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.