216 F.3d 1191 (D.C. Cir. 2000)
D&F Afonso Realty Trust, Petitionerv.Jane F. Garvey and Federal Aviation Administration, Respondents
No. 99-1129
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2000Decided July 18, 2000

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.
Sentelle, Circuit Judge:


1
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.

I. Background

2
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.


3
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.


4
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).


5
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.


6
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:


7
[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.


8
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."


9
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

II. Discussion
A. D&F's Standing

10
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.


11
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.


12
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 "the only obstacle to issuance of the occupancy permit is  the FAA's Hazard Determination.  But for that Determination, the occupancy permit would have already issued.  If the  FAA's Hazard Determination is withdrawn or reversed, [the  town] will issue an occupancy permit for the Afonso House  forthwith."  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.

B. The Hazard Determination

13
We review decisions of federal agencies, including the FAA,  under the standards set forth by the Administrative Procedure Act.  See Public Citizen, Inc. v. FAA, 988 F.2d 186, 196  (D.C. Cir. 1993).  That Act provides that a reviewing court  must set aside agency action if it is "arbitrary, capricious, an  abuse of discretion, or otherwise not in accordance with law."5 U.S.C.       706(2)(A).  As we have often held, "[t]he requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its  result...."  Public Citizen, 988 F.2d at 197.  In the hazard determination under review, the FAA has offered no such  explanation.  As we have stated before, we must strike down  agency action if the agency failed to consider relevant factors  or made a clear error of judgment.  See Motor Vehicle Mfrs.  Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43  (1983);  Starr v. FAA, 589 F.2d 307, 311 (7th Cir. 1978).


14
The FAA made a finding that the house penetrated an  imaginary surface, specifically the transitional surface.  However, mere penetration, and even evidence of adverse effect  alone, do not provide adequate support for a hazard determination.  In dealing with obstruction standard violations, the  FAA follows a handbook entitled "Procedures for Handling  Airspace Matters," FAA Procedures 7400.2D (1993) ("Handbook"), which mandates conducting aeronautical studies, in  accordance with Subpart D of Part 77, of proposed structures  exceeding Part 77 obstruction standards.  See Br. for FAA at  4 (citing chapter 5 of Handbook).  According to Subpart D of  Part 77, "[i]n the aeronautical studies, present and future ...  aeronautical operations and procedures are reviewed and any  possible changes in those operations and procedures and in  the construction proposal that would eliminate or alleviate the  conflicting demands are ascertained."  14 C.F.R.       77.31.Pursuant to the Handbook, objects exceeding an obstruction  standard are "presumed to be hazards to air navigation  unless an aeronautical study determines otherwise."  Id. at       7-1(b).  In order to issue a hazard determination, the FAA  must find by a clear showing that the penetration in question  will have a "substantial adverse effect" on air navigation.  See  id. at        7-2 to 7-5, 8-2.  The Handbook provides that  "substantial adverse effect" occurs when a structure has or  would have an "[a]dverse effect" and "a significant volume of  aeronautical operations would be affected."  Id. at       7-4.


15
A substantial adverse effect finding requires three elements.  First, the structure in question must have exceeded  the relevant obstruction standards or have been found to have  a physical or electromagnetic radiation effect on the operation  of air navigation facilities.  See id. at       7-3.  Second, the  structure will be considered to have an adverse effect if it  would, inter alia, "require a [Visual Flight Rules] operation," that is, an operation in which the pilot lands an aircraft or  takes off using visual approach procedures only, "to change  from a regular flight course or altitude," "[d]erogate airport  capacity/efficiency," or "[a]ffect future [Visual Flight Rules]  ... operations indicated by plans on file."  Id.  Third, the  structure must affect a significant volume of aeronautical  activity;  the FAA considers the type of activity involved and  the frequency of occurrence.  See id. at       7-5.  In addition, a  study must include, inter alia, an evaluation regarding marking and lighting the structure, see id. at       7-9, and every  hazard finding is supposed to include "a clear, but brief,  statement why aviation can or cannot accommodate the proposal."  Id. at       8-2.


16
Here, the FAA first sought comments from twenty-four  interested parties concerning the effect the house would have  on aviation.  Apart from the manager of the Providence,  Rhode Island Traffic Control Tower who declared, without  further elaboration, that the house "would result in a negative  impact to air traffic operations," the responding parties either  did not object to the house or failed to provide any comments  pertaining to the hazardousness of the structure.


17
Based on the FAA's explanation, or lack thereof, in the  issuance of this hazard determination, we conclude that the  FAA acted arbitrarily by issuing a hazard determination  inconsistent with established standards.  Thus, we hold that  the FAA exceeded the permissible bounds of agency action.


18
Nowhere in the record before us can we find a link between  established hazard determination standards and the hazard  determination reached by the FAA in this case.  The FAA  made a finding that the house penetrated an imaginary  surface.  However, as we previously noted, mere penetration,  and even evidence of adverse effect alone, cannot support a  hazard determination.  See Handbook        7-3, 7-4, 8-2.  According to the Handbook, the FAA is to conduct a "substantial adverse effect" inquiry and only upon a clear showing of  substantial adverse effect issue a hazard determination.  See  id. at        7-1, 7-3, 7-4, 8-2(b)(3).  However, here, the FAA failed both to conduct a complete inquiry and make a clear  showing of substantial adverse effect.


19
More specifically, the FAA arbitrarily based its hazard  finding on an unsupported pilot distraction finding instead of  following the policy outlined in the controlling Handbook."We review the FAA's findings of fact merely to see whether  they are 'supported by substantial evidence.' "  Public Citizen, 988 F.2d at 196 (quoting 49 U.S.C. App.       1486(e)  (1988)).  Here, if there is substantial evidence, the FAA has  not alluded to it.


20
The FAA also acted contrary to its own procedure by  failing to explicitly apply the established multi-factor test  which considers adverse effect and the volume of operations  affected.  See Handbook        7-3 to 7-5.  For example, the  FAA based its finding on the house's effect on VFR operations but failed to consider the relevant VFR adverse effect  factors of potential changes in flight course and potential  effects on future VFR operations.  See id. at       7-3.  In  addition, the agency did not investigate the available airport  traffic figures and instead based its "significant volume"  finding on the "proximity of [the] structure to the final  approach course."  Even assuming the FAA's reference to a  traffic buffer zone in the order affirming the hazard determination has meaning as a technical and practical matter, the  agency did not do its job of connecting the buffer zone  concept to the "substantial adverse effect" inquiry.  In short,  the FAA did not consider relevant factors or sufficiently  explain the basis of its hazard determination.


21
The FAA's post hoc rationalizations for deviating from  procedure and for failing to substantiate its hazard determination cannot pass muster as a matter of law.  For example,  the Handbook requires that every aeronautical study include  an evaluation regarding the marking and lighting of the  structure in question.  See id. at       7-9.  However, the agency did not make any findings concerning the marking or  lighting of the house.  The agency cannot claim to be engaging in reasoned analysis when it cavalierly brushes off specific  mandates such as a marking and lighting evaluation.  Nor can it claim to be acting reasonably when it ignores, without  explanation, policy provisions such as the one establishing the  inclusion of "a clear, but brief, statement why aviation can or  cannot accommodate [a] proposal."  See id. at       8-2.


22
Moreover, the agency inexplicably refused to take into  consideration the trees and other structures in the vicinity  also apparently intruding into the transitional surface in the  surrounding terrain which might alter the geometry of its  calculations.  In Aircraft Owners and Pilots Association v.  FAA, 600 F.2d 965 (D.C. Cir. 1979), we recognized that  surrounding terrain could possibly "mitigate what might otherwise have been a potential hazard to aircraft."  Id. at 973.In other words, the FAA should have considered the landscape in its entirety when making its hazard determination. See id.  Yet, according to the FAA, only D&F's house  presents cause for concern.  All in all, the FAA failed to  rationally substantiate or explain its process and findings.


23
In essence, the FAA adopted an ipse dixit approach to  making a hazard determination:  the house creates a navigational hazard because the agency says so.  Even our highly  deferential standard of review requires more than the FAA  offers.  Thus, the FAA's abandonment of its own established  procedure and its lack of reasoned analysis on the record  constitute arbitrary and capricious agency action in violation  of the law.  Due to the shortcomings in the FAA's hazard  determination, we reverse and remand D&F's case to the  agency in order for it to undertake an appropriate hazard  analysis.

III. Conclusion

24
In sum, we hold that D&F has alleged facts sufficient for  standing to challenge the FAA's hazard determination.  Upon  review, we vacate and remand the FAA's determination due  to the agency's engaging in an arbitrary and capricious  hazard determination procedure.



Notes:


1
  Subsequent to D&F's filing a Petition for Review in this  court, the FAA issued a new policy which, with certain exceptions,  makes exceeding "[t]he height of the transition surface (other than  abeam the runway)" a per se hazard.  Policy Memorandum 99-02.We will not analyze this case under the new policy.  We leave  consideration of the new policy to the FAA because the agency, not  this court, must interpret and apply a new agency policy in the first  instance.  See NLRB v. Food Store Employees Union, Local 347,  417 U.S. 1, 10 n.10 (1974).


