dissenting. The majority opinion’s removal of the Little Rock airport properties from tax exemption status is unconvincing for many reasons. First, it places heavy emphasis on the principle that for public property to be exempt under Ark. Const, art. 16, § 5(b), it must be used exclusively for public purposes. While that statement of the law is true, it omits another part of the law that applies in tax exemption cases. In this respect, the opinion ignores the well-settled rule that, where the primary and principal use to which the property is put is public, the mere fact that income is incidentally derived from its use does not affect its character as property devoted to public use. Yves v. City of Ft. Smith, 207 Ark. 694, 182 S.W.2d 683 (1944); see also Arkansas Conf. Ass’n of Seventh Day Adventist, Inc. v. Benton Co. Bd. Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960).
Second, the majority tends to gloss over the fact that, during the past years, the fixed-base operators (FBO), maintaining facilities for general aviation owned aircraft, had not been taxed. Bob Wofford, appraiser for the Pulaski County Tax Assessor’s Office, conceded that he had no idea why these airport properties had previously enjoyed tax-exempt status. On the other hand, Wofford was equally obtuse when asked what changes had occurred to make the Pulaski County Assessor believe the FBOs’ services no longer were for a public purpose, thereby making the City’s airport property subject to taxation. One example of Wofford’s lack of expertise and understanding of these matters can be found in his following testimony:
In my mind, there is distinction between the common carrier aspect of the regional airport and the private carrier aspect of the properties at issue here. The common carrier aspect lends itself to the public purpose of the airport. This is a public airport, where people go to fly to places whereas the other businesses out there seem to be more engaged in the repair and refurbishing and building of aircraft or something along that line.
In my opinion, even the charter services are not what they are called common carrier type services. They are not scheduled. I’m not 100% clear on this. I don’t know that there are regularly scheduled arrivals and departures on charter services, but right or wrong, I just have a tendency to view the commercial airport as a public airport and all these other things as private.
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I am not an expert in airport management. I have never been affiliated with the Federal Aviation Administration (“FAA”) in any way. I have been affiliated with airlines. (Emphasis added.)
Third, while Mr. Wofford seemed puzzled over when airports should be considered operational for private or public purposes, the uncontested proof is that, long ago, this property had been deeded to Little Rock for the City to develop and maintain air service for the general public; it has been put to such use since World War II. Mr. Harry Denton, Assistant Manager of the Little Rock Regional Airport, testified that this airport property provides landing strips, runways, taxiways, hanger facilities and common use areas for the general public. The general public, he said, included general aviation or FBOs that, on behalf of the Airport Commission, provide services to private owners of aircraft and companies that charter aircraft. Denton underscored that these FBOs are open to the public, and the City’s obligations to provide services are to the general public, including common carriers and privately owned aircraft. Denton further pointed out that the FBOs are essential to operating the airport and that these businesses are not in competition with any businesses off the airport premises.
Fourth, the exempt status given the Little Rock airport property over the past years is thoroughly consistent with Arkansas law. For example, Ark. Code Ann. § 14-361-124 (1987) specifically provides tax-exempt status for city airport property. Accordingly, in past years, that exemption has been given the Little Rock airport property. The Pulaski County Assessor has not shown that the Little Rock Airport is now being used any differently, and in fact, Appraiser Wofford admitted that all Little Rock airport properties in issue continue to be used for the same purposes for which they were used when they enjoyed tax exemption. See Hudgins v. City of Hot Springs, 168 Ark. 467, 270 S.W.2d 594 (1925).
Finally, but significantly, the proof is again uncontested that the Federal Aviation Administration (FAA) has preempted the authority of any state to regulate airports, and no state is free to ignore FAA’s regulations. FAA’s regulations and Order 5190.6A require Little Rock’s airport to provide, as a part of the City’s airport services, all the FBO services addressed in the leases of property which Pulaski County now seeks to tax. In explaining the reason for such FAA requirement, Mr. Denton quoted the following from FAA Order 5190.6A:
The operation of a public airport involves complex relationships that are frequently misunderstood. One can safely land an aircraft at the airport, but unless there are services and conveniences available to attract and encourage flight activity, the investment may be hard to justify. In most instances, the public agency owning the airport must turn to private enterprise to provide these services which will make the use of the airport by the public attractive and convenient.
Without setting out Order 5190.6A in its entirety, that Order unquestionably provides for services necessary to insure the public interest is served, and the City has entered leases with FBOs to provide essential services needed to fulfill that public purpose and interest. The majority opinion attempts to discount the importance of FAA’s authority to require FBO services by the Little Rock Airport by stating FAA regulations cannot preempt the imposition of ad valorem taxes upon airport property. That, of course, is not the issue. No one suggests FAA can promulgate a regulation that could preempt a state’s ad valorem tax law. The point is that FAA’s public interest or purpose regulations requiring FBO services on the Little Rock Airport premises in no way conflict with the mandate of Arkansas’s Constitution requiring public property to be used for public, purposes in order for it to be tax exempt.
In my opinion, the City of Little Rock met its burden in showing entitlement to exemption for FBO services, and the county assessor’s proof was miserably short in his attempt to show Little Rock’s tax exempt status should be changed. For the above reasons, I would reverse the trial court and direct the property in issue be removed from the tax rolls.
Corbin and Roaf, JJ., join this dissent.