PORT OF ORCAS
Minutes of the Regular Meeting
October 8, 2009
Approval of minutes
McCoy moved, Thurman seconded approval of the minutes of the regular meeting of September 10, 009 as presented, and the motion was unanimously carried.
Modification of Agenda
Chair Eimers asked to modify the meeting agenda to include an Executive Session following public access time, and the inclusion of a second public access time following the approval of payroll and vouchers for any who wished to make additional remarks.
Public access time
Paul Vierthaler, who noted that he had been selected by residents of Aeroview and Grasylvania to speak on their behalf, stated that the residents had reviewed the draft of the resolution presented at the previous port meeting, and: 1) all were opposed to any access fee; 2) that the residents fully supported the port as the 'best possible neighbors'; and 3) that he had spoken with AOPA representatives who were also working with the FAA on resolving through-the-fence issues. He further stated that all those affected wished a permanent resolution, but that if any resolution or similar action degrades their access or property values, the residents would be forced to take legal action.
Executive Session
Chair Eimers called for an Executive Session, pursuant to RCW 42.30.110, in order to discuss both a personnel and a legal matter. The executive session started at 7:07P.M., and concluded at 7:40P.M., at which time the regular meeting was reconvened.
Unfinished Business
1. Looking Down the Runway
Eimers announced that six sealed bids for the north stormwater outfall project had been received and opened at 1:00P.M. that afternoon. Flannan Tam of WHPacific was present as the engineer's representative, and had taken copies of the bids back to WHP for evaluation of each of the bidders' past experience and capability to perform the work. The WHP evaluation should be available within the next week, at which time the bid could be awarded, with a notice to proceed given.
WHP had also submitted a request for additional services for the project, centered around the USA Corps of Engineers permit. With two choices given for obtaining the COE permit, McCoy moved, Thurman seconded authorizing an additional $11,070.00 for additional services from WHP in pursuance of the permit, and the motion was unanimously carried.
2. Through-the-Fence Matter---continuing discussion
Eimers began the discussion by asking for a motion to remove the attorney-client privilege restriction from letters received by the port on July 8, 1996 ( ), March 28, 1995 ( ), and November 2, 1999 ( ) from the above-named attorneys. McCoy moved, Thurman seconded removal of such restriction, and the motion was unanimously carried. Eimers then passed out copies of that correspondence to members of the public. with the caveat that not all of the correspondence was directly on point, but that the letters would serve as reference points to questions which the port had solicited answers to in the past.
Eimers also noted that he had spoken with Frank Chmelik, a well-known attorney for port districts, and inquired about the wording of the Ferris deed. Chmelik had provided a memo, of which copies were provided to those present. Chmelik had also stated that one method toward resolving the TTF matter was to obtain a declaratory judgment, which could cost upwards of $10,000. Another method would be to file suit against each of the property owners, which would be a more conservative and less expensive process. A last process would be to let one property owner file suit against the port and to have the judgment apply to all other property owners, which would entail less paperwork because of the number of individual suits needing to be filed.
Eimers shared that the port had received several other e-mails and letters from Ferris deed holders, including Lois Brandt, Mike Parnell, Steve McKenna, Dick Griot and Evelyn Fuscher. Eimers asked that if there were any Ferris deedholders who had addional legal opinions/correspondence to share those with the port to gather information. Eimers than solicited comments from the audience.
Richard Bach asked why the port would wish to proceed further at all. Eimers answered that previous commissioners had signed contracts for money with the FAA, and those contracts were not being honered according to the grant assurances. Bach wondered whether the FAA position was clear on how grant assurances were being pursued. Eimers referenced Driggs and Sandpoint Idaho, and Independence State Airport in Oregon. The Oregon airport has constructed an agreement which has been accepted by the FAA (and formed the basis for the draft resolution presented at the last meeting); in the case of Sandpoint, the airport has been put on a 3-year notice of noncompliance, which means no FAA funding will be available. For Driggs, the airport will terminate access when the leases expire. Bach then asked whether the FAA might ask for its money back. There was no clear answer to that question. If the port lost the court case (i.e., a summary judgment) would that settle the case? Again, there was no sure answer.
Bob Waunch noted that since the argument re TTF has been going on for several years, there may be a major point re precedence: the Ferris deedholders have had free access since the Ferris deed was written, so that might constitute adverse possession.
Evelyn Fuscher inquired about the e-mail she sent to the commissioners, and whether her rewrite might be more in compliance with the FAA's wishes. Eimers noted that her e-mail had been received by all the commissioners, but had not been acted on by meeting time.
Eimers also noted that the goal of the commission was to transition from discussion to decision, and that the commissioners needed to gather all the data, have discussion among themselves at meetings, and make a decision of what direction to proceed.
Bach added that there was no contention toward the commissioners on the part of Ferris deedholders, but added that if there were to be a lawsuit, then it would be settled one way or another.
Fuscher inquired about the upcoming election. Eimers replied that McCoy had chosen not to run for an additional term, and that Audrey Wells was running unopposed for her seat. No one had filed for the position that Eimers will vacate at the end of the year.
Dick Griot inquired whether the FAA would help the port financially should the matter go to court. Eimers replied that past conversations with the FAA re this were not positive.
Eimers then restated his own position re running the port without FAA infusion. He noted that he thought the airport would suffer deterioration without maintaining FAA standards, that he had a fiduciary responsibility to protect the investment made by former commissioners when they entered into contract s which have not been fulfilled.
Commissioner Thurman added that the issue is about use, and pegged Driggs ID as the example. He stated that the FAA is asking for a plan of compliance, and offered his own draft resolution, which he distributed copies of to those present. He also noted that it was not in anyone's best interest to get involved in a lawsuit.
Tyler Otten asked whether the Ferris deed could be strengthened, and whether such a document could be presented to the FAA as the solution. Eimers noted that such a document might be viewed as another violation of the grant assurances by the FAA.
Waunch wondered whether the port would buy up each of the affected properties as they came up for sale, and to ask for FAA help in funding the purchases. Eimers recounted a conversation he had with one of the Sandpoint airport commissioners, and the end result was that although the FAA might have agreed to that solution, it would not have the funds to do that, particularly on a national scale.
Griot asked what specific grant assurances were being violated. Eimers submitted a copy of the grant assurances for reference.
Cathy Vierthaler stated that the Ferris deed superceded the FAA's presence at the airport, and that the FAA needed to recognize that fact.
Barbara Gourley noted that the first concern of the commissioners needed to be the local community, not the FAA.
Paul Vierthaler said that the Ferris deedholders were willing to work with the FAA to resolve the issue.
Bob Waunch reiterated that the entire situation was about property rights.
Eimers thanked all in attendance for their input.
3. Budget Workshop
Eimers presented a budget worksheet which had been modified by consultation with the other commissioners, and asked the airport manager to determine the dollar amounts/levy monies for the Port of Orcas, and to incorporate those findings in the new budget worksheet, which will provide a base point for the next meeting, which will include the public hearing and budget adoption for 2010.
New Business
None
Airport Manager’s Report
The airport manager reported on:
1. Around the Port
a. Larson Gate Replacement
b. Kangaroo House Baffle
c. South Door Replacement d. Airplane Theft/Damage
e. Crack-Sealing
2. Stormwater Outfall Update
3. Work Around the Port
Approval of Payroll/Vouchers
Thurman moved, McCoy seconded payment of September general fund vouchers in the amount of $6,655.52, and the motion was unanimously carried.
Thurman moved, McCoy seconded payment of September capital fund vouchers in the amount of $26,961.08, and the motion was unanimously carried.
Thurman moved, McCoy seconded approval of September payroll in the amount of $5,831.22, and the motion was unanimously carried.
Public Access Time
None
Next Meeting and Adjournment
The next regular meeting of the Commission was scheduled for 7:00P.M., November 12, 2009 in the Port conference room.
The meeting was adjourned at 9:55P.M.
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Ulanah McCoy, Commissioner and Secretary
Prepared by
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Bea vonTobel, Airport Manager