The respondent’s position that non-aeronautical use of designated aeronautical land is permissible so long as it does not unreasonably interfere with the aeronautical use of the airport was expressly rejected by the Director. In his decision, the Director takes the categorical view that “allowing non-aeronautical usage of aeronautical land is interfering with its intended use.”
Therefore, as with Federal Grant Assurance 29, if an airport tenant seeks an exemption allowing the use of designated aeronautical areas for non-aeronautical uses, the tenant should recognize that such an exemption, as a matter of Federal Grant Assurance 19, is impermissible unless explicit authorization is sought and obtained from the FAA.
Airport tenants should be cautious if afforded an “exemption” from the applicable minimum standards and airport rules and regulations by an airport sponsor. Such “exemptions” are fleeting, unreliable, and almost never a source of competitive advantage.
To ensure enforceability of such an “exemption” pertaining to non-aeronautical uses of designated aeronautical properties, an airport tenant should always request that the airport sponsor obtain explicit authorization from the FAA and, the airport tenant should always presume that any “exemption” afforded it will likely be afforded to all other airport tenants.
about the author
Paul A. Lange founded and leads the Law Offices of Paul A. Lange, LLC, with offices in CT and NY. The firm practices nationwide and internationally in various aviation related legal matters, including airport development, financing, regulatory enforcement matters, and disputes.