Virginia Trunkes | Construction Law Zone
COVID-19’s severe impact on some major metropolitan areas has been attributed to their density, infrastructure and inherent difficulty with “social distancing.” This same challenge with social distancing has led to either mandatory or pressured shutdowns of construction projects throughout many states and metropolitan areas. Meanwhile, and particularly during the shutdowns, building-safety mandates require that some people still physically be at the projects to ensure ongoing compliance – especially important where a half-complete project can result in its own safety problems. Simultaneously, to complete new real estate transactions, investigations of sites must still be performed for due diligence data.
Could commercial drones, i.e., small unmanned aircraft systems (“sUAS”), assist in these aspects to continue development and construction while mitigating health risks?
There are a myriad of benefits to sUAS use in real estate and construction. sUAS can capture images and videos that are typically difficult to obtain, share information in real-time and collect data frequently. This can lead to more knowledgeable decision-making on a more regular basis.
For instance, at the beginning of a transaction during due diligence, sUAS footage can prove the existence of assets, and can survey areas with added details about the landscape and topography. sUAS can get much closer to their intended objects than a helicopter, and deliver better, higher-quality pictures. Plus, their aerial images can be converted into maps and 3-D models.
At ongoing job sites, with their ability to reach “hard-to-get” to locations, sUAS can perform crucial safety inspections by, e.g., gauging the solidity of the structures and fixtures, and observing trespassing and theft. New technology such as thermal, infrared and LiDAR (light detection and ranging) sensors can help contractors spot problems in advance. And sUAS’ ability to view high-up facades with more breadth and frequency than human manual inspections could ensure greater safety to street pedestrians. (Just think of how these features could also result in lowered insurance premiums.)
In parts of the country and world where there do not exist highly stringent regulations for sUAS, sUAS use in real estate and construction has risen exponentially. Yet, commercial use of sUAS is prohibited in most portions of major metropolitan areas because, essentially, of their density. All sUAS must comply with FAA regulations. In comparison to unmanned air systems weighing 55 pounds or more (think Department of Defense), sUAS fall under “Part 107” rules (14. C.F.R. Part 107). Part 107 rules are straightforward, but plentiful.
The FAA offers operators of sUAS the opportunity to apply for a waiver from some of Part 107’s restrictions, which are granted on a case by case basis. But without a waiver from the FAA, the potential of sUAS for development and construction in dense urban areas cannot be realized.
For instance, the FAA prohibits operation of a sUAS over any persons not “directly participating” in the operation. That inherently presents a challenge in a highly-populated area. Additionally, the FAA permits operation of a sUAS only during daylight. Yet, there may be a circumstances outside of daytime hours prompting the need for an aerial investigation.
Assuming one could obtain a waiver for flying over people and at night, or otherwise block off a city street area (which requires a city permit) for a building analysis/safety check, the type of airspace above may present an obstacle. The FAA prohibits sUAS use within many types of categorized airspace (airspace ranges from Class A through G) without the required permission. Class B airspace contains at least one primary airport around which the airspace is designated. Operating an aircraft within a Class B airspace area requires Air Traffic Control clearance. Exemptions may be granted, through the Low Altitude Authorization and Notification Capability) (LAANC) application process. But they are discretionary, and in any event the necessary “low altitude ceiling” means for flights less than 400 feet high, which on average is a 40-story building. Today’s super skyscrapers, which would benefit the most from sUAS inspections, would not benefit from the LAANC.
In many cases outside of restricted airspace, use of a sUAS to view a skyscraper would actually comply with the FAA’s height restrictions: the altitude of the sUAS cannot be higher than 400 feet above ground level, unless it (1) is flown within a 400-foot radius of a structure; and (2) does not fly higher than 400 feet above the structure’s immediate uppermost limit. One operating a sUAS to evaluate a tall building would not need or want to go beyond those distances. That said, this exception would not apply in fog or where there exists low clouds, as the minimum distance of the small unmanned aircraft from clouds must be no less than 500 feet below the cloud. Add to that the requirement that sUAS be operated within a visual line of sight and the benefits for which the sUAS could otherwise be used would be defeated. Practically speaking, these restrictions would prevent the use of commercial sUAS for quite a few buildings typically in cities’ downtown areas; think Boston’s Financial District, Miami’s Brickell, and Philadelphia’s Center City neighborhoods, for instance.
New York City has its own, additional set of prohibitions. Neither LaGuardia nor JFK are participating airports in the LAANC program. Further, while city agencies like the NYPD and FDNY perform sUAS use for their operations, New York City Administrative Code § 10-126(c) makes it “unlawful for any person navigating an aircraft to take off or land, except in an emergency, at any place within the limits of the city other than places of landing designated by the department of transportation or the port of New York authority.” This law is 60 years old. There have been attempts to amend this section by making “technical and conforming changes” such as restricting the times, locations and altitudes at which sUAS may be operated, but thus far to no avail.
Ironically, perhaps the same basis for prohibiting local commercial use of sUAS will be the basis for embracing them. If a (well-sanitized) sUAS can perform many functions of a person – and often more than one person – without creating a risk of contagion to itself or others, then exposure to infectious diseases can be minimized even more so.
Currently, more people than ever are working and “meeting” remotely through the use of sophisticated technology. Simultaneously, administrative agencies are temporarily relaxing certain regulatory standards to better address the health crisis. The confluence of sophisticated technology and a need to make exceptions to otherwise appropriate limitations could create the right temperature to introduce sUAS to city construction sites. Just as “Tommy the Robot” has been assisting doctors and nurses at a northern Italy hospital, this may be commercial sUAS “time to shine” in our urban areas.