airport-specific laws are currently under consideration for passage or repeal? If your response is âYes,â please describe the law. Yes: 8. No: 38. Sample Explanations: Increased zoning around general aviation airports; updating customer facility charge legislation to allow additional money; an aviation easement that would require additional certification for future building pro- jects to assure height compliance; a transportation finance bill; the aeronautics act is currently under revi- sion; the state is considering removing the state education boardâs oversight of flight schools; new municipal zoning affecting the airport. 11. What issue of state law affecting airports have you been most interested to learn more about from the practices of other states? Sample Explanations: Most respondents answered this question. Issues include land use, airport zoning, the ability to impose taxes, matters taxes on airports, business incentives, airport procurement, CFC implementation, and other issues regarding restrictions placed on airports.