Giving away air can be a complicated process, as the Port of South Whidbey is learning.

For months, the port’s agenda has sometimes included an item titled “update on air rights easement.”

The unusual request for air rights comes from the Boatyard Inn adjoining the port’s Langley Marina property, and the air rights are needed to build a new home for Paul Schell, a Boatyard Inn owner, on the waterfront.

The port commissioners are willing to give Schell the air rights in appreciation for past support of the port’s marina project. The Boatyard Inn donated its tidelands to make future marina expansion possible.

Confusing the situation is the state Recreation and Conservation Office, which partially controls what can be done with the port’s marina tidelands and associated airspace. The RCO, under a different name, gave a grant to Langley in the late 1970s to help build the original marina, requiring public use.

“It’s encumbered and we have to convert it,” said Ed Field, port operations manager, earlier this week.

RCO has to give its go-ahead for the airspace donation, and that’s the sticking point.

“It’s up to the state,” said Field at the Feb. 12 port meeting. He described the air space as starting nine-feet above ground, occupying seven feet by 20 feet of air. It intrudes 18-inches over the property owned by the port. There is some existing parking but it would still be available underneath the airspace.

The RCO is requiring an assessment, for one thing, and Field said that could cost $10,000. The port commissioners showed no interest in paying for an assessment.

“The port can’t give away property,” said Sarah Thirtyacre, grant manager for the state Recreation and Conservation Office, in a recent interview with The South Whidbey Record.

Thirtyacre attributed the sticky situation to “a misunderstanding of the property line. It was assumed it aligned with the bulkhead on Mr. Schell’s property, they designed the structure, then they realized ‘oh, that’s not the property line, it’s the setback.’”

She said the home as designed needs “a couple feet, 10 to 12 feet up in the air — this piece would proceed like a balcony and go straight up from the air.”

The RCO requires that the property in question be used for public recreation, so any other use “would be a conversion in our eyes,” Thirtyacre said. She added the airspace would have to be appraised and its value “replaced at today’s market value.”

Thirtyacre added she has never done an airspace conversion before. “I don’t have a good sense of comparison,” she said. “The port would have to commission an appraisal by a qualified independent appraiser. They’d determine it … like buying a house.”

Another issue is whether “retroactive property can be used as replacement property,” she said, alluding to the Boatyard Inn’s donation of tidelands. “Our federal partners allow retroactive property, but that’s where we haven’t made a decision yet.” She said the RCO’s director, Kaleen Cottingham, would have to make that call.

Thirtyacre said the RCO has received “no official request” from the port to proceed with the airspace donation effort. But the port knows the situation from working closely with the RCO, she added.

“The port’s been very up-front and transparent and we see that very favorably,” she said.

Field said the port won’t pay for an assessment but has offered Schell the opportunity to do so. The port’s approach is to pursue the retroactive property donation angle. Without the Boatyard Inn’s donated tidelands, marina expansion wouldn’t have been possible, he said. That will be a later phase of the marina plan, but Field said the permitting process is under way now thanks to the donation.

Without the airspace, Schell will have to alter his construction plans.

“He can’t build,” said Thirtyacre. “The port could tell them that. We have to approve the replacement property.”