Special VFR

[apr911]

Not over a congested area below 700 AGL. 91.119 still applies to SVFR operations, and I don't think the FAA would have much trouble convincing an ALJ or the NTSB that Bakersfield CA is a "congested area".

Personally, I wouldn't do this and the legality of it may be somewhat questionable but 91.119 does permit the exception for "when necessary for takeoff and landing"

Ive seen plenty of people puts around an Class G sfc-to-700' airport completely surrounded by yellow (congested areas) with both low ceilings and low visibility. In most cases the ceiling prevented them from getting to pattern altitude less they enter the overlying class E and run afoul of the 91.155 Weather minimums either because of visibility or ceilings below 1500'.

Granted its close pattern to the airport but in this case, approaching Bakersfield from the East through West would only put you over congested areas (as illustrated on the map) in close proximity to the airport.

Trying to come in from the West through North would mean flying through the Delta and they could in theory get you to their lateral bounds at 700 AGL and release you into the Class G with only 2 NM to the airport... Though to enter the Delta you would need 3 mile visibility at BFL... Or you could in theory request SVFR into BFL and then again back out.

The only approach that would be extremely hard to argue was in compliance with 91.155 and 91.119 would be a Northeast approach. You'd have to be at or below 700' AGL to comply with 91.155 and you'd have to fly an altitude of 1333' AGL (marked object at 730 (333) south/east of Bakersfield) over congested Bakersfield except "when necessary" for takeoff/landing to comply with 91.119. I think it'd be difficult to convince anyone it was "necessary" to fly 8NM from the sfc-to-700' Class G boundary to the airport at or below 700' AGL for TO/LDG, especially since you'd still have to fly a pattern as the runway at Bakersfield is more NNW which prevents a "straight-in" approach from the NE.

 

[Gucci Pilot]

This seems like the perfect example of when a SVFR would be used. Funny how the pilot seemed dumbfounded when the controller hinted to the SVFR. I figure helicopter guys use SVFR way more than fixed wing guys do.

 

[poadeleted20]

Personally, I wouldn't do this and the legality of it may be somewhat questionable but 91.119 does permit the exception for "when necessary for takeoff and landing"

That exception exists, but only for climbing to and descending from TPA. It does not allow the sort of operation contemplated (transit from one airport to another for the purpose of landing at the second airport). For details, see the Deighan letter of Octo 30, 1999, cited in this interpretation. Basically, the "when necessary for takeoff and landing" exception applies only within the traffic pattern.

 

[roncachamp]

That exception exists, but only for climbing to and descending from TPA. It does not allow the sort of operation contemplated (transit from one airport to another for the purpose of landing at the second airport).

A TPA of 1000' AGL or lower is unlikely to comply with that interpretation of the regulation as there is likely to be some obstacle within a horizontal radius of 2000' of the aircraft.

 

[poadeleted20]

A TPA of 1000' AGL or lower is unlikely to comply with that interpretation of the regulation as there is likely to be some obstacle within a horizontal radius of 2000' of the aircraft.

The regulation and interpretations clearly state that part does not apply to either flight at TPA when in the pattern, or below TPA when flight below TPA is necessary to take off and land (i.e., after passing abeam the touchdown point on landing, or when climbing to TPA or legal en route altitude after takeoff).

 

[Vance Breese]

If I were planning the flight I would check the weather that morning and change my plans accordingly.
Special VFR would not be a part of my flight plan.
In my opinion being legal doesn’t validate something as a good aviation decision.
In the morning when the sun is low two miles visibility can seem like much less because of the way the sun reflects off the mist.
The tower probably doesn’t know what conditions are like beyond what they can see. Conditions may be worse away from the airport.
In my experience conditions can change rapidly.

 

[roncachamp]

The regulation and interpretations clearly state that part does not apply to either flight at TPA when in the pattern, or below TPA when flight below TPA is necessary to take off and land (i.e., after passing abeam the touchdown point on landing, or when climbing to TPA or legal en route altitude after takeoff).

The regulation says nothing about TPA, there is no language in the regulation that supports the interpretation.

 

[poadeleted20]

The regulation says nothing about TPA, there is no language in the regulation that supports the interpretation.

There may not be language in the regulation which you think supports it, but there is a lot of language in law and Supreme Court cases which says the Chief Counsel's interpretation will hold up under review before the US Court of Appeals unless you make a much, much, much more compelling argument than simply saying "there is no language in the regulation that supports the interpretation", so as a CFI, I strongly encourage anyone I'm training to take that interpretation at face value when making their aeronautical decisions.

 

[roncachamp]

There may not be language in the regulation which you think supports it, but there is a lot of language in law and Supreme Court cases which says the Chief Counsel's interpretation will hold up under review before the US Court of Appeals unless you make a much, much, much more compelling argument than simply saying "there is no language in the regulation that supports the interpretation", so as a CFI, I strongly encourage anyone I'm training to take that interpretation at face value when making their aeronautical decisions.

I can do that.

 

[Geico266]

Had to request SVFR during my last helo lesson. We took off VFR (stayed inside class "C" within site of the tower to the "autorotation area") but when we got there the controller said the conditions were now IFR. We sat there a minute (helo is VFR only) and the instructor and I were a little perplexed as to what to do. The controller then said; "I can't give you SVFR unless you ask for it, and if you asked for it I would surly grant it." So we asked for it and flew the whole lesson SVFR. When it was time to return to the hangar she cancelled SVFR as the field had gone VFR again. Interesting day.

 

[poadeleted20]

I can do that.

Good luck. I'll be watching for your case to show up before the NTSB or in the US Court of Appeals -- your brief should make very interesting reading, although I'd be most interested for a preview here. Until then, I'm glad I'm the CFI and you're not.

 

[roncachamp]

Good luck.

I don't use luck, I rely on facts and logic.

I'll be watching for your case to show up before the NTSB or in the US Court of Appeals -- your brief should make very interesting reading, although I'd be most interested for a preview here.

You would likely only misinterpret it.

Until then, I'm glad I'm the CFI and you're not.

Just until then? You'd cease being a CFI after? Well, that might make it worthwhile. Given the likelihood that people are unknowingly paying you for the same misinformation you dispense in these forums I'd be doing the Maryland aviation community a service.

 

[roncachamp]

Had to request SVFR during my last helo lesson. We took off VFR (stayed inside class "C" within site of the tower to the "autorotation area") but when we got there the controller said the conditions were now IFR. We sat there a minute (helo is VFR only) and the instructor and I were a little perplexed as to what to do. The controller then said; "I can't give you SVFR unless you ask for it, and if you asked for it I would surly grant it." So we asked for it and flew the whole lesson SVFR. When it was time to return to the hangar she cancelled SVFR as the field had gone VFR again. Interesting day.

What irked the controller?

 

[poadeleted20]

I don't use luck, I rely on facts and logic.



You would likely only misinterpret it.



Just until then? You'd cease being a CFI after? Well, that might make it worthwhile. Given the likelihood that people are unknowingly paying you for the same misinformation you dispense in these forums I'd be doing the Maryland aviation community a service.

Good luck. You'll need it.

 

[apr911]

That exception exists, but only for climbing to and descending from TPA. It does not allow the sort of operation contemplated (transit from one airport to another for the purpose of landing at the second airport). For details, see the Deighan letter of Octo 30, 1999, cited in this interpretation. Basically, the "when necessary for takeoff and landing" exception applies only within the traffic pattern.

Sure but in my example, I gave at least 180 degrees of approach where you could get under the Class E and get to the airport without going over a "congested area" as noted on the map.

Further, I gave an additional 90 degrees of approach where you could request an SVFR from altitude down to 700 ft AGL to the outer limits of the airspace to enter the pattern/a straight-in-final at 700 ft AGL 2NM from the airport.

The POH for a 1978 C172N states that a fully loaded 2300 pound airplane taking off from a pressure altitude of 0 at a temp of 15C will require 2NM to reach pattern altitude of 1000 ft. Granted, most of us dont actually get 2NM upwind of the airport on takeoff since we turn crosswind at 700ft AGL and on a field like Bakersfield are likely to be off the ground by mid-field, but it is possible. Also, final approach can frequently run 2-5 NM.

 

[poadeleted20]

Sure but in my example, I gave at least 180 degrees of approach where you could get under the Class E and get to the airport without going over a "congested area" as noted on the map.

First, sectional charts do not show "congested areas". What you see as the yellow areas are merely those areas which have a solid lighting pattern at night. A congested area is a very much different thing, and has a much lower threshold. The big question arising is "What constitutes a 'congested' area?" From some NTSB Orders on the subject:

http://www.ntsb.gov/legal/o_n_o/docs/Aviation/3646.pdf
Respondents claim, to the contrary, that Shepard Mesa is not such an area. Although the Administrator's reply inexplicably fails to address this claim, it is without foundation in case law. See, e.g., Administrator v. Harkcom, 35 C.A.B. 934, 937 (1962), and cases cited there. Thus, the Shepard Mesa subdivision -- comprised of a minimum of 20 houses, in an area approximately .5 mi. x .66 mi. -- would qualify as a congested area.

http://www.ntsb.gov/legal/o_n_o/docs/Aviation/3693.PDF
...you operated or caused to be operated N4709P, over a congested area of Malibu, namely Civic Center Way, at an altitude of 250 feet AGL [above ground level], descending over a Hughes Market and the Malibu Country Market, flaps down and slow speed, until it reached an altitude of about 100 feet AGL, headed toward a field just south of the Court House at 23525 Civic Center Way. When at an altitude of about 100 feet AGL over the Malibu Country Market, you began a climb out. There were many shoppers in the markets and adjacent parking lots.

http://www.ntsb.gov/legal/o_n_o/docs/Aviation/4080.PDF
During the course of the above flight you made several low passes over a congested area, specifically the Pearce Ford Tower at Western Kentucky University, Bowling Green, Kentucky,...

http://www.ntsb.gov/legal/o_n_o/docs/Aviation/4188.PDF
In the Board's view, even if Interstate 5, a major California freeway, is not "bumper to bumper" on a late Saturday afternoon, moderate traffic in every lane still renders it "congested," for purposes of the regulation. See also Administrator v. Dutton, NTSB Order No. EA-3204 (1990) (Moderate traffic on a highway at 12:55 p.m. is a congested area for purposes of the minimum safe altitude regulation).

http://www.ntsb.gov/legal/o_n_o/docs/Aviation/4210.PDF
...respondent operated his Cessna 172 aircraft within 100-200 feet of the ground in the Revere-Saugus, MA area on July 11, 1992, in the vicinity of a large regatta (including "Tall Ships") commemorating the 500th anniversary of Columbus' voyage. The nearby ground and water areas were congested, and respondent would not have been able to make a safe emergency landing.

BTW, I think the first one cited (in which a clump of 20 houses is considered a "congested area") is the strictest interpretation of the term "congested area" in that context, and one which should be weighed carefully by any pilot considering flight below 1000 AGL. Given what the area around that airport looks like on Google Earth, I don't see anything which the FAA could not easily call a "congested area" and have the NTSB buy that description anywhere around it. So I see no way to fly from Burbank Airport to L45 without traversing a congested area before entering the traffic pattern, which is well above 700 AGL anyway.

 

[eetrojan]

a minimum of 20 houses, in an area approximately .5 mi. x .66 mi.

For better context of this level of congestion, this is a minimum of 20 houses spread over about 200 acres; about 10 acres per house.

 

[poadeleted20]

First, sectional charts do not show "congested areas". What you see as the yellow areas are merely those areas which have a solid lighting pattern at night. A congested area is a very much different thing, and has a much lower threshold.

To expand a bit on that, I think it's safe to assume that any block yellow area is a congested area, but you cannot assume that lack of block yellow means mean it isn't congested. And I hadn't done the math, either, so even I was a bit shocked to see the numbers in the post above showing 1 house per 10 acres is "congested".

 

[Tarheelpilot]

The heavy breathing on the helicopter video was annoying.


There was an ag pilot that was violated for spraying without a congested area plan a while back. The appeal at the NTSB pretty much boiled down to the legal definition of a congested area. Based on this judgment a congested area is any area an FAA inspector decides to define as a congested area.

The appeals court said that since the pilot was previously warned about the area being a "congested area" he knew it was and therefore there was no vagueness about its status as a congested area.

So if you are pre-warned by an inspector, it is congested and there is case law to uphold the inspectors ability to decide it is congested.

Administrator V. Folk

edit to add this lawyer's discussion about the ruling I linked above. He explains it much better than I do.

Opinion piece admin V. folk

 

[apr911]

Administrator V Folk is an extremely disappointing ruling.

The court had the opportunity to provide (or force the FAA to provide) distinct clarification of what constitutes "congested area" but rather than do that, they decided it was easier to affirm the NTSB's ruling based on the fact the pilot was previously warned the area "could" be considered congested and the pilot did not take further action to clarify if "could" equaled congested or not congested.

The brief lacks some pertinent details needed to really asses the case (such as altitude involved, farm size, area overflown, form of previous warning, how this became an issue, etc)

Personally, I think the pilot's challenge had merit BECAUSE of the previous "warning." After being warned, the pilot did request a definition of congested area from the inspector and the inspector referred him to the FARs. The airmen made a reasonable attempt to understand what he was being warned for and was referred back to an overly vague statue.

Im not an Agricultural Aircraft Operator (Part 137) so Im no expert but looking up a "Congested Area Plan," it seems to be a way to be granted authorization for agricultural operations over a congested area but it is only required if the area is determined to be "congested" and part 137 frequently refers back to Part 91.119 for definition of congested area which is itself vague and ultimately the issue at the root of the legal proceeding.

The FAA/NTSB's initial decision shows that the FAR for congested areas "authorizes or even encourages arbitrary and (perhaps) discriminatory enforcement." Whether it was discriminatory or not depends largely on the source of the complaint and other history that led to the FAA/NTSB action which isnt listed. However, something that can be decided after the fact on a case-by-case basis with no grounding or guidance on what factors might contribute to the ruling is most definitely arbitrary in my book.

Finally, this was a case about a helicopter performing agricultural operations over private property. While the violation may have occurred enroute to the farm or airport, FAR 91.119 is designed to protect the public at large in the event of an in-flight issue. The brief does not discuss the exact nature of the violation or the size of the farm but to me, an aircraft that can remain fixed over a single point, over private property owned by the pilot is not a danger to the public at large...

Heck, he's even less of a danger to the public at large than the guy who owns sufficient land (and really with a STOL/Bush aircraft we're not talking much) to build his own runway in his backyard, the FAA would have no problem with that (city/county/state officials are another story) and operations in and out of the field would not violate 91.119 even if the area is "congested" despite being a greater danger to the public at large when compared to the helicopter at low altitude over his own property.

Again the brief lacks a lot of the details that would be necessary to make a true argument about the validity and ultimately Im not a judge or lawyer (nor do I play one on TV) but it sounds to me the attorney may have focused too had the argument inverted (namely that the Part 91 violations would be quashed if he could get rid of the 137 violation whereas he probably should have argued the against the Part 91.119 violation to quash the 137).

Although this is entirely hearsay and would therefore not be admissible, I did find this article online in which an FAA Inspector attempted to file a FAR violation for a paraglider for flying along a beach within 1 mile of a house (singular). It ultimately was quashed with no action taken but if an inspector can start actual proceedings for an ultralight 1 mile from a house then the both the argument that its not arbitrary and the argument that being warned an area "could be (not is) congested" constitutes ample notice of violation dont hold water.

http://www.aerolegalservices.com/Articles/2010-04-30 Congested Area Update.shtml