(Continuation)
Table of Contents (continued)
D. Problems with the FAA Approval Process
VII. Conclusion
Appendix: Excerpts from the Airport Environmental Handbook
The analysis of this problem is interesting: to comply with noise limits, the FAA must comply with noise standards set out in 14 C.F.R. §150.1 (1990). These standards are for sound levels which effect different categories of recreational uses. Unfortunately, the only activities on the list are human recreation uses (amusement parks, golf courses, etc.). The
conclusion the FAA came to was that the noise put out by the new airport would be below all these limits, so there would be no "use" of the land. The Court found a flaw in this conclusion:
The owners of the private and posh airpark made one last attempt to protect the environment. They claimed the FAA failed to consider other alternatives to the new airport in their EIS, and the impact the project will have when combined with other local projects. The Court dismissed these claims by finding "...[t]he [Final] EIS contains abundant evidence that the FAA carefully considered a reasonable range of alternatives....The FAA need not examine an infinite number of alternatives in infinite detail....[T]he FAA gave adequate attention to the effects of such contemplated airport-related projects as the construction of access roads.... [I]t is not required by the pertinent CEQ regulations to consider projects that are neither related to nor dependent on the airport." [FN47] Courts consistently refrain from making the FAA an urban planning agency. In a parting shot to the local barnstormers, the Court found "...our examination of the [Final] EIS satisfies us that the FAA fairly and adequately considered the interests of the [plaintiffs], and petitioners present no evidence to the contrary." [FN48]
In Neighbors Organized to Insure a Sound Environment, Inc. v. McArtor, [FN49] the Court dealt with two issues of adequacy of an environmental study. The first was that the expansion of the airport terminal was not sufficiently studied in the Environmental Assessment (EA) for the airport plan. Interestingly, the Court found his claim moot, since the terminal had already been built. They could not undo the environmental harm. The second issue was that the Environmental Assessment (EA) did not address the impacts of a new runway. In a laconic dismissal of this, the Court pointed out that the new runway was "not foreseeable" when the Environmental Assessment (EA) was done, and that a new EIS was to be prepared for it anyway. [FN50]
In Citizens for Responsible Area Growth v. Adams, [FN51] the Court was asked to decide if a private development must comply with NEPA. An airport developer using Federal funds prepared an EIS that studied growth of the airport and the resulting environmental impacts. A private corporation sought to add a hangar to the airport, but not make any modifications to the existing facilities: only to be able to use them. No Federal funds would be used in the construction, and it was a totally private enterprise.
The Court analyzed the project to be sure that it did not cause changes in the existing airport structure. "NEPA applies only to 'federal' actions. And, a project such as this one, which is not itself federally funded nor significantly bound up in a federally funded project, is not 'federal.' (Citations omitted)" [FN52] "Significantly bound up" requires a detailed factual determination. The need to obtain FAA licensing can trigger NEPA.
Also, the FAA has a safety function to fulfill, and this may bring the project into the scope of "federal action". No such factors were present in this case, and the private development was not a "federal action"; no NEPA review was needed to approve this project.
There is a difference of opinion as to how a court may review an FAA action. In a 6th Circuit case: "We review an agency's decision not to prepare an EIS under the arbitrary and capricious standard." [FN53] The courts are very reluctant to get involved in second-guessing an agency, and only insist that the agency take a "hard-look" at the environmental impacts their decision might create.
In the 11th Circuit, we find a different standard: the "reasonableness" standard. [FN54] The court will inquire if the agency acted "reasonably" in making its choices. "If the Environmental Assessment (EA) concludes that the impacts are significant, the agency must prepare an EIS. In determining whether the impact is significant, the agency has broad discretion. This discretion is not unlimited, however, and this court must review the agency's finding under a standard of reasonableness, not under the narrower standard of arbitrariness or capriciousness." [FN55]
In a factual determination, the Court in C.A.R.E. [FN56] decided the FAA acted reasonably when it assessed noise impacts at the proposed site. There were facts and studies used by the FAA, and even if the plaintiffs had different facts and figures, that is not enough to overcome the burden of proving the FAA acted unreasonably.
The FAA's interpretation of its own regulations are subject to the same standard of review as the agency's actions. In West Houston Air Committee v. F.A.A., [FN57] the categorical exclusion of issuance of part 139 operating certificates (required for airports to operate large aircraft) from EAs was challenged. The regulation requires "that an environmental assessment be prepared for a Part 139 certificate when the proposed project is 'highly controversial on environmental grounds.' The regulations provide that a project is considered highly controversial when 'opposed by a Federal, state, or local government agency or by a substantial number of the persons affected by such action on environmental grounds.' Project opposition must be of an 'extraordinary nature.'" (Citations omitted). [FN58]
The Court decided that the FAA acted reasonably in deciding that 558 signatures on petitions and 120 letters was not evidence of significant controversy. While the Court mentions that the West Houston area has a population of 270,782 people, they do not say how many of those people would be affected by (or even knew of) the airports proposed expansion of operations. Reasonableness seems to be difficult to quantify.
E.
Conclusion of NEPA Requirements
The FAA has responsibilities to consider the environmental impact of its actions under both its statutory authority and NEPA. It has promulgated general guidelines to comply with these responsibilities with due regard to its primary regulatory functions of air safety and air commerce. Airports are large projects involving city sized structures. A developer or purchaser of real estate contemplating using the land as an airport must consider and develop an assessment of the environmental impacts the development will cause. The larger the project, the more extensive the study, and the more likely it is to invoke litigation. Lengthy studies require time, and money: a developer must take these factors into consideration before proceeding with the purchase of the land. A careful developer will complete the environmental approval process prior to committing resources to the project. At some point, the cost to litigate decisions by the FAA may become onerous to the developer, and force abandonment or modification of the original plan.
IV. Restrictions on Structures Constituting Hazards to Air Traffic
A developer or purchaser of real estate having the intention to construct tall structures must be aware that the FAA must be notified. [FN59] The FAA then has the responsibility to classify the structure as either a hazard or not a hazard to air navigation. [FN60]
A.
What Kinds of Structures Must Be Reported?
A structure over 200 feet high, or one that extends from sloping ground in a proscribed manner must be reported. [FN61] A Traverse way for mobile objects (roads) that may put objects in the path of air traffic must be reported. [FN62] Any structure located near an instrument approach area must be reported. [FN63] Construction on any existing or proposed airport or heliport must be reported. [FN64]
The FAA must be given notice 30 days before the earliest of the date construction is to begin, or the date a construction permit is filed. [FN65] When required, supplemental notice must be given to the FAA at least 48 hours before the start of the construction. [FN66] Supplemental notice is required within 5 days after the construction reaches its greatest height. [FN67]
The FAA has published parameters that are used to determine if a structure will be a hazard to air navigation. Structures over 2,000 feet high are presumed to be hazards, and result in inefficient use of airspace. [FN68] The FAA uses the geometry of any nearby airports to determine if a hazard exists. [FN69] A structure more than 500 feet high anywhere will be a hazard. [FN70] For structures less than this, the proximity of the structure to air navigation facilities will determine if it is a hazard: essentially, the closer to an airport the construction is, the greater the likelihood it is a hazard. [FN71]
D.
Legal Effect of Designation As a Hazard
Interestingly, the FAA has no enforcement authority to prohibit the construction of hazards to air navigation. Certain objects merely need to be lighted in a certain manner. [FN72] As a practicality, the determination by the FAA that a structure would be a hazard has significant impact on the owner: "should the structure erected be fount to be a hazard and a collision occur, any court determining who was at fault would consider the [fact the structure was designated as a hazard] relevant and important." [FN73]
The designation of the structure as a hazard puts the owner on notice that he is exposed to tremendous tort liability. This would seem to be a much bigger incentive than any government regulation. Fortunately, a purchaser/developer can make this determination before agreeing to purchase the real estate. The size and nature of any development can be assessed to determine if it would be a hazard to air navigation: if it would be, the developer/purchaser should reconsider his plans.
E.
The Effect of Hazards Near a Proposed Airport
The provisions of FAR part 77 [FN74] do not apply in reverse. Once buildings are designated as non-hazards, the construction of an airport nearby will not cause them to be reclassified. However, the approval of the airport by the FAA is subject to their air safety review under FAR part157 (14 C.F.R. §157 et.seq.(West 1994)). If the buildings or structures render the new airport unsafe, the FAA will find the airport "objectionable."
V. Notification Requirements for New Airports, and Safety Review
A purchaser or owner of real estate desirous of establishing an airport on the land is subject to the notification requirements of FAR 157.3-5. [FN75] A developer of a public use airport may apply for Federal funds under the Airport Aid Program. [FN76] A tentative allocation of Federal funds for the project is possible, so a developer can determine the eligibility for these funds before committing to purchase of the real estate. [FN77]
The FAA requires notice by anyone intending to construct a new airport, modify or abandon an existing airport or any part of one, change the status of an existing airport, or change the traffic patterns at an existing airport. [FN78] Generally, the FAA must be informed 90 days in advance of any construction at the site an a specified form. [FN79] The FAA will then conduct an aeronautical study of the project, and issue a determination of its impact on the safe and efficient use of airspace and safety of persons and property on the ground. [FN80] The determination is only advisory [FN81], but a prospective buyer/developer should consider the vast liability of such an adverse determination.
The FAA has the authority to regulate the airspace above the project into non-usability, rendering the airport useless. An accident or other liability incurring event at a site found to be hazardous by the FAA, but operated anyway by the owner would have serious legal liability; particularly tort liability. Fortunately, a buyer/developer may have this determination completed by the FAA in advance of purchase or commitment to the property transaction.
Factors considered by the FAA in making a suitability determination are: effects on existing or contemplated traffic patterns of neighboring airports; effect on existing and projected airspace structure; and effects on existing or proposed manmade objects and natural objects within the affected area. [FN82] This determination by the FAA does not in anyway relieve the sponsor of the project of obligation or responsibilities to comply with local laws, ordinances, regulations, or any State or other Federal regulations. [FN83] Examples include zoning restrictions or noise reduction statutes.
The FAA will issue a determination that a project is 1) not objectionable; 2) conditionally objectionable; or 3) objectionable. [FN84] The determination also will contain a void date, beyond which any construction of the project must be completed, or face a new aeronautical study. [FN85] Extensions, revisions and waivers are possible upon petition. [FN86] The FAA must be notified with 15 days of the project's completion. [FN87] Once properly notified, the project becomes an existing facility with a permanent status of the determined aeronautical suitability.
Before committing resources to an airport development project, a thorough investigation of local and state zoning laws is necessary. "Some States have no restrictions on airports, giving the counties or cities authority to administer airport regulations. Others have airport certification boards which pass on the suitability of strips, and there is no way to find out except by applying or inquiring in one's own locality." [FN88]
It seems well settled that zoning can and does represent a powerful land use regulation. Zoning regulations can even put an existing airport out of business. "[This airport] was not a substantial use, the loss of which would cause serious financial harm to defendants, and hence the destruction of the use is justified by the advantage to the public in being able to carry out an effective zoning plan." [FN89] While a subject all to itself, the ability of governments to zone real estate for certain uses has little restriction. Airport uses are but one example.
However, an interesting exception to such power is when the zoning ordinances conflict with specific legislation of the State. A plaintiff sought a declaration from the Court that the new zoning ordinance prohibiting aviation use of his land was void because State law preempted it in Garden State Farms, Inc. v. Bay New Jersey Superior Court. [FN90] Such a declaration was not forthcoming, and the Court generally upheld the power of the municipality to create zoning laws prohibiting aviation use of certain property. An important exception was made by the Court:
An important distinction should be made between the State action in the case above, and the FAA approval action in the above section V. The FAA action of approval under FAR part 157 (14 C.F.R. §157 et.seq. (West 1994)), is not an approval of a particular land use: it is merely that the proposed airport does or does not present an objectionable use of the airspace. Hence, there is no conflict with the supremacy clause of the Constitution or any local zoning law. The FAA regulations do not represent a direct federal land zoning law, since the FAA deals only with use of the airspace.
As a practical matter, a prospective owner of real estate with an objective of developing the land into an airport must pay particular attention to state, county and local ordinances before committing resources to the transaction. Of particular note should be noise restrictions in the area to be purchased and developed. A developer should compare the predictions of noise from the Environmental Assessment (prepared as described above) to any local ordinances to determine compatibility of his plans with local laws.
VII.
Conclusion
A purchaser of real estate proceeding with plans to develop, establish, use, or expand an airport has several land use regulations to contend with. His plan must be environmentally sound, and must consider alternatives that reduce or eliminate environmental impacts. The developer must be cognizant of the possible hazards to air navigation his structures may create. He must conform to local zoning restrictions. If these regulations are not complied with, the purchaser is in serious risk of buying land he cannot use for his airport project.
A purchaser of real estate with plans to erect tall buildings or other structures must consider the hazards to air navigation that the structures may cause. A survey of the existing airspace prior to purchase or commitment is necessary to determine if this represents a practical prohibition of the development.
Footnotes
{FN1} 49 U.S.C.A. §40103 et. seq. (West 1994)
{FN2} 49 U.S.C.A. §40101 et. seq. (West 1994)
{FN3} 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283
{FN4} 49 U.S.C.A. §47101 et.seq. (West 1994)
{FN5} Airport Environmental Handbook, Department of Transportation, Federal Aviation Administration, FAA Order Number 5050.4A, para. 10(a).
{FN6} Id., para. 10(a) (Italics added)
{FN7} 42 U.S.C.A. §4331(b) (West 1994) (NEPA §101(b))
{FN8} 42 U.S.C.A. §4332(C) (West 1994) (NEPA §102(C))
{FN9} Airport Environmental Handbook, Department of Transportation, Federal Aviation Administration, FAA Order Number 5050.4A, para. 10(a).
{FN10} 49 U.S.C.A. §47101(a)(6), (h)
{FN11} Airport Environmental Handbook, Department of Transportation, Federal Aviation Administration, FAA Order Number 5050.4A, para. 23. (Partially reproduced in appendix B)
{FN12} Id., para. 26.
{FN13} Id., para. 23(b), 24
{FN14} Id., para. 26.
{FN15} Id., para. 46, 47. (summarized in appendix B)
{FN16} Id., para. 48-50.
{FN17} Id., para. 52.
{FN18} Id., para. 51(b).
{FN19} Id., para. 62.
{FN20} Id., para. 70.
{FN21} Id., para. 71-75.
{FN22} Id., para. 80.
{FN23} Id., para. 85(a)-85(t).
{FN24} Id., para. 85.
{FN25} Id., para. 91
{FN26} Id., para. 96
{FN27} 49 USC §1486 (West 1994).
{FN28} Suburban O'Hare Com'n v. Dole, 603 F.Supp. 1013 (N.D.Ill., Feb 28, 1985)
{FN29} Id at 1021. See also City of Rochester v. Bond, 603 F.2d 927 (D.C.Cir.1979).
{FN30} City of Southlake v. F.A.A., 679 F.Supp. 618 (N.D.Tex., Dec. 02, 1986)
{FN31} City of Irving v. Federal Aviation Administration, 539 F.Supp. 17 (N.D.Tex.1981)
{FN32} City of Alexandria v. Helms, 728 F.2d 643 (4th Cir.1984).
{FN33} Runway 27 Coalition, Inc. v. Engen, 679 F.Supp. 95, 18 Envtl. L. Rep. 21,110 (D.Mass., Jun. 30, 1987)
{FN34} Id. at 107, Italics added.
{FN35} Miron v. Menominee County, 795 F.Supp. 840 (W.D.Mich., Apr. 24, 1992)
{FN36} State of Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir.1979)
{FN37} Miron at 844, 843.
{FN38} Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 290 U.S.App.D.C. 371, 21 Envtl. L. Rep. 21,142 (D.C.Cir., Jun 14, 1991)
{FN39} Id. at 196.
{FN40} 49 U.S.C.A. §40101 et. seq. (West 1994)
{FN41} Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 290 U.S.App.D.C. 371,___ 21 Envtl. L. Rep. 21,142 (D.C.Cir., Jun 14, 1991)
{FN42} Id. at 201.
{FN43} Id. at 202.
{FN44} Allison v. Department of Transp., 908 F.2d 1024, 285 U.S.App.D.C. 265, 20 Envtl. L. Rep. 21,239 (D.C.Cir., Aug 03, 1990)
{FN45} Alison at 1029.
{FN46} Id .at 1029.
{FN47} Id. at 1031.
{FN48} Id.
{FN49} Neighbors Organized to Insure a Sound Environment, Inc. v. McArtor, 878 F.2d 174 (6th Cir.(Tenn.), Jun. 29, 1989)
{FN50} Id. at 178.
{FN51} Citizens for Responsible Area Growth v. Adams, 680 F.2d 835, 12 Envtl. L. Rep. 21,025 (1st Cir.(N.H.), May 25, 1982)
{FN52} Id. at 839.
{FN53} Neighbors Organized to Insure a Sound Environment, Inc. v. McArtor, Supra. (Citing Crounse Corp. v. ICC, 781 F.2d 1176, 1193 (6th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 291, 93 L.Ed.2d 264 (1986). )
{FN54} C.A.R.E. Now, Inc. v. F.A.A., 844 F.2d 1569, 18 Envtl. L. Rep. 21,081 (11th Cir.(Ga.), May 18, 1988)
{FN55} Id at 1572. (Citing Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691 (11th Cir.1986); Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir.1973).)In a footnote, the split is listed. The 5th, 8th, 9th, 10th and 11th circuits use the reasonableness standard, while the 1st, 2nd, 4th, and 7th circuits employ the arbitrary and capricious standard. Id, FN3. The 3rd, 6th, and D.C. circuits adhere to the arbitrary and capricious standard found in the Administrative Procedure Act, 5 U.S.C. §706(2)(A), but no cases are cited.
{FN56} Id.
{FN57} West Houston Air Committee v. F.A.A., 784 F.2d 702, 24 ERC 1112,16 Envtl. L. Rep. 20,466 (5th Cir., Mar 12, 1986)
{FN58} Id. at 705.
{FN59} 14 C.F.R. §77.1 et. seq. (West 1994)
{FN60} 14 C.F.R. §77.19(c) (West 1994)
{FN61} 14 C.F.R. §77.15(a) (West 1994)
{FN62} 14 C.F.R. §77.15(a)(3) (West 1994)
{FN63} 14 C.F.R. §77.15(a)(4) (West 1994)
{FN64} 14 C.F.R. §77.15(a)(5) (West 1994)
{FN65} 14 C.F.R. §77.17(b) (West 1994)
{FN66} 14 C.F.R. §77.15(b) (West 1994)
{FN67} 14 C.F.R. §77.15(c) (West 1994)
{FN68} 14 C.F.R. §77.17(c) (West 1994)
{FN69} 14 C.F.R. §77.21, §77.23, §77.25 (West 1994)
{FN70} 14 C.F.R. §77.23(a)(1) (West 1994)
{FN71} 14 C.F.R. §77.23(a)(2-5),(b), §77.25 (West 1994)
{FN72} 14 C.F.R. §77.19(b) (West 1994)
{FN73} Alfred L. Wolf, Legally Speaking: How carefully must the FAA investigate "hazards" to airports?, AOPA Pilot, June 1983.
{FN74} 14 C.F.R. §77 et. seq. (West 1994)
{FN75} 14 C.F.R. §157 et.seq. (West 1994)
{FN76} 14 C.F.R. §152.111 (West 1994)
{FN77} 14 C.F.R. §152.111(d) (West 1994)
{FN78} 14 C.F.R. §157.3 (West 1994)
{FN79} 14 C.F.R. §157.5 (West 1994)
{FN80} 14 C.F.R. §157.7(a) (West 1994)
{FN81} 14 C.F.R. §157.7(a) (West 1994)
{FN82} 14 C.F.R. §157.7(a) (West 1994)
{FN83} 14 C.F.R. §157.7(a) (West 1994)
{FN84} 14 C.F.R. §157.7(b) (West 1994)
{FN85} 14 C.F.R. §157.7(c) (West 1994)
{FN86} 14 C.F.R. §157.7(c) (West 1994)
{FN87} 14 C.F.R. §157.9 (West 1994)
{FN88} Frank A. Tinker, Are your Zoning Regs Airworthy?, AOPA Pilot, Jan. 1984
{FN89} Clackamas County v. Portland City Temple, 13 Or.App. 459, 463 511 P.2d 412,414 (1973)
{FN90} Garden State Farms, Inc. v. Bay New Jersey Superior Court, 146 N.J.Super. 438, 370 A.2d 37(1977)
{FN91} Ibid at 442, 39. Italics added.