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.