Oh No! Not Another Tower!
BY R. PATRICK PHILLIPS
Sport Aviation - May 1999
As our country prospers, our cities and towns grow. They not only grow outward but upward. The upward expansion into tall buildings and towers has had a dramatic effect upon us in the aviation community. We have become acutely aware of the proliferation of tall towers and buildings and how they adversely affect the safety of flight. There have been many recent instances where people have decided to build radio towers close to small private airports.
The first question is: “Why doesn’t the FAA stop the construction of the tower because it will interfere with our traffic patterns?” It is erroneous thinking to believe that the Federal Aviation Administration regulates tall structures or will stop its construction. They will not! Examination of the statutes confirm there is no specific statutory authorization or Federal Air Regulation which limits structure heights or prohibits the construction of towers and tall buildings. Congress did provide some directive in the Federal Aviation Act when it provided the FAA with the authority to develop plans and formulate policy with respect to the use of navigable airspace. This empowered the FAA administrator to conduct investigations, and to provide regulations and procedures it deems necessary to carry out the act. In meeting its federal mandate the FAA promulgated FAR Part 77 (14 CFR 77) titled “Objects Affecting Navigable Airspace.” This act specifically requires each proposal of construction, or alteration of a structure more than two hundred feet in height above the site level or near an airport, or in an established instrument approach area, to give adequate notice to the FAA administrator.
The regulation is very detailed in the type, location and height of structures requiring notice. When the FAA is notified of a proposed construction of a tower or building that exceeds the height limits, the FAA then conducts what is known as an “aeronautical study.” This provides a forum and means in which the FAA can give full and equal consideration to the public interest in having new structures built as well as the interest of the person proposing the structure balanced against the need for safety in air commerce. The FAA aeronautical study is strictly limited to being a fact-finding report as to the structures’ effect on the surrounding airspace. This includes any impact on existing airports, VFR routes, established airways and instrument enroute and approach procedures. The impact on future airports is considered if the future airport plans were on file with the FAA at the time of filing the notice of construction. The proposal is thoroughly reviewed by FAA specialists in the air traffic, airport, flight standards and airway facility offices of the impacted region. All known airspace conflicts are identified and an analysis is made of the proposed structure to determine its total impact on aviation. If the FAA receives objections to the proposal and the agency’s own evaluation shows a substantial adverse effect on air navigation, an information airspace meeting may be held.
Although such meetings are for fact-finding purposes, they may provide an opportunity for persons to talk directly with or voice their objection to the builders of the structure. After a thorough review of the impact the tall structure will have on the airspace usage among all interested parties, a determination is then made as to whether the proposed structure would have a substantial adverse effect on the safe, efficient use of navigable airspace by aircraft. It has been my experience that the FAA generally finds no substantial adverse effect on the safe efficient use of the airspace which therefore results in a “determination of no hazard to air navigation.” If a determination of hazard is made, several things can happen. If the proposed tower is a transmitter tower and the FAA has determined it to be a hazard, the Federal Communication Commission (FCC) will not grant a permit to operate the tower.
The FAA many times makes recommendations as to the marking and lighting of the tower. The FCC will then require compliance with any FAA recommendations. Most states have statutes or laws governing the erection of structures dangerous to air navigation. State laws generally deny building permits when the federal standards are exceeded. FAR 77.23 sets forth in great detail the standards for determining obstructions. An object is generally considered to be an obstruction to air navigation if it is of a height of five hundred feet above ground level or a height that is two hundred feet above ground level above an established airport elevation within three nautical miles.
The FAA’s Aeronautical Study Form, which details its factual determination of hazard or no hazard to air navigation, contains as its last paragraph the following statement: “This determination, issued in accordance with the FAA Part 77, concerns the affect of this proposal on the safe and efficient use of the navigable airspace by aircraft and does not relieve the sponsor of any compliance responsibilities relating to any law, ordinance or any regulation of any federal, state or local government body.” The FAA is saying that the final determination for the construction of a structure, whether it be a building or transmitter tower, is governed by the state and local authorities and not by the FAA. The Federal Aviation Act of 1958 specifically withholds from the FAA statutory authority over ground structures in recognition of “States Rights.” The result is the FAA is strictly limited in its obstruction evaluation process to only airspace concerns and that states and the local municipalities have the ultimate right to enact and enforce airport compatible land use requirements through zoning and land planning laws.
Almost all states have legislation aimed at controlling the height and location of structures around the vicinity of airports. Many of the state statutes are not understood; particularly in light of the fact that many persons believe the FAA will stop the construction of a tall structure. If this is the case in your community, you should ask that your county or city leaders develop local ordinances that would address the needs of particular airports in your area relating to tall structures.
Larger municipalities are very sensitive to anyone building a tall structure which would interfere with the traffic flow into their municipal airport. It is conceivable that the FAA could determine a proposed tall building to be a hazard to air navigation. Although the FAA would not directly stop the construction of the tall building, the FAA could raise the minimum vectoring altitude around the airport or IFR approach minimums or even eliminate certain IFR or VFR approaches. This would obviously have an impact on the traffic flow into the airport. For this reason municipalities are very careful not to allow tall structures that would interfere with the traffic flow into their airport. If traffic movements into a large municipal airport were reduced it would then have an economic impact on the community. Most community political leaders would not want this to happen! It is for this reason you are generally protected from tall structures around an airport in the larger communities.
These are issues that each of us should be aware of as the tall structure problem increasingly continues to plague us as pilots each day. Remember, the final determination of the permitting and the building of the structure is not up to the FAA, but with your local zoning authorities. Happy flying and look out for those tall structures!
(R. Patrick Phillips, EAA 124466, practices Aviation Law in Orlando, FL. He holds ATP, CFII and A&P ratings, as well as a low level aerobatic waiver. Patrick is a member of the EAA Legal Advisory Council and is a Board Certified Aviation Law Attorney.)
