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HomeMy WebLinkAbout1987-11-23 88-23 ORDER88-23 Introduced by Councilor Sullivan, November 23, 1987 CITY OF BANGOR (TITLE.) (0rb¢r, Anthorxzxre..Asl? xgac;og to Federal Aviation. acninistration Naleass of Title Restrictions - eanair Industrial Park By the City Cean411 Of as City of8aapor: ORDERED, THAT YAERt:19, by Council Order 86-416, adapted October 27, 1986 the City Council authorized the staff to prepare an application to the Federal Aviation Administration for purposes of releasing certain title restrictions on City- camed ProEerty designated as Eanair Industrial Park; and biE1Nl9, said Council Older requires ttat said application be approved in its final form by the City Council, NTN, THEREFORE, By the City Council Of the City Of Rammer be it CdiPER®, THAT the final foam of said application, a copy, of which is on file in the office of tte City Clerk, is hereby approved; and be it further THAT the City Manager is hereby autborizei and directed to take ull necessary action, including the execution of all necessary, documents, for purposes of filing said application with tne federal Aviation Administration and for purposes of accepting the, release of title restrictions on lots in B nair Industrial Park as described in said application. y In City Council Ibvaober 23,1987 Tabled and to be considered next meeting. worksbw to M Mid c� Ci y Cle IN CITY COUNCIL December 14, 1987 Passed by the following yea and no votes. Councilors voting yes: Cox. England, Frankel, Sawyer. Saxl and Sullivan. Councilors voting no: Blanchette and Tilley. Councilor absent: Shubert) Wv�CLERKKK In City Council Decasher 22,1987 reconsidered and consider special meeting facyndgeor 28,1987 City Cler& r 89E23 OR ER Title, Authorizing AWlicatian to federal Aviation administration releese ...................................... of title Restrictions 13anair Industrial Park In+zodSucednd fried by Councilman In special mating Oar 28,1987 cote for executive session 7 yes 2 no voting yes lgl'ancheMe,Prankel,Sawyer, 3axl,ShuberL Sulliva,gTilley Voting N Consider 2nd meeting January 4' Vote 7 no 2 yes voting Yes Frankel Tilley - Voting No E]anGotte,Cox,England Saxyer,Saxl,Shubert, Sullivan Vote Bor passage 6 yes 3 no Voting yes Cox,England,Sawyer,Saxl,Shubert, Sullivan ping No B1anchette,Tilley., and Fr®ukel �ity CLerx �( r England _ ' Introduced by Councilor wheeler, Ceeaber 27, 1986 E CITY OF BANGOR (TITLE.) @rb2r, Authorizing, Preparation of Application to Federal Aviation_ Administration: Felease of Table Restrictions - Banair Industrial Park By the City Council of as Citi ofBanyoz: ORDERED, THAT WsCsCAB, by deed from the united States of America the City acquired title to most of the lard located within the boundaries of Banair Industrial Park; and VMEFFAS, said -deed restricts the ability of the Qty to convey pareals of land within the Industrial Park W third parties; and isifTwAs, the Qty staff has been advised by representatives of the Federal Aviatim Administration that such restrictims may be released provided the City retains sufficient controls to protect the aeronautical uses of the Airport, and provided that the City establishes approved procedures for the use of revenue fray the sales of such lots to meet future needs at the Airport; and HBERFAB, the Qty Oamcil, by adoption of this order, determirse that the City must -be able to sell lots in Banair Industrial Park in order to insure its complete and proper development, NOW, THEREFORE, By ties City Council of tees City of BanpOr: piddyi B, TnAT the City Msnager is hereby authori MA! and directed to take all necessary action to prepare an application to tba Fsderal Aviation Administration for the release of existing restrictions on the title to the lots within Banair Industrial Park so as W permit their sale to third parties; and be it further oP➢EFEO, 'THAT said application shall not be submitted to the Federal Aviatim Administration until approved in its final form by the City Council. Passed October 27,1986 CRI C16FC5 oRIt2 oANOOR. .MAIM NOV 241987 A P:o, cor, nnan, Attachment "B" _'•[P'fYC�� (6i1g Bf ALartgpr, NT LEGAL Poben E. Miller city Solicitor tv—a% a -t by - P9 C.t✓7 G..,G Memo To: mange City Council Subject; Banair Industrial Park - Sale of lots Since the last Council meeting, Councilors Cox, Saxl and Tilley have requested crnment from our office relative to two principal issues relating to Banair Industrial Park: (S) The legal status of the process for applying to the FM for permission to sell lots in the subdivision; and (2) N+nefher funds derived fron the sale of lots may be applied to costs incurred by the City for the development of roads, sewers, etc. I have reviewed information on the issues available in our office and the Airlwrt. I also attempted to obtain guidance fran the FAA on the second issue, zemy , but was unable to talk with anyone authorized to answer questions. Its following is based upon my review to date. Pamir Industrial Park is located on property acquired by the City frau the united States Caverrcnent. under the terns of the transfer documents, the City does not have authority to convey it to any third party without the FM's permission. According to information provided by the Planning Office, 6 lots consisting of the front portion of Banair Industrial Park were approved by the Planning Coard on October 21, 1985. line subdivision was finally approved by the City Council on October 28, 1985. Mo other changes were made to the subdivision plan until this past Spring. On May 18, 1987, the Planning Board approved an arsenal to the subdivision plan providing for an additional 4 lots. on May 27, 1987, this amendment was approved by the City Council. formal action to initiate an application to the FPA was caumenced to the Fall, 1986. on October 8, 1986, the Airport Cannittee considered the possibility of leasing 2 lots in Banair Industrial Park to 4Ybber Oil Company. Minutes of the meeting indicate that questions arose as to the policy for selling lots in the subdivision. A copy of the Carnmittee'a Minutes of that meeting is enclosed. Attaciment W. -2 - On October 17, 1986, the Committee discussed specifically the question of sale of lots in the sanair Industrial Park. upon Completion of their deliberations, the Committee voted tO direct me to prepare an order for City Council approval for the authorization of City staff to formally apply to the FPA for the necessary releases and permission to have existing encumbrances on the City's title released. Me Committee also directed the staff to give then an opportunity to review the proposed order at their October 21st meeting (See Attachment "e")e on cctchm r 21, 1986, the Committee reviewed the proposed order, made sane changes, and ultimately approved the order in its current form. (See Attachment "C") The full Council considered the item (Council order 06-416) at its October 27, 1986 meeting. (See Attachment "B") As you Can see from a transcript of the discussion prepared by my secretary, there was no debate on the item, and the vote for approval was unanimous. (See Attachment "E") The Council's intent in adopting Council Order 86-416 can be determined by the plain meaning Of the language contained therein. The Council authorized the preparation of the necessary application to FAA ". . . so as to permit their (the Panair Industrial Park lots) sale t0 third parties. The Order also reserved the right in the Council to approve the final form of the application in my view, the general "policy decision" to sell lots in the Park was made at the time Council Order 86-416 was adopted. In my view, the Only remaining issue for further Council action was the manner in which the policy decision was to ea implemented. net is the purposeof the proposal presently before the Council. if the Council wishes to change or repeal its prior policy decision, it may do. so by taking action to repeal Council Order 86-416. In order for such action to be taken, there must be notice at a meeting prior W the meeting in which the action is taken. The procedure for repeal of previously adopted council orders is outlined in Chapter I, Article 3, Section 13, Bangor City Ordinances. If repeal of the Council Order i contemplated, the Council should consider carefully the potential impact of such a decision On the project. We c um currently have tleases granting options to purchase in the event such PAA approval is received. Other questions relate to the practical impact on prospective developers. nose are questions and issues that must be addressed to others. Attached to this Memo (Attachment "P") are photocopies of materials published by the FAA for purposes of obtaining release of such restrictions onairport land. A review of the provisions indicates clearly that the process i somewhat cmplicated, and we are not guaranteed that such permission will ever be granted. Me first consideration for the FAA will be a determination as to whether Che property iquestion is needed for future aeronautical purposes. Fd ScMeon has previously indicated that there has been informal discussions with FPA administrative personnel On this issue. It i currently believed that they will agree that this laM has no prospective aeronautical use. -3 - no next step is for the FA4 to consider what restrictions to impose on the property if it isreleased. A list of the encumnbrance.s that must be included is found anpages 118-119 of Attaciment "F". Another issue is a determination of an appropriate use of the sales proceeds. Under the terns of the Compliance manual, "if the release action requested will permit a sale or other disposition of airport property, FAA consent may require an owner to commit himself to reimburse the United States for federal funds expended, or to apply the net proceeds of a sale at fair market value for maintenance, operation, improvement o development of a public airport." Obviously the first possibility is not in our financial interest. Therefore, in order for the project to he successful, we must obtain FAA approval for a plan which meets the second criteria: to wit, a program for the "maintenance, operation, improvement or development of a public airport (BIA)." (See Attachment "F", W. 115-129a). .Incorporated in the pending item is a program for the use of proceeds from the sale. IdninistIatively, Ed McKeon has made a determination that the proposed program for the use of the proceeds meets the regulatory criteria. It is my recollection that there have been telephone conversations with representatives of the FAA indicating, informally, that the proposed program in its present form would likely he approved. Councilor Tilley's proposal calls for a modification of the proposed program. Under Mr. MCKeon's proposal, it is a joint development effort by the City and the Airport. The Airport provides the land, the City - prwides the public imprwements. In return, the Airport obtains the ability to use the proceeds within the meaning of the applicable regulations, and the City obtains the ability to tax the increased value of real estate within the subdivision. Councilor Tilley has proposed that the Airport assume a greater financial burden in the development. In addition to the lard, his proposal calls for the Airport to assume the cost of providing the public Improvements. The City would continue to receive the tax benefits drain the development. In my view, such modification canes within the regulatory standards. 'Io adopt such a change would mean an amendment to the proposal currently before the Council. Whether the proposal makes economic sense is another question that must he answered by others. Please call me if you have any questions. Enclosures cc: Tan Small Pate D'Errico Ed McKeon R.E.M. AIRPORT COMMITTEE MEETING A meeting of the Bangor City Council Airport Committee was held on Wednesday, October 8, 1986 at 3 P.M. at the Economic Development Conference Room. Present were. Harold Wheeler, Chairman Edgar Brown Arthur Tilley Edward McKeon Peter D'Errico Item it - Option to lease BANAIR Lots 95 and £17. Economic Development Director, Edward McKeon, informed the Committee. that Webber Oil Company would liketo construct a 17,000 sq£t. facility on Lots $5 and 817 and is requesting a 6 -month option in order to do preliminary planning. The discussion centered on provisions in the BANAIR Industrial Park leases relative to options to purchase. The Committee wanted to continue this discussion in order to get a more complete report on the policy of selling these lots and voted to table this matter until their next meeting. Item 02 Kelco Industries Lease Renewal. Mr. McKeon informed the Committee that Nolan Industries leases space in Hangar 115 and they have informed us they will, exercise their present option to lease and asking that the option period be extended from 9/1/88 to 12/31/90 and that the rental rate of $711.60 be continued for the extension period. Mr. McKeon and Mr. O'ErriCO are recommending that the Committee approve this request. Mr. McKeon explained there is no heat in the hangar and this company has made improvements to the hangar and maintained the restroom facilities. The Committee unanimously approved this lease renewal. Attanseant "A" (Minutes Continued) 2 Item #3 - Land Rental Review. This matter was tabled and to be discussed at the next Committee meeting. Item #4 - Bangor Datsun Sign Change. Mr. D'Errico reviewed Mr. Darling's letter of August 18th with the Committee and explained that Bangor Datsun is requesting a third sign on their premises which requires Committee approval. Mr. Darling, representing Bangor Datsun, attended this meeting and stated that this is a wall sign and costly to erect. The Committee unanimously recommended approval of this sign to the Code Enforcement Office which will then be presented to the Sign Review Committee for their approval. Meeting adjourned at 4:05 P.M. L coKie AIRPORT COMMITTEE MEETING A meeting, of the Bangor City Council Airport Committee was held on Friday, October 17, 1986 at 2 P.M. at the Economic Development Conference Room. Present were: Harold Wheeler, Chairman Arthur Tilley Edgar Brown Edward McKeon Robert Miller Sohn Flynn Peter D'Errico Item rl - Sale of BANAIR Industrial Park (Airport) Land. This agenda item was discussed and tabled at the meeting held on Wednesday, October 8th. The Committee discussed this sale of lots in the BANAIR Industrial Park at length and Mr. Wheeler made the motion, seconded by Mr. Brown that the City Attorney, Robert Miller, prepare an order for City Council approval for authorization for the city staff to formally apply to the FAA for necessary releases and permission to have existing encumbrances to the city's title released in the BANAIR Park for the ultimate sale of these parcels to current and future tenants. Mr. Tilley voted against this motion. This City Council order is to be reviewed by the Airport Committee at its meeting on Tuesday, October 21st before submitting it to the City Council. Item A2 - BANAIR Sewer Road Assessments. Mr. McKeon distributed for the Committee t0 review, estimated Costs for road and sewer assessments in the BANAIR sub -division as well as a list of figures for leased lots in the BANAIR Industrial Park and suggested value and rental figures. Items 93, 49, and 46 - tabled until the next meeting which is scheduled for Tuesday, October 21st at 3 P.M. - Attachment "B" t(Minutes continued) Item 95 - Aerofusion Assignment. Mr. McKeon explained to the Committee that Larry Maul of Aerofusion leases hangar space inthe 9600 Area. In Order for Mr. Maul t0 obtain an SBA guaranteed loan for his business, SBA requires an assignment of that lease to the bank as part of the financing. Should lir. Maul default on payment to the bank, the bank may retain the lease and would seek a new tenant for this hangar under the same terms and conditions. Mr. Tilley made a motion and Mr. Brown seconded the motion for the assignment of the Aerofusion lease with the conditions satisfactory to the City Attorney that are worked out with the bank. Meeting adjourned at 3:95 P.M. PSA A meeting of the Bangor City Council Airport Committee was held on Tuesday, October 21, 1986 at 3 P.M. at the Economic Development Conference Room. Present were. Harold wheeler, Chairman Arthur Tilley Edgar Brown Edward.Mc%eon Robert Miller John Flynn Peter D'Errico Item Al Sale of BANAIR Industrial Park (Airport) Land. This item has been discussed at two previous meetings. Today the draft of a Council Order authorizing the preparation of application to the Federal Aviation Administration for release of title restrictions in the BANAIR. Industrial Park was presented by Attorney Robert Miller for review before being presented to the full City Council for approval. The Committee discussed certain language in the Order with some minor changes and Mr. Brown made a motion that this Council Order be approved for Council action and it was seconded by Mr. Tilley. The vote was unanimously approved. Items A2 and d9 - BANAIR Sewer Road Assessments and Set Lease Cost Per Lot for BANAIR Industrial Park. The Committee discussed a schedule of BANAIR lot values and lease costs submitted by Mr. Edward McKeon, Economic Development Director, an item agenda continued from the previous meeting. After reviewing the values and discussing the presentation by'the Economic Development Director, of the background in arriving at the market values, the Committee Attachment "C" •'�.t (Minutes continued) 2 approved the list schedule as presented. As part of the discussion, Mr. McKeon presented a schedule of estimated assessments for roads and sewers against the BANAIR lots if such assessments are to be levied by the city; these estimates were prepared by the City Engineering Department. The estimates were discussed in relation to their impact on the market price of the lots and total income to .the airport as opposed to a policy of the assessments not being levied on these lots. No action was required by the Committee on the assessments but was for informational purposes only at this time. Item R3 - Option to lease BANAIR Lots YS and W was tabled Item "-Revised L Cost MPH! I d t S l Pak ( St Grlffln Road). This agenda Item was previously tabled at the October 8th and 17th meetings. Mr. McKeon distributed a revision Of lease prices for the Griffin Road/Union Street sub -division area and explained that this is a revision upwards in value and is sub- mitting this for approval in order to negotiate certain parcels. He informed the Comittee that he has two different interested parties in this sub -division and will need approval shortly on these figures. He said the increased annual rental per acre value averages approximately 11 percent. The Committee unanimously gave the "go-ahead" to Mr. McKeon to proceed to negotiate with these figures. Meeting adjourned at 4:10 P.M. EVoK-0k CITY COUNCIL Cctober 27, 1906 Councilors Present: Brown, Cox, Frankel, Lebowitz, McCarthy, Sullivan, Tilley, Wheeler and Willey. (New business) City Clerk: 86-416 Order authorizing preparation of application to Federal Aviation Adninistration release of the title restrictions Bareir Industrial Park. Councilor Wheeler. Councilor Wheeler: Mr. Chairman, I move for passage of Council Order 86-416. Councilor Willey: Second. cbairman Frankel: Mavnd and seconded that Council Order 86-416 have passage. Its a vote =law doubled. Its a vote. City Clerk: 86-417 . . . . Attachment 'B" ]/6/)6 5190.6 CH 1 j SECTION 2. PROCEDURES 115. DOCUMENTATION. a General ,ramsProcedures.FAA consent [ release, represents ref - creation, o madmen[ of an airport agreement xep[e eats s material alteration ofan Impowhich tantaffects contractual relationship benefits to is governed by statutes and oniof affects [he measure Of lcases, [O the public from the operation Of a civil eFAAC. In all c icM1 consent should be fully documented. The FAA Airpo field aofficn con, yali- e files shall contain an original summary memorandum on ch consent which:. (1) digests all the facts and circumstances presented by the owner supporting and justifying the requested I" action, (2) specifies all the conclusive determinations made by the FAA based on the facts and circumstances, and (3) is endorsed by the FAA official authorized to grant the request. b. Owner Requests Any release, modification, reformation or amendment of anairport agreement must be based O writtenrequest signed by aduly authorized official of the public agency that awns the airport (Part 155, FARs). (1) Number of Copies Normally, the original request and support- ing material should be submitted to the FAA Airports Field Office by the airport owner. The general or specific limita- tions on the delegated authority referred to in paragraph 110 may involve FAA regional and/ox national headquarters action. If so, additional copies of the request or supporting material are required and the airport owner should be advised to provide s In addition, where Department of Defense required, the additional material outlined in z paragraph 122d will be provided. (2) Lontent of Wrftt en Owner Re a Although no special farm applicable,theEollpw;que most be specific and indicate, a g sc (a) What agreement(s) with the United States are involved. (b) Frac is requested. (c) Why the release, modification, reformation or ,adment ;s requested. Chap 6 Par 115 Page 113 Attachment 'R" 1/6/76 5190.6 CM 1 (d) Mat facts and circumstances justify the request. (e) Mat requirements of state of local law should be provided for in the language or an FAA issued document 1f the request is consented to or granted. (f) Mat property or facilities are involved. (g) Nov the property was acquired or obtained by the airport (h) Mat is the present condition and what present use is made of any property or facilities involved. (1) Mat use r disposition will be made of the property or facilities. (3) Mat is the appraised fair market value of the property or facilities. (k) Mat proceeds axe expected from the use or disposition of the property and what will be done with any net revenues derived. (1) A comparison of the relative advantage or benefit to the airport from sale o other disposition a opposed to retention for rental income. A (m) A plan identifying the intangible benefits if any accruing to the airport, the amount attributed to the intangible benefits and the merit of their application asnoffset against the falx market value of the property tobe released. The pian should also Include as a minimum: 1 a statement of the airport's source and application of funds for the preceding three yea . 2 a statement of future sources and application of funds seeded for the continued operation and main- tenance of the airport, and 3 a statement of the financial capability and intent to accomplish the airport developmentincluded In the current FAA national Airport System plan. (3) Exhibits to be Furnished by Owner. (a) Each copy of the request will have attached two scaled drawings (see b(4) of this paragraph) showing all airport Chap 6 Page 114 Par 115 ]/6/)6 5190.6 CHO 1 property and airport facilities which are currently obligated for airport purposes by agreements with the United States. Other exhibits supporting or justifying the request, such as maps, potographs, plans and appraisal reports, shall be attached, appropriate. (b) Height data computations (see paragraph 116c(3)). (c) If the release action requested would permit a sale or other disposition of airport property, FAA consent may requirwner Unitedean Statees fortFederaltfooda eexpmed, or, t to the apply the net proceeds of a sale at fairmarket value for maintenance, operation, improvement. or development of a public airport (see paragraph124 and 138). If s' binding commitment obligating the airport owner shall be required. A unilateral resolution expressing asimilar imilar intent will not be acceptable 4 ceptable. For this r , the request by airport own r fora release to ell or dis- Pose Ofazport property order these circumstances most include a written agreement to be bound by such conditions citing asconsideration the Ooverment's release of the Property. The request should also be accompanied by evidence, which may be in the form of asolution, that the public agency owning the airport and the official executing such agreement are empowered to enter into such an agreement. (4) Explanation Of a Requirementfor Scaled (a) PAAP/ADAT Develo ad Air Orts. The owners of airports sObject to grant agreements are obligated under the sponsor's assurances s to maintain an airport layout plan "up-to-date at all class" and approved by the FAA. A release, modification, reformation Or mendment to my agreement for such an airport which changes Or alters the airport or a any of its facilities must also be reflected a endment o revision to the approved layout Plan, land use plan may be developed as a supplement to an airport layout plan and approved forcompliance purposes. In either case, a showing of proposed development or abandonment, which is not specifi- cally approved in accordance with the guidance of this Chapter, shall not be construed as granted o consented to by the FAA. The owner should be s advised iwriting. A revision or amendment of a property map (Exhibit A of a FAAp/ADAp Project Application) may also be required An duplicate. Chap 6 Far 115 Page 115 5190.6 CNC 1 )/6/)6 (b) Non-PAM/ADAP Developed Airports. Airport layout plans are required for PAM/ADM airports and for later surplus airports. However, some instruments may not contain compliance obligations requiring inclusion of an airport layout plan. An airport owner, as a consideration for FAA consent to a change to the existing obligations, must satisfy the reasonable requirements of the PM. The airport owner must provide the FAA with two copies of a currentscaled drawing of the airport and its facilities as an exhibit to support any request for change affecting the obligated usage of airport facilities. The drawing shall, as a minimum, adequately identify and reflect the curent status and use of the airport land and facilities at the time of the request, including the effect of the requested change. (c) Relation to ALP Criteria. The scaled drawing required to support a request for release need not fully Peet the complete FAA type airport layout plan criteria, although this is desirable. The drawing serves to graphically explain or depict the effect on the airport if the requested release is granted. It is not the document by which the release is granted and no PAA approval shall be given to any drawing inconsistent with the airport owcurrent obligations until a release has been executed in accordance with the guidance contained in this chapter. 116. FAA ACTION ON OWNER REQUESTS. a Evaluation. When a request for release has been received, supported by the appropriate documentation and exhibits, a valuation of the total effect of the owner's proposal shall be made. This evaluation shall be based on the general policy stated in paragraph 111 and shall include consideration of such pertinent factors as. (1) The past and present owner compliance record order all its airport agreements and its bona fide actions to make available a safe and usable airport for maximum aeronautical e by the public. Include evidence that the owner has a taken or agreed to take all actions possible to correct noncompliance situations at the airport, if applicable. Page 116 Chap 6 Par 115 9/6/]6 5190.6 Cxq 1 (2) The reasonableness and Practicality of the own ' request in terms r s of aeronautical facilities which a needed and the Priority of the need. e (3) The net benefit to be derived by civil aviation and the compatibility of the proposal with the needs of civil aviation, (4) Consistency with the guidelines for specific types of :leases in Section 3 of this Chapter. Determinations The PM will not release more than that which the owner requests. The decision to grant or deny the request, based n the above evaluation factors Dust be guided by the statutes, regulations and policy applicable is the specific types of Agree - cents involved. in addition, i must be determined that either (1) the public purpose for which a term, condition or covenant Of an agreement, or the agreement itself, was intended to serve is no longer applicable, or (2) the release, modification, reformation or amendment of an applicable gra vent will not prevent accomplishment of the public purposes for which the airport or its facilities ware advancetheobligated, such interestofthe tUnited States ion is ain civil aviation, or (3) the release, modification, reformation or amendment will obligate the airport Ownerunder new terms, conditions. ants, re reservations or restrictions determined necessary inVsthe publicinterest and to advance the interests of the United States in civil aviation, or (4) the release, modification, refereation or amendment will conform the rights and obligations of the owner to the statutes of the United States and the intent of the Congress consistent with applicable law. (5) Also, it must be determined if an environmental uant to the assessment National EnvironmentalPolicyAct of 1969 ions of the (P.L. 91-190). - c ComPeeton of Action uest.Upon completion ov the r[en< review and evaluation of the request, and following tfi of the regional office, Washington headquarters, the Departments Of Defense, as applicable, the PAA will advise the airport owner that its request is granted or denied. Any special conditions, qualifications or restrictions to an approval shall be included. Chap 6 Par 116 Page 117 5190.6 CHG 1 )/6/76 (1) FAA Approval Action. If the request or a modification of it acceptable to the ower is approved, the ne ary instruments or documents, approved for this purpose by the Regional Counsel, will be prepared conforming to the extent possible with the guidance of the General Counsel memorandum to all Regional Counsels dated April 30, 1965, (Appendix 4 to this order). Parallel action will be initiated to amend all related FAA documents, e.g.,; WASP, airport layout plan, land use plans, airport property map, FAA Form 5010, -as required, to achieve Consistency with the release. The ow shall thereafter provide the FAA with any acknowledgement (such as a notary) or copies of executed instruments or documents as required for FAA record purposes. The approval procedure may include an FAA letter of intent to approve the request, 1f so, see paragraph c(4) below. (2) Content of Release Document. The formal release by FAA shall cite the agreements thereby affected and should identify specific areas on r facilities involved. The owner shall be notified ofthebinding effect of the revised obligations as reflected by the scaled drawing or layout plan. (3) Content of Release Document for Sale or Disposal. A total release permitting sale or disposal of obligated land compris- ing a part of an airport or in the vicinity of an airport must specify that the ower is obligated to: (a) Include in any deed, lease or other conveyance of a property interest to others, arvation assuring the public right to fly a raft Overthe land released, and u toe a inherent aircraft noisover the lana raises", Or in to and from or by operation of the airport. Mefollowing language shall be used: "There is hereby reserved to the (grantor) (lessor) its successors and assigns, for the use and benefit eofthe public, a right of flight for the passage of aircraft in the airspace above the surface of the premises herein (conveyed) (leased). "is public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said air- space or landing at, taking off from or operation on the (official name) Airport." Chap 6 page 118 Par 116 ]/6/]6 Chap 6 Par 116 SI40.6 F.M. 1 (b) Include in any deed, lease or other conveyance of a property interest to others a restriction: (1) Prohibiting the erection of structures or growth of natural objects that would constitute an obstruction to air navigation, and (2) Prohibiting any activity on the land that would interfere with or be a hazard to the flight of aircraft over the land or to and from the airport or interfere with air navigation and cer saltation facilities serving the airport, and (3) Incorporating the Sponsors' Title VI Civil Rights Assurance obligations into all leases and other cn - veyances except fee title deeds. Fee title deeds transfer ownership of the property and it no longer serves an airport purpose. Accordingly, the Sponsors' Civil Rights Assurance obligations are not required to be transferred to the new (OOT General Counsel and Acting DepartmentalDirector of Civil Rights' letter of August 21, 1971, to The Secretary regarding e Standard DOT Title VI Assurances.) (c) These restrictions shall set forth in the instrument of release the applicable height limits above which n structure or growth should be permitted. These limits shall be computed according to the currently effective FAA criteria as applied to the airport. Advisory Circulars, Design Manualsr Federal Aviation Regulations or other such documents shall not be incorporated by reference in the instrument or releases issued by the FAA. Neither should this be done in leases, deeds, or conveyances of property interests used by the airport owner. The specification of actual height limits will avoid a burdensome at t confusing encumbrance umbra n the title to the land. Mean the applicable height limits cannot be computed from available data at the FAA Airports field Office, the airport owner shall be required to supply any additional data needed to specify the correct computations. - (3) FAA Consent by Letter of Intent to Release (a) Basis for Use. (1) Release and disposal of facilities developed through Federal assistance is often necessary to finance replacement facilities. Airport owners may have to assure the availability of the old Facilities for disposal in order to obtain responsive proposals to acquire or encumber the existing facilities. The Page 119 5190.6 CHG 1 7/6/76 may therefore request a letter of intent as to such relea Such a letter may be requested merely to permit the Owner to determine the market demand for portions of the available surplus revenue produc- ing airport property. (2) The FAA may issue such a letter of intent (to release) appropriately conditioned and specifically contingent upon adequate replacement facilities being developed and becoming operable. (b) Content. A letter of intent Issued by the FAA represents a binding commitment and an advance decision to release the property when specific conditions have been accom- plished. The use of such a letter i not to be encouraged. It should only be employed when all of the required conditions (as pertinent to the type of release sought as outlined in this Chapter) have been met or are specifically made a condition of the pledgecontained in the letter of intent. In addition, such a letter of intent should cite by reference, any specific understandings reached on anticipated problems in achieving the substitution of airport properties (e.g., who pays for relocation of various facilities and equipment, the Cost of abating existing leases). Consideration should be given to placing a reasonable time limit on the commitment to release, especially where the intent is to assess the market demand for airport property. 117. RELEASE EFFECT ON AIRPORT OWNER CONVEYING ALL OR PART OF PUBLIC AIRPORT M A PEDERAL AGENCY. a. The FAA cannot legally prohibit a airportowner from conveying to a Federal agency any airport property which is subject to an airport compliance agreement. The FAA Chief counsel has indicated that such a conveyance, whether voluntary or otbeevise,. does not place the conveying airport owner in default of any obligation to the United States. Such a conveyance has the effect of a complete release of the conveying owner. b. when such aonveyance is proposed, or has been accomplished without prior notice to the FAA, and it is determined there would be or is an adverse effect on civil aviation, PM objectionsshould immediately be made known t0 both the airport owner and the Federal agency involved. If a satisfactory solution to an adverse effect so civil aviation cannot be obtained at the field office level, a full and complete report should be submitted to the Airports Service without delay. "a FAA shall make appropriate objection and take timely action with the Federal agency involved. 118.-120. RESERVED. Chap 6 Page 120 Par 116 7/6/76 SECTION 3. SURPLUS PROPERTY AGR%EMENTS 121. GENERAL. 5190.6 CHG 1_ a Basic and Coastal Policies and Procedures. Part 155 of the FAR 'a sets faith the basic and general policiesnd procedures applicable to all such agreements. A copy of Part 155 should be available for review by all owners of surplus airport property, particularly upon a change in local administration or political office which could affect the airport and its place in the community. Changes inaurplus property agre consistent with the purposeof the FAA to foster the development, improvement, operation ormaintenance of a system of public airports or to foster a source ofx for such purposes from nonaviation business epublic airports, should be encouraged when it is an the public'interest. b. Authorized Uses of Surplus Property. Surplus airport property agreements obligate the grantee owner to obtain the written consent of the Administrator, FAA, to use, lease, sell, salvage, or dispose of transferred airport property for other than airport purposes. Section 13(g) of the Surplus Property Act of 1944 (as amended by P.L. 80-289), in authorizing the conveyance of surplus Federal property for airport purposes, includes --as within such "alrpart purposes"-- the conveyance of property "needed to develop so of revenue from nonavfatlon businesses at a public airport." In administering the Act the FAA recognizes a distinction between aeronautical property (aviation use) and noreviation-use property, both of which may be, and have been, conveyed a wing a airport purpose (See definition in paragraph 112.) It is the position of the FPA that surplus Federal property conveyed under the Act for airport purposes may be used to support a nonavistion activity only if, among other requirements, such use produces anable income available for the development, improvement, operation public airport facilities. No other seeof such property, or the income it produces was contemplated by the Act. Property Identification. Very few older deeds of conveyance separately identify x iation use property from aviation use property. The original application of the grantee and the FAA (CAA) disposal report initially established which areas of an airport were being recommended for transfer asrevenue- producing property and which for aviation a Mec current scaled drawing referred to in paragraph 115b(3) reflects subsequent FAA actions pursuant to the authority of P.L. 81-311. Such actions (e.g., approving a land -use plan for compliance purposes) may confirm and/or modify the land usage authorized by initial disposal and recommendations for specific areas of a surplus airport. Chap 6 Par 121 Page 121 5190.6 CHG 1 )/6/)6 { 11/2' Lend Transferred Under Regulation 16War Assets Administration. Prior to the amendment of the Surplus Property Act in 1947 by P.L. 80-289, surplus Federal properties were nveyed for airport purposes under the procedures of WAA Regulation 16. MIS Regulation did not specifically identify those land uses coming within an airport purpose. It did require that the building areas and no aviation facilities shall be used only in a manner notto interfere with the efficient operation of the landing The actual conveyances under this regulation vary in format but many of them stipulate that existing facilities may be used for compatible nonaviation purposes until such time s the FAA (CAA) decides they are needed for a aviation purpose. The regulation and the conveyance documents are silent as to the income from such nonaviation use. It is the position of the FAA that the usage contemplated by WAR, Regulation 16 is no more extensive than that by P.L. 80-289. Consequently, aoaviation use of property may be authorized only when it s ae airport purpose. This purpose is served when the income from such property, including the netproceeds of a sale following release, is applied to the development, improvement, maintenance, or operation of a public airport. 122. RELEASE FROM SPECIFIC CONDITIONS. e Industrial Use Restrictions. Certain surplus property conveyances prohibit the use of the property as an industrial plant, factory or similar facility. P.L. 81-311 repeals this prohibition. The FAA will Issue needed releases orcorrections to effect the elimination of such restrictions forr ord. This does not authorize industrial use of land otherwise obligated and needed for airport aeronautical use purposes. b. Reservation of Fissionable Material. Many surplus property agreements reserve to the U.S. the right to explore for mine and extract fissionable material. Section 68 of the Atomic Energy Act of 1954, as amended, released and quitclaimed to the grantees under such agreements all such rights. The FAA will i needed releases o corrections to effect the elimlratiov of such reservations for the record. C. Other Reserved Subsurface Interests. (1) Minerals and Petroleum. Some surplus property agreements reserve to the U.S. all subsurface minerals and petroleum other than fissionable materials. It has been determined that the reservation of subsurface minerals and petroleum is not a covenant or restriction n Sction that may be released, conveyed or quitclaimed by the FAA under P.L. 81-311. Disposition of this reservation Is the responsibility of the Federal Page 122 Chap 6 Par 121 Chap Par _ 11/25/77 5190.6 MG 2 agency controlling or having Jurisdiction over reserved sub- surface interests. Requests concerning such interests should be referred to the controlling agency. (2) Residual Interest. Routinely, in disposing of these reserved mineral rights to an approved applicant, the GSA imposes s prohibition against exploring for or extracting such minerals r petroleum in any way that would interfere with the operation and maintenance of the airport involved. Other Federal than - ties normally would do the same. Such an imposed prohibition constitutes a residual interest in the subsurface minerals retained by the Government which theoretically could be con- veyed to the airport ow under P.L. 80-289. As a matter of policy, the FM will not recommend to GSA or another Federal agency anveyance to a grantee of the mineral rights reserved to the U.S. (in asurplus airport property deed). In those where GSA oro another Federal agency has already conveyed to other parties the mineral rights so conditioned, the FAA will not recommend conveyance of the Government's residual interest to the airport owner. d. National Emergency Use Provision (1) She FAA may grant a release of this provision which is often referred to as the recapture clause. However, concurrence of the Department of Defense (Doo) must be specifically requested and obtained by the FAA when the airport subject to capture is either listed in the current "Airports Required By Department of Defense for National Emergency Use," list or has a based Federal military aviation activity. a (2) If the only reason for requesting release of the National Emergency Use Plan (NEUP) is an alleged difficulty in selling bonds or attracting private capital, this should be clearly established and documented. A mere statement is notenough. There should be copies of letters from lending institutions or bond brokers to support the allegation. (3) For a release of the recapture clause, the airport owner ust provide two scaled drawings (see paragraph 115b(3)and(4))and two copies of other exhibits, a appropriate, for each DOD Federal military activity (Army, USAF, Navy (including MCAS)) and USCG, listed in the currently applicable list currently [ based s the airport. TheNational Guard and the Air Guard are not Federal military activities until mobilized by the United States. Crap 6 Par 122 Page 123 5190.6 CHC 2 11/25/71 If 716/76 (4) When requested, the Office Of Airports Programs will obtain the required concurrence of the DOD upon submission of the summary memorandum (see paragraph 115x) together with required copies of scaled drawings and ether exhibits specified above. Tee region's request must indicate its determination to grant the release if DOD concurs. Additionally, the Office of Airports Programs, AAP -1, Attention: AAP-600,shall be provided one complete set of scaled drawings and exhibits for beadquartera internal coordination and record purposes. s e. Reduction or Change in Aviation Use Property. Economic growth Or changes in aviation needs may make it desirable to convert dedi- cated aviation use property to the status Of r ne-production property. The conversion may receive FAA approval provided the present/future civil aviation needs are met or red and the public benefit in civil aviation is enhanced.Further, in all such conversions, s rsions, PAA shall require assurance that all such converted will be utilized to produce a fair return for civil airport purposes consistent with its original con - veyance and 1n support of the owner's endeavor to make the air- port as self-sustaining as possible. f. Lease, Sale or Disposal Considering Intangible Benefits (1) Surplus Federal property conveyed to local public agencies under the Surplus Property Act must be used for airport purposes. As amended by P.L. 80-289 this statute r cognizes that the use of surplus property to generate revenues for the airport from n aviation business activity eathe airport is an authorized airport purpose. A use r lease of such property with less than its fair rental value accruing to the airport (Or a sale and disposal of such property for less than its appraised fair market value) is inconsistent with the intent of the statute and shall not be authorized. P.L. 81-311 empowers the FAA to extend this concept on request to surplus airport property conveyances antedating P.L. 80-289. (2) In determining whether fair marked value is to be received from a proposed nonaviation use of surplus airport property, the consideration need not bem ary. Thus, for example, conveyanceof a property interest in a right of way over surplus airport land to a railroad or highway may be con- sistent with the intent of the lav if the resulting trackage or roadway will directly benefit the airport o enhance its efficiency or utility t0 a degree commensurate with the value of the property involved. aerators, the hap 6 Page 124 Par 122 ]/6/76 Chap 6 Par 122 5190.6 cN; 1 value of these intangible benefits may be used as offset against fair market value in determining the monetary con- sideration to be received for the property. (3) Also in the interests of equity, an exemption may be made in the case of property that was originally owned or acquired in fee simple title by the present airport Owner then leased to the Government and subsequently reacquired for public airport Purposes under the Surplus Property Act. In such instances property not otherwise needed to meet any present or foresee- able airport purpose may be leased or conveyed at less than fair market value for use that is completely compatible with the operation, maintenance, development and improvement of the airport. g. Consent to Divert Excess Revenue from Surplus Property, The requirement to use surplus property assets for airport purposes also applies [o threvenues derived therefrom. The approval of n a lease for aviation purposes does not release the grantee from its obligation to apply the resulting income to the maintenance, operation and development of the airport. However, under P.L. 81-311, the FAA may, under certain circumstances, release a grantee from its obligation to devote such revenues exclusively to airport purposes.Approval may be given to divert to other public purposes excess revenues derived from surplus airport property when the conditions have been met: (1) The level of maintenance and quality of operating supervision provided to the airport is and has consistently been acceptable to the FAA as meeting the obligations of the grantee, (2) There are nviolations or defaults of the transfer deed o of subsequent agreements with the Government applicable to the airport. (3) The FAA has determined (by appropriate review, especially of the HASP, airport layout plan, land -use plan, airport prop- erty map) that there are no foreseeable improvements, exten- sions, rehabilitations o additions to the capital plan that could result in improved e aeronautical services to the public. Any release approval to divert excess revenues under these conditions shall be Specifically limitedto past accumulations of income in a of operating costs ans shall not authorize furtherdiversions of revenues subsequently received. Page 125 )/6/]6 5190.6 CHU 1 h. Release of Reverter Clause. Frequently, in order to promote private investment in airport facilities, the owners of surplus airports seek the removal of the provision givingthe United States the option to revert title in the event of default. This is an Important remedy intended to be reserved to the Government. In unusual circumstances such a proposal with full Justification may be referred for individual consideration by FAA headquarters. I. Release of Obligations for Property Nat Received. The FAR may release an airport owner of all inventory accountability obliga- tions for specific items of property When itis determined that the items were not, in fact, received by the owner even though m specified in the instrument ofdisposal. 123. TOTAL RELMSFS FOR SALE SALVAGE, RELOCATION REMOVAL OR OTHER DISPOSAL. a Personal Property, Equipment, Structures or Facilities. Surplus airport property in these categories may be released from all inventory accountability (whether or not the airport at which it is located is included in the MRNAP or has a based Federal Military aviation activity). whenever it has been determined that such property: (1) has outlived its useful life, has deteriorated beyond economical repair or rehabilitation, is no longer needed, has been replaced, is to be traded to obtain similar or other property needed for the airport; o (2) has been destroyed or lost by fire or other uncontrol- lable c and the insured value, if any, has been credited to the airport fund; or (3) has been, or should be, removed or relocated to permit needed airport improvement or expansion including salvage or other use elsewhere on rte airport. b. Utility Systems (Includes Railroad Utilities). (1) Utility distribution systems may be released to permit demolition or other disposal when they have deteriorated beyond economical repair o no longer needed for the airport. Also, where a irportOwner r is unable t maintain a utility systembecause of lack of adequately skilled personnel, financial ability, etc., it may be released from the terms, conditions, reservations and astrictions of any applicable surplus property instrument of disposal to permit Conveyance of the System to a utility company forcontinued operation, provided the bill of sale includes the following provisions: Chap fi Page 126 par 122 7/6/76 51go.6 CNG 1 (a) Utility services will be supplied to all present and future Occupants of the airport{ and _ (b) The Government shall have the option to lease or purchase the system under mutually acceptable terms upon military activation of the airport, andshall be granted right of entry and use of such system pending its acquisition from the utility company. (2) In the event the airport or the utility system is subject to the National Emergency Use Provision and The airport is either listed in the current NRNAP or has a based Federal military vi fan activity, no release of a utilitsystem, whether to permit demolition or sale to a utility company, shall be granted until the D00 has advised FAA in writing that it has 0 objection to such release. If the airport is not listed in the MRS" or does not have any based military activity, paragraph b(1)(b) above need not apply. 124. TOTAL RELEASE OF AIRPORT LAND e General Policy. Airport land is A valuable asset. A total release, permitting the sale and disposal of real property acquired for airport purposes under the Surplus Property Act, shall not be granted unless and until all other avenues s and a of such property to benefit civil aviation have been fully explored. (1) If any such property is no longer needed to directly support an airport urpose o activity (including the generation of revenues for the airport), it may be released for sale and disposal only upon a demonstration that such disposal will produce an equal On greater benefit (to the airport which it Is a part o pother public airport) than would the continued retention of the land. Such a release constitutes in effect an authoiiza- Lioet(cash sz tconvert a real property asset into another form of assPhysical improvements) which better serves the purpose for which the real property was initially conveyed This objective is not met unless a amount equal to the net Proceeds of a sale of the property at its current fair market value is realized as a consequence of the release and such amount is firmly committed to be applied to airport purposes as outlined in this paragraph. (2) This policy does not apply when the release involves the land owned in fee by the sponsor and leased to the Federal Goverment for a term of years and Men included with other properties a part of a surplus property agreement. In this case, there Is no requirement for the disposition of the net proceeds from the Chap 6 Par 123 Page 127 5190.6 CHO 1 ]/6/]6 sale or disposal. However, the airport owner should be encouraged to use the money for airport development. b. Purpose of Release. (1) As indicated in paragraph 115b(2), the airport owner requesting a release of surplus airport land must identify and justify the z n for which the release is requested. One such justification could be a showing that the expected net proceeds of a sale of the property at its current market value will be required to finance items of airport development and improvement; the need for which is concurred in by the responsible FAA official. In approving a release n this basis, consideration will be given to the amount of funds already accumulated from prior airport revenues and the amount of land needed to be disposed of to adequately finance the development or improvement items proposed. band will not be released merely to make it available for private or public development regardless of its collateral benefits to the community. (2) However, in some instances, the conversion n of unneeded airport land into a re productive a set may bejustified even though no specific items of airport development o improvement are Immediately required. At some airports, for instance, land in a of present and future care- autical requirements does not and cannot generate adequate revenues for the airport from rentals and leases in its existing state. Frequently such land has a potential market value if developed for specific no aviation uses far exceeding that Indicated by its present rental value. As ene xample, a tract of undeveloped land ata airport may becapable of yielding only $1,000 a year as income to the airport from agricultural or grazing leases. Secs of its location, it might have a ent market valueof $50,000 for compatible industrialdevelopmevt . r The $50,000, if invested at 8 percent interest would yield $2,000 or twice the Present aual rental income. Under then circumstances, a melee and sale may b justified a tu consistent with the terms of the original conveyance if the proceeds are adequately protected and accounted for. Determining hand values. The value to be placed on land for which a release has beenrequested shall be based on the present appraised value(for its highest and best ase) of the land itself and any Federal improvements initially conveyed with the property. Iv many cases, the original buildings Chap 6 Chap Page 128 Par 124 Par 1/6p6 Si90.fi CHG 1 and Improvements may have outlived theiruseful life and a determination may have been made (by FAA) that no further obliga- tion to prey r maintain them exists. If they have been replaced under s such circumstances if additional improvements have bee added without Federal financing the value of such improvements need not be included for puposesof determining the financial commitment Of a release grantedunder the guidance In this paragraph. Also, intangible benefits, if any, must be considered in determining this financial commitment. + d. Appraisals With the exceptions noted in this subparagraph, release authorizing the sale and disposal of airport land shall not be granted unless the fair market value has been supported by at least one Independent appraisal report. (See Uniform Appraisal Standards for Federal Land Acquisition booklet for guidance.) Additional appraisals by more than one appraisal rganization may be required by the FAA when it is deemed x appropriate. Appraisals shall be made by noninterested appraisers qualified by experience and who have professional statue as appraisers of real property. If any appraiser is involved I, negotiations for the purchase or sale of the property or if there iss vidence of collaboration between appraisers, such appraisalreports are invalid and shall not be considered by FAA in determining the fair market value of the land involved. The costa of obtaining the appraisals shall be borne by the airport owner but may be considered as aoffset to the proceeds realized from a sale in determining net proceeds. (See paragraph 112d.) The requirement for an appraisal may be waived if the responsible FAA official acting on the request for release determines that: (1) The approximate fair markets salvage value of the property released is less than $1,000, or (2) The property released is a utility system to be sold to a utility company and will accommodate the continued airport u and Operational requirements, or (3) It would be in the public interest to require public advertising and sale to the highest responsible bidder in lieu of appraisals. e Lone -term Leases Where it is determined necessary to establish fair market v of land in connection with long-term leases of the airport property, similar requirements for appraisal shall prevail. Chap 6 Par 124 Page 129 5190.6 CNG 1 716176 f. Application of Proceeds. (1) Any release of airport land shall be subject to a firm commitment the airport owner with respect to a amount equal to the net proceeds of a sale of the property at Its current fair market value. Note that the actual proceeds realized are not controlling. Following a valid release the airport owner may discount the selling price or give the land away as a subsidy or inducement to attract industrial development or he may use the land for another local public purpose (city or county maintenance buildings, parks, etc.), provided it is compatible with the airport operations. (2) An FAA release must, however, insure that the current value of the land asset previously dedicated to airport purposes is replaced by its equivalent value in new development or improve - eat at the airport or retained for such purposes while generat- ing'interest or dividend income to operate the airport. this implies a contractual commltmenq as consideration for the release, to apply an amount equal to the net proceeds of A fair market value sale to specified items of airport develop - meat and improvement. (3) while the income from such anaunt, where no immediate improvements z contemplated, may be used farent operation and maintenance of aviationuseairport property (see paragraph 112a) the obligated amount itself must be used for the following purposes in the order of priority indicated: * (a) eligible items of airport development see forth in PAR Part 152 (and as appropriate, in the HASP by priority of need) to beaccomplished i ordance with currently applicable FAA design criteria. (b) Any aeronautical items of airport development ineligible under the ADAP. * (c) Deposit at interest in an identifiable account for deferred a within a reasonable time for items in priority (a) and (b) above. The interest o dividends from these deposits can be used for the current operation and maintenance of the aviation - use airport property. e (d) Retirement of airport bands which are secured by pledges of airport revenue, including repayment of loans from other Federal agencies for such development. Page 129a Chap 6 Par 124 �c