Browse Tag: Congress

Drone Hopefuls Still Getting Mixed Messages From Lawmakers

When National Association of RealtorsⓇ President Chris Polychron recently testified before Congress on the topic of unmanned aerial systems (UAS), he called for a commitment to privacy and personal safety to go hand in hand with the responsible use of drones by the commercial property industry.  But the legislative climate around the topic of drones shows anything but clear skies.  Federal and state efforts to make rules have been uneven, leading to a bumpy legislative ride.

Take the case of California, whose governor recently came down on the side of drone use and FAA approved commercial users.  It was days ago that Governor Jerry Brown vetoed legislation that would have stopped the flying of drones at altitudes lower than 350 feet, sending a somewhat garbled message to potential drone users, including the real estate industry seeking to legally use the aircraft for survey and inspection of commercial property.

As law blog JD Supra writes, the governor’s reasoning was to avoid exposing “the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation.”

The life and death of the California flight-level restriction legislation is an example of a legislative process being played out in several states across the nation. In light of the rapid expansion of the drone industry, lawmakers, at both state and Federal levels, are scrambling to enact legislation governing the use of drones. But as we just learned from Governor Brown’s veto, there is considerable controversy about what to do about flight-level restrictions. Why? Privacy considerations suggest that drones should be as far away as possible, for obvious reasons. Nobody wants to see a drone equipped with high-definition cameras hovering outside one’s window or lurking above what would otherwise be a secluded back yard or vacation spot. Privacy considerations are what motivated the authors of the California bill.

Business Applications vs. Privacy And Safety Concerns

Equally burdensome to real estate business plans that hinge on legal operation of drones is the question of jurisdiction. Does state or federal law apply first?  The answer appears confusing even though the FAA seems pretty clear on who’s got the regulatory muscle. The FAA web page “Busting Myths About The FAA And Unmanned Aircraft” says airspace at any height is the domain of the FAA and that any aircraft looking to fly in US airspace needs some form of FAA approval.   From the link:

Myth #1: The FAA doesn’t control airspace below 400 feet

Fact—The FAA is responsible for the safety of U.S. airspace from the ground up. This misperception may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground

Section 333 Waivers

The FAA may be petitioned by aspiring drone operators for a waiver called Section 333, which grants authorization for certain unmanned aircraft to perform operations on a case-by-case basis.  An FAA pilot’s license is a required piece of such an application.  The FAA page for Section 333 exemption applications is here.

Missed Deadlines

August 2014 is the latest self-imposed deadline the FAA has missed in developing comprehensive rules for small commercial UAS.  While permission to operate lies in regulatory limbo, a set of industries, including real estate, that could use inexpensive and comprehensive surveys and inspections of property are biding their time while the bureaucratic wheels turn.

“We all agree that the project is taking too long,” Peggy Gilligan, a top FAA safety official, told a congressional House panel in 2014.  Here’s hoping the balance between safety, privacy and commercial use is found soon.

EPA Lead Paint Methodology Questioned By Commercial Properties Coalition

EPA logo

 

Does the EPA’s own framework for determining potential lead paint hazards in commercial buildings skip Congressional directives?

The Real Estate Roundtable and real estate trade groups in the Commercial Properties Coalition last week filed the latest in a series of comment letters relating to efforts by the U.S. Environmental Protection Agency (EPA) to regulate purported lead paint hazards that may arise from renovation and remodeling activities in public and commercial buildings.

The real estate coalition also raised questions about the methodology behind the EPA framework, calling it a “novel approach that has not been independently peer reviewed, validated, or even explained.” Additionally, the coalition asserted, the framework “does not identify what underlying exposure data would be used in running the proposed models, and without reliable data, the models cannot be expected to produce useful results.”The June 30 comment letter focuses on EPA’s proposed “framework” for determining whether renovation and remodeling activities in public and commercial buildings — such as new tenant build-outs — actually cause lead-based paint hazards. On the basis of such a determination, EPA could then move forward with proposed regulations affecting commercial real estate.

Although EPA’s framework correctly acknowledges that public and commercial (P&C) buildings “vary greatly” (with respect to sizes, shapes, configurations, uses, occupancies and cleaning frequencies) — and that a “one-size-fits-all” approach is not appropriate for renovation, repair and painting (RRP) activities in such buildings — it appears to circumvent a series of steps set forth by Congress in Subchapter IV of the Toxic Substances Control Act (TSCA) in developing new regulations.

“. . . EPA must not skip over key steps in the Subchapter IV process in issuing final RRP rules for P&C buildings,” the coalition stated in its letter. “At a minimum, the failure. . . to first identify LBP [lead-based paint] hazards in P&C buildings — by rule as the statute requires under section 403 — would undermine the soundness of any ultimate RRP regulations for those structures …. From the Coalition’s vantage point, the Framework at issue appears to collapse and avoid discrete steps in the subchapter IV chronology” for rulemaking.

The coalition emphasized that its members “have a strong interest in constructing, owning, and managing healthy, safe, and desirable commercial buildings,” noting that their “reputations depend on it, and they must be vigilant in responding to ever increasing demands of tenants and investors seeking socially and environmentally responsible leasing and investment opportunities.”

The June 30 comments on EPA’s proposed framework follows on a June 19 letter raising concerns that the agency’s plans this summer to convene a federally-mandated small business impact review panel are premature. “With only generalized statements and hypotheticals of possible means by which EPA may determine the presence of lead-based paint hazards in P&C buildings … the Coalition respectfully believes that the Agency is not ready to convene” a panel to assess alternate forms of RRP regulations as the Small Business Regulatory Enforcement Fairness Act (SBREFA) requires, according to the June 18 letter.In the coalition’s view, “EPA should proceed by identifying whether a P&C RRP hazard exists, subjecting its proposed Framework methodology to peer review, satisfying other prerequisites established in TSCA Subchapter IV, and only after completion of these essential steps move to develop proposed regulations to address any P&C RRP hazards that have been found to exist.”

Since EPA enacted RRP rules for pre-1978 residential buildings in 2008, the agency has considered whether to adopt similar rules for P&C buildings for a number of years (particularly as a result of litigation filed by environmental organizations). Through the Coalition, The Roundtable has supplied comments and input to EPA throughout the rulemaking process. [See RW – June 28, 2013 and RW – Dec. 10, 2010]

What Is The Real Estate Roundtable?

The Real Estate Roundtable brings together leaders of the nation’s top publicly-held and privately-owned real estate ownership, development, lending and management firms with the leaders of major national real estate trade associations to jointly address key national policy issues relating to real estate and the overall economy.

In addition to The Roundtable, the Commercial Properties Coalition presently includes: the American Hotel & Lodging Association (AH&LA) ; Building Owners and Managers Association (BOMA) International; International Council of Shopping Centers (ICSC); National Multifamily Housing Council (NMHC); NAIOP, the Commercial Real Estate Development Association; National Association of Home Builders (NAHB); National Association of Real Estate Investment Trusts (NAREIT); and the National Association of REALTORS®.

Stay On Top Of Important Local And National Commercial Real Estate Legislation With Scout

One of the greatest things about our system of government is the amount of lawmaking done in public.  The texts of bills, and speeches on bills of all kinds is public information. When proposed laws come up, we have a chance to see what they are, where they came from, who they will benefit, who they will impact and why, and when the votes are coming.

But because of all the work involved, it’s still a only a slim chance.  Being allowed access to this information is merely the first step. For example, NAR Commercial’s efforts on Capitol Hill include this exhaustive work of staying on top of the congressional record, watching carefully for issues that relate to commercial real estate when they arise, tracking their progress through the chambers and replicating all of this for all 50 states in addition to DC.

Before action comes alert, filtering, progress monitoring.  So when a free software tool comes along to allow individuals to help out with the legwork needed before action, you bet we’re going to talk about it.

The Sunlight Foundation is a non-partisan, non-profit based in DC dedicated to making government transparent and accountable.  They’ve rolled out Scout, which is an awesome new tool that alerts you when Congress or your state house proposes legislation that affects you or your commercial real estate clients.  You set up keywords such as “retail” or “commercial real estate” or “property tax” and the site will alert you when these terms appear in pending legislation — including in your state house!

Scout’s uses for commercial real estate pros are many.  All real estate is local, and so is all state legislation. Since Scout works with state houses and not just DC, there are numerous opportunities to use it to directly add value to your relationships.  Early warning about legislation coming down the pike in the state house about road construction in a given area can be a great subject of discussion between you and your retail clientele.  Bills proposing anything touching financial issues probably matter to your clients – Scout lets you be the one to bring them up.

Similarly, when Congress in DC kicks around changes in REIT accounting, it can help those of you in the investment side know what’s coming tax-wise and adjust accordingly.

Check out Scout. Watch the short tutorial video below and share with us what you find.  Help us keep government working for you.

 

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