D&F Afoso Realty Trust. v. Garvey & Fed. Aciation Admin.
| Decision Date | 18 July 2000 |
| Docket Number | No. 99-1129,99-1129 |
| Citation | 216 F.3d 1191 |
| Parties | (D.C. Cir. 2000) D&F Afonso Realty Trust, Petitioner v. Jane F. Garvey and Federal Aviation Administration, Respondents |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the Federal Aviation Administration
Rachel B. Trinder argued the cause for petitioner. With her on the briefs was Craig M. Cibak.
William G. Cole, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General, and Robert S. Greenspan, Attorney.
Before: Silberman, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
D&F Afonso Realty Trust petitions for review of the Federal Aviation Administration's issuance of an aviation hazard determination declaring the roof of a house constructed by the petitioner to be a navigational hazard. The FAA defends the procedure and evidence underlying its determination and also argues that the petitioner lacks standing to bring its case before this court.After considering several affidavits submitted by the petitioner, we conclude that it has Article III standing. We further conclude, based on a review of the administrative record, that the FAA inexplicably failed to follow established agency procedure, did not adequately explain its decision, and acted arbitrarily and capriciously in making its hazard determination. Therefore, we vacate and remand the agency's determination.
D&F Afonso Realty Trust ("D&F"), a husband and wife owned construction company, decided to build a single family home in Hopedale, Massachusetts near a small, privately owned airport. In October 1997, construction on the house began after the town of Hopedale issued construction permits to the company. After building commenced, D&F learned from the Massachusetts Aeronautics Commission that it needed to notify the Federal Aviation Administration ("FAA") about the structure in order for the FAA to determine whether the house would violate any federal regulations. D&F informed the New England Regional Office of the FAA about the house in progress in late December 1997 by having its engineering firm file with the agency a Notice of Proposed Construction or Alteration (FAA Form 7460-1) required by 14 C.F.R. 77.17 to be submitted at least thirty days before the earlier of either the start date of construction or the construction permit's filing date. In early January, D&F informed the FAA of the house's completion.
After reviewing D&F's filing, the FAA determined that the completed house exceeded one of the air navigation obstruction standards listed in 14 C.F.R. 77.25. Specifically, the FAA found that 16.1 feet of the house's roof penetrated one of the "imaginary surfaces" around the airport. An imaginary surface is essentially an artificial engineering boundary "drawn" in the air around airports. The imaginary surface at issue here is the "transitional surface" which extends "outward and upward at right angles to the runway centerline and the runway centerline extended at a slope of 7 to 1 from the sides of the primary surface and from the sides of the approach surfaces." 14 C.F.R. 77.25(e). Because the roof penetrated the transitional surface, the FAA initiated an administrative inquiry to ascertain whether the structure would present a hazard to air navigation around the airport.
Specifically, the FAA began an "aeronautical study" because the house exceeded a Part 77 obstruction standard. Part 77 of the Federal Aviation Regulations "establishes standards for determining obstructions to air navigation." 14 C.F.R. 77.21(a). The FAA uses the standards to evaluate whether an object represents a hazard to air navigation. See id. 77.31-39 (Subpart D).
At the conclusion of the study, the FAA made a finding that the house had a substantial adverse effect on air navigation and issued a determination of hazard. The FAA concluded, without further explanation, that because the house "is immediately adjacent to the final approach course" for the runway, "it represents a hazard to all aircraft landing on [the] runway." In justifying the substantial adverse effect finding, the FAA concluded, without explanation, that the house would adversely affect all arrivals using Visual Flight Rules. Given the FAA's cursory reference to some aerial photographs showing the house's proximity to the runway's final approach course, the agency apparently relied sub silentio on the photographs as the core support for its hazard determination.
D&F sought administrative review of the FAA's determination and requested a hearing. The FAA denied D&F's request for a hearing and issued a final determination upholding its prior conclusions. In explaining its position, the FAA stated:
[T]he proposed structure would lie within the Hopedale... runway ... traffic pattern buffer. This buffer area is designed to provide a degree of protection for those pilots, departing and landing at an airport, operating in accordance with visual flight rules (VFR).... [B]ecauseof the proposed structure's height and its relative position within the traffic pattern buffer, it is the FAA's position that the planned structure would be a distraction to pilots during a critical phase of flight.
To effectuate its findings, the FAA published a warning to pilots to "use extreme caution when landing ... due to a twostory house located approximately 400' northwest of the runway threshold."
In addition to the FAA finding the house to be a hazard to air navigation, the Massachusetts Aeronautics Commission determined that the house penetrated certain protected airspace in violation of the Code of Massachusetts Regulations. After the administrative findings came to light, the Hopedale Airport asked the town to remove the house. Currently, the town of Hopedale refuses to issue an occupancy permit to D&F. In light of the foregoing events, D&F seeks review of the FAA's hazard determination and asks this court to reverse the FAA's determination in an effort to obtain an occupancy permit from the town as a result.1
The FAA challenges D&F's standing to bring this appeal. In order to establish Article III standing, D&F must show that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693, 704 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); see also Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc). D&F established an actual and concrete and particularized injury consisting of a diminution in property value due to its inability to obtain an occupancy permit from the town. The FAA argues, however, that D&F has not shown a causal link between the agency's hazard determination and D&F's injury, given the Massachusetts Aeronautics Commission and airport's independent objections to the house. The FAA also challenges the ability of this court to redress D&F's injury by reversing the agency because the town, not the agency, controls permit issuance.
If the FAA hazard determination independently diminished the house's property value or constituted the only factor motivating the town's denial of the occupancy permit, causation and redressibility would be non-issues because our reversal of the FAA would either provide a remedy for the financial injury caused by the FAA or prompt the town to issue the permit. However, neither the record nor the briefs submitted to this court established which of the events among the FAA's findings, the Massachusetts Aeronautics Commission's findings, the airport's complaint, or some combination thereof prompted the town's denial of the occupancy permit and the diminution in property value. However, at oral argument, D&F asserted that the FAA's hazard determination in and of itself caused a diminution in property value and that the town was withholding the occupancy permit solely due to the FAA's hazard determination. Therefore, we afforded D&F the opportunity to submit affidavits supporting its allegations, if true.
Upon review of D&F's submissions, we conclude that D&F alleges facts satisfying the standing requirements of causation and redressibility. D&F supplied an affidavit explaining that "a real estate broker ... informed [D&F] that the FAA's Hazard Determination has resulted in a diminution of value to the Afonso House independent of whether an occupancy permit is granted." In addition, D&F submitted an affidavit establishing that the Massachusetts Aeronautics Commission would "defer to the outcome of the FAA-related proceedings currently before this Court." Moreover, D&F supplied an affidavit from the Hopedale Building Commissioner declaring that We must construe the statements made in the affidavits in the light most favorable to the petitioner. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Taken together, the statements show that the FAA's hazard determination causes D&F injury in the form of diminished property value and comprises the sole obstacle between D&F and an occupancy permit. Therefore, we conclude that D&F has standing to challenge the FAA's hazard determination.
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