Aero Valley Property Owners Association
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FAA acknowledges poa's management and notam authority
From: Mr. Todd Hebert
Federal Aviation Administration
Texas Airports Districts Office, ASW-650
10101 Hillwood Parkway, Fort Worth, TX 76177
March 16, 2021
Mr. Whatley,
Thank you for your patience on the matter. Our legal staff has reviewed the injunction that was submitted with the hotline complaint we received, as well as your email below. They have concurred that the injunction, until such time as we are provided any further court orders or decisions that may say otherwise, does provide FAA with sufficient direction to restrict NOTAM issuance for 52F. We have processed an airport manager name change on the FAA’s Airport Master Record (Form 5010) from Mr. Hyde to you. The change will take effect shortly, but you should review the Airport Master Record for 52F periodically to ensure currency and completeness.
If you have any further questions, let me know.
Sincerely,
Todd
I also received a phone call from Martha Wood, an FAA contractor with Leidos. She handles the NOTAM management system. Ms. Wood asked me informally to describe our situation in more detail. My response follows.
Federal Aviation Administration
Texas Airports Districts Office, ASW-650
10101 Hillwood Parkway, Fort Worth, TX 76177
March 16, 2021
Mr. Whatley,
Thank you for your patience on the matter. Our legal staff has reviewed the injunction that was submitted with the hotline complaint we received, as well as your email below. They have concurred that the injunction, until such time as we are provided any further court orders or decisions that may say otherwise, does provide FAA with sufficient direction to restrict NOTAM issuance for 52F. We have processed an airport manager name change on the FAA’s Airport Master Record (Form 5010) from Mr. Hyde to you. The change will take effect shortly, but you should review the Airport Master Record for 52F periodically to ensure currency and completeness.
If you have any further questions, let me know.
Sincerely,
Todd
I also received a phone call from Martha Wood, an FAA contractor with Leidos. She handles the NOTAM management system. Ms. Wood asked me informally to describe our situation in more detail. My response follows.
President's response to FAA Inquiry
Dear Ms. Wood,
Thank you for the call this morning. I also received an email from Todd Hebert conveying the same information. Returning NOTAM and management authority to the POA is an important step in the right direction. You asked me informally to explain the situation in a little more detail. That’s a natural question and I appreciate the opportunity to explain. This story goes all the way back to 1969. I hope you will find it both compelling and useful. Please feel free to share it. You and others working within the FAA’s airport divisions may find this information useful because other private airports have found themselves in similar battles under similar circumstances.
From your perspective, the battle between the property owners and Mr. Hyde probably looks like a see-saw. We hope to end that situation soon. For the first time since Edna Gardner Whyte, the airport’s founder, spent the last days of her life trying to protect the airport and its property owners, we have finally addressed the fundamental issues she identified after Mr. Hyde assumed title to the airport’s functional common areas in late 1982.
We are dealing with two essential issues:
(1) Who has the authority to govern, manage, and operate Aero Valley Airport?
(2) Who owns Aero Valley Airport?
Let’s start with the first. The Aero Valley Property Owners Association has the authority to govern, manage, and operate Aero Valley Airport. Under Texas law, whoever has jurisdiction within an easement has authority over the record title owner.[1] Mr. Hyde believes he has authority because his company, Hyde-Way, Inc., assumed record title to the airport’s functional common areas consisting of the runway, safety zone, parallel taxiway, and ramp area. These common areas, however, were already easements attached to each airport lot and the easement holders had jurisdiction within them before Mr. Hyde acquired record title.
In 1977, Aero Valley Development Company (“AVDCO”) turned over control and administration of these easements to the property owners in the form of an Architectural Control Committee (“ACC”). The ACC’s purpose is “to carry out a general plan for the protection, use, and convenience of all property owners.”[2] AVDCO’s restrictions also require every property owner to pay fees assessed and collected by the ACC to “provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.”[3] Each deed to an airport lot includes the common areas attached to that lot. Common to all property owners are the tracts containing the runway, runway safety zone, parallel taxiway, and ramp area with its associated buildings. The ACC consists of seven property owners elected by their neighbors and fellow property owners every two years.
In 2016, the property owners amended the bylaws of the Aero Valley Property Owners Association (“POA”) to accept the transfer of the ACC’s governing authority to the POA’s board of directors (“Board”). On July 9, 2019, a newly elected ACC permanently delegated its governing authority to the Board.[4] Therefore, the POA has jurisdiction within the easements and control over the record title owner, Hyde-Way, Inc.
Mr. Hyde effectively prevented the property owners from exercising their authority to operate the airport by hiding it behind his own claims of authority he never had. Mr. Hyde further believed he had the authority to use whatever force he deemed necessary to prevent "trespassers" from using the airport. He then forcefully interfered with the runway access rights of numerous property owners and their tenants. The personal trauma Mr. Hyde has caused and the amount of money property owners have spent to defend their easement rights has been astronomical.
All of the airport's functional areas—runway, parallel taxiway, ramp area, etc.--are burdened by easements and deed restrictions. As a result, they have no market value by themselves. Why Mr. Hyde wanted to acquire these easement tracts remains a mystery because their value rests entirely with the easement holders who have the right to use the property as an airport. Furthermore, developers of common-interest communities such as Aero Valley Airport are required to turn over common areas to a property owners association if they do not do so as a matter of course.[5]
The Dallas Court of Appeals recently reconfirmed who has jurisdiction within an easement. Air Park Dallas (“Air Park”), a small private airport in Collin County, is the analog of Aero Valley Airport. Crow-Billingsley Air Park, Ltd. (“CBA”) is the record title owner of land on which the airport is based, including the landing strip. Like Aero Valley, Air Park’s landing strip is encumbered with property owner easements, giving them the right to use it.
CBA wanted to close the airport and develop the land for other purposes. To that end, CBA lobbied the City of Carrollton to pass an ordinance that ultimately resulted in an order to close the airport. Air Park’s property owners then sued CBA and the City of Carrollton for violating their easement rights. The trial court ruled in the property owners’ favor and the court of appeals upheld the ruling. In its opinion, the Dallas Court of Appeals observed that “An easement is a property interest protected by the Texas Constitution.”[6] The Court then determined that the Zoning Committee (the equivalent of Aero Valley's board of directors) "had jurisdiction within the easement, and thus had authority over the record title owners." The Court then declared the City’s ordinance unconstitutional for violating the property owners’ property rights and due process rights.
Bottom line: The POA's board or directors has the authority to govern, manage, and operate Aero Valley Airport.
Let’s turn now to the second issue: Who owns the airport?
The Court’s holding in Noell v. City of Carrollton centers on the meaning of “owner.” According to the Court, “The term ‘owner’ means different things in different circumstances. Because the term does not have a definite legal meaning, its meaning must, where possible, be ascertained from the context and subject matter in which it is used.” The Court then noted that "the term 'airport' does not simply reference real property, but references the activity conducted on that property." The assistant city attorney who drafted the ordinance admitted it was drafted with the intent that only CBA was the “owner of the airport,” and the City intended to exclude the homeowners for purposes of compliance with its provisions.
The Court observed, however, that the City’s own Code contradicted the assumption that CBA owned the airport. Section 95.01 of the City’s Code includes as owners “any person, firm or corporation having jurisdiction within an easement.” Therefore, in this context CBA was not necessarily the airport owner because the Zoning Committee (the equivalent of the ACC at Aero Valley) “had jurisdiction within the easement, and thus had authority over the record title owners.” In addition to record title holders, the Texas Legislature has in various contexts defined owner as those with a “property interest.” See Tex. Spec. Dist. Code Ann. § 8801.001(8) (West 2013 Pamph.) (well owner includes a person with an ownership interest in a well, operates a well, or owns the land on which a well is located); Tex. Water Code Ann. § 26.342 (West 2008) (owner includes person with an ownership “interest” in petroleum storage system); Tex. Gov’t Code Ann. § 2007.002(2)(4) (West 2008) (owner includes a person with legal or equitable title to an interest in real property recognized by common law). An easement is thus a sufficient property interest to apply the term “owner” in certain contexts.
Aero Valley’s property owners have the same easements in the airport’s common areas as the homeowners at Air Park Dallas. Air Park’s restrictions require a Zoning Committee to “act as a governing body with legal authority to make those rulings necessary or call for an election to protect the best interests of the community until an incorporated government can be established.” The Court then found that the Zoning Committee had jurisdiction within the easements and thus had authority over the record title owners of the land burdened by the easements.[7] Therefore, the easement holders could properly be described as airport owners.
The Court also found that the Zoning Committee was created to govern the airpark, and the airpark restrictions provided it would do so in the community’s best interests. Thus, the Court also found that the Zoning Committee owed a fiduciary duty to the property owners.
The relationship between CBA and the Zoning Committee is identical to the relationship between Hyde-Way and the POA. Like CBA, Hyde-Way is the record title owner of land burdened by easements, including the landing strip. Using nearly identical language, Aero Valley’s restrictions establish an ACC as Aero Valley’s governing body just like Air Park’s restrictions establish a Zoning Committee as Air Park’s governing body. For the same reasons that Air Park’s Zoning Committee has authority over CBA, the ACC has authority over Hyde-Way. With the ACC’s delegation of authority to the POA’s board of directors, the POA has authority over Hyde-Way. Furthermore, like the Zoning Committee, the POA would also owe a fiduciary duty to the property owners to keep the airport properly maintained and to collect fees from those property owners who have not paid their fair share.
If the POA in fact has a fiduciary duty to the property owners, then the term "owner" would appropriately apply to the POA. As the mere owner of the servient estate, Hyde-Way, Inc. has no such duty to the property owners. But the situation changes if Hyde is considered a developer. Then he would owe all of a developer's duties to the property owners. If Hyde-Way, Inc. is considered a developer, any reasonable development period has long passed and AVDCO had already transferred the developer's duties to the property owners. Therefore, to say that Hyde-Way, Inc. is the airport owner misrepresents Hyde-Way, Inc.'s duties and authority. The record title owner of property used for an airport landing strip is the "owner" only so long as the property is not 100% encumbered by easements like it is at Aero Valley.
The added verbiage in the Zoning Committee’s governing authority clause puts a spotlight on the POA’s role as the airport’s incorporated governing authority. The Zoning Committee's governing language ends with: “until an incorporated government can be established.” That difference is precisely what Aero Valley property owners accomplished when the ACC delegated its governing authority to the POA’s board of directors. Because the POA is a non-profit Texas corporation, property owners have thereby gained substantially more protections than an unincorporated ACC alone could provide.
Assuming Mr. Hyde stepped into AVDCO’s shoes as a developer, he also acquired a developer’s duties to the community. Among these duties is the transfer of common areas to a property owners association. Developers of other private airports usually transfer airport common areas to a property owners association just as soon as they’ve sold enough lots to protect their investment interests. Transfer of common areas to a POA is also necessary to avoid the conflicts that inevitably arise between the developer and property owners. The developers of two local airports serve as archetypal examples: Mr. Buck Lock at Propwash (16X) and Mr. Jack Hurst (via FENCO) at Aero Country (T31). Both conveyed the runway and other airport common areas to their respective POA’s as a matter of course.
The American Law Institute (“ALI”) captures the essence of the developer-property owner relationship:
The developer needs to retain control of the association long enough to avoid changes that will jeopardize its ability to sell the remainder, while the purchasers need to stabilize assessments and take charge of the rules governing operation of the community. The longer the developer retains control, the greater the likelihood of conflict. Accordingly, modern common-interest-community statutes specify timetables within which the developer must turn over control to the members.[8]
When Hyde-Way, Inc. acquired Aero Valley’s common areas in late 1982, the duty to transfer the airport’s common areas to the property owners had arguably not quite matured. The maximum time allowed in similar common-interest communities and under the Uniform Common Interest Ownership Act (“UCIOA”) is two years after all declarants have ceased to offer lots for sale in the ordinary course of business or the right to add new hangars was last exercised. Edna Whyte recorded the last declaration in 1991 shortly before she died. Assuming Hyde-Way, Inc. was a declarant of the Northwest Development in 1983 and Mr. Hyde has not built any new hangars or offered any new lots for sale for over 30 years, a reasonable time to transfer common areas has long since passed.
The property owners, through the Aero Valley Property Owners Association, seek to put a permanent end to this conflict. We have an airport to rehabilitate after 38 years of neglect and mismanagement. This information should answer your question. If you have further questions, please let me know. Thanks again for your help.
Mitchell R. Whatley
President
[1] Noell v. City of Carrollton, 431 S.W.3d 682, 700-701 (Tex. App.—Dallas 2014, pet. denied).
[2] E.g., Vol. 1002, p. 363 & Vol. 1025, p. 830, Deed Records of Denton County, Texas.
[3] See 1002/363; 1025/830; 1142/467; 1112/465; 3083/1 (partial combining of 1002/363 and 1025/830).
[4] Doc. 2020-120919, recorded in the Real Property records of Denton County, Texas on Aug. 12, 2020.
[5] Innerimages, Inc. v. Newman, 579 S.W.3d 29 (Tenn. Ct. App. 2019).
[6] Noell at 696.
[7] Noell at 700.
[8] Restatement (Third) of Property: Servitudes, 6.19, cmt b. (2000). The term “members” means members of the community, not necessarily members of the association.
Thank you for the call this morning. I also received an email from Todd Hebert conveying the same information. Returning NOTAM and management authority to the POA is an important step in the right direction. You asked me informally to explain the situation in a little more detail. That’s a natural question and I appreciate the opportunity to explain. This story goes all the way back to 1969. I hope you will find it both compelling and useful. Please feel free to share it. You and others working within the FAA’s airport divisions may find this information useful because other private airports have found themselves in similar battles under similar circumstances.
From your perspective, the battle between the property owners and Mr. Hyde probably looks like a see-saw. We hope to end that situation soon. For the first time since Edna Gardner Whyte, the airport’s founder, spent the last days of her life trying to protect the airport and its property owners, we have finally addressed the fundamental issues she identified after Mr. Hyde assumed title to the airport’s functional common areas in late 1982.
We are dealing with two essential issues:
(1) Who has the authority to govern, manage, and operate Aero Valley Airport?
(2) Who owns Aero Valley Airport?
Let’s start with the first. The Aero Valley Property Owners Association has the authority to govern, manage, and operate Aero Valley Airport. Under Texas law, whoever has jurisdiction within an easement has authority over the record title owner.[1] Mr. Hyde believes he has authority because his company, Hyde-Way, Inc., assumed record title to the airport’s functional common areas consisting of the runway, safety zone, parallel taxiway, and ramp area. These common areas, however, were already easements attached to each airport lot and the easement holders had jurisdiction within them before Mr. Hyde acquired record title.
In 1977, Aero Valley Development Company (“AVDCO”) turned over control and administration of these easements to the property owners in the form of an Architectural Control Committee (“ACC”). The ACC’s purpose is “to carry out a general plan for the protection, use, and convenience of all property owners.”[2] AVDCO’s restrictions also require every property owner to pay fees assessed and collected by the ACC to “provide for proper maintenance of common areas, including, but not limited to, buildings and taxiways.”[3] Each deed to an airport lot includes the common areas attached to that lot. Common to all property owners are the tracts containing the runway, runway safety zone, parallel taxiway, and ramp area with its associated buildings. The ACC consists of seven property owners elected by their neighbors and fellow property owners every two years.
In 2016, the property owners amended the bylaws of the Aero Valley Property Owners Association (“POA”) to accept the transfer of the ACC’s governing authority to the POA’s board of directors (“Board”). On July 9, 2019, a newly elected ACC permanently delegated its governing authority to the Board.[4] Therefore, the POA has jurisdiction within the easements and control over the record title owner, Hyde-Way, Inc.
Mr. Hyde effectively prevented the property owners from exercising their authority to operate the airport by hiding it behind his own claims of authority he never had. Mr. Hyde further believed he had the authority to use whatever force he deemed necessary to prevent "trespassers" from using the airport. He then forcefully interfered with the runway access rights of numerous property owners and their tenants. The personal trauma Mr. Hyde has caused and the amount of money property owners have spent to defend their easement rights has been astronomical.
All of the airport's functional areas—runway, parallel taxiway, ramp area, etc.--are burdened by easements and deed restrictions. As a result, they have no market value by themselves. Why Mr. Hyde wanted to acquire these easement tracts remains a mystery because their value rests entirely with the easement holders who have the right to use the property as an airport. Furthermore, developers of common-interest communities such as Aero Valley Airport are required to turn over common areas to a property owners association if they do not do so as a matter of course.[5]
The Dallas Court of Appeals recently reconfirmed who has jurisdiction within an easement. Air Park Dallas (“Air Park”), a small private airport in Collin County, is the analog of Aero Valley Airport. Crow-Billingsley Air Park, Ltd. (“CBA”) is the record title owner of land on which the airport is based, including the landing strip. Like Aero Valley, Air Park’s landing strip is encumbered with property owner easements, giving them the right to use it.
CBA wanted to close the airport and develop the land for other purposes. To that end, CBA lobbied the City of Carrollton to pass an ordinance that ultimately resulted in an order to close the airport. Air Park’s property owners then sued CBA and the City of Carrollton for violating their easement rights. The trial court ruled in the property owners’ favor and the court of appeals upheld the ruling. In its opinion, the Dallas Court of Appeals observed that “An easement is a property interest protected by the Texas Constitution.”[6] The Court then determined that the Zoning Committee (the equivalent of Aero Valley's board of directors) "had jurisdiction within the easement, and thus had authority over the record title owners." The Court then declared the City’s ordinance unconstitutional for violating the property owners’ property rights and due process rights.
Bottom line: The POA's board or directors has the authority to govern, manage, and operate Aero Valley Airport.
Let’s turn now to the second issue: Who owns the airport?
The Court’s holding in Noell v. City of Carrollton centers on the meaning of “owner.” According to the Court, “The term ‘owner’ means different things in different circumstances. Because the term does not have a definite legal meaning, its meaning must, where possible, be ascertained from the context and subject matter in which it is used.” The Court then noted that "the term 'airport' does not simply reference real property, but references the activity conducted on that property." The assistant city attorney who drafted the ordinance admitted it was drafted with the intent that only CBA was the “owner of the airport,” and the City intended to exclude the homeowners for purposes of compliance with its provisions.
The Court observed, however, that the City’s own Code contradicted the assumption that CBA owned the airport. Section 95.01 of the City’s Code includes as owners “any person, firm or corporation having jurisdiction within an easement.” Therefore, in this context CBA was not necessarily the airport owner because the Zoning Committee (the equivalent of the ACC at Aero Valley) “had jurisdiction within the easement, and thus had authority over the record title owners.” In addition to record title holders, the Texas Legislature has in various contexts defined owner as those with a “property interest.” See Tex. Spec. Dist. Code Ann. § 8801.001(8) (West 2013 Pamph.) (well owner includes a person with an ownership interest in a well, operates a well, or owns the land on which a well is located); Tex. Water Code Ann. § 26.342 (West 2008) (owner includes person with an ownership “interest” in petroleum storage system); Tex. Gov’t Code Ann. § 2007.002(2)(4) (West 2008) (owner includes a person with legal or equitable title to an interest in real property recognized by common law). An easement is thus a sufficient property interest to apply the term “owner” in certain contexts.
Aero Valley’s property owners have the same easements in the airport’s common areas as the homeowners at Air Park Dallas. Air Park’s restrictions require a Zoning Committee to “act as a governing body with legal authority to make those rulings necessary or call for an election to protect the best interests of the community until an incorporated government can be established.” The Court then found that the Zoning Committee had jurisdiction within the easements and thus had authority over the record title owners of the land burdened by the easements.[7] Therefore, the easement holders could properly be described as airport owners.
The Court also found that the Zoning Committee was created to govern the airpark, and the airpark restrictions provided it would do so in the community’s best interests. Thus, the Court also found that the Zoning Committee owed a fiduciary duty to the property owners.
The relationship between CBA and the Zoning Committee is identical to the relationship between Hyde-Way and the POA. Like CBA, Hyde-Way is the record title owner of land burdened by easements, including the landing strip. Using nearly identical language, Aero Valley’s restrictions establish an ACC as Aero Valley’s governing body just like Air Park’s restrictions establish a Zoning Committee as Air Park’s governing body. For the same reasons that Air Park’s Zoning Committee has authority over CBA, the ACC has authority over Hyde-Way. With the ACC’s delegation of authority to the POA’s board of directors, the POA has authority over Hyde-Way. Furthermore, like the Zoning Committee, the POA would also owe a fiduciary duty to the property owners to keep the airport properly maintained and to collect fees from those property owners who have not paid their fair share.
If the POA in fact has a fiduciary duty to the property owners, then the term "owner" would appropriately apply to the POA. As the mere owner of the servient estate, Hyde-Way, Inc. has no such duty to the property owners. But the situation changes if Hyde is considered a developer. Then he would owe all of a developer's duties to the property owners. If Hyde-Way, Inc. is considered a developer, any reasonable development period has long passed and AVDCO had already transferred the developer's duties to the property owners. Therefore, to say that Hyde-Way, Inc. is the airport owner misrepresents Hyde-Way, Inc.'s duties and authority. The record title owner of property used for an airport landing strip is the "owner" only so long as the property is not 100% encumbered by easements like it is at Aero Valley.
The added verbiage in the Zoning Committee’s governing authority clause puts a spotlight on the POA’s role as the airport’s incorporated governing authority. The Zoning Committee's governing language ends with: “until an incorporated government can be established.” That difference is precisely what Aero Valley property owners accomplished when the ACC delegated its governing authority to the POA’s board of directors. Because the POA is a non-profit Texas corporation, property owners have thereby gained substantially more protections than an unincorporated ACC alone could provide.
Assuming Mr. Hyde stepped into AVDCO’s shoes as a developer, he also acquired a developer’s duties to the community. Among these duties is the transfer of common areas to a property owners association. Developers of other private airports usually transfer airport common areas to a property owners association just as soon as they’ve sold enough lots to protect their investment interests. Transfer of common areas to a POA is also necessary to avoid the conflicts that inevitably arise between the developer and property owners. The developers of two local airports serve as archetypal examples: Mr. Buck Lock at Propwash (16X) and Mr. Jack Hurst (via FENCO) at Aero Country (T31). Both conveyed the runway and other airport common areas to their respective POA’s as a matter of course.
The American Law Institute (“ALI”) captures the essence of the developer-property owner relationship:
The developer needs to retain control of the association long enough to avoid changes that will jeopardize its ability to sell the remainder, while the purchasers need to stabilize assessments and take charge of the rules governing operation of the community. The longer the developer retains control, the greater the likelihood of conflict. Accordingly, modern common-interest-community statutes specify timetables within which the developer must turn over control to the members.[8]
When Hyde-Way, Inc. acquired Aero Valley’s common areas in late 1982, the duty to transfer the airport’s common areas to the property owners had arguably not quite matured. The maximum time allowed in similar common-interest communities and under the Uniform Common Interest Ownership Act (“UCIOA”) is two years after all declarants have ceased to offer lots for sale in the ordinary course of business or the right to add new hangars was last exercised. Edna Whyte recorded the last declaration in 1991 shortly before she died. Assuming Hyde-Way, Inc. was a declarant of the Northwest Development in 1983 and Mr. Hyde has not built any new hangars or offered any new lots for sale for over 30 years, a reasonable time to transfer common areas has long since passed.
The property owners, through the Aero Valley Property Owners Association, seek to put a permanent end to this conflict. We have an airport to rehabilitate after 38 years of neglect and mismanagement. This information should answer your question. If you have further questions, please let me know. Thanks again for your help.
Mitchell R. Whatley
President
[1] Noell v. City of Carrollton, 431 S.W.3d 682, 700-701 (Tex. App.—Dallas 2014, pet. denied).
[2] E.g., Vol. 1002, p. 363 & Vol. 1025, p. 830, Deed Records of Denton County, Texas.
[3] See 1002/363; 1025/830; 1142/467; 1112/465; 3083/1 (partial combining of 1002/363 and 1025/830).
[4] Doc. 2020-120919, recorded in the Real Property records of Denton County, Texas on Aug. 12, 2020.
[5] Innerimages, Inc. v. Newman, 579 S.W.3d 29 (Tenn. Ct. App. 2019).
[6] Noell at 696.
[7] Noell at 700.
[8] Restatement (Third) of Property: Servitudes, 6.19, cmt b. (2000). The term “members” means members of the community, not necessarily members of the association.