Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

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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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.

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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.

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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.

 

Each local agency that has a General Plan that includes areas covered by the ALUCP must submit its General Plan to the ALUC for review and a determination that the General Plan is consistent with the ALUCP.  If the two are consistent, the local agency may approve development permit applications for land use without referring project applications to the ALUC.  However, if the two are inconsistent, the local agency must submit all development permit applications to the ALUC for review.  If the ALUC determines that the proposed project is consistent with the ALUCP, the local agency may approve the project.  If a proposed project is inconsistent with the ALUCP, the local agency may not approve the project unless it overrules the ALUC by a two-thirds vote of its governing body.  To overrule the ALUC, the local agency must make specific findings that the proposed project is consistent with the purpose of Section 21670.

Thus, ALUCPs place limitations on development in the vicinity of airports.  They impact land use, planning and zoning near airports, often imposing restrictions that are different from or exceed existing land use restrictions put in place by local land use jurisdictions.  Moreover, ALUCPs are continually undergoing updates and revisions, based on changes in Airport Master Planning and Airport Layout Plans, and may have a profound affect on proposed development projects, including those for which necessary permits have already been issued.  As the California Supreme Court stated in Muzzy Ranch v. Solo County Airport Land Use Commission, 41 Cal. 4th 372 (2007), “an airport land use compatibility plan can operate like a multijurisdictional general plan to trump the land use planning authority that affected jurisdictions might otherwise exercise through general and specific plans or zoning.”

Land owners and developers who are planning a development project near a California airport should determine early in the planning process whether the property is within the jurisdiction of the ALUC.  If it is, they should check the ALUCP to determine in what Airport Safety Zone(s) the property is located, what uses and kinds of structures are allowed, and what, if any, density/intensity restrictions apply.  By doing that, owners and developers can avoid the cost of revising proposed project plans to make them compatible with the ALUCP and delays in having the project approved.  Owners and developers of property located near airports outside California should check with the local permitting authority to determine if any development restrictions apply.

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