by Gregory J. Reigel
© Copyright August 2016. All rights reserved.
What can you do inside of your aircraft hangar? The lawyerly answer is “it depends.” More specifically, it may depend in large part upon whether your hangar is on an airport that receives funds from the FAA through the Airport Improvement Program (“AIP”). If your hangar is on an airport that does not receive AIP funds, then any restrictions or limitations on use of your hangar would likely be dictated within your lease with the airport owner or operator.
However, many airports receive AIP grant funds from the FAA for use in runway and taxiway construction/repair, as well as various other airport improvement projects. In exchange for its receipt of AIP grant funds, an airport sponsor agrees to certain grant assurances. These grant assurances are contractual obligations that require the airport sponsor or owner to operate the airport in a certain way.
One of these AIP grant assurances requires the airport sponsor to make the airport property available for aviation or aeronautical uses. Conversely, the airport sponsor also agrees that it will not allow airport property to be used for non-aeronautical uses unless it receives permission from the FAA.
One of the most common, and obvious, uses is aircraft hangar construction. But, once an aircraft storage hangar is built on an AIP airport, how can the hangar be used? If you were thinking “aircraft storage,” of course you are right. But typically an aircraft doesn’t completely fill all of the space within a hangar. So, what about storage of other items, such as tools, equipment, automobiles, snowmobiles, and having an office or personal living space.
In the past, the FAA has taken a very restrictive view regarding permitted hangar use. However, the FAA recently issued a notice of final policy that clarifies what you can and cannot do within an aircraft storage hangar located on an AIP airport.
According to the FAA, permitted aeronautical uses for hangars include:
1. Storage of active aircraft;
2. Final assembly of aircraft under construction;
3. Non-commercial construction of amateur-built or kit-built aircraft. In expanding its policy to include all amateur/kit-built construction, rather than just final assembly, the FAA recognized that “[i]t may be more difficult for those constructing amateur-built or kit-built aircraft to find alternative space for construction or a means to ultimately transport completed large aircraft components to the airport for final assembly, and ultimately for access to taxiways for operation.’
4. Maintenance, repair, or refurbishment of aircraft, but not the indefinite storage of non-operational aircraft. The FAA does not establish an arbitrary time period beyond which an aircraft is no longer considered operational. Rather, the FAA leaves it to the airport sponsor to decide whether a particular aircraft is likely to become operational in a reasonable time; and
5. Storage of aircraft handling equipment (e.g. towbars, glider tow equipment, workbenches, and tools and materials used in the servicing, maintenance, repair or outfitting of aircraft).
Non-aeronautical use within a hangar that is used primarily for aeronautical purposes, may still be permitted provided that use does not interfere with the aeronautical use of the hangar. What does that mean? The FAA will consider certain uses to be interfering with the aeronautical use if they:
1. Impede the movement of the aircraft in and out of the hangar or impede access to aircraft or other aeronautical contents of the hangar;
2. Displace the aeronautical contents of the hangar. The hangar owner may park a vehicle inside the hangar while he or she is using the aircraft and the FAA will not consider that to be displacing the aircraft;
3. Impede access to aircraft or other aeronautical contents of the hangar; or
4. Are stored in violation of the airport sponsor’s rules and regulations, lease provisions, building codes or local ordinances.
But what about that “pilot lounge” or “man/woman cave” within the hangar? Is that a permitted use?
Unfortunately, the FAA’s policy does not provide a “bright line” answer. According to the policy, the FAA “differentiates between a typical pilot resting facility or aircrew quarters versus a hangar residence or hangar home. The former are designed to be used for overnight and/or resting periods for aircrew, and not as a permanent or even temporary residence.”
Although the FAA then goes on to state that a hangar may not be used as a residence, it does not explain what that means. As a result, in the absence of a clear definition, it is likely that this type of determination would be made on a case-by-case basis. So, while some form of pilot lounge or office is likely permitted, at what point that area within the hangar becomes an unpermitted, non-aeronautical use will likely be decided based upon the facts of each case.
Keep in mind that the FAA’s policy on aeronautical use of hangars applies regardless of whether you lease the hangar from the airport sponsor or if you constructed the hangar at your own expense where you hold a ground lease with the airport sponsor for the hangar pad. Once the airport sponsor receives AIP grants and airport land designated for aeronautical use is made available for construction of hangars, the hangars built on the land are subject to the airport sponsor’s obligation to use the land for aeronautical purposes.
But at least now we have a little more guidance with respect to use of an aircraft hangar at an AIP airport. Construction of an amateur-built or kit-built aircraft is allowed. Residing in the hangar is not allowed. Other uses may be allowed if they do not interfere with the aeronautical use. And although some gray areas remain, the current policy does at least provide some additional clarification and guidance for aircraft hangar use.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. For assistance, call 214-780-1482, email firstname.lastname@example.org, or Twitter @ReigelLaw.