James DeRosa

Federal Aviation Regulations Governing On-Site Airport Uses

In order for the redevelopment of Burke Lakefront Airport to be fully considered, an analysis must be undertaken of the regulations affecting on-site airport activities and uses. Both ground and airspace restrictions are addressed below, as well as the method for seeking the Federal Aviation Administration's approval for a non-conforming use.

Federal Aviation Regulation (FAR) Part 77 establishes the standards for objects that affect navigable airspace. This includes airspace both on the airport site itself as well as airspace needed for safe arrivals and departures. FAR Part 77 also establishes notification requirements for airport owners, which allows the Federal Aviation Administration (FAA) to:

· Evaluate the effect of the construction or alteration on operating procedures
· Determine the potential hazardous effect of the proposed construction on air navigation
· Identify mitigating measures to enhance safe air navigation
· Chart the new objects that are approved. (1)

The first step in this analysis is to determine whether uses on the airport property would interfere with air traffic.

Objects Affecting Navigable Airspace:

Nothing can be constructed within what the FAA terms the "Building Restriction Line." The FAA specifies that the Building Restriction Line "should encompass the Runway Protection Zone, Runway Visibility Zone, areas required for airport traffic control tower clear line of sight, and when feasible all areas with less than 35-foot clearance under the FAR Part 77 surfaces." Buildings, structures, trees, and other fixed objects (unless needed for navigation purposes) are generally not be permitted within the Building Restriction Line.

The FAA has established very specific standards for determining obstructions, which are called FAR Part 77 surfaces:

"Sec. 77.23 (a): An existing object, including a mobile object, is, and a future object would be, an obstruction to air navigation if it is of greater height than any of the following heights or surfaces:

1. A height of 500 feet above ground level at the site of the object.
2. A height that is 200 feet above ground level or above the established airport elevation, whichever is higher, within 3 nautical miles of the established reference point of an airport, excluding heliports, with its longest runway more than 3,200 feet in actual length, and that height increases in the proportion of 100 feet for each additional nautical mile of distance from the airport up to a maximum of 500 feet.
3. A height within a terminal obstacle clearance area, including an initial approach segment, a departure area, and a circling approach area, which would result in the vertical distance between any point on the object and an established minimum instrument flight altitude within that area or segment to be less than the required obstacle clearance.
4. A height within an en route obstacle clearance area, including turn and termination areas, of a Federal airway or approved off-airway route, that would increase the minimum obstacle clearance altitude.
5. The surface of a takeoff and landing area of an airport or any imaginary surface established [by the FAA under these regulations]. However, no part of the take-off or landing area itself will be considered an obstruction.

"(b) Except for traverse ways on or near an airport with an operative ground traffic control service, furnished by an air traffic control tower or by the airport management and coordinated with the air traffic control service, the standards of paragraph (a) of this section [see above] apply to traverse ways used or to be used for the passage of mobile objects only after the heights of these traverse ways are increased by:

1. Seventeen feet for an Interstate Highway that is part of the National System of Military and Interstate Highways where over-crossings are designed for a minimum of 17 feet vertical distance.
2. Fifteen feet for any other public roadway.
3. Ten feet or the height of the highest mobile object that would normally traverse the road, whichever is greater, for a private road.
4. Twenty-three feet for a railroad, and,
5. For a waterway or any other traverse way not previously mentioned, an amount equal to the height of the highest mobile object that would normally traverse it." (2)

An analysis of these FAR 77 regulations will determine where on the Burke Lakefront Airport site buildings can be constructed once the runways have been moved. Once this is determined (through GIS application), the next determination is how high of a structure can be built.

Policy and Procedures on Runway Protection Zone and Airport Object Clearing Policy:

In order to protect people on the ground, the FAA established what was originally termed "Clear Zones" beyond runway ends in order to control these areas and prevent building construction. The term Clear Zone was replaced in 1989 with the term Runway Protection Zone (RPZ). The purpose of the RPZ, as outlined in Advisory Circular (AC) 150/5300-13 (dated 9/29/89), is to enhance the protection of people and property on the ground, as well as to allow the RPZ to be accessible to rescue and fire fighting vehicles. The RPZ is trapezoidal in shape and centered about the runway centerline. It begins 200 feet beyond the end of the area usable for takeoff or landing. (3)

FAA Policy and Procedure Memorandum (PPM) No. 5100.38A, paragraph 602 b. (1) states that "the sponsor should be strongly encouraged to acquire fee title to all land within the runway protection zone, with first priority given to land within the object free area. Structures or activities located on this land must be removed unless excepted by the regional Airports Division manager or needed for air navigational aids." An "object free area" is defined by the FAA as a two-dimensional ground area centered on the runway, taxiway, or taxilane centerline. (4)

PPM 5100.38A further states that any existing structures or uses within the RPZ must be cleared or discontinued, unless approved by the FAA. This responsibility is placed on airport owners through grant agreements with the FAA. Any grant agreements executed after August 1981 require airport owners (or "sponsors") to protect terminal airspace by mitigating existing airport hazards and "preventing" future airport hazards. (5) "Airport Hazard" is defined as "any structure or object of natural growth located on or in the vicinity of a public-use airport, or any use of land near such an airport, which obstructs the airspace required for the flight in landing or take off at such airport, or is otherwise hazardous to such landing or taking off of aircraft." (6) Note that in the Great Lakes Region, an item will only be considered an airport hazard based upon an unfavorable airspace determination by the FAA. (See Determination by FAA below.)

The FAA will either make an identification of a hazardous obstruction or will make an adjustment in aeronautical procedures to accommodate an obstruction that cannot be removed. The primary focus by the FAA when making this determination is the RPZ. FAA circulars require that RPZs that are owned in fee by the airport owners be free and clear of all structures, unless excepted by the FAA. The FAA also discourages automobile parking in the RPZs unless there is no feasible or practicable alternative to meeting the airport's parking needs.

PPM 5100.38A states that for both new airports and airport improvement program investments involving new runways or runway extensions at existing airports (such as those being considered by Burke Lakefront Airport), the following incompatible land uses are prohibited in the RPZs:

1. Continual flow open waterways (drainage ditches and swales with side slopes of 4:1 or less would be acceptable);
2. Surface gradients greater than 4:1 (traverseways such as roadways and railroads with side slopes meeting the 4:1 grading criteria would be acceptable);
3. Parked vehicles and railroad cars;
4. Stored crops and farm equipment;
5. Power lines and facilities;
6. Fencing (fencing with breakable mountings would be acceptable).

Note that these same restrictions also apply to the area within the Building Restriction Line.

Determination by FAA:

Any construction project (whether permanent or temporary) that consists of any of the following alterations must notify the Administrator of the FAA:

· Any construction or alteration exceeding 200 feet above ground level;
· Any construction or alteration:

o Within 20,000 ft. of a public use or military airport which exceeds a 100:1 surface point on the runway
o Within 10,000 ft. of a public use or military airport which exceeds a 50:1 surface point on the runway
o Within 5,000 ft. of a public use heliport which exceeds a 25:1 surface;

· Any highway, railroad or other traverse way whose prescribed adjusted height will exceed that above noted standards;
· When requested by the FAA
· Any construction or alteration located on a public use airport or heliport regardless of height or location. (7)

The City of Cleveland, as owner of Burke Lakefront Airport, must comply with this regulation for any proposed airport construction that falls into the above guidelines, as well as for any changes to the outer lying lakefront and shoreway areas. Note that notice must also be given to the FAA if for example the Interbelt highways and/or railroads adjacent to Burke are restructured.

This notice must be submitted to the FAA for consideration with a scaled drawing showing the location of the alteration in relation to the nearest runways, perpendicular distance of the proposed alteration to the nearest runway centerlines, distance along centerline (actual or extended) from runway end to the perpendicular point, ground elevation at the site of the proposed alteration, height of the proposed alteration including antennas or other appurtenances, accurate geodetic coordinates, sketches, drawings, etc, showing the type of construction or alteration being proposed. (8)

Pursuant to FAR 77.17(a)(1), notification and all collateral documents must be submitted at least 30-60 days prior to construction so that the FAA can conduct an aeronautical study.

Once the FAA has completed an aeronautical study a determination regarding the proposed construction will be made in the form of a determination letter. One of three responses is typically issued:

1. No Objection - The subject construction did not exceed obstruction standards and marking/lighting is not required;
2. Conditional Determination - The proposed construction/alteration would be acceptable contingent upon implementing mitigating measures (marking and lighting, etc.);
3. Objectionable - The proposed construction/alteration is determined to be a hazard and thus objectionable. The reasons for this determination are outlined in the determination letter. (9)

I could not locate any case law or administrative decisions that would shed light on how potential disputes have been resolved in the past between the airport owner and the FAA.

Airport Design Guidelines:

There are no guidelines from the FAA that state specifically where a terminal should be located or where other buildings/structures should be located on the airport site. These determinations are made by the airport operator and submitted via an Airport Layout Plan (ALP) to the FAA for approval. All such layouts should be in compliance with the above stated building restrictions as well as the terms and agreements of the grant agreement for that particular airport.

The FAA requires that airports submit and have approved an ALP by its regional authority. Burke Lakefront Airport would submit to the FAA Great Lakes Region. The ALP should show the proposed construction of new runways, runway extensions, terminal buildings, and other major and supportive development. (10) This would include any non-aviation related development that would be constructed on airport owned property. The purpose of submitting such plans is to review the development and the overall airport design with respect to safety, efficiency, and utility.

The FAA requires the submission of the site plan, structure elevations, exterior construction materials, geodetic coordinates or three-dimensional submittals along with the ALP. These items are important because certain decisions, such as line-of-sight evaluations, light reflection analysis, and Electro-magnetic Interference (EMI) determinations cannot be totally made from two-dimensional drawings. (11)

Guidance for Leases, Use Agreements, and Land Releases:

Although this topic is covered by another student's research, it is important to note that according to PPM 5190.6 (dated June 14, 1994) if part of Burke Lakefront Airport is outside a restricted building area, there are procedures that must be followed for leasing dedicated airport property because such a change in use requires a release from federal agreement land covenants.

Zoning:

Airport environs can only be protected through state and local zoning ordinances, building regulations, and like requirements. Neither the FAA nor other federal agencies have the ability to enact local zoning codes. The FAA, however, encourages airport owners to provide copies of airport master plans to appropriate local and state planning zoning boards and county and city officials and encourage them to adopt compatible land use criteria in and around the airport.

Zoning can also be used to establish an airport noise standard for the community. Although the FAA has complete control over aircraft operations to ensure the unrestricted national aviation system, the Noise Control Act of 1972 allowed for each community to define its own acceptable noise exposure criteria for compatible land uses around airports. (Most communities have deferred to the FAA's airport noise exposure guideline of Day-Night Average Noise Level (DNL) of 65 bBA. (12))