Last week the Port of Orcas board passed a long-debated resolution that charges 28 adjoining parcels with deeded airport access rights each a $100 annual fee for use of the airport.

“We did not get here lightly,” said commissioner Bret Thurman. “This has been tough on everyone involved.”

The decision was an unenthusiastic capitulation to pressure from the Federal Aviation Administration, which has given the port $2 million in grants for capital improvement projects over past years on condition of adherence to FAA grant requirements.

“We were pretty disappointed,” said property owner Cathy Vierthaler. “I don’t know that we’re going to pay that. We paid a lot of money for the deed, and we pay higher property taxes … It’s the first step toward degrading the deed. We really need to protect the value of our property.”

Commissioner Alan Edwards expressed frustration that the FAA is “sullying” a very good relationship between the airport management and the property owners.

Decades ago, the Ferris deed conferred upon the adjacent parcel owners, or “Ferris neighbors,” “the right of access and the use of said airstrip for aviational purposes only, upon payment of usual charges as made to others for like use …” But interpretation of “for like use” is sticky. As Vierthaler points out, the port doesn’t charge residential airplanes for airstrip use.

The commissioners drafted Resolution 3-18-2010 to show recognition of the Ferris neighbors’ basic right of access, although they say that right of access comes with a fee, not for free. During the past year that access has been threatened, as the FAA began interpreting the United States Code title 49 § 47107 to disallow all through the fence agreements, and the port was urged to purchase all adjoining properties and strip them of access rights before reselling them – a ludicrously expensive process, said airport manager Bea vonTobel. In lieu of that, the FAA requested that the port charge each of the Ferris neighbors the equivalent of full year’s tie-down fees. The commissioners are unsure whether $100 per year will satisfy the FAA.

Vierthaler and property owner Mike Parnell say the board jumped the gun.

“There are two bills in Congress right now that take this requirement and eliminate it. If they would wait … then it wouldn’t be necessary,” Vierthaler said.

Parnell sent an open letter to the commissioners regretting their “unconscionable” and “hasty decision,” saying, “It appears the port is willing to penalize every tax payer and airport user on Orcas in significant litigation expenses and damages that could be avoided by allowing the legislature to rule on the interpretation and application of the ‘Community Airport Access and Protection Act of 2010.’”

While the amendment removing the prohibition of through-the-fence agreements appears likely to pass, Thurman doubts it will remove the FAA’s fee stipulation.

“There is no applicable through-the-fence agreement in place between the neighbors and the Port, only a minimum safety standards agreement and the deed,” said Thurman. “The FAA … contend that private use of public facilities without a fee is a violation of our deal with them … funding could still be withheld.”

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, said Thurman, 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,” he said.

But Vierthaler said most of the Ferris neighbors are interested in the possibility of the port becoming self-sustaining, and said that if the port didn’t have to comply with FAA rules when it came to capital projects, the costs would be a lot lower. It’s also been suggested that revenue-raising opportunities could become broader without FAA limitations.

Vierthaler said that the homeowners have established a legal fund but have no immediate plans for litigation.

Parnell said he has definite plans for a lawsuit, and thinks a class action lawsuit brought by multiple property owners is likely as well.

Thurman said he truly hopes litigation does not occur.

“We’re hoping that cooler heads will prevail,” he said. “Litigation is always costly and usually no one wins when the dust settles and all is considered.”