The Port of Orcas board has decided to file for a Superior Court ruling on its decision to charge the “Ferris neighbors” an access fee.

The port commission voted to levy an annual tariff of $160, or half a $320 annual tie-down fee, for use of the airport by neighboring property owners, based on advice from its advising attorney Frank Chmelik.

“My task from the commission was, ‘Take care of our neighbors and get us over the FAA hurdle’,” said Chmelik, who represented the board at a Sept. 23 open meeting. Chmelik spent over two hours presenting the port’s position, given FAA requirements, and answering questions from the port’s neighboring property owners, or “Ferris neighbors.”

According to Chmelik, the FAA is requiring that an access fee be charged such that all airport users pay a fair proportion of airport operating costs.

The Ferris deed gives the Ferris neighbors access rights and use of the airstrip “upon payment of usual charges as made to others for like use …” While many property owners argue that nobody else is being charged for access, the board and the Federal Aviation Administration have settled on half of an annual tie-down fee based on the idea that half the fee pays for airport access, and half for the privilege of tying down on airport property.

“What’s to keep us from doubling, or tripling, fees in the future?” asked commissioner Alan Edwards. Many property owners expressed the same concern.

Chmelik said the board cannot legally bind future commissioners from raising the fee.

“The neighbors can always go back to court and say, ‘This fee is not reasonable,’ said Chmelik. But the burden of proof would be on the property owners.

Chmelik said the expected declaratory judgment ruling could be useful in the future to support property owners’ arguments that $160 is reasonable, rather than a higher fee.

For comparison, commissioner Bret Thurman noted that annual tie-down fees in other airports include $240 at Lopez, $540 in Anacortes, and $866-1200 in Bellingham.

For years the FAA has pressured the port to charge its neighbors an access fee, or lose federal funding. But last week it sent a letter warning that the port must resolve the issue before applying for any further funding.

Airport manager Bea vonTobel is currently working on applications for 2013 FAA funding, and could not proceed with the process unless the board levied the required tariff.

The FAA has agreed to approve the half tie-down fee after initially requesting a full tie-down fee and rejecting the board’s earlier March proposal of a $100 use fee.

“Our airport is here to support our community,” said Thurman. “If we say, ‘To heck with the FAA,’ we’re still going to need funding.”

FAA funding currently pays for 90 to 95 percent of the cost of approved capital improvement projects, up to $150,000 per year and roughly equal to the port’s entire annual budget. Without that grant money, Thurman has told the Sounder, taxpayers would be asked to fill the gap.

“It is (the public’s) airport and I work for them,” he said. “As I see it, FAA funding is the best option for Orcas and should not be let go without long and serious deliberation.”

Ferris deed property owners also expressed concern that the fee will weaken their property rights. Chmelik argued that in the minds of potential purchasers, uncertainty over the issue could cost a premium, and resolution of the long-debated issue would be better.

As the port proceeds with filing for a declaratory judgment, each property owner will have the option to participate in the action. The port commission has instructed its attorneys to minimize property owners’ costs in the event of a legal challenge.