New Oklahoma Law Requires An Additional Permit For Some Developers — Oklahoma’s Aircraft Pilot And Passenger Protection Act

GG
Gable Gotwals

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Gable Gotwals
On October 1, 2010, the Oklahoma Aircraft Pilot and Passenger Protection Act (the "Act") became effective.
United States Transport
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On October 1, 2010, the Oklahoma Aircraft Pilot and Passenger Protection Act (the "Act") became effective. By receiving little press coverage, the Act may have "flown under the radar" of many real estate, wind and utility developers. The Act requires developers to apply for a permit, issued by the Oklahoma Aeronautics Commission (the "Commission"), if a proposed structure will exceed certain height restrictions. The permit requirement and the attendant notice provisions are in addition to those already imposed by the Federal Aviation Administration (the "FAA"). While the primary focus of the Act is to regulate developments located within close proximity to airports, the Act does affect structures built within nine and one-half miles of an airport runway. The following is a basic outline and summary of the new Oklahoma Act and its reporting requirements.

1. "Public-Use Airports"

The Act only applies to developments surrounding those airports which are defined by the Act as "public-use airports." A "public-use airport" includes:

  • A structure or an area of land or water used for the landing and taking off of aircraft, that is utilized (or to be utilized) by and in the interest of the public, and is identified by the FAA as a public-use airport; and
  • Any military airport operated by a branch of the armed service of the United States government.

Importantly, under the Act, a "public-use airport" does not include:

  • Any airport owned by a municipality with a population exceeding 500,000. This appears to exempt both Will Rogers World Airport and Wiley Post Airports in Oklahoma City from the Act's coverage, or
  • A privately owned airport for private use (as defined by the FAA).

2. When is a Permit Required?

In addition to the notice requirements already imposed by FAA Regulations, the Oklahoma Act requires a permit from the Commission prior to the construction or installation of any of the following:1

  • Any structure with a proposed height in excess of 150 feet and located within three miles from the center of an airport runway.
  • A structure used as a residence, educational center, place of worship, medical center (including nursing homes) or any similar use which is located within:
    • a "Primary Surface" of a runway—an imaginary area extending 200 feet off each end of a runway with a width of 1,000 feet, or
    • a "Runway Protection Zone"—a trapezoidal zone centered along each end of the Primary Surface, 2,500 feet long, with an inner width of 1,000 feet and extending to an outer width of 1,750 feet. Any such structure is presumed to be incompatible with normal airport operations.
  • Any structure, alteration or addition to a structure that would result in a total structure height greater than any of the following:
    • the "Horizontal Surface" of the runway—an imaginary horizontal plane 150 feet above the airport and extending in an oval-like shape around the runway for a distance of approximately 10,000 feet.
    • the "Conical Surface" of the runway—an imaginary surface extending outward and upward from the edge of the Horizontal Surface at a slope of 20 (horizontal feet) to one (vertical foot) for a horizontal distance of 4,000 feet.
    • the "Approach Surface" of the runway—an imaginary surface shaped in the form of a trapezoid beginning 200 feet from the end of a runway and having an inner edge of 1,000 feet, and expanding outward uniformly to a width of 16,000 feet, and sloping upward at a slope of 50 (horizontal feet) to one (vertical foot) for a horizontal distance of 10,000 horizontal feet (approx. 1.9 miles), and then sloping upward at a slope of 40 (horizontal feet) to one (vertical foot) for an additional 40,000 (approx. 9.5 miles) horizontal feet.

The drawings appended to this article illustrate these restrictions more clearly. The Act creates a presumption that construction in excess of these Surfaces constitutes a hazard to air navigation.

  • Any structure which requires FAA reporting where the FAA has notified the applicant that further study is required in order to assess the potential hazard to air navigation.

3. Timing of the Notice

Notice of proposed developments within the restricted areas described above should be given to the Commission either on OAC Form A-1 or OAC Form A-2, depending on the location of the structure. If notice to the FAA is also required, an application for a permit to the Commission must be filed at the same time, or before, the FAA notice is filed. The applicant should attach any such FAA notice to his/her notice to the Commission. If FAA notice is not required, the application for a permit must be filed at least thirty days before the earlier of: the date the proposed construction is to begin, or the date an application for construction is to be filed with the municipality.

4. Response from the Commission

After receiving an application for a permit, the Commission notifies the legal representative of the public-use airport and solicits comments from the airport owner. The Act lists a number of considerations to guide the Commission in its determination of granting (or denying) a permit. The most interesting considerations include: the public and private interests and investments, the safety of persons on the ground and in the air, and the findings and determinations of other government agencies (such as, for example, the FAA).

If FAA notification is required, the Commission will notify the applicant of its determination within 30 days of the FAA completing its study. If notification has not been made to the applicant by the Commission within the 30 days, the applicant must notify the Commission, and the Commission will then have seven days to make its final determination. If FAA notification is not required, the Commission shall notify the applicant of its determination within 60 days of the filing of the application. Again, if the Commission has failed to notify the applicant within this 60 day period, the applicant must notify the Commission, and the Commission will then have seven days to make its final determination.

5. Post-Approval Obligations

If a permit is issued to an applicant, the applicant must (A) record the permit in the office of the county clerk in the county where the structure is to be located within 30 days after the Commission issues the permit and (B) send a certified copy of the recorded permit to the Commission. The permit is valid only after the Commission receives a certified copy of the recorded permit.

6. Permit Term

A permit is valid only if the proposed structure is constructed within 10 years of the date of permit issuance.

7. Appeals

If an applicant's permit is denied, the applicant may request a reconsideration in writing to the Commission within 30 days; if not, the Commission's determination will be final. The applicant's written request must provide evidence showing why the application should have been granted. The Commission will have up to 30 days to review the request. If the permit is again denied, the applicant may request a public hearing before the Commission. The applicant may be represented by counsel at the hearing.

8. Penalty

Each violation of the Act is a misdemeanor punishable by a fine of not more than $500. Each day that a violation or failure continues constitutes a separate violation. In its discretion, the Commission may also initiate an action for injunctive relief for violations of the Act.

9. Retroactive Effect

The Act does not apply to structures that existed, or for which an approved building permit was issued, prior to the Act's effective date, October 1, 2010. However, additions to these buildings would come within the Act's purview.

Footnote

1 For clarity, please review the graphics attached to this article—published with permission from the Oklahoma Aeronautics Commission

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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