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

Posted on November 3, 2011 by Barbara E. Lichman, Ph.D., J.D.

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.
 

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California Airport Land Use Planning Handbook 2011 Update Delayed Again

Posted on July 14, 2011 by Barbara E. Lichman, Ph.D., J.D.

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.

 

The last edition of the Handbook was published in 2002, and much has changed in the legal arena concerning restrictions on development around airports. For example, the 2002 Handbook recommends a condition on development requiring the dedication of “avigation easements” or the right of an aircraft to overfly property at any altitude or noise level without legal liability. However, the Oregon Supreme Court has recently ruled that the requirement for dedication of an avigation easement imposed by a land use jurisdiction that does not own an airport may constitute inverse condemnation, or the taking of private property without just compensation, prohibited by the Fifth Amendment to the United States Constitution. As many land use jurisdictions around California airports do not also sponsor and operate the airport in or near their jurisdiction, this ruling in Oregon takes on added significance in California. We look forward to a discussion in the 2011 Handbook update of the circumstances under which such dedication would be constitutionally permissible.

Similarly, the current version of the Handbook deals not only with the scope of ALUC jurisdiction, but also exceptions to that jurisdiction. One of those exceptions is for “existing uses.” While the Caltrans enabling legislation, Public Utilities Code section 21674(a), refers only to a limitation on “otherwise incompatible uses,” the 2002 Handbook has extended the exception to include not only existing bricks and mortar, but also uses for which there are “vested rights” such as development agreements and vesting tentative maps.

So far so good. But, inexplicably, after correctly evaluating recent case law on the concept of vested rights, the current Handbook goes on to say: “Thus, while an ALUC cannot force a change in land use once [a vested right] has been achieved, it can nevertheless require compliance with height restrictions, intensity limitations, noise level reduction, and other criteria set forth in its policies and implemented by local agencies.” This position is patently contrary to both the intent of the legislation and the clear guidance of the remainder of the Handbook. We hope that this and other such internal inconsistencies will be addressed and revised in the 2011 Handbook update.
 

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

Posted on January 22, 2010 by Chevalier, Allen & Lichman, LLP

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.

For developers who are not vested in their development rights (i.e., who do not possess a development agreement, Cal. Gov. Code § 65864, et seq., vesting tentative map, see, e.g., Cal. Gov. Code § 66498.1, et seq., or building permits and substantial reliance thereon, AVCO Community Developers v. South Coast Regional Commission, 17 Cal.3d 785, 791 (1976)), this means that projects which were carefully planned to comply with local zoning regulations will now have to go back to the drawing boards.

A further problem is that the 2002 Handbook is surprisingly tone deaf with respect to the economic implications of its interpretation of the Aeronautics Act.  For example, the 2002 Handbook recommends “safety zones,” i.e., areas of limited development off each end of runways, without so much as a nod to the general plan determined development patterns of existing communities, or to developments that are far along in the development process, e.g., possess specific plans, but are not yet vested.  The Handbook’s interpretations of the Aeronautics Act thereby jeopardize the economic health of individual projects, and in some cases, entire regions.  Finally, there is no reason to believe that the updated edition will be any more accurate or sensitive to economic reality, as the same cast of characters that developed the 2002 edition are in charge of the update. 

Chevalier, Allen & Lichman strongly recommends that parties with land use interests around airports throughout California, both public and private, participate in the Airport Land Use Planning  Handbook development process.  Three public meetings will be held in the month of February: February 1, 2010 at Sacramento International Airport; February 3, 2010 at CalTrans District Office 6 in Sacramento; February 9, 2010 at Ontario International Airport in Ontario. Chevalier, Allen & Lichman will keep you apprised of future dates, such as that of the release of the draft Handbook update.  Your participation is essential.  It could mean the difference between a successful project and no project at all.  Don’t hesitate to contact Chevalier, Allen & Lichman with any questions.


 
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