For the past 8 1/2 years, I’ve served as general counsel to a South Florida Airport. Over those years, I have worked with developers and the FAA several times to assess and mitigate aeronautical hazards relating to the construction or alteration of tall buildings or structures. This is typically a foreign concept to many builders, and simply understanding the FAA process of analyzing such structures as potential hazards can go a long way to achieving a positive outcome in the construction of tall buildings.
Importantly, by Congressional mandate, the FAA cannot prohibit any construction activities in the vicinity of airports. That is a little misleading because your project may not get local approval over an FAA objection. So the goal here is for builders to develop sufficient data to build as proposed, or to mitigate sufficiently to receive a final favorable determination from the FAA.
The process starts with the developer filing Form 7460 (Notice of Proposed Construction or Alteration) with the FAA. The FAA requires this form to be filed if the proposed building exceeds 200 feet above ground level or penetrates an airport’s imaginary surfaces (slope out and up from all sides and ends of runways). Based on that form, the FAA first determines if the structure is an Obstruction to Air Navigation, meaning the building may interfere with flight traffic. Obstructions are assumed to be a hazard until proven otherwise. It is important to note that this determination is based on information contained in the FAA database which is often incomplete. The possible outcomes of this analysis are a determination that the structure poses a hazard or not, or that it is presumed to create a hazard. A “Notice of Presumed Hazard” is a preliminary determination that the proposed construction exceeds the obstruction criteria to determine if it is necessary to further study the impact of the proposed construction. In other words, an obstruction is not necessarily a hazard. And exceeding the prescribed standards is by no means a disqualifying factor for the proponent.
Upon receipt of a Notice of Presumed Hazard, it is time to hire appropriate professionals to perform an Aeronautical Study. The Study will first confirm whether the FAA has properly applied the standards to the proposed project – mistakes do happen. The second portion of the analysis is to identify other factors not yet considered by the FAA (other buildings or structures in the area not present in the FAA database, terrain, or other mitigating factors). At this point, the FAA may initiate Circularization – a fancy word for public comment (sought from airports, local zoning representatives, local political groups, local aviation groups). The FAA will then take that information and determine if the proposed construction will have an adverse effect on aviation:
- Does it have a physical or electromagnetic effect on navigational facilities?
- Does it restrict the control tower’s line of sight?
- Does it reduce airport capacity and efficiency or affect useable runway length?
A “yes” to any of the above is sufficient to establish that the proposed construction creates an adverse effect. But that is not the same as determining that there is a hazard. In order to be determined to be a hazard, the adverse effect must be determined to be a significant adverse effect. To be determined to be significant, a significant volume of aeronautical operations must be affected:
- One or more aeronautical operations per day would be affected
- The instrument approach procedure or minimum altitude would be affected for an average of one aeronautical operation a week
If a significant adverse effect is found to exist, a hazard determination will be issued. At this point, the effort turns to mitigation techniques such as marking or lighting, restrictions on temporary construction equipment, reduction of electromagnetic impacts, reduction or elimination of glare, or other airspace mitigation.
What is important to note is that in nearly 80% of all such cases, the FAA negotiates with the proponent until the conditions are met for a “no-hazard” determination. In other words, in nearly 80% of these cases, the hazard is mitigated and the building is built. So as you can see, if you understand the process, and are armed with the necessary data, the FAA’s height restrictions do not have to be an impediment to development at all.