Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq.,  “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”).  The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project.  The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal  networks and promotion of mixed land uses.”  Update, page 3.  

 
The change is effected through a change in the metric for determining environmental significance Level of Service (“LOS”), which measures delay at intersections, to vehicle miles traveled (“VMT”), which is a measure of the number of automobile trips resulting from the project.  The stated rationale underlying the change is that the use of LOS encourages mitigation aimed at reducing delays by increasing traffic flow, including expanded roadways, construction of more lanes and other automobile traffic facilitation measures; which theoretically leads to “induced demand,” i.e., more capacity at intersections allowing additional cars to use them; and, ultimately, to more air quality and greenhouse gas impacts from those additional cars.  As the story goes, a standard of environmental significance based on VMT will encourage the use of mitigation measures such as increased bicycle paths, accommodations for pedestrians, and other measures that will reduce automobile ridership in the long term.  The problem is that the theory underlying the Update is made up more of holes than of cheese. 
 

Continue Reading California Changes the Test of Significance for Traffic Impacts Under CEQA

Exemption of NextGen procedures from environmental review is not the only issue raised by the FAA Reauthorization legislation set to be approved by the United States Senate on Monday, February 6 at 5:30 p.m. EST.  Section 505 of the Conference Version of the Bill allows a public entity taking private residential properties by eminent domain for airport purposes to pay the value of the property after its value has been diminished by the pendency of the project itself, and by any delay by the public entity in purchasing the property.  In other words, the Congress is overriding the long held judicial precept that “temporary takings are as protected by the Constitution as are permanent ones.”  See, e.g., First Evangelical Lutheran Church of Glendale v. Los Angeles County, California, 482 U.S. 304, 318 (1987).

Continue Reading FAA Reauthorization Act Changes Rules for Valuation of Residential Properties

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.

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.

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.

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.

 

Continue Reading Land Use Planning Near California Airports Could Change Your Development Plans