Building  Owners  and  Managers  Association  International

Building Owners and Managers Association International

Federal Rules Impacting Local Zoning

BOMA Position

Before implementing any new laws or rules that specifically impact local zoning and development, the federal government must take into account comments, concerns and feedback from all stakeholders.  For federal rule making in particular, BOMA International requests that agencies follow ordinary notice and comment procedures that apply to agency rulemaking.          

 

Background

Zoning is the process of planning for land use by a locality to allocate certain kinds of structures in certain areas. Zoning also includes restrictions in different zoning areas, such as height of buildings, use of green space, density (number of structures in a certain area), use of lots, and types of businesses. For over 100 years, the authority to zone land has largely been the authority of local governments, which have a better understanding of how best to utilize its land to benefit its population. 

Recently, the Federal Aviation Administration (FAA) issued a notice of proposed policy clarification in April 2014 that would impact local land use around airports.  This proposed policy clarification would affect the criteria used to evaluate whether structures around airports will be in compliance with 14 CFR Part 77 (“Part 77”).  The FAA is seeking to incorporate one-engine inoperative (OEI) procedures into the criteria for building height determinations near airports. This alteration, the first in more than seventy years, would alter decades of agency precedent in evaluating proposed construction near airports.  

OEI procedures are proprietary to airlines and are not publicly available. Airlines develop and use OEI procedures on every single flight in the country, taking into consideration each airport’s operating conditions (including surrounding structures). They ensure that flight weight is limited to that which would allow a plane to climb even if it loses power to an engine. These procedures ultimately help drive proprietary economic considerations for airlines, not flight safety considerations.

The impacts of this Part 77 change are potentially far-reaching in its potential impact on buildings and local economies.  Incorporating OEI procedures into Part 77 determinations could limit building heights in many downtown areas and possibly have a negative effect on local jobs and tax revenues.  

By proposing a "policy clarification," and not a rulemaking, the FAA is not obliged to take local economic impacts of the policy into account. This raises major federalism concerns, among many others.  In early 2014, BOMA International, along with four other real estate groups, sent a letter to Secretary of Transportation, Anthony Foxx, urging any change to Part 77 be done as part of a formal rulemaking process.  In addition, in May 2014, Congressman Jim Moran (R – Va.) introduced legislation (H.R. 4623) that would require the FAA to follow through on a rulemaking process, before such a change could be made.  

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