OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 185 Bill Analysis
135th General Assembly
Click here for H.B. 185’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Callender and Fowler Arthur
Effective Date:
Margaret E. Marcy, Attorney
SUMMARY
 Updates state law to align with current federal law and Federal Aviation Administration
(FAA) regulations regarding navigable airspace and obstructions to air navigation.
 Requires any person that must file notice with the FAA regarding the proposed
construction or alteration of a structure or object of natural growth because the
structure or object exceeds federal obstruction standards also to apply for a permit with
the Ohio Department of Transportation (ODOT).
 Removes certain current law exemptions to the requirement to obtain a permit.
 Authorizes the notice filed with the FAA regarding the proposed construction or
alteration to serve as the application for the state permit, as opposed to filing a separate
application as under current law.
 Requires ODOT to conduct its permit study and review concurrently with the FAA’s
review and to grant, deny, or grant with a waiver from obstruction standards the ODOT
permit within 90 days after the FAA issues its final determination.
 Specifies when ODOT must grant or deny a permit based on both the FAA’s final
determination and the study and review conducted by ODOT and any impacted airport.
 Authorizes an airport sponsor and the permit applicant to submit written information
and responses through the decision-making process for ODOT’s consideration.
 Clarifies that structures or objects of natural growth must meet their permit’s conditions
and the rules and regulations that are effective at the time of their construction, initial
alteration, or growth, but do not need to be changed to meet new rules or regulations,
unless substantial alterations to the structure or object require a new permit.
 Allows an airport sponsor to institute a court action to prevent, correct, or abate a
violation of the Navigable Airspace Law, in addition to ODOT as in current law.
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 Specifies that ODOT and the Office of Aviation are not liable for damages caused by a
structure or object of natural growth that obstructs the navigable airspace if:
 A permit was not issued for the structure or object;
 A permit was issued for the structure or object, but that structure or object is not in
compliance with the permit; or
 The Power Siting Board or an airport zoning board issued the permit.
 Clarifies and updates administrative matters related to airport terminology, funding,
activities, and similar proceedings.
 Requires an airport zoning commission, rather than the Office of Aviation, to develop an
airport approach plan for any airport within its jurisdiction.
 Updates outdated terminology and makes conforming and other changes in the laws
governing aviation and airport zoning.
 Names the act the Airspace Protection Act.
DETAILED ANALYSIS
Navigable airspace
General authority
In the case of laws related to navigable airspace, the federal government has expressly
preempted state and local laws on the subject, stating that the “United States Government has
exclusive sovereignty of airspace of the United States.” Federal law requires the Federal
Aviation Administration (FAA) to protect navigable airspace, prescribe air traffic regulations on
the flight of aircraft, and establish security provisions related to both.1
However, while the FAA regulates navigable airspace, it is dependent on state and local
governments to manage land use, zoning, and police regulations (which are areas of law
traditionally managed by state and local governments) in ways that protect and support the
FAA’s navigable airspace regulations. State and local governments generally fulfill this role
through granting or denying building permits based on whether the object will be an
obstruction and hazard to the navigable airspace.
Under current law, the Ohio Department of Transportation (ODOT) is required to adopt
rules for purposes of uniformly regulating the height and location of structures and objects of
natural growth within navigable airspace, based on federal air navigation rules.2 The bill
modifies ODOT’s authority, the Office of Aviation’s authority (within ODOT), and the related
149 United States Code 40103 (PDF), which is available on the U.S. Government Information website:
govinfo.gov.
2 R.C. 4561.05 and 4561.32.
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authority of airport zoning boards, to regulate obstructions to the navigable airspace in
conformance with updates to federal law.
Obstructions to navigable airspace
Under the bill, named the Airspace Protection Act, navigable airspace means the
airspace that is at and above minimum flight altitudes, including the airspace needed for a safe
takeoff and landing. An obstruction to that navigable airspace is any existing or proposed
structure or object of natural growth that exceeds the federal obstruction standards.3 Under
federal law, when new construction or alterations to existing structures or objects of natural
growth exceed specified federal parameters, the person proposing the construction or
alteration must file notice with the FAA.4 The FAA then makes a determination of whether the
proposed construction or alteration will be (1) an obstruction to navigable airspace and (2) a
hazard to air navigation. That determination generally results in one of three outcomes:
1. The construction or alteration is not an obstruction and not a hazard to air navigation;
2. The construction or alteration is both an obstruction and a hazard to air navigation; or
3. The construction or alteration is an obstruction, but the FAA determines it is not a
hazard to air navigation.5
Though the FAA’s determination is a necessary step, the person proposing the
construction or alteration also must apply for and obtain all state and local permits related to
the construction or alteration. Under the bill, any person that is required to file notice with the
FAA also must apply to either ODOT, the applicable airport zoning board, or the Power Siting
Board to obtain a permit prior to the construction or alterations.6
Permit applications
The bill simplifies the process for filing a permit application with ODOT related to a
proposed structure or object of natural growth. Under current law, an applicant must either file
a copy of the FAA form 7460-1 “Notice of Proposed Construction or Alteration” that was
submitted to the FAA or an application form established by ODOT that contains statutorily
specified information. Rather than filing both the notice with the FAA and a separate
application with ODOT, the bill specifies that the submission of the FAA form 7460-1 to the FAA
serves as the application for the ODOT permit as well. Relatedly, the bill removes current law
3 R.C. 4561.01(L) and (M); Section 4.
4 14 Code of Federal Regulations (C.F.R.) part 77.
5 14 C.F.R. §77.31.
6 R.C. 4561.31. The type of structure or object of natural growth and the location of that structure or
object determine which local or state entity receives the permit application. A person must apply to an
airport zoning board for a permit instead of ODOT when the board has adopted airport zoning
regulations authorized under the Revised Code that govern the geographic location of the applicable
structure or object of natural growth.
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provisions relating to the timing of the ODOT application, since the timing is concurrent with
the federal regulations for the FAA notice.7
ODOT action on applications
The bill requires ODOT to conduct its own study and review of a permit application
concurrent with the FAA review. Within 90 days of the FAA’s final determination, ODOT must
either grant the permit, deny the permit, or grant the permit with a waiver from obstruction
standards. ODOT’s actions are determined in part by the FAA’s determination. Specifically:
1. If the proposed construction or alteration does not meet the federal notification
standards, ODOT must notify the applicant that no permit is required;
2. If the FAA issues a determination that the proposed construction or alteration is a
hazard to air navigation, ODOT must deny the permit;
3. If the FAA issues a determination that the proposed construction or alteration is not a
hazard to air navigation and the structure or object is not an obstruction to navigable
airspace, ODOT must issue the permit;
4. If the FAA issues a determination that the proposed construction or alteration is not a
hazard to air navigation, but the structure or object is an obstruction to navigable
airspace, ODOT must make a determination over whether to issue the permit or not.
In making a determination regarding situations described in (4) above, ODOT must
contact the applicable airport sponsor within seven days after receipt of the FAA’s final
determination. (An airport sponsor is the controlling body of any regional airport authority, port
authority, public university or college, county, or municipal corporation, or the owner or private
entity that controls a privately owned airport or medical use heliport.)8 ODOT must request a
written decision from that airport sponsor as to whether the structure or object is a hazard to
the airport’s navigable airspace and/or whether any modifications would allow the obstruction
to exist in the navigable airspace.
The airport sponsor must respond to ODOT within 60 days after the FAA’s final
determination. If the airport sponsor objects to an FAA determination of no hazard, the sponsor
must list the specific aeronautical impacts that the obstruction would have to its facility or to
the navigable airspace of the airport. The response must also include any proposed conditions
or modifications that would allow the obstruction to exist. Within five days of receipt of the
airport sponsor’s response, ODOT must forward that response to the permit applicant. The
permit applicant may then submit additional information within seven days of receipt. ODOT
must consider any additional submitted information in making its decision regarding the permit
application.
7 R.C. 4561.33.
8 R.C. 4561.01(F).
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If ODOT denies a permit, ODOT must indicate if any modifications to the height or
location of the structure or growth would allow ODOT to issue the permit. ODOT also must
issue an opinion on any application for a permit indicating all of the factors it considered in its
decision. ODOT must give that opinion to the applicant and any applicable airport sponsor.
Appeals of ODOT’s decisions may be made in accordance with the Administrative Procedure
Act.9
ODOT must adopt updated rules related to the permit process and information included
in the Department’s decisions. That information may include the results of any studies or
investigations, FAA technical manuals, advisory circulars, airport design standards, airspace
procedures, and U.S. terminal procedures. The consideration of safety must continue to be
paramount over economic or technical factors for ODOT’s decisions.10
Prohibitions and enforcement
As stated previously, any person that is required to file notice with the FAA also must
apply for a permit with ODOT, the applicable airport zoning board, or the Power Siting Board.
The person must do so before the person may install, erect, construct, establish, or alter any
structure or object of natural growth. Failure to do so is a third degree misdemeanor. Relatedly,
a person must comply with the terms and conditions of any issued permits and ODOT’s related
rules and regulations. Failure to do so is a first degree misdemeanor.11
The above requirements and related prohibitions simplify and clarify current law. Under
current law, a person must not install or substantially change a structure or object of natural
growth if it reasonably is expected to penetrate specified imaginary surfaces surrounding an
airport, without first obtaining a permit or an amended permit. Current law provides two
exceptions to the prohibitions, specifically, (1) for structures and objects that are within ten
feet or 20% higher than the original, and (2) for structures and objects built prior to June 1,
1991. The bill replaces the outdated references to the airport’s specified surfaces and clarifies
that if notice is required from the FAA, then a state/local permit is also required. The
simplification and clarification make the current exceptions also unnecessary. These changes
conform state law to federal laws and regulations and take into account all areas impacted by
air navigation, rather than just the areas surrounding an airport.12
9 R.C. 4561.34
10 R.C. 4561.32.
11 R.C. 4561.31.
12 R.C. 4561.31. Federal laws related to navigable airspace address the height of a structure or object of
natural growth regardless of where it is located and beyond just the areas immediately surrounding an
airport.
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Regarding enforcement actions, the bill allows an airport sponsor to institute a court
action to prevent, correct, or abate a violation of the Navigable Airspace Law. Under current
law, only ODOT may institute an enforcement action.13
Applicability to existing structures
The bill clarifies a “grandfather” provision in current law that applies to structures or
objects of natural growth that are in existence prior to the adoption or amendment of the laws
governing obstructions to the navigable airspace. Under that provision, if a structure or object
becomes nonconforming because of changes to the law or because ODOT issues a new rule or
order, the law, rule, or order does not require changes to that structure or object. The bill
clarifies this provision of law by instead specifying that:
1. The law governing obstructions to the navigable airspace cannot be construed to
require the removal or lowering of, or the making of any other change to, any structure
or object that was in existence prior to October 15, 1991, or for which a permit, a
written statement of no permit required, or a permit with waiver from obstruction
standards was issued by ODOT, unless the structure or object was altered in a way
contrary to the terms and conditions of its issued permit or the changes relate to
lighting of the structure or object; and
2. Any permitted structure or object of natural growth is subject to the laws and rules
effective on the permit’s issued date. However, any substantial change or growth to that
structure or object is subject to the laws and rules that are effective on the date of the
change or growth.14
ODOT liability
The bill provides that ODOT and the Office of Aviation within ODOT are not liable for any
damages caused by a structure or object of natural growth that is an obstruction to the
navigable airspace if any of the following applies:
1. The structure or object was installed, erected, constructed, established, changed, or
altered without a permit;
2. A permit was issued for the structure or object, but the structure or object was not
installed, erected, constructed, established, changed, or altered in compliance with the
terms and conditions of the permit;
3. The Power Siting Board issued the certificate pursuant to which the structure or object
was installed, erected, constructed, established, changed, or altered; or
13 R.C. 4561.39.
14 R.C. 4561.37.
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