California Airport Land Use Planning Handbook, October 2011, Hits the Streets

The California Airport Land Use Planning Handbook, October 2011 (“2011 Handbook”) was released this week. It supersedes the 2002 Handbook edition. The Handbook constitutes “guidance,” Cal. Pub. Util. Code § 21674.7, for Airport Land Use Commissions (“ALUCs”) in the determination of the scope of their jurisdiction over off-airport land uses as well as in the formulation of noise, overflight, safety and airspace protection policies, as mandated by Cal. Pub. Util. Code § 21670, et seq.

It is important to note at the outset, however, what a Handbook cannot do. First, it cannot grant to ALUCs the power to regulate airports, either in the air or on the ground. Those powers lie exclusively with the Federal Aviation Administration (“FAA”) and the local airport proprietor. Second, it cannot grant to ALUCs the final decision making power over off-airport land uses either. That power lies exclusively with local land use jurisdictions. What the Handbook can do is provide guidelines for the formulation of policies that bring to the attention of local land use policy makers the importance of “ensuring compatible land uses in the vicinity of . . . all new airport and in the vicinity of existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses.” Cal. Pub. Util. Code § 21674(a).

As the 2011 Handbook’s girth exceeds 400 pages, and was issued only this week, the specific ways in which the 2011 Handbook addresses that charge will be the subject of a blog to appear shortly.
 

California Airport Land Use Planning Handbook 2011 Update Delayed Again

The California Department of Transportation, Aviation Division (“Caltrans”) has announced yet another delay in the publication of the “California Airport Land Use Planning Handbook” (“Handbook”). The Handbook constitutes guidance for California’s airport land use commissions (“ALUC”) in the establishment of height, density and intensity restrictions for land uses around California airports. This delay continues and even increases the risk of conflict between ALUCs and local land use jurisdictions throughout California. 

ALUC restrictions are not the last word concerning land uses around airports, as local land use jurisdictions have final authority to approve or disapprove land uses within their own boundaries. However, ALUC restrictions can make it more difficult for a local jurisdiction to effectuate previously enacted development plans in the vicinity of an airport. This is because, to overcome the ALUC determination of inconsistency with ALUC restrictions, the local jurisdiction must overrule the ALUC by a two-thirds vote, a hurdle often difficult if not impossible to overcome because of fears of liability.

 

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Draft California Airport Land Use Planning Handbook Available for Review and Comment

It has come to our attention that the most recent revision of the California Airport Land Use Planning Handbook (Handbook) has just been released for public review and comment. The review period will end December 27, 2010.

 

 

The Handbook and the Airport Land Use Compatibility Plans (ALUCP) approved by many jurisdictions based on it, have a profound impact on development potential and cost. This is so because ALUCPs contain stringent development restrictions on projects within as much as six (6) miles of each publicly owned airport in California, independent of, and in addition to, the restrictions imposed by local land use jurisdictions within those areas. The only way to avoid such increased restriction is for the public entity to “overrule” the ALUC by a two-thirds (or four-fifths) vote which does not often happen. Absent such an “overrule,” the project, upon which a developer may already have expended significant resources, may have to be significantly down-sized or even abandoned.

Because new versions of the Handbook are typically published 10 years or more apart, any increased restrictions arising from the most recent version will have impacts on developments into the indefinite future, even if there is no currently impacted project pending. Therefore, Chevalier, Allen & Lichman strongly recommends that you file comments on the Handbook draft and thereby influence the final edition of the Handbook, or, in the alternative, ensure the right to a future challenge to the Handbook’s unreasonable development restrictions.

Update on Draft 2010 California Airport Land Use Planning Handbook

In an article posted on this blog on September 2, 2010, Chevalier, Allen & Lichman, LLP (CA&L) reported that the California Department of Transportation (Department) had announced that the Draft 2010 California Airport Land Use Planning Handbook (Handbook) would be available for review and comment from September 7 through October 4, 2010. CA&L has learned that the Handbook will not be available until November, 2010.

 

 

The Handbook provides guidance to airport land use commissions (ALUCs), their staffs and consultants, and local agencies having jurisdiction over land use surrounding California airports. ALUCs rely extensively on the Handbook in preparing and updating the Airport Land Use Compatibility Plans (ALUCPs) they use to determine whether development project plans submitted to local planning agencies by property developers and planners can be approved.

CA&L has worked extensively with property owners, developers and planners, as well as ALUCs and local agencies, in interpreting, applying and incorporating the Handbook criteria in land use planning since the Handbook was published in 2002. We encourage landowners, developers and planners who have an interest, or may have a future interest, in development projects near a California airport to submit comments on the Draft Handbook when it becomes available. The Handbook, when completed, will have a significant influence on land use development approvals throughout California for years to come.

Draft California Airport Land Use Planning Handbook to be Available for Review and Comment September 7 - October 4, 2010

The California Department of Transportation (Department) has announced that the Draft 2010 Airport Land Use Planning Handbook (Handbook) will be available for review and comment from September 7 through October 4, 2010. The Department’s Division of Aeronautics has been working with Environmental Science Associates to update the January 2002 version of the Handbook.

 

 

The Handbook supports and amplifies the California State Aeronautics Act (California Public Utilities Code, Section 21670, et seq.) which establishes statewide requirements to ensure that all land use and development in the vicinity of California public use airports is compatible with airport operations. The Handbook provides guidance to airport land use commissions (ALUCs), their staffs and consultants, and to local agencies having jurisdiction over land use surrounding California airports.

The Handbook is also a valuable technical resource for real property owners, developers and planners who are planning development projects near a California airport. It contains guidance and criteria which an ALUC will use in determining whether a proposed project is compatible with the applicable Airport Land Use Compatibility Plan. Chevalier, Allen & Lichman, LLP has worked extensively with property owners, developers and planners, as well as ALUCs and local agencies, in interpreting, applying and incorporating the Handbook criteria in land use planning since the Handbook was published in 2002.

The draft update will be available at www.esassoc.com. Land owners, developers and planners, and local agencies are encouraged to review and submit comments on the Draft Handbook to the Department during the review period. The Handbook is expected to be completed in December 2010.

Land Use Planning Near California Airports Could Change Your Development Plans

Section 21670 of the California State Aeronautics Act requires that every county in which there is an airport that is served by a scheduled airline establish an Airport Land Use Commission (ALUC) “to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.” One of the duties of the ALUC is to adopt an Airport Land Use Compatibility Plan (ALUCP). In formulating an ALUCP, an ALUC has the power to develop height restrictions on buildings, specify use of land and determine building standards within the Airport Influence Area (AIA) designated by the ALUC.

 

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Airport Cooperative Research Program Publication Regarding "Enhancing Airport Land Use Compatibility"

On April 26, 2010, the Transportation Research Board published a three volume Airport Cooperative Research Program (“ACRP”) report on “Enhancing Airport Land Use Compatibility.”  The authors’ mandate was “to investigate and present the current breadth and depth of knowledge surrounding land uses around airports and to develop guidance to protect airports from incompatible land uses that impair current and future airport and aircraft operations and safety and constrain airport development.”  Report, Forward.  

It should be emphasized that this publication provides guidance only to local jurisdictions.  It is not regulatory, because the FAA cannot control land use planning in jurisdictions around airports.  As FAA has often acknowledged, land use planning is a purely local function.  If FAA were to presume to control land use planning off airport, it would also be subject to legal and constitutional constraints on land use planning such as the deprivation of a landowners’ reasonable use and enjoyment of property (“nuisance”) and/or the taking of property without just compensation (“inverse condemnation”), a result FAA wants to avoid at all costs.  

Consequently, research concerning land use planning around airports should include, and, in fact, be targeted at, local land use ordinances and regulations such as the airport land use planning statutes in California (Public Utilities Code § 21670, et seq.). 

A New Edition of the California Airport Land Use Planning Handbook May Mean Trouble

Developers and local land use jurisdictions beware.  The California Department of Transportation (“CalTrans”) has initiated an update of the 2002 California Airport Land Use Planning Handbook which is scheduled to be completed in 2010.  The Handbook provides guidance to County Airport Land Use Commissions (“ALUC”) in the imposition of height and other zoning and land use restrictions around airports.

An initial problem arises from the Handbook’s interpretation of the airport land use planning process as set forth in the California Aeronautics Act, Public Utilities Code § 21670, et seq.  The California Supreme Court has defined airport land use plans as in the nature of “multi-jurisdictional general plans,” Muzzy Ranch Co. v. Solano County Airport Land Use Commission, 41 Cal.4th 372, 384 (2007), that often supercede local zoning at distances as great as five miles from the end of each runway.  For land use jurisdictions, this means that carefully crafted local regulations within those areas are rendered essentially null, because land use jurisdictions must bring their general and specific plans into consistency with airport land use plans within 180 days of the airport land use plan’s approval, or overrule the approval of the Airport Land Use Plan by a two-thirds vote.  Gov. Code § 65302.3.

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