By: Paul Fraidenburgh
Under federal law, airport operators that have accepted federal grants or have obligations contained in property deeds for property transferred under laws such as the Surplus Property Act generally may use airport property only for aviation-related purposes unless otherwise approved by the FAA. Specifically, the Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97–248), as amended and recodified at 49 United States Codes (U.S.C.) 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use. Grant Assurance 22, Economic Nondiscrimination, requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services. Grant Assurance 19, Operation and Maintenance, prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes. In some cases, sponsors who have received property transfers through surplus property and nonsurplus property agreements have similar federal obligations.
With increasing frequency, airports are allowing non-aeronautical storage or uses in hangars intended for aeronautical use, which the FAA has found to interfere with or entirely displace aeronautical use of the hangar. Case in point: Car and Driver has recently featured articles about the superiority of airport hangars as “garages” for serious car enthusiasts. This should be a red flag for airports, which stand to lose significant AIP funds for allowing on-airport hangars to lapse into non-aeronautical use.
There is only one solution to this problem, and it is something every federally-obligated airport should do to protect its AIP funds…
Airports should update their hangar leases (including ground leases) to add terms preventing the tenant from engaging in certain non-aeronautical activities and giving the airport leverage in the event that the tenant shifts away from aeronautical use of the hangar. Conditions to limit non-aeronautical uses and prioritize aeronautical uses should be baked directly into the lease so that the airport can make a good-faith showing that the airport has taken adequate steps to prevent on-airport hangars from lapsing into non-aeronautical use. There are several ways to accomplish this without immediately displacing current hangar tenants, including by negotiating a limited time for the tenant to engage in non-aeronautical uses (which the FAA will permit in certain situations) and by imposing restrictions that will result in early termination of the lease if an aeronautical tenant becomes a non-aeronautical tenant.
Although the FAA allows airport sponsors a degree of flexibility in handling hangar tenants using their hangars for non-aeronautical purposes, airport sponsors should take steps as soon as possible to update their leases so that the airport has the power to remedy this issue when remedial action becomes necessary to comply with federal law and protect AIP funds.
Source: Aviation & Airport Development Law News