Generating Revenue from Commercial Development On or Adjacent to Airports (2017) / Chapter Skim
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Pages 29-52
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From page 29... ...
29 C h a p t e r 3 Legal Considerations 3.1 Introduction When considering commercial development on or near an airport, legal issues are not necessarily the first thing that comes to mind, nor are they always readily apparent. This is certainly understandable, given that most airport personnel are neither lawyers nor involved in legal issues in their normal day-to-day tasks.
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30 Generating revenue from Commercial Development On or adjacent to airports responsible choice to consider whether the possibility of future grant applications and awards would merit making grant assurance compliance decisions ahead of time. ACRP Project 03 38, "Understanding FAA Grant Assurance Obligations," (currently active)
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From page 31... ...
Legal Considerations 31 3.2 FAA's Airport Compliance Manual and AIP Handbook Under 49 U.S.C. § 47101, et seq., FAA has authority to award federal grants to financially assist with the maintenance and development of public use airports that are considered significant to the national air transportation system, including all commercial service airports, all reliever airports, and selected general aviation airports.
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32 Generating revenue from Commercial Development On or adjacent to airports resolution can be as simple as a phone call by the FAA to the airport to identify the violation and a voluntary adjustment by the airport in response. However, the FAA may take more formal compliance actions if they are warranted.
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Legal Considerations 33 3.3 Airports' Federal Obligations Based on research conducted in the development of ACRP Report 156: Guidebook for Managing Compliance with Federal Regulations: An Integrated Approach, a federally obligated airport may be governed by more than 60 primary and 339 secondary regulations, as well as statutes, executive orders, and Office of Management and Budget (OMB) circulars.
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34 Generating revenue from Commercial Development On or adjacent to airports 3.4 Federal Grant Obligations and Responsibilities As noted in Chapter 2 of this guide, approximately 3,400 public use airports across the United States have either received federal grants or are eligible to receive such grants in the future should the opportunity and need arise. Chapter 4 of FAA's Airport Compliance Manual addresses federal grant obligations and responsibilities.
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Legal Considerations 35 3.5 Federal Obligations from Property Conveyances Chapter 3 of the FAA Airport Compliance Manual addresses transfers of personal and/or real property to airport sponsors. The federal government may transfer (or convey)
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36 Generating revenue from Commercial Development On or adjacent to airports 3.6 Grant Assurances Pursuant to federal law related to airport improvement set out in 49 USC 47101 et seq. and its statutory predecessors, FAA may approve an application for project grants upon a certain showing of the need for a particular project at a public use airport.
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Legal Considerations 37 3.6.2 Assurance 6, Consistency with Local Plans The project is reasonably consistent with plans of public agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport. This assurance recognizes that there are local, state, and regional planning agencies and public investments in areas surrounding the airport and that actions by the airport could have an impact on these surrounding areas.
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38 Generating revenue from Commercial Development On or adjacent to airports times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable federal, state and local agencies for maintenance and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes.
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From page 39... ...
Legal Considerations 39 This grant assurance places the responsibility on the airport sponsor for taking actions, as needed, to restrict incompatible land uses near the airport. The federal government does not have land use authority and cannot regulate land uses around the airport.
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40 Generating revenue from Commercial Development On or adjacent to airports through a specific agreement or by imposing unreasonable standards or taking other actions that have the same effect. One example of such an action would be if an airport allows a single company to lease all of the available development property when it is far in excess of the amount that would be needed by that company, thereby preventing others from doing business at the airport.
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Legal Considerations 41 3.6.12 Assurance 29, Airport Layout Plan Grant Assurance 29, Airport Layout Plan, requires the sponsor to depict the airport's boundaries, including all facilities, and to identify plans for future development on its ALP. An FAA approved ALP (signed and dated)
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42 Generating revenue from Commercial Development On or adjacent to airports 3.7 Lease Agreements As noted through earlier sections, several grant assurances affect the language and provisions that are permissible in a lease agreement between a sponsor and a lessee of airport land. Aeronautical lease agreements are addressed in Chapter 12 of the FAA Airport Compliance Manual.
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Legal Considerations 43 3.8 Buy American Preferences and Other Federal Contract Labor Requirements Although not strictly an assurance, the "Buy American" preferences required under 49 U.S.C. § 50101 require that all steel and manufactured goods used in federally funded projects be produced in the United States.
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44 Generating revenue from Commercial Development On or adjacent to airports 3.9 TTF Agreements and Operations TTF operations are generally defined as the ground movement of aircraft from off airport property to the aircraft operating surfaces of the airport (e.g., runways and taxiways)
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Legal Considerations 45 3.10 Environmental and Mineral Rights Considerations Existing environmental conditions, the timeline for an environmental review or permitting process, or the potential for negative environmental impacts can all contribute to the potential viability of generating revenue from development on or adjacent to the airport. There are legal requirements and potential legal consequences to consider when assessing potential development activity.
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46 Generating revenue from Commercial Development On or adjacent to airports anticipate whether there may need to be any environmental remediation addressed before development may begin. 3.10.3 Noise Airport noise considerations are important to any decisions about commercial development on or near an airport.
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Legal Considerations 47 3.11 An Airport's Consideration of State and Local Law Restrictions The Tenth Amendment to the United States Constitution states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The power to regulate and control land use is a power that is reserved to the states, and within states, is then often given to the local community.
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48 Generating revenue from Commercial Development On or adjacent to airports Design standards are FAA regulations that apply on airport property but may be supported by local land use cooperation if the areas extend off the airport property. On the ground, safety areas (as defined by FAA AC 150/5300 13, Airport Design)
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Legal Considerations 49 3.12 An Airport's Consideration of Potential Liability and Insurance Coverage Airports must make business and fiscal decisions that include consideration of potential liability claims and awards. Liability is always a concern for any business entity, but especially so for government owned and government operated airports, which arguably have a heightened fiduciary duty to protect citizen and taxpayer interests in the financial stability of the municipality.
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50 Generating revenue from Commercial Development On or adjacent to airports 3.13Application of FAA Safety Considerations and TSA Security Requirements to Development FAA is statutorily responsible for the nation's airspace and the safe and efficient use of that airspace. In the exercise of that authority, as pertinent to the development of property on and around the airport, FAA has set certain standards that can restrict development on or in the vicinity of an airport, such as RPZs, noise contours, and height restrictions.
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Legal Considerations 51 3.14 Other ACRP Resources ACRP develops near term, practical solutions to problems faced by airport operators. PDF versions of all ACRP publications are available for free download from https://www.nap.edu/content/the bookstore or from www.trb.org.
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From page 52... ...
52 Generating revenue from Commercial Development On or adjacent to airports 3.15 Summary When considering any commercial development on or near an airport, legal issues are one category among many that can have an impact on development plans and decisions. This chapter is not intended to replace legal counsel; rather, it provides an introduction to a series of topics that may arise in relation to commercial development on or adjacent to public use airports.
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