What’s wrong with this picture?
- The owner of the building knows about 14 CFR Part 77.
- The owner
- The FAA reviewed that Notice based on these broad and other detailed criteria:
- Evaluating the effect of the construction or alteration on operating procedures
- Determining the potential hazardous effect of the proposed construction on air navigation
- Identifying mitigating measures to enhance safe air navigation
- Charting of new objects
- The FAA issued a Final Determination which allegedly limited the construction to a “single crane no taller than 511 feet.”
- It is reported that the developer filed an amendment to its original Form 7460 to extend its 3 cranes to 695′.
- It is also stated that the developer went ahead and put up the three cranes.
- As of the date of the below report, the FAA was still reviewing the amended notice.
- As suggested by the picture, planes are flying in proximity of the three cranes.
- Based on the above allegations…
→ THAT’S WRONG!!!
The developer took a risk by filing an amendment and erecting the cranes at their new heights. The safe risks are discussed below. The FAA can only make a determination of hazard or no hazard; it does not have the power to prohibit. So the legal risks that the FAA would be able to stop the crane extension are minimal or none.
The legal risks are more likely to be exposed if there is any accident associated with the construction. Insurance policies are known to include “conditions” in their policies requiring the insured to obtain all of the necessary licenses, permits and authorizations. Clearly, if the accident involves an airplane, the absence of an FAA Part 77 determination might provide a basis for the carrier to void the coverage. A literal reading of the clause (here the specific language may or may not allow such a broad application of the clause) might also provide an escape for other accidents. [NOTE: the report indicates that the cranes have not moved recently.]
As mentioned in the article, having what may be an obstruction which could cause a serious safety hazard. The weather at San Diego’s Lindbergh Field frequently poses challenges; fog is a common phenomenon there (the marine layer). SAN’s approaches over the hills to the East and from the West (over the ocean) at night are known to be particularly challenging. All of these factors are reasons why Obstruction Evaluations for this airport should be conservatively reviewed.
The lawsuit is one action which will hopefully make this picture right. While the FAA may not be able to take direct action against the developer, with the right pretrial procedures, a witness may[i] be called by the private litigants to testify on the hazards under Part 77. Hopefully the laws of California provide a basis for a court to enjoin these aviation safety hazards.
In response to the suit by the San Diego Regional Airport Authority, the contractors “have significantly lowered the heights of three construction cranes and equipped them with flags and lights to comply with Federal Aviation Administration rules.” The Judge did not issue an injunction because he accepted the developers’ promise to comply.
The FAA’s authority as to Obstruction Evaluations is passive. It can only say no, but cannot prohibit. Recently, the FAA proposed to reduce the allowable height of potentially thousands buildings near airports around the country — a proposal that is drawing fire from real estate developers and members of Congress who say it will hurt property values. The proposal is supported by airports and airlines, because developments near airports are narrowing the safety margins for planes that might lose power in an engine during takeoff. The opposition might consider both the need for safety and the FAA’s limited preventative powers.