The Port of Orcas filed a declaratory judgment action in the San Juan Superior Court Feb. 3 to confirm the port’s right to impose an annual access fee on aircraft owners who access the port from their port-neighboring properties. The court will issue a legal opinion on the matter, without a money judgment.
“Rather than simply impose the fee, the port filed this declaratory judgment action to provide all interested parties with a fair forum to express their views – and then let the court decide,” said the commission in a Feb. 14 press release.
While some of the affected property owners have decided not to get involved, port neighbor Paul Vierthaler said many are organizing and hiring lawyers to contest the lawsuit, concerned that the fee would degrade property values.
Vierthaler said the properties, like waterfront, already fall under a higher “special use” tax rate, and that a fuel surcharge is levied by both the Port of Orcas and the Federal Aviation Administration.
“And now our port wants to charge us again for access and use of the runway?” he said.
Citing the original Ferris deed wording that states the neighbors will pay the same as others “for like use” of the airport, he said, “If they start charging everyone to take off and land, then hey, we gotta pay – but they’re not; they’re only charging us.”
“We’ve had free access for over 50 years,” he added, and the neighboring property owners estimate they have collectively donated almost $1 million in port improvements over the years.
“[When] you sue these people, that’s probably going to stop,” he said. “To wreck the goodwill of their neighbors by suing them for a small amount of money is crazy.”
While the port argues that tie-down fees pay for rent of a tie-down spot as well as access to the runway, “I totally disagree,” he said. “Tax dollars pay for access to runway; the tie-down fee pays for rent of land.”
The port commission approved the legal action in September 2010 after years of escalating pressure by the FAA to either charge its neighbors with port access a portion of operating costs, or lose potentially millions of dollars in federal funding for capital projects. FAA funding currently pays for 90 to 95 percent of capital improvement projects, up to $150,000 per year – roughly equal to the the port’s entire annual budget.
The port’s advising attorney Frank Chmelik advised the port to charge its neighboring property owners an annual tariff of $160, or half a $320 annual tie-down fee, for use of the airport, and recommended the declaratory judgment. Records indicate the Port has thus far paid Chmelik and associates $12,465 in legal fees.
“This was certainly a lot cheaper than going the other route: a mass suit against the property owners, with statements and testimony,” said port manager Bea vonTobel. The port’s total legal budget for 2011 is $30,000.
“So far no one has sent us anything that indicates they are going to object,” said Chmelik, “but if they do, they will have a fair opportunity to make their point, and from there we’ll let the court decide.”
For more information, call vonTobel at 376-5285.
