A Boulder pilot who is the target of an expected eminent domain lawsuit by the city says a recently approved federal law eliminates any possibility that the Boulder Municipal Airport will lose out on grant money due to a longstanding access agreement.
But city officials say little has changed and they plan to press ahead with the rare condemnation action.
Denver attorneys hired by Boulder are preparing this week to file an eminent domain case in Boulder District Court against Barry Barnow, owner of Boulder Valley Aviation. The lawsuit seeks to force Barnow, 66, to sell either his property at 5864 Rustic Knolls Drive or the rights to his “through-the-fence agreement” that gives him permission to taxi a plane directly onto the adjacent Boulder Municipal Airport runway.
The agreement has existed since 1958.
Boulder officials argue that continuing to allow Barnow to use his through-the-fence agreement would put the airport at risk of losing federal money and creates safety problems.
The Federal Aviation Administration, which has provided the Boulder airport with about $2.5 million over the past five years, has long had concerns about the use of through-the-fence agreements at municipal airports. In 2009, the administration decided that all such agreements should be eliminated, due to safety concerns.
Facing backlash from pilots, the agency created interim rules that require airports with through-the-fence agreements to develop an airport access plan that details how the airport will meet standards for control of the airport, safety of operations, self-sustainability and nondiscriminatory airport rates. It also prohibited new through-the-fence agreements at federally funded airports.
But a provision included in the FAA Air Transportation Modernization and Safety Improvement Act — which funds the FAA through 2015 and was signed by President Barack Obama on Feb. 14 — appears to have eliminated the threat of municipal airports losing federal funding simply because they allow through-the-fence operations.
The federal bill states that general aviation airports are not in violation of a grant assurance “solely because the sponsor enters into an agreement that grants to a person that owns residential real property adjacent to or near the airport access to the airfield.”
Justin Harclerode, a spokesman for the U.S. House Transportation and Infrastructure Committee, said the bill was designed to protect existing and future through-the-fence agreements.
“The intention of the provision is to ensure that these agreements, if the airport operator wants to enter into them, can do so without violating any other regulations,” he said.
Benét Wilson, a spokeswoman for the Maryland- based Aircraft Owners and Pilots Association, said that about 75 airports nationwide would benefit from the legislation.
“Language to protect through-the-fence agreements will continue to ensure access to airports by aircraft owners who have hangar homes on adjacent privately owned property,” Wilson said.
Barnow said the changes make it clear that the Boulder airport would not be at risk of losing out on federal money because of his access agreement.
“The whole thing is obviously a sham,” he said of the city’s motives.
But Kathy Haddock, Boulder’s senior assistant city attorney, said she believes the airport is still at risk of losing federal money because of the way that Barnow’s agreement was written.
The agreement gives the pilot unrestricted access to the airport from his property in perpetuity, and it does not require him to pay the city a fee or meet other criteria typically imposed on through-the-fence arrangements. Not being able to force Barnow to pay an access fee, for example, means the city is essentially discriminating against other pilots who are required to pay, according to Haddock. That might mean that Boulder couldn’t comply with the FAA’s interim rules.
“The agreement just doesn’t fit today’s world,” Haddock said, noting that the document was drafted before the FAA existed.
The new federal law does require property owners who hold a through-the-fence agreement to cover the cost of building and maintaining any infrastructure that the airport deems necessary for safe access.
Boulder and Barnow also disagree about those requirements.
The city has said that providing safe access from Barnow’s property to the runway would require construction of a taxiway at a cost of at least $1 million. Barnow said he’s fine with making improvements, but he said that creating safe access is possible by installing inexpensive concrete cinderblocks from his property to the nearby runway.
“A couple of concrete blocks set into the dirt, I wouldn’t think is a million dollars,” Barnow said.
The city has offered Barnow $350,000 for his property or $10,000 for the access agreement. Barnow says his property is worth $1 million or more because it comes with the access rights.
Scott deLuise, a pilot who owns property and a similar though-the-fence agreement at the Erie Municipal Airport, agrees with Barnow.
“I think that his property is more valuable with the through-the-fence agreement than without it,” deLuise said.
He also decried the city’s “heavy-handed” approach to its disagreement with Barnow.
Barnow, meanwhile, isn’t afraid to test the limits of his legal rights — or the city’s patience. On Monday, he took a Camera reporter and photographer on a tour of his property and the path that he takes from his airport hangar to his nearby land. He navigated his rumbling Cessna 180 fixed-wing airplane across the active runway and into the adjacent field.
Barnow said the relatively low level of activity at the airport, combined with radio traffic, makes crossing the runway and his property safe to do.
Haddock, the assistant city attorney, said there is nothing criminal about Barnow moving his plane back and forth from the airport property, but the city would consider filing a complaint in civil court or erecting a fence to stop him.
Contact Camera Staff Writer Heath Urie at 303-473-1328 or urieh@dailycamera.com.
