The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. 

In proposing its new supplement to the Part 77 obstruction regulations, FAA invokes its authority to regulate the safe and efficient use of airspace, 49 U.S.C. § 40103(a), and to issue air traffic rules to govern the flight, navigation, protection and identification of aircraft for the protection of persons and property on the ground and for the efficient use of the navigable airspace.  49 U.S.C. § 40103(b).  It should be noted that FAA’s statutory mandate does not include governance of property outside the airport, 79 Fed.Reg. 23302.  Land use authority is vested entirely in surrounding local governments.  What FAA regulations attempt to accomplish, however, is to provide “guidance” to local jurisdictions to identify obstacles that may have an adverse impact on the navigable airspace within certain geographic parameters around airports.  The closer to the airport, the lower the advisable height of structures.  See 14 C.F.R. Part 77.17. 

In general, FAA’s regulations require that a developer of a structure that meets or exceeds FAA’s notice requirements submit a “Notice of Proposed Construction or Alteration,” Form 7460-1, within a certain time period before commencing construction.  14 C.F.R. Part 77.7.  The FAA may then find the structure an obstruction, and if it interferes with terminal procedures (“TERPS”), a hazard to air navigation.  Until now, however, these regulations did not include an algorithm that addressed the impact of arrival or departure of an aircraft that has unexpectedly lost an engine during either one of these operations. 

The addition to existing Part 77 of such a restriction is a dramatic example of the law of unintended consequences.  First, it would significantly extend the geographic scope of FAA’s obstruction regulation to as much as 10 miles from an airport runway, and, at the same time, lower the permissible height of buildings to remain consistent with OEI operations.  For example, some analyses anticipate that changing the way FAA assesses proposals to build new structures or modify existing structures to incorporate OEI procedures would lower the permissible height of a building as far as 10,000 feet from the end of a runway at a commercial airport from 250 feet to 160 feet, thus simultaneously lowering the building’s utility and value. 

These changes would have significant consequences not only for building owners but also for the public entities within which developments are located.  While FAA cannot dictate land use to a local jurisdiction, a finding that a proposed structure interferes with OEI procedures, and, thus, constitutes a hazard to air navigation, 79 Fed.Reg. 23303, might strongly influence a jurisdiction to amend long standing plans for development.  Such changes could have dramatic impacts on property tax potential and, therefore, the economic future of the community. 

Finally, FAA proposes to make these changes without a formal rulemaking process, 79 Fed.Reg. 23302, although it is working with affected public entities, airlines and other involved parties to address the proposal’s potential impacts by designating a single flight path at each airport to be used for OEI procedures, thus simultaneously lessening the potential impact on other surrounding land uses.  In addition, FAA has extended the period for public comment on the OEI proposal to July 28, 2014.