HomeMy WebLinkAbout209:07 LEGAL OPINIONOFFICE OF COUNTY COUNSEL
REQUEST FOR LEGAL SERVICES
Date Submitt d: Tuesday, 2-00
From: ,
�:
Department Head Signature
/yo .d'/v-vd 74 -
Department: Development Services
Phone Number: -5,_3L'-6821
PLEASE INDICATE THE 'TYPE OF ASSISTANCE REQUESTED
X Opinion Request
Briefly explain the issue: What is the effect of the 1999 CLUP amendments on
processing new land use projects?.
(Attach additional documents as necessary)
Request for Ordinance/Resolution
Briefly explain. the nature of requested Ordinance/Resolution:
Is there an existing Ordinance/Resolution: YES NO
If yes, please attach or cite existing County Code provisions: BLItte County Counsel
Other
Briefly explain the assistance requested:
, Oroville, Caftmis
PRIORITIZATION
Indicate the priority of this request, taking into consideration any prior pending requests. Requests receiving
a "high" priority will automatically take precedence over existing pending department projects, unless
otherwise indicated.
High X Moderate Low
Comments: Please see attached memorandum.
Date Received:
Attorney Assiar
Locy Out Date: - --
FOP. COUNTY COUNSEL USE ONLY
DEPAR.TMr,N r or
"ULGPMFNT SERVICE`
MICHAEL H. REMY
TINA A. THOMAS
JAMES G. MOOSE
WHITMAN F. MANLEY
ANDREA A. MATARAZZO
ERIK K. SPIESS
JENNIFER S. HOLMAN
RENEE F. HAWKINS
OSHA R. MESERVE
REMY, THOMAS and MOOSE, LLP
ATTORNEYS AT LAW
455 CAPITOL MALL, SUITE 210
SACRAMENTO, CALIFORNIA 95814
Telephone: (916) 443-2745
Facsimile: (916) 443-9017
E-mail: randt@cwo.com
http://www.cwo.conV-randt
C 0. � Ob -6a -
�M Y
GEORGANNA E. FOONDOS
. LAND USE ANALYST
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED
Memorandum
BRIAN J. PLANT
MARIAN KING
OF COUNSEL
Butte County COUnW
To: Susan.MinasianFEB 2 2 2000
From: Michael H. Remy.
Date: February 18, 2000
Subject: DevelopmentServices Request for Legal Opinion oroVllle, Cellfomla
Butte County Counsel asked Remy, Thomas'and Moose to prepare a legal opinion with regard to
several questions raised by the Department of Development Services in relation to the adoption
of comprehensive land use plans (CLUPs).by the Butte.County Airport Land Use Commission
(ALUC).
Factual Background
On December 29, 1999, the Butte County ALUC amended its CLUP. ALUC has stated that the
Amended CLUP is meant to be a temporary measure until it makes comprehensive amendments
in spring/summer 2000.' ALUC had also amended its CLUP in October, 1998. No steps have
yet been taken by the County to amend the General Plan to be consistent with, or, in the
alternative, to overrule either CLUP amendment by a two-thirds vote. Instead, the County has
voluntarily sent all projects requiring discretionary approvals to ALUC so that it might determine
consistency with its CLUP.
Question 1: Do project applications received prior to the 1999 CLUP amendment
have to be evaluated with the newly adopted CLUP or should the project
be reviewed using the old CLUP that was in effect at the time the project
was deemed "complete" for processing?
' Note that the CLUP may not be amended more than once in any calendar year.
(Pub. Utilities Code, § 21675.5, subd. (a).)
Page 1 of 5'
Response: ALUC should apply the CLUP in effect at the time the project application
was.deemed complete for processing by the Planning Division.
With very limited exceptions, the County must apply the law in effect at the time it determines
that an application is complete. (Gov. Code, § 66474.4, subd. (a) (applicable law for
determination of whether to approve a tentative map is law in effect at time application deemed
complete under Government Code section 65943).) Thus, by analogy, once the Planning
Division deems an application complete, the CLUP in effect at that time should guide ALUC's
consistency determination. Because the County is the land use authority, its "deemed complete"
determination governs. To the extent that the 1998 CLUP contains additional guidance not
superceded by the 1999 CLUP, it should also be utilized for purposes of the consistency .
determination.'
4uestion 2a: When does the new CLUP become effective?
Response: Upon passage.
The new CLUP becomes effective upon passage by ALUC. The Public Utilities Code does not
have any provisions for "interim" CLUPs. It does, however, limit ALUCs to amending the
CLUP only once per calendar year. (Pub. Utilities. Code, § 21675.5, subd. (a).)
A review of the effect of a CLUP may be helpful at this point:
Though ALUCs operate under the auspices of the County'. ALUC decisions are not subject to
Board of Supervisors approval to take effect. (Caltrans Airport Land Use Planning Handbook, at
p. 1-8.) The powers of an ALUC, however, are limited to: 1) preparing compatibility plans
(CLUPs); and 2) reviewing local agency actions and airport plans. (Pub. Utilities. Code, §§
21674, subd. (c), 21675, subd. (a), 21674, subd. (d).) When an ALUC amends its CLUP, the
Government Code states that the General Plan and any applicable specific plan shall be amended,
as necessary within 180 days. (Gov. Code, § 650302.3, subd. (b).) In the alternative, the local
agency may overrule the part or all of the CLUP with a two-thirds majority vote accompanied by
specific findings of fact supported by substantial evidence. (Gov. Code, § 650302.3, subd. (c);
Pub. Utilities Code, § 21676; Caltrans Airport, Land Use Planning Handbook, at p. 5-15.)
Prior to the passage of the 1999 CLUP amendments, the Board had not yet acted to make the
General Plan consistent with the prior CLUP, as amended in October 1998. The 180 days had
already passed. Though the 180 day time frame is "mandatory", there is no enforcement
mechanism. The only way that ALUC could compel the Board to take action would be to file a
The Planning Division has advised that the 1999 CLUP does not supersede or
replace the 1998 CLUP, but rather adds to it. The expected 2000 CLUP will, however,
supersede all prior CLUPs.
Page 2 of 5
Writ of Mandate to compel the Board to take the action required by law.' However, the failure of
the local government agency to act pursuant to the CLUP,does make it possible for an ALUC to
require that it review all land use decisions. If the Board does not either 1) revise the General
Plan to. be consistent with the CLUP; or 2) overrule ALUC by a two-thirds vote, then ALUC may
require that all subsequent actions, regulations, and permits be submitted to it for consistency
review. (Pub. Utilities Code, § 21676.5, subd. (a).) In this case, the Planning Division has
voluntarily agreed to refer all projects affected by the 1998 CLUP to ALUC for consistency
review. The only change now is that ALUC has amended its CLUP again so that it has an
additional document with which to make consistency determinations. The Planning Division
may simply continue sending all projects affected by the 1998 and 1999 CLUP revisions to
ALUC for consistency review.
A CLUP provides guidance as to what land uses are compatible with the airport within the
airport planning area. If ALUC determines that a particular project is inconsistent with the
CLUP, then ALUC notifies the Board of its decision and the Board shall hold a hearing to
reconsider its plan or decision. (Pub. Utilities Code, § 21676.5, subd. (a).) There is some
question as to whether the Board needs a two-thirds majority to override a finding of
inconsistency by an ALUC where the Board voluntarily submits projects to the ALUC without
the ALUC requiring it. In this case, since the Board has not taken action to make the General
Plan consistent with either the 1998 or 1999 CLUP, the referral of projects to ALUC could have
been mandatory if ALUC had so required (Pub. Utilitie's Code, § 21676.5, subd. (a).) Thus, a
two-thirds majority instead of a simple majority is probably required for an override. (Caltrans
Airport Land Use Planning Handbook, at p. 4-12.)
Question 2b: Are new projects subject to the standards in the CLUP?
Response: For the purposes of ALUC review, yes.
New projects are those projects whose applications were deemed complete by the Planning.
Division subsequent to the adoption of the 1999 CLUP. When ALUC reviews new projects for
consistency, it should use the 1999 CLUP as its guiding document. To the extent the 1998
CLUP applies, it should also be used. As noted above, the local agency may overrule an
ALUC's determination of consistency if it makes specific findings that the ALUC's
determination is not consistent with the purposes of State Aeronautics Act as defined in Public
Utilities Code section 21670. (Pub. Utilities Code, § 21676.5, subd. (a).)
Question 3: If the CLUP is effective immediately, are all discretionary projects
required to be referred to ALUC for a consistency determination?
3 Because the decision of the Board not to take action would be legislative in
nature, a writ would be brought under Code of Civil Procedure section 1085.
Page 3 of. 5
Response: If the General Plan is inconsistent with the CLUP amendments, and
General Plan has not been amended to be consistent with the CLUP
amendments or the Board has not overruled the CLUP amendments, and
ALUC so requires, all discretionary projects affected by the CLUP
amendments should be referred to ALUC for consistency determinations.
Until ALUC requires that all discretionary projects be referred -to it for consistency
determinations, the County is not re uired to do so. (Pub. Utilities Code, § 21676.5, subd. (a).)
As a practical matter, however, it appears there is good reason for continuing to refer projects to
ALUC. As noted by special counsel to ALUC, Mr. Curtis, in his opinion letter, as a practical
matter it would not make sense to require that all projects be referred to ALUC unless
inconsistencies exist between the general plans and the CLUP. (Mr. James A. Curtis, Letter of
May 13, 1999, at p. 11.) Additionally, the relationship between the time period set out in
Government Code section 65302.3 and the mandatory ALUC. review process set out in Public
Utilities Code section is unclear. (Mr. James A. Curtis, Letter of May 13, 1999, at p. 12.) It
seems, however, that once ALUC points out the inconsistencies to the local agencies, ALUC
could reasonably require that all land use actions be submitted to it for consistency
determinations. While the County could wait for ALUC to requite it to refer projects for
consistency, it is probably best to continue doing so voluntarily at this time.
Question 4: Is it ALUC's duty to show an affected agency where its General Plan is
inconsistent with the new CLUP?
Response: Though the statute does not explicitly require it, ALUC should probably
point out where inconsistencies exist.
The Airport Land Use Handbook suggests that one of the first actions an ALUC should take
following the adoption of a CLUP is to "review the current general plans and specific plans of
each of the affected local agencies" and list any inconsistencies and notify the local agency or
agencies. (Caltrans Airport Land Use Handbook, at p. 4-3.) An amendment to the CLUP should
be treated in the same manner. (Id.) Once an amended CLUP is adopted by an ALUC, a local
agency is given 180 days to either amend the general plan or override the ALUC's CLUP. (Gov.
Code, § 65302.3, subd. (b).) Caltrans recommends that ALUCs perform the initial consistency
review for two reasons. First, ALUCs and their staffs have more expertise by which to identify
the inconsistencies. Second, section 21676, subdivision (a) of the Public Utilities Code required
each ALUC to review local plans for compatibility with its CLUP by August 31, 1983.
According to Caltrans, that requirement is still in effect as CLUPs are amended over time.
(Caltrans Airport Land Use Planning Handbook, at p. 4-3.) As noted by Mr. Curtis, unless the
ALUC identifies the areas of inconsistency, the land use agency "could be left to guess as to
whether the ALUC has determined the existing general plan to be inconsistent with the new
amendments." (Mr. James A. Curtis, Letter of May 13, 1999, at p. 11.) Since the land use
agency is directed to modify its general plan in accordance with the CLUP within 180 days of its
passage, it makes sense that ALUC should assist the land use agency in determining first whether
and then where those changes might be necessary. Thus, ALUC should notify the local agencies
Page 4 of 5
of the areas where inconsistencies exist at the time it adopts anew CLUP. A provision requiring '
,such a procedure could be included as an implementing measure in the ALUC's CLUP.
CONCLUSION
The 1999 CLUP takes effect upon passage, for purposes of ALUC review. Given the fact that
ALUC plans to adopt comprehensive CLUP amendments in the near future, and the Planning
Division is already sending all projects affected by the 1998 CLUP amendments for ALUC
consistency review, no revisions to the General Plan are absolutely necessary at this time.' If _
ALUC is not successful in adopting a new CLUP within six months of the adoption of the 1999
CLUP,:then the County should take action to either make the General Plan consistent with the
CLUP'or overrule all or part bf the CLUP. Ideally,,ALUC should assist -the County and other
affected agencies in identifying the areas of inconsistency whenever it,amends an existing CLUP �{
or adopts a new CLUP.
Please contact me if you have any further questions regarding this memorandum or any other,
matter.
i
s
0021396.002 • ,
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a The.only exception to this statement would be in the unlikely event that ALUC
seeks and actually receives a Writ of Mandate to compel action by the Board.' ALUC probably.
could not seek a writ until 180 days pass' ' from the adoption of.the 1999 amendment, but could
seek, without much chance for success; awrit for the Board to take action on the 1998
amendment:
t Page 5 of 5
E i �
State of California' i Business, Transportation and Housing Agency '
Me, mor'a--:h"dum
To:. MARLIN BECKWITH Date: February 7, 2000 #
.-Program- Manager -
Aeronautics Program ,.
�{ File:
From: DEPARTMENT OF TRANSPORTATION a:
LEGAL
Mail Station 57 `
Subject: Request ,for Legal Opinion Regarding Delegation of Override Authority '
'Under Public Utilities Code Section 21675.1,;Subdivision (d)_,.
QUESTION PRESENTED • ' �, ` �� ,
• Can the governing body of a city or county delegate to a•subordinate.body its power,
f
found in Public Utilities Code section 21675.1; subdivision (d), -;to overrule an Airport
Land Use Commission ("ALUC") by a two-thirds vote?
'CONCLUSION �
r
The power of the governing body' of.,a, city or county (city council orboard of
4;
supervisors) to overrule an ALUC's•disapproval,of an action; regulation or permit.by.°a, _
.,two-thirds vote may- not lie delegatedto a separate public entity.
,
!ANALYSIS
Public Utilities Code section '675.1, subdivision (d), states: -
t : ' 21
t
"If the commission •disapproves an action, regulation, or'a permit, the
'•_ commission shall notifythe c ,,or county. The city or. county may overrule
x, the commission, by two -thin& vote of its governing body, 'if it makes
specific findings that the proposed 'action, regulation, or permit is consistent '
?4
. with the purposes of this article, as stated in"Section 21670."
' r It is, clear; `therefore, that the "governing body" of a city or county may overrule an
;
ALLiC's'decision whether.a particular project is consistent with a Comprehensive'Land
f
Use,.Plan. However,.because "governing body" isnot defined`in the Public Utilities
Code, -it is necessaryto look elsewhere forthe Legislature's intent in using that term.
.
In American Canyon Fire Protection District v: County of Napa (1983) ,141 Cal.App.3d
' 100, the courf sought a definition for `the 'tefrh 'governing body" found` in Revenue and
,
' Taxation Code.section 98.6. The court stated; "The term 'goveridng body' is d'efined by
reference to section 16271, subdivision (a), of,the Government' Code,. which, provides
`� x
`
ti
Marlin Beckwith
February 7, 2000
Page 2
that "'Governing body" means the board of supervisors .. " Id. at 1051. In Martinez
v. Board of Supervisors (1972) 23 Ca1.App.3d 679, the court, in interpreting "governing
body" as used in Health and Safety Code section 34240, looked to Health and Safety
Code section 34205 and held that "'Governing body' in the case of a county means the
board of supervisors." Id. at 682, footnote 32..
Several other cases are also instructive, though less direct in their definitions, regarding
the Legislature's intent when using the term "governing body." In Jahr v. Casebeer
(1999) 70 Cal.App.4th 1250, the court, in interpreting "governing body" as used in a
section of the state constitution, stated, "[i]n the context of article XI, section 1(b),
'governing body' can only refer to a local legislative body such as the Board [of
Supervisors]." Id. at 1255. In Committee of Seven Thousand v. Superior Court (1985)
221 Ca1.Rptr. 616, the court appears to have equated "governing body," in the context of
a county, with the board of supervisors when it held that Government Code
section 66484.3, subdivision (a) "reposes the authority to actually -assess the fees in the
respective governing bodies of the cities and county: "The board of supervisors 'of the
County of Orange and the city council of any city ...."' Id. at 621. And in Voters for
Responsible Retirement v. Board of Supervisors (1993) 16 Cal.App.4th 1306, the court
equated "governing body" with the board of supervisors when it stated, " ...,the
governing body-i.e., the Board....."
Thus, it is the finding of the Department of Transportation that the term "governing
body" as� used in Public Utilities Code section 21675.1, subdivision (d), refers, in the
context of a county, ,to the board of ,supervisors. Thus, it is necessary to analyze
whether the authority vested in the board of supervisors through section 21675.1,
subdivision (d), may be delegated.
In Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, the court stated:
"When the legislature has made clear its intent that one public body or
official is to exercise a specified discretionary power, the power is in the
nature of a'public trust and may not be exercised by others in the absence of
statutory authorization. [Citations.]" Id. at 24.
In Myers v. City Council of Pismo Beach (1966) 241 Ca1.App.2d - 237, the court
m
addressed the question whether a particular power contained in the Governent Code
could be delegated:
. 'Government Code section 16271, subdivision (a), states, "'Governing body'
means the board of supervisors except that in the case of a subsidiary district
"government body" means the city council, and in the case of a multi -county district
'governing body' means the governing body of the multi -county district itself."
2Health and Safety Code section 34205 states, "'Governing body' means the city
council in the case of a city or the board of supervisors in the case of a county."
Marlin Beckwith
February 7, 2000
Page 3
"One of .these general laws relates to the specific question at bench, viz.,
section 51030, Government Code,. which confers upon 'the legislative body of
ariy city or county' the right to levy a room occupancy tax such as is here
involved.
It will be noted that the authority to levy this tax is specifically delegated
to the legislative body of the city. That, of course, is the city council.3 Upon that
body is, conferred the power and duty to deal with this subject matter. And
the city council, of course, has discretion, as in any legislative matter, to
determine what action, if any, should be taken.
"We are thus brought to this aspect of our problem: May the legislative
body of the city delegate the power and duty specifically conferred. upon it in
this matter? We think not.
On this point McQuillan says: 'The rule that public powers conferred
upon the council of a municipality cannot be delegated by it, has been applied
to the power conferred upon municipalities to levy taxes, so that when power
to levy taxes has been delegated by the legislature to a certain body or
officers, they cannot delegate such power to another body or other officers."'
Id. at 241.
Finally, the court in Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, held:.
'.i
"Since counties constitute merely politicalsubdivisions of the state
[citations], they have independently only such legislative authority that has
been expressly conferred by the, Constitution and laws of the state. If the
latter sources are silent in regard to the delegation of such authority, the
authority must still rest with the Legislature." Id. at 870.
4
Thus, it is the opinion of this office that the Legislature intended that the power found in
Public Utilities Code section 21675.1, subdivision (d), to overrule an ALUC by a two-
thirds vote rests solely with: the board of supervisors of a county (or the city council of'a
city), and that said authority may not be delegated to any other public entity absent
further clarification by the Legislature.
/JOHN K. �OXIE
Attorney
3The Department of Transportation believes it is equally clear that the legislative
body of a county is its board of supervisors. :
MICHAEL H. REMY
TINA A. THOMAS
JAMES G. MOOSE
WHITMAN F. MANLEY
JOHN H. MATTOX
ANDREA A. MATARAZZO
ERIK K.SPIESS
JENNIFER S. HOLMAN
RENE1 F. HAWKINS
December 16, 1999
Mr. Jay C. White
P.O. Box 429
San Carlos, CA 94070
REMY, THOMAS and MOOSE, LLP
ATTORNEYS AT LAW S1UI_
455 CAPlT0L MALL, SUITE 210 BA GEORGANNA E. FOONDOS
SACRAMENTO. CALIFORNIA 95814 LS LAND USE ANALYST
Telephone: (916) 443-2745 JU BRIAN J. PLANT
Facsimile: (916) 443-9017�� ARIA �G
E-mail: randt®cwo.com
http://www.ewo.com/-mndt ft.
b
6kft County Counsel
DEC 17.1 9 -
®roviNe, California
Re: Butte County Airport Land Use Commission
Dear Mr. White: `'G'
Ms. Minasian referred your letter of November 23, ,1999 regarding Butte County ALUC
Staff s conclusion that the proposed CLUP amendments' impact on the environment
should be analyzed under CEQA to my office to prepare a response.
As suggested by your letter, there is some debate as to whether CEQA applies to CLUP
amendments. According to the Caltrans Airport Land Use Planning Handbook, various
ALUCs have taken one of three possible approaches: 1) CLUPs are exempt from
CEQA review because ALUCs do not have ultimate authority over local land use
proposals so no CEQA review is necessary; 2) the ALUC should prepare an initial study
and a negative declaration because ALUCs have no land use implementation or final
approval powers; or 3) the ALUC should prepare an EIR, usually in conjunction with a
local specific plan or airport master plan for which an EIR is necessary or to address
concerns of local agencies and landowners over the implications of CLUP adoption.
(Caltrans Airport Land Use Planning Handbook, at p. 2-13.) -
In the case of the Butte County ALUC's proposed CLUP amendments, the ALUC
believes an initial study should be prepared. While your contention that a CLUP
amendment isnot a "project" within the meaning of CEQA may be an arguable point, the
question is unresolved. Thus, the prudent route is to perform environmental assessment
and determine whether the amendments will significantly impact the environment.
ALUCs are similarly situated as other local agencies affecting land use patterns (such as
a Board of Supervisors adoption of a general plan); those agencies' land use decisions
,
Mr. Jay C. White
1 ,
December 16,1999
Page 2
are without question subject to CEQA review.. It makes sense for ALUCs to also
perform environmental assessment since their decisions, in this case, with regard to
allowable densities and land uses within the airports' areas of influence; will ultimately
affect local land use patterns. The ALUC's CLUP amendments are also significant
because other local government agencies do not have plenary authority to override them
unless appropriate grounds exist. As a matter.of efficiency, any information gathered in
the environmental assessment phase can then be re -utilized by other local agencies in the
" course of further environmental assessment on larger projects, such as the" adoption .or
amendment of a general plan.
Although we understand that your interest lies in the timely adoption of the CLUP .
amendments, we hope you will understand that by performing environmental review we
will increase the likelihood that the amendments will successfully protect the interests of
the airports of Butte County.
r
Thank you for your comments on this important matter. _
Sincerely,
Michael H. Remy '
cc:, Ms. Susan Minasian
County Counsel, County of Butte
WHITEITR +
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•ev tF.
=R -DEPARTMENTAL MEMORANDUM
OUR
OFFICE OF BUTTE COUNTY'COUNSEL
TO: Tom Parilo, Development Services Director
BY: Neil H. McCabe, Assistant County Counsel
SUBJECT: Opinion 99-153 re: ALUC
DATE: November 22, 1999
Please find enclosed, per the request in your letter dated October 6, 1999, the above
mentioned opinion.
If you have any questions or comments please feel free to contact me:
NHM/slt
(parilo4)
t - 3,6 9'0
MICHAEL H. REMY
TINA A. THOMAS
JAMES G. MOOSE
WHITMAN F. MANLEY
JOHN H. MATTOX
ANDREA A. MATARAZZO
ERIK K. SPIESS
JENNIFER S. HOLMAN
RENEE F. HAWKINS
REMY, THOMAS and MOOSE, LLP
ATTORNEYS AT LAW
455 CAPITOL MALL, SUITE 210
SACRAMENTO, CALIFORNIA 95814
Telephone: (916) 443-2745
Facsimile: (916) 443-9017
E-mail: randt@cwo.com
http://www.cwo.com/-randt
AIM
L s
GEORGANNA E. FOONDOS
LAND USE ANALYST
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED
Memorandum
BRIAN J. PLANT
MARIAN KING
OF COUNSEL
Butte County C0090
To: Susan Minasian, County Counsel NOV 17 VON,
Butte County
From: Michael H. Remy
Date: November 16, 1999 �l'pVl�je, C�
J
Subject: ALUC Request for Legal Opinion
Butte County's ALUC forwarded three questions to County Counsel for a legal opinion. County
Counsel asked Remy, Thomas and Moose to prepare that opinion.
Ouestion 1: When the ALUC reviews a project for consistency with its
Comprehensive Land Use Plan (CLUP) can it only decide consistency or
inconsistency, or can the ALUC find the project consistent with certain
conditions?
Response: .The ALUC may attach conditions to a finding of consistency.
As the ALUC staff noted, neither the CalTrans Handbook nor the Code explicitly endorse
the practice of attaching conditions on a finding of consistency of a project by an ALUC...
In practice, however; as the Handbook notes on page 4-10, some ALUC's find it more
efficient to attach conditions to a potentially compatible project than to find it
inconsistent and then have the project return to the ALUC at a later date.
After polling several ALUCs, it seems that the practice is rather common. The ALMin
El Dorado, Tuolomne, Saramento, Yolo, Sutter, and Yuba counties routinely attach
conditions, whereas in Colusa and Humboldt counties it is never done. Contra.Costa
County has used conditions in the past, but is trying to get away from the practice unless
the conditions are very minor. (Because ALUCs may be comprised in three different
ways under the Aeronautics Act (separate ALUC body, designated existing agency, or
alternative process) and counties' populations and numbers of airports vary greatly,
comparisons may be more or less helpful depending on degree of similarity.)
Page 1 of 4
If conditions are attached, it may be wise to word them in such a way as not to explicitly
say "condition", to avoid potential exactions or takings issues. Tuolomne's ALUC words
the conditions as "the project will be consistent if X is done" (where X is signing off a
navigation easement or reducing project height, for example).
An alternative to using a conditional finding of consistency is to have applicants fill out a
pre -application checklist that will highlight any inconsistencies with the compatibility
plan early on in the process so that those areas can be modified before the ALUC reviews
the project.- (This is how some ALUCs avoid having to ever attach conditions.)
In talking with CalTrans Department of Aeronautics staff and their legal counsel, Larry
Thelen in particular, it appears that attaching conditions is probably an acceptable
practice.
Ouestion 2: May the ALUC adopt its proposed conflict of interest bylaw?
Response: Because the bylaw as proposed is vague as to what a conflict of interest is
and what should occur if a conflict arises, and also may conflict with state
law, we recommend against adoption of the bylaw as currently worded.
According to Public Utilities Code section 21672, "[e]ach commission shall adopt rules
and regulations with respect to the temporary disqualification of its members from
participating in the review or adoption of a proposal because of conflict of interest and
with respect to appointment of substitute members in such cases." Conflict of interest is
also dealt with extensively by the Political Reform Act of 1974. (Gov. Code § 81000 et
seq.) That code requires disclosure of financial interests by designated "reporting"
government employees. Many ALUCs simply incorporate and conform to the County's
conflict of interest code and report financial interests accordingly. Thus, it appears that
the bylaws required by Public Utilities Code section 21672 should be designed to address
the narrow question of when a commissioner has a conflict of interest and should not vote
on a matter. If a member of the Commission has a financial interest in the outcome of a
decision that the commission is making, then he or she should simply abstain from voting
on that matter. (See attached provision of Tuolomne County ALUC's by-laws.)
Additionally, some ALUCs provide for the possibility that a commissioner's
qualifications to participate in a decision may be challenged during the course of a
hearing. (See attached provision of Contra Costa County ALUC's bylaws.)
I assume that the proposed language related to section 21672 and means that if a listed
conflict is present, the conflicted commissioner will not vote on that subject matter. It
should be clearer in the text of the amendment what should be done if an enumerated
conflicts arises. Also missing is a provision that would provide for appointment of
substitute commissioner in the event of a conflict.
Moving to the recognized conflicts in the proposed bylaw:
Page 2 of 4
a
The first recognized conflict (financial conflict) is vague in that "some possible financial
interest" is not defined. According to.the amendment, it would be difficult to tell what
constitutes some possible financial interest. For instance, would it include value of a
primary residence? Or only a business interest? How much of a business interest? It
might be expedient to exclude the ownership of a primary residence in the area at issue
as a financial conflict. _
The second category of conflict (conflict of duties) is in direct conflict with the State
Aeronautics Act provisions regarding the make-up of ALUCs. The Act requires that
Commissions be comprised of seven members: two representative from the cities in the
county, two representatives of the county, two having expertise in aviation, and one
representative of the general public. (Public Utilities Code § 21670.) Section 21670(c)
explicitly states that elected or appointed public officers may serve on an ALUC during
their terms in public office. The second recognized conflict in the proposed amendment
seems to preclude any ALUC commissioner from ever serving in another elected or
appointed representative capacity within the county, which conflicts with state lawand
would therefore be void.
The third category. (conflicts of loyalties) is similarly troubling in that it does not clearly
define what "an entity impacted by ALUC decisions" means. An entity could mean
either a local agency or a private corporation. And the degree of impact could be
anywhere from significant to insignificant. If this provision is passed, it should be
clarified. ,
Butte County ALUC's proposed bylaw appears to be on the extreme side, especially since
two commissioners would immediately be disqualified from serving. The ALUC might
be better served by adopting the language of the first paragraph of the. amendment and
then more clearly delineating what types of conflicts of interest require a commissioner to
abstain from voting and provide for how a substitute will replace a commissioner with a
conflict of interest for a particular vote. If the ALUC is interested in receiving assistance
redrafting the proposed amendment I would be happy to assist the ALUC in doing that.
To do this, however, I would need more information as to what the ALUC's specific
concerns about conflict of interest are and what the ALUC would like to accomplish in
passing this bylaw.
Question 3: What are the Statutory Time Limits for Keeping Files?
Response: There are no specifically applicable time limits for keeping ALUC files.
The ALUC should, however, keep files for at least two years as is
required of counties and probably longer just to be safe. The ALUC
should find out how the Planning Department deals with file retention
and consider doing the same thing.
Page 3 of 4
No Code provision expressly addresses how long ALUC files ought to be retained. The
most important ALUC files, I assume, are Project Review Requests. By analogy to cities,
the generally required record retention period is two years. � (Gov. Code § 34090.) If
records are microfilmed, they may be destroyed sooner. (Gov. Code § 34090.5.)
Similarly, counties may destroy records after two years that are not expressly required by
law to be retained. ((Gov. Code § 26202.)
It was suggested by -legal counsel at the CalTrans•Aeronautics Program that doubt ought
to be resolved in favor of keeping files longer rather than shorter since litigation in the
land use -arena is common. A possible model to follow would be whatever the Planning
Department of the county does. Once litigation commences on an ALUC action, the
proposed amendment is correct in that the files.should be retained indefinitely or at least
until any litigation has completely been resolved, which could well be several years.
In sum, two years seems to be the minimum record retention period. It is advisable,,
however, to keep records for longer. Besides being essential in the case of any litigation,
the files may provide historical information pertinent to a current Project Review
Request. If storage room is an issue, microfilm may be a good option.
Attachments:
Tuolomne County ALUC bylaws excerpt
Contra Costa County ALUC bylaws excerpt
List of ALUCs
Contacts:
CalTrans Aeronautical Program
Christa Engle, Aviation Planner (916) 654-5553
Larry Thelen, Legal Counsel (916) 654-2630
91101096.002
Page 4 of 4
11/04/1999 17:09
r•'
299-..33-5057 TL'OL. CO. AIKFORTS PAGE 02
..
the absent Members shall be notified. If all Members are absent,
the Secretary of the Commission may adjourn the meeting to a
stated time and place.and notify all Members.
Maetinca mon to phi- Rilb lin All meetings of the Commission are
open to the public. All meetings shall adhere to all current
open Meeting laws, as established by the State of California, or
the policies of the Board of Supervisors of the County of
Tuolumne, whichever shall be the more stringent.
niazaalification of_Mo—m e a When the Commission is considering
a proposal, or is taking any action, as to which a Regular Member
of the Commission is personally interested, that Regular Member
is disqualified from participating in the proceedings of the
Commission with respect to such proposal or action.. When a
disqualification for financial interest is required by the
Political Reform Act/Fair Political Practices Commission, the
Member must disclose the financial interest causing the disquali-
fication. Such disclosure must be made a part of the ALUC's
official record, or made in writing to the appointing power, or
any other person specified in the ALUC's'conflict of interest
code.
A Member's relationship. with an agency or geographical area
haling representation on the Commission shall not be the grounds
for such disqualification. All Members shall adhere to all
current conflict of interest laws established by the State of
California and administered by.the Fair Political Practices
Commission, or the relevant policies of the Board of Supervisors
of the County of Tuolumne, whichever shall be the more stringent.
('hall enng�h�f And; e ce If the impartiality of any Member with
respect to any proposal is questioned by any person appearing
before the Commission, and the Member has not disqualified
himself, such Member may be permitted to participate in the
Proceedings by majority vote of the Members of the Commission
present.
Froxv. Each Member shall appoint .a single Proxy to represent him
in Commission affairs, and to vote on all Commission matters,
when the Member is not in atte.naance, The Proxy shall be desig-
nated in a signed written instrument which shall be kept on file
with the Secretary. The Proxy shall serve at the pleasure of the
Member who appointed him. Any vacancy in the office of Proxy
shall be filled promptly by the appoint-ment of a new Proxy by the
Member.
4
NOU-09-1999 10:29 CDNTRA CGSTA-CDD
ArL0(:-
Section 6.3. Hearing Notice.
The date and subject matter of each hearing shall be "Noticed" by publication at
least one time in a newspaper having general circulation in the part of the
County in which the subject matter of the hearing is situated. The -hearing.
notice shall be caused to be published at least ten working days prior to the
date of the hearing. At the same time the published notice is submitted to the
newspaper,- a special notice shall be sent to the local zoning authority or
person requesting the hearing and to all publicagencieshaving an interest in
the matter to be heard.
Section 6.4. Rules of Hearing.
.The order of the hearings held by the Commission shall be:
A. Open hearing.
B. Staff to present evaluation and recommendations.
C. Proponents to present case.
D. Opponents to present case.
E. Rebuttal by proponents.
F. Any member of the Commission to call for such additional information, pros
and cons, in the order he desires.
G. Close hearing.
H. Commission discussion and deliberation.
I. Motions and voting.
Section 6.5. Quorum and Action.
Four members of the Commission shall constitute a quorum for the conduct of
business. A maijority of the Commissioners present and eligible.to vote shall be
required for any action of the Commission.
ARTICLE VII: CONFLICT OF INTEREST, DISCLOSURE, AND DISQUALIFICATION.
Section 7.1. Conflict of Interest and.Financial Disclosure.
Provisions relating to ,conflict of interest and financial disclosure are con-
tained in the Conflict of Intarest Code of the Airport Land Use Commission.
Section 7.2. Disqualification of Commission Member by Challenge.
The qualification, of any member(s) to take part in the Commission deliberations
and voting may be challenged by any part to the hearings. It shall be the duty
of the Commission Chairman to evaluate the challenge and the testimony presented
and then to rule upon the Qualification of the challenged member. If the
CM
NOU-fl9-1995 10:29 CONTRA COSTA -CDD
I
•
Chairman is the member so challenged, he shall immediately surrender his chair
to the -Vice -Chairman who will act -as Chairman until the qualification of the
challenged member has been decided.
ARTICLE VIII. COMMISSION'S STAFF MEMBERS.
The Secretary to the Commission shall be its administrative officer. The Contra
Costa County Director of Planning, or his designee, shall act as Secretary of
the Commission.
ARTICLE IX.' PRESIDING OFFICER.
Section 9.1. Chairman and Vics-Chairman: ,
The.members of the Commission shall elect a Chairman and Vice -Chairman who shall
serve until the election of their successors.: :
Section 9.2. Successor ,to'Chairmanland Vice -Chairman.
Commencing in 1972, and annually thereafter, at the first regular meeting of the
Commission held in May, the members of the Commission shall elect a Chairman and
Vice -Chairman to serve until the election of their successors.
Section 9.3. Duties of the Chairman.
The Chairman shall preside at all meetings of the Commission and shall conduct
the business of the Commission in the manner prescribed by these rules. The
Chairman shall preserve order and decorum and shall decide all questions of
order subject to the action of a majority of the Commission members present.
There may be circumstances that come to the attention of the. Chairman which
he/she feels warrant the` attention and/or action of the Commission prior' to the
next scheduled Commission meeting`. In such circumstances, the Chairman should
attampt to call a special meeting of the Commission in accord with State law and
the -Commission Rules and Regulations to allow the.matter to b'e reviewed. If the
Chairman determines that a special Commission meeting cannot'be called in •a
timely manner, then the Chairman shall be empowered to act on behalf of the
Commission to address the urgency of the_ situation in accord, with the
commission's duties and responsibilities. The Chairman shall report to the
Commission at the next regularly scheduled meeti.ng on any action. W she
undertook on behalf of the Commission.
Section 9.4. Duties of the Vice -Chairman.
In the absence or inability to act -of the Chairman, the Vice -Chairman shall act
as Chairman and when so acting shall have all of the powers and duties of the
Chairman. In the absence of the Chairman from. the County of Contra Costa, the
authority of the Vice -Chairman includes the authority to call special meetings..
RO:rjs
B0B3:cccaluc.apx
-7-
TOTAL P.04
Aeronautics
Program
October 4, 1999
AIRPORT LAND ;USE C0rvE IISSIONS
Alameda County
Alameda County ALUC
510) 670-6511
( 670-6511
FAX (510 ) 29
Alameda County Planning Department
.
224 West Winton Ave., Room 151
Hayward, CA 94544
Contact: Joanne Parker
Alpine County _
ALUC - (Exempt)
No � P )
(916) 694-2255
(EXEMPT)
Alpine County Public Work
FAX (91:6) 694-2214
50 Diamond Valley Road..
Markleeville, CA 96120
Contact: Leonard Turnbeauah
Amador County-
Amador County ALUC
�'
(209) 223-6380
(-X09 ) 223-0637
Amador County Land Use Agency
108 Court Street
Jackson, CA 95642
Contact: Gary Clark
Butte County
Butte County ALUC
(530) 538-7601
FAX (5-0).538-7785
7 County Center Drive
Oroville, CA 95,965
Contact: Paula Leasure / Laura Webster........,..
(530) 533-1 U 1
Calaveras_ County
Calaveras County ALUC
(209) 754-6394754-6566
(209 )
Calaveras County Planning Department
891 Mountain Ranch Road
San Andreas, CA 95249
Contact: Mary Pitto
Colusa County
Coun ALUC
Colusa '
(530) 458-0580
FAX (530) 458-5000
Colusa County Airport
100 Sunrise Boulevard, Suite F
Colusa, CA 95932
Contact: Harry A. Krug
Contra Costa County
Contra Costa County ALUC
(925) 335-1214
County Administration Bldg.
FAX (925) 335-1222
Community Development Department
651 Pine Street
4th Floor, North Wing .
Martinez, CA 94553-0095
Contact: Bob Drake - E -Mail:
bdrak@bicd.co.contra-costa.ca.us
Dei Norte County
Del Norte County ALUC
(707) 464-7229
Del Norte County Community
FAX (707) 465-0340
Development Department
700 Fifth Street
Crescent City, CA 95531
Contact: Karl Brown
El Dorado County
Foothill ALUC '
(530) 823-4703'
Sierra Planning'Organization
FAX (5)30) 823-4142
560 Wall Street; Suite F
Auburn, CA 95603
Contact:
Fresno Countv
Fresno County ALUC
(559) 262-4853
Planning & Resource
FAX (209) 262-4166 i
Management Department
2220 Tulare Street, Sixth -Floor.
Fresno, CA 93721
Contact: Joanne Striebich
- Glenn Countv
Glenn County
(530) 934-6540
Glenn County Planning Department
FAX (530) 934-6542
125 South Murdock Avenue
Willows, CA 95988
Contact: John Benoit
'
Humboldt County
Humboldt County ALUC
(707) 445-7205
Department of Public Works,
FAX (707) 445-7338
-
Land Use Division
3033 H Street
•,
Eureka, CA 95501
Contact: Harless vlcKihley E
-Mail: hmckinlev@co.humboldt.ca.us
Imperial County
Imperial County
(760) 339-=1236
Planning Department=
FA.`{ (760) 353-8333
939 vlain Street ,
El Centro, CA 92243-2856
'
Contact: Jur- Heuberger
-2-
4
`.
Inyo County
Inyo County Planning Department
(760) 872-2706
(Alternative process)
P.O. Drawer L
Ext -2263
Independence, CA 93526
Fax (760) 872-2712
Contact: Peter.Chamberlain
Kern County
Kern Co Planning and Development
(805 ) 862-8866
(Alternative Process)
2700 "M" Street, Suite 100
FAX (805) 862-8601
Bakersfield, CA 93301
Contact: Lorelei H. Oviatt
Kings County
Kings County Planning Department
(-209 ) 532-3211
(Alternative Process)
Kings County Government Center
Extension 2675 .
Hanford, CA 93230
FAX (209) 584-8989
Contact: Steven Sopp
Lake County
Lake' County Planning Department
(707) 263-2221
(Exempt)
25:5 North Forbes
FAX (707) 263-2207
Lakeport, CA 95453
Contact: Mark Phillips
Lassen Countv
Lassen County ALUC
(530 ) 251.-8264
Lassen County Planning Department
FA1Y (530) 251-8373
707 Nevada Street, Room 236
Susanville, CA 96130'
Contact: Kent Hector
Los Angeles County
Los Angeles County ALUC
(21.)) 974-6425
Department of Regional Planning
FAX (21.) 626-0434
32OWest Temple.Street, Room 1356
Los Angeles, CA 90012
Contact: Sorin Alexanian
1Vladera County
Madera County ALUC
(209) 675-7821
Madera County Planning Department
135 West Yosemite Avenue
Madera, CA 93637
Contact: Ken Young
iViarin County
Marin County ALUC
(415 ) 499-6290
F AX (415) 499-7880
Marin County Planning Department
3501 Civic Center Drive, Room 308
San Rafael, CA 94903
Contact: Kim Hansen
-3-
Mariposa County
Mendocino County
N�Ierced County
Modoc County
(EXEMPT) .
-Mono Countv
Monterev Countv
Napa County
Mariposa County ALUC
-56
F (209) 966-5.3
Mariposa County Public •
FAX (209) 966-2828 .
Works Department
,
4639 Ben Hur Road ,
Mariposa, CA 95338 '
Contact: Gwendolyn Foster
,
Mendocino County ALUC .
(707) 463-4231
Department of Planning and
FAX (707) 463-5709
Building Services
501 Low Gap Rd., Room 1440
Ukiah, CA 95432
Contact: Gary Pedroni
.
Merced County ALUC
(209) 385-7654
Merced County Planning Department
FAX (209) 726-1710
2222 "M" Street
Merced, CA 95340
Contact: Desmond Johnston E -Mail:
PLOZCco.merced.ca.us
No ALUC - Contact
(530) 233-3939
Modoc County Department
of Public Works
`
202 West Fourth Street
Alturas, CA 96101
f
Mono County ALUC*
Mono County Planning Department
P_0. Box 347:
Mammoth Lakes, CA 93546
Contact: Scott Burns/Mammoth
(760) 924-5450
Fax (760) 924-5458
Keith Hartstrom/Bridgeport
(760)'932-5217
i
FAX (760) 932-7145
Monterey County ALUC i .
(408) 755-5141
County Planning and
FAX, .(408) 755-5487.
Building Department
P.O. Box 1208
Salinas, CA 93902
Contact: Bill Hopkins
Napa County ALUC
(707) 259-8228
Napa County Conservation,
FAX (707) 253-4176 '
Development, & Planning Department
1195 - 3cd Street, Room 210
Napa, CA 94559-3092.
;
Contact:. Michael N(Uer
E -Mail: mmiller@co.napa.ca us
Nevada County
Foothill ALUC
(530) 823-4703
Sierra Planning Organization
FAX (530) 823-4142.
560 Wall Street, Suite F
Auburn, CA 95603
Contact: Andrew Reid
Orange County
Orange County ALUC
(949) 252-5170
John Wayne Airport
FAX (949)252- 5290
3160 Airway Avenue
Costa Mesa, CA 92626 .
Contact: Eric Freed
E -Mail: efreed@ocair.com
Placer County
Placer County Transportation
(530 ) 823-4033
Planning Agency
FAX (530) 823-4036
5 50 High Street, Suite 107
Auburn, -CA 95603
Contact: Kathryn F. Mathews
Plumas County
Plumas County ALUC
(530 ) 283-6210
Plumas County Planning Department
FAX (530) 282-0946
P.O. Box 10437
Quincy, CA 95971-6012
Contact: John S. McMorrow
Riverside County
County of Riverside
(909 ) 955-5990
Attention: ALUC
FA�,X (909) 955-6686
3 525 14'' ST.
Riverside, CA 92501-3813
Contact: Keith Downs E-Mail:edal.kdowns@co.riverside.ca.us
Sacramento Countv
. Sacramento County ALUC
(916) 457=2264
Sacramento Area Council of
FAX (916) 457-3299
Governments (SACOG)
3000 "S" Street, Suite 300
Sacramento,, CA 95816
Contact: Dave Boyer ......................................
(916) 733-3227
San Benito County
San Benito County ALUC
(408 ) 637-3725
FAY (408) 637-2373
San Be:vto County Council
of Governments
3216 Southside Road
Hollister, CA' 95023
Contact: John,Johnson
San Bernardino County
San Bernardino County Planning Department.
(909) 387-4180.
(Alternative Process)
385 North Arrowhead Avenue
FAX (909) 387-3223
Third Floor
San Bernardino, CA 92415-0182
r
Contact: Tim Squire E -Mail: jsquire@lus.co.san-bemardino.caus ,
San Dieao County
San Diego ALUC
(619) 595-5372
San Diego Association of Governments
FAX (619) 595-5605.• '
First Interstate Plaza
F , '
401 !B" Street, Suite 800
' ,
San'Diego, CA 92101
Contact: Jack Koerper
San Francisco County
NO ALUC REQUIRED
San Joaquin County
Sari. Joaquin County ALUC-
(209 ) 468-3913
San Joaquin County Council
FAX (209) 468-1084:
of Governments
6 South El Dorado Street,.Suite 400
s "
Stockton, CA 95202
}
Contact: Lara Delaney
San Luis Obispo
San Luis Obispo County ALUC
(805) 781-5600
County
San Luis Obispo County Department.
of Planning and Building
County Government Center x
-San Luis Obispo, CA 93408
Contact: Nfichael.Draze/Ted Bench `
San Mateo County
San Mateo County ALUC
(650)-) 3-4417 ,
Planning & Building Division
FAX (650) 363-4849
Environmental Services Agency
`
455 County Center, 2nd Floor
Redwoo&City, CA 94063
Roundtable Office
Contact: David F. Carbone
(650) 876-7812
Santa Barbara County
Santa Barbara County ALUC
(805 ) 568-2546
Santa Barbara County Association
FAX (805) 568-2947
-
of Governments
222 East Anapamu Street, Suite 11
Santa Barbara, -CA 93101-2006
Contact: Bill Yun
(905).568-2914
Michael Powers, Dir.'
6
-7-
Santa Clara County
Santa Clara County ALUC
(408) 299-2454 X 233
Santa Clara County, Planning Office'
FAX
(408) 279-3537
70 West Hedding Street, East Wing -7th Floor
San Jose, CA 95110
Contact: Rachael Cnbson
E -Mail:
Santa Cruz Countv
Santa Cruz County
(408) 454-3183
(Alternative Process)
Planning Department
FAX
.(408) 454-2131
Governmental Center
701 Ocean Street
Santa Cruz, CA 95060-4071
Contact: Mark Deming
City of Watsonville Planning Department
(408) 728-6020
P.O. Box 50000
FAX
(408) 728-6173
Watsonville, CA 95077-5000
Contact: Paul Kaneko
Shasta County
Shasta County ALUC
(530) 225-5532
Shasta County Planning Division
FAX
(530) 245-6468
1855 Placer Street
Redding, CA 96001-1795
Contact: Paul Bolton or Jinn Cook
Sierra County
Foothill ALUC
(530) 823-4703 .
(EXENIPT)
Sierra Planning Organization
FAX
(530) 823-4142
560 Wall Street, Suite F
Auburn, CA 9560'
Contact: Andrew Reid
Siskivou County
Siskiyou County ALUC
(530) 842-3269
305 Butte Street'(530)
342-8283 .
Yreka, CA 96097
Contact: Tom Anderson E -Mail: stage@snowcrest.net
Solano County
Solano County ALUC
(707) 421-6765
Solano County Department of
FAX
(707) 429-7912
Environmental Management
601 Texas Street
Fairfield, CA 94533
Contact: Gary Lane
-7-
Sonoma_ County Sonoma County ALUC
Permit Resource Management
2550 Ventura Avenue
South Lake Tahoe
Stanislaus County
Sutter County
Tehama County
Trinity County
Tulare Countv
Santa Rosa, CA 95403
(707) 527-1948
FAX (707) 527-3767
Contact: Ron Taddei E -Mail: Rtaddei@sonoma-county.org
South Lake Tahoe ALUC (530) 542-6020
do Teri Jamin
D'
Crty Planning erector .
1900 Lake Tahoe Boulevard
South Lake Tahoe, CA 96150
Stanislaus County ALUC
(209) 525-6330
Stanislaus County Department
FAX (209) 525-5911
of Planning & Community Development
1100 H S trees
Modesto, CA 95354
Contact: Fran Sutton -Berardi
Sacramento County ALUC
(916) 457-2264
Sacramento Area Council of
F.\,X (916) 457-3299
Governments.(SACOG)
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer
(916) 733-3227
Tehama County ALUC
(530) 527-2200
Tehama County Planning Department
FAX (530) 527-2655
Court House Annex, Room 1,
444 Oak Street
Red Bluff, CA 96080
Contact: George Robson
Trinity County ALUC
(530) 623-1351
Trinity County Department of
FAX (530) 623-1353
Transportation. & Planning
P.O. Box 2819
Weaverville, CA 96093-2819
Contact: Scott White
Tulare County ALUC
(209) 733-6291 ext. 4201
Resource Management Agency
FAX (209) 730-2653
5961 South Mooney Blvd.
Visalia, CA 93277
Contact: Dave Bryant
-s-
-9
Tuolumne County
Tuolumne County ALUC
(209) 53;-5685
10723 Airport Road
FAX (209) 532-1609
Columbia, CA 95310
Contact: Marls Bautista
Ventura Countv
Ventura County ALUC
(805) 642-1591 ext.105
950 County Square Drive, Suite 207
FAX (805) 6424860
Ventura, CA 93003
Contact: Chris Stephens . E -Mail,::
cstephens@goventur&org
Yolo Countv
Yolo County ALUC
(916) 457-2264
Sacramento Area Council of
FAX (916)457--3299
Governments (SACOG)
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer
(916) 733-3227
Yuba County
Yolo County ALUC
(916) 457-2264
Sacramento Area Council of
FAX (916)457-329.9
Governments (SACOG
3000 "S" Street, Suite 300 .
Sacramento, CA 95816
Contact: Dave Boyer
(916) 73.3-3227
-9
SHINE, COMPTON & NELDER, APC
ATTORiNEYS AT I AW
Raymond E. Shine The Old Post Office
_Charles A. Compton 131 S. Auburn Street
Maralee Melder * Suite 200
Grass Valley, California 95945
James A. Curtis, Of Counsel
• Certified Specialist in Family Law (530) 272-2636
California State Board of Legal Specialization fax (530) 272-5570
May 13, 1999
Robert Hennigan, Chairman
Butte County Airport Land Use Commission
Mr. Thomas A. Parilo, Director of Development Services
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 9596
RE: Butte County Airport Land Use Commission
Dear Messrs. Hennigan & Parilo:
Pursuant to your letter of April 6, 1999, you have requested my opinion for the guidance of the
Butte County Airport Land Use Commission on the following 'matters, regarding their 1998
amendments to the Chico Municipal Airport, Environs Plan.'
1. Does the Butte County Airport Land Use Commission ("ALUC") have the authority
to prevent construction of single family dwellings on existing parcels (that are presently
zoned for such use) through the adoption of amendments to the 1978 Chico Municipal.
Airport Environs Plan ("CMAEP" )?'-
I note ;hat the request for a legal opinion contained a fourth question concerning when private property
owners can be said to have obtained "vested rights". In my subsequent conversation with N1r. Parilo I was informed
that an opinion on this question is no longer desired.
The C.%,tAEP is also sometimes referred to as the Comprehensive, Land Use Plan for the Airport or" CLUP".
I
Messrs, Hennigan & Parilo May 13, 1999
Page 2
2. If so, can the Butte County Board of Supervisors override these amendments to the
CMAEP?
3. If the Board of Supervisors, does not take action to either amend the County General
Plan or prepare (and,adopt) overriding findings within 180 days (of the adoption of the
amendments to the CMAEP), would ALUC have the authority to review single family
building permit (applications) within the new CLUP?
As is explained below, it is my opinion that:
1. ALUC does not have the authority to adopt changes to the comprehensive land use plan
for the Chico Airport (the "CLUP") so as to prevent the construction of single family
dwellings on existing parcels that are zoned "R-1", if the practical effect is to prohibit
any reasonable use of the real property, resulting in a taking of the private property.
2. The Board of Supervisors has authority under Public Utilities Code Section 21676 to
overrule the AirportLand Use Commission's determination as, to consistency between
the CLUP and the County General Plan and thereby, in effect, override the subject
amendments to,the CLUP. Any such action by the Board of Supervisors must be
supported 'by specific and legally adequate findings that the proposed action is
consistent with the purposes set out in Public Utilities Code Section 21670.
3. If ALUC finds that the County has not revised the County General Plan or,
alternatively adopted findings overrule ALUC (in accordance with Public Utilities
Code Section 21676), ALUC may require the County to submit all subsequent actions,
regulations and permit applications to ALUC for review until the general plan is
amended or -such overruling findings are made.
FACTUAL BACKGROUND
Fac tua11v, I have been advised that in October 1998, the Butte County Airport Land Use "
Commission (ALUC) adopted amendments to the 1978 Chico Municipal Airport Environs Plan
(C-•IAEP). The CMAEP constitutes a comprehensive land use plan ("CLUP")for the Chico airport
consistent with the provisions for such plans contained in the Public Utilities Code Section 21675.
In pertinent part, the 1998 amendments to the CLUP created an Overflight Protection Zone
around the Chico Airport. The 1998 amendments state that within the OPZ "development
of new residential uses shall be prohibited in the area defined as Zone A..." and, "in Zone B no new
sim-de.family residential uses shall be permitted." 'The amendments. then state that "approval of
s
Messrs. Hennigan & Parilo May 13, 1999
Page 3
multiple family residential uses in Zone B shall contain conditions requiring dedication of aviation
easements...."
Your opinion request of April 6,1999 states, "the Airport Land Use Commission does not want
single family dwellings to be permitted on existing legally created parcels in Zone "A" even though
they are currently zoned R-1, R-2, R-3, SR, SR -1, and SR -3. It is my understanding that some of the
property within the OPZ has previously been subdivided and zoned for single family residential use.
I have been informed that due to the size of some of the subdivided property, such properties may not
be suitable for other productive uses, other than for development with single family residences. In any
event, it is my understanding that the County's general plan and zoning ordinances do not presently
contemplate or allow multi -family residential uses on property that is zoned R-1, R-2, SR, SR, SR -1,
or SR -3.3
Accordingly, the initial question here that ALUC seeks advice on is whether the 1993
amendments to the CMAEP can legally prohibit the construction of single family homes. on the
previously subdivided property that is within the OPZ.
ANALYSIS:'
I begin my analysis with a recognition that the State Legislature has declared it to be in the
public interest to provide for the orderly development of public airports and the land surrounding those
airports. Among the objectives of the state law is the protection of "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." (See Public Utilities Code
Section 21670)5. State law requires the establishment of a local airport land use commission
("ALUC") in each county that has an airport operated for the benefit of the general public. The ALUC
is responsible for the preparation and adoption of a comprehensive airport land use plan (CLUP)
pursuant to PUC Section 21675.
In turn, pursuant to Government Code Section 65302.3, the County's general plan is required
to be consistent with the airport land use plan adopted by ALUC. Further, upon amendment of the
CLUP, the County is required to amend the general plan, if it is necessary to do so in order to maintain
' See Sections 24-120 and 24-135 of the Butte County Zoning Ordinance.
' I-lopetuily the indepth nature of this analysis will also serve as guidance to the Commission in.future land
use planning efforts.
5 The Public Utilities Code is hereinafter referred to as the "PUC".
Messrs. Hennigan & Parilo
May 13, 1999
Page 4
consistency with the CLUP. If the County does not concur with ALUC's determination of the
consistency between the CLUP and the County general plan, the County may overrule ALUC's
determination by adopting specific findings, ' supported by evidence, that the County's action is
consistent with the purposes set out is PUC Section 21670. The instant legal opinion concerns certain
amendments to the land use plan adopted for the Chico Municipal Airport in 1978, referred to as the
Airport Environs Plan or CMAEP.
QUESTION 41. CAN THE AMENDMENTS TO THE CMAEP LEGALLY PROHIBIT THE CONSTRUCTION
OF SINGLE FAMILY HOMES ON THE PREVIOUSLY SUBDIVIDED PROPERTY THAT IS WITHIN THE QPZ?
While it is clear that under state law, ALUC has the power to adopt a land use plan that restricts
the right to use and to develop property within the planning area around the airport, the facts as
presented in the instant opinion request raise the question as to whether the CLUP can, in effect,
prohibit the building of single family residences on property that has been subdivided and zoned for
that purpose. The answer to this question involves an analysis of the right of governmental entities
to regulate the use of private property, where the regulation has the potential to effectively deny the
private property owners all economically viable and beneficial use of their property. Modernly, both
the federal and state courts have characterized such regulations as constituting a "taking of real
property" that requires compensation in accordance with the Fifth and Fourteenth Amendments to the
United States Constitution. In the absence of payment of just compensation, such regulations are
viewed as unconstitutional.
In Lucas v. South Carolina Coastal Commission (1992) 120 L Ed 2d 798, the United States
Supreme Court considered the question of whether South Carolina's Beachfront Management Act
constituted a taking of two parcels of land, located on a barrier island off of the coast, owned
by Mr. Lucas. At the time that Lucas purchased his property it had been subdivided and zoned for
residential development. In adopting the BMA, the South Carolina legislature stated that (among other
reasons) the BMA was necessary to protect life and property, to promote tourism and to protect the
beaches and dunes along the coast. The trial court found that the effect of the BMA was to prohibit
Lucas from building single family residences upon his two parcel and that this prohibition deprived
Lucas of any reasonable economic use of the lots and rendered them valueless. (See Lucas v. South
Carolina Coastal Commission (1992) 120 L. Ed. 2d 798 at 809.) e
In discussing the law in this area the U.S. Supreme Court commented:
In considering the case before it got to the United States Supreme Court, the South Carolina Supreme Court
had Concluded that when a regulation respecting the use of private property is designed to prevent serious public harm,
no compensation is constitutionally. required See Lucus v. South Carolina Coastal C'onimission (1992) 120 L. Ed. 2d
798 at 809. The U. S. Supreme Court disagreed.
Messrs. Hennigan & Parilo May 13, 1999
Page 5
"As we have said on numerous occasions, the Fifth Amendment is violated when land
use regulation `does not substantially advance legitimate state interests or denies an
owner economically viable use of his land'." (Id. at pg. 813)
The' Supreme Court acknowledged that governmental entities are clearly entitled to regulate
land use and the fact that the regulations may negatively affect the value of property does not give rise
to a violation of the constitution and a taking of property.
"And the functional basis for permitting the government, by regulation, to affect
property values without compensation — that `Government hardly could go on if to
some extent values incident to property could not be diminished without paying for
every such change in the general law', does not apply to the relatively rare situations
where the government has deprived a landowner of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a compensation requirement,
is the fact that regulations that leave the owner of land without economically beneficial
or productive options' for its use — typically, as here, by requiring land to be left
substantially in its natural state — carry with them a heightened risk that private
property is being pressed into some form of public service under the guise of mitigating
serious public harm." (Id. at pg. 814)
In Lucas the Supreme Court concluded that when a private property owner is denied all
reasonable and economically viable use of his property, such regulations can be upheld only when their
affect is to prohibit harmful uses that, under common law, would amount to a nuisance by the private
property owner. (Id. at pgs. 819-821) . .
In the recent decision in Kavanaugh v. Santa Monica Rent Control Board (1997) 16 Cal. 4`h
761, at 773-774, the California Supreme Court provided further clarification of the law, in stating:
"The state and federal Constitutions prohibit government from taking private property
for public use without just compensation. (Cal. Const., Art. I, § 19; U.S. Const., 5th
Amend.), ... the United States Supreme Court recognized that a regulation of property.
that 'goes too far' may effect a taking of that property, though its title remains in
private hands. In such a case, the property owner may bring an inverse condemnation
action, and if it prevails, the regulatory agency must either withdraw the regulation or
pay j ust compensation. (First Lutheran Church v. Los Angeles County (1987) 482 U.S.
304, 317. 321 [ 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250].) Even if the agency withdraws
the regulation, the property owner may have a right to just compensation for the
temporary taking while the regulation was in effect. (Citation omitted.)
Messrs. Hennigan & Parilo
May 13, 1999
Page 6
The United States Supreme Court has struggled to articulate a standard for when a
regulation "goes too far" and effects a taking. The court has stated broadly that the
takings clause is `designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.' (Citation omitted.) (Emphasis added.)
"A regulation, however, may effect a taking though, as is true here, it does not involve
a physical invasion and leaves the property owner some economically beneficial' use
of his property. In Lucas, the high court expressly rejected the "assumption that the
landowner whose deprivation is one step short of complete is not entitled to
compensation." (Id. at pg. 774)
This last statement is significant since it represents a clarification by the California Supreme
Court that a regulatory taking may exist even though the owner of private property is left with some
economical value to his or her -property. The determination of when a regulation goes too far and
effects a taking can be made either from a review of the face of the regulation, a "facial challenge" or
from the application of the regulation to the specific facts of individual properties, an "as applied"
challenge. The latter inquiry requires the court to evaluate the regulation's effect on specific property
in light of a number of factors.'
In Kavanaugh the Supreme Court stated, at p.gs 775-776:
"When a regulation does not result in a physical invasion and does not deprive the property owner
of all economic use of the property, a reviewing court must evaluate the regulation in light of the
"factors" the high court discussed in Penn Central and subsequent cases. Penn Central emphasized
three factors in particular: (I) "[t]he economic impact of the regulation on the claimant"; (2) "the
extent to which the regulation has interfered with distinct investment -backed expectations"; and (3)
"the character of the governmental action." (Penn Central, supra, 438 U.S. at p. 124 [98 S.Ct. at p.
2659]; MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 349[106 S.Ct. 2561,
2566,91 L.Ed.2d 285]; Kaiser Aetna v. United States (1979) 444 U.S. 164, 175 [ 100 S.Ct. 383, 390,
62 L.Ed.2d 332].) Subsequent cases, as well as a close reading of Penn Central, indicate other
relevant factors: (I) whether the regulation "interfere[s] with interests that [are] sufficiently bound
LIP with the reasonable expectations of the claimant to constitute 'property' for Fifth Amendment
purposes" (Penn Central, supra, 438 U.S. at p. 125 [98 S.Ct. at p. 2656]); (2) whether the regulation
affects the existing or traditional use of the property and thus interferes with the property owner's
"primary expectation" (id. at pp. 125, 136 [98 S.Ct. at pp. 2659, 2665]); (3) "the nature of the State's
interest in the regulation" (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470,488
[ 107 S.Ct. 1232, 1243, 94 L.Ed.2d 472] (Keystone); see also Hugler v. Kansas (1887) 123 U.S. 623,
668-669 [8 S.Ct. 273, 300-301, 31 L.Ed. 205]) and, particularly.. whether the regulation is "reasonably
necessan to the effectuation of a substantial public purpose" (Penn Central, supra, 438 U.S. at p. 127
[98 S.Ct. at p. 2660]); (4) whether the property owner's holding is limited to the specific interest the
re`,ulation abrogates or is broader (id. at pp. 127-128 [98 S.Ct. at p. 2661]); (5) whether the
government is acquiring "resources to permit or facilitate uniquely public, functions," such as
oovernment's "entrepreneurial operations" (id. at pp. 128, 135 [98 S.Ct. at pp. 266, 2665]), (6)
Messrs. Hennigan & Parilo May 13, 1999
Page 7
Applying the courts' above teachings to the question of whether the 1998 amendments to the
CLUP constitutes a taking of private property will most likely require an analysis of each of the
individual parcels that are affected by these amendments and is ' beyond the scope of the opinion
request. However, to the extent that the 1998 amendments prohibit any reasonable economically
viable use of specific properties within the OPZ, then the regulation would constitute a taking of
property and no further analysis would be needed and no further action would be required by the
property owner in order to be able to proceed with litigation against the public entity adopting same.'
From the facts described above, it is my opinion that to the extent that the 1998 amendments
to the CMAEP are read as prohibiting the building of single family residences on parcels that have
been subdivided and zoned for such use, there is a very real prospect that these amendments could be
found to be unconstitutional as a "taking" of private property.9
THE 1998 AMENDMENTS READ AS NOT CONSTITUTING A TAKING OF PRIVATE PROPERTY
As noted above, the 1998 amendments to the CMAEP prohibit development of new residential
uses within the OPZ. Of potential import -here is the fact the these amendments do not provide any
definition ofwhat constitutes residential development, or more precisely, "development of new
residential uses". The absence of language in these amendments (or in the original 1978 CMAEP)
whether the regulation permit[s the property owner] ... to profit [and] ... to obtain a 'reasonable
retum' on ... investment' (id. at p. 136 [98 S.Ct. at p. 2665]); (7) whether the regulation provides the
property owner benefits or rights that "mitigate whatever financial burdens the law has imposed" (id.
at p. 137 [98 S.Ct. at p. 26661; Keystone, supra, 480 U.S. at p. 491 [107 S.Ct. at p. 1245]; Agins v.
Tiburon, supra, 447 U.S. at p. 262 [ 100 S.Ct. at p. 2142]); (8) whether the regulation "prevent[s] the
best use of [the] land" (Agin v. Tiburon, supra, 447 U.S. at p. 262); (9) whether the regulation
"extinguish [es] a fundamental attribute of ownership" (ibid.); and (10) whether the government is
demanding the property as a condition for [page 776]the granting of a permit (Dolan v. City of Tigard
(1994) 512 U.S. 374, 385 [ 114 S.Ct. 2309, 2316, 129 L.Ed.2d 3041 (Dolan); Nollan, supra, 483 U.S.
at pp. 831, 841 [ 107 S.Ct. at pp. 3150-3151 ])".
"This list is not a comprehensive enumeration of all the factors that might be relevant to a takings
claim, and we do not propose a single analytical method for these claims. Rather, we simply note factors the
high court has found relevant in particular cases. Thus, instead of applying these factors mechanically,
checking them off as it proceeds, a court should apply them as appropriate to the .facts of the case it is
considering." .
y, In the U.S. Supreme Court's recent decision in Suitum v. Tahoe Regional Planning Agency (1997) 137
L.Ed.2d. 980, the Supreme Court found that the effect of the -Tahoe Regional Planning Agency's environmental
regulations was to prohibit Ms. Suitum from building a modest residence on her property in the Lake Tahoe basin and
provided a basis for a suit against the Agency for a taking of private property. -
" For a good discussion of the law relating to "regulatory takings" see Chapter 12, Curtin's California Land
1 !se and Planning Law, 18`h Ed (1998)- also see article on "Zoning Regulations Limiting Use of Property Near Airports
As 'faking of Property", 18 ALR 4'h, 542.
s
Messrs. Hennigan & Parilo May 13, 1999
Page 8
clarifying what is meant by this term appears to invite (or require) interpretation by the reader. It is
one of the maxims of the law pertaining to the interpretation of statutes (and ordinances) that where
a law is susceptible of several interpretations, one of which invites serious constitutional problems,
courts will construe the statute, if possible, to avoid the problems. (See F&L Fam Company V. City
Council (1998) 65 Cal.AppAth 345.)
If the choice here is between a reading of the 1998 amendments in a manner that results in an
unconstitutional taking of real property (by depriving property owners of individual parcels that are
zoned for single family use, the right to build homes) or, alternatively, construing the phrase
"development of new residential uses" as applying to property that is susceptible of further land
divisions or more intense development such as for commercial purposes, the courts may apply the
latter construction, since it would not amount to an unconstitutional taking of private property. {
QUESTION 92 DOES THE BUTTE COUNTY BOARD OF SUPERVISORS HAVE AUTHORITY TO OVERRIDE
THE 1998 AMENDMENTS TO THE CMAEP?
PUC Section 21676 states in relevant part:
"a) Each local agency whose general plan includes areas covered by an airport land
use commission plan shall, by July 1, 1983, submit a copy of its plan or specific plans
to the airport land use commission: The commission shall determine by August 31,
1983, whether the plan or plans are consistent or inconsistent with the commission's i
plan. If the plan or plans are inconsistent with the commission's plan, the local ,
agency shall be notified and that local agency shall have another hearing to
reconsider its plans. The local agency may overrule the commission after such
hearing by a two-thirds vote of its governing body if it makes specific findings
that the proposed action is consistent with the *purposes of this article stated in '
Section 21670." (Emphasis added.)
Section 21670 states in relevant part:
"(a) The Legislature hereby finds and declares that:
(1) It is in the public interest to provide for the orderly development of each public use
airport in this state and the area surrounding these airports so as to promote the overall
goals and objectives of the California airport noise standards adopted pursuant to
Section 21669 and to prevent the creation of new noise and safety problems.
(2) It is the purpose of this article to protect public health, safety, and welfare by
ensuring the orderly expansion of airports and the adoption of land.use measures that
Messrs. Hennigan & Parilo
May 13, 1999
Page 9
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." (Emphasis added.)
And as noted above, Government Code Section 65302.3 requires the County to amend its
general plan, as may be necessary to maintain consistency with the airport land use plan (CLUP),
within 180 days of any amendment to the CLUP. Section 65302.3 further states that "if the legislative
body does not concur with any provision of the plan required under PUC Section 21675, it may satisfy
the provisions of this section by adopting findings pursuant to Section 21676 of the Public Utilities
Code." (See also PUC Section 21676.5, discussed below.)
Read together, it is clear from these statutes that the County Board of Supervisors has the
authority to overrule a decision by ALUC concerning the consistency of the County General Plan (and
the County's implementing ordinances) with the airport land use plan. However, an important
limitation on the Board's authority here is that any such action by the Board must be supported by
specific findings.10
With regard to the 1998 amendments it appears that in addition to the above discussion, the
Board of Supervisors might have several reasons for concluding that continuing to allow the
construction of single family homes on existing parcels is consistent with the purposes set out in PUC
Section 21670.
First, to the extent that the decision is to simply to allow private property owners to build single
family residences on individual parcels that are zoned for this purpose and are the product of past
subdivision approvals, the County may determine that the subject parcels have "already been devoted
to incompatible uses", within the meaning of Section 21670 (highlighted above). In concept, the
argument here would be that the real discretionary decisions concerning land development typically
occurs first with the adoption of the general plan and'zoning ordinances which establish the uses to
which property may be put, followed by more detailed decisions regarding the use of specific property
when a property owner seeks subdivision approval. At each of these stages the public entity has the
inherent discretion to allow or to prohibit the development in an area within its jurisdiction. Each of
10 The question of the requirement for specific findings and what generally constitutes findings was addressed
in the case of California Aviation Council v. Ciry of Ceres (1992) 9 Cal.AppAth 1384. In Ceres the court concluded
that the decision of the Ceres City Council to overrule the local airport land use commission's determination that an
ordinance approving a specific plan for property covered by the local land use plan was not consistent with that plan,
was not supported by adequate findings. The court concluded that the decision to overrule was adjudicatory in nature
and required the Council to identify the facts that it was relying upon and to link those facts to its decision that the
purposes of PUC Section 21670 were met in the instant case. The court referenced the case of Toranga Associath.)n
fin- a Scenic C'ominunity v. County of Los Angeles (1974) as to the requirements for specific faC(ual findings for
adjudicatory decisions. (Id at pg. 1392-1394)
Messrs. Hennigan & Parilo May 13, 1999
Page 10
these decisions must also be preceded with an evaluation of the environmental consequences and
potential impacts stemming from the public agency's decision, as required by the California
Environmental Quality Act ("CEQA"). Qnce these approvals are in place and property has been
subdivided and sold off to individuals, it can be hard, if not legally impossible, to roll back the clock
without creating an unconstitutional taking of private property. The exception would be in those
extraordinary situations where the use of the individual residential parcels may create a nuisance ( per
the above discussion.)
Another basis for the Board's decision to overrule the ALUC might exist in what appears to
be somewhat contradictory provisions of the 1998 amendments. To the extent the text in these
amendments appears to allow development of multiple family residential projects while prohibiting
development of single family homes on some or all of the property within the OPZ, it could be argued
that such action would increase the population density within the OPZ and thereby be counter to the
goals in PUC Section 21670, to minimize the public's exposure to noise and safety hazards in areas .
around the airport."
Q U ESTION O IF THE BOARD OF SUPERVISORS DOES NOT TAKE ACTION TO EITHER AMEND THE COUNTY
GENERAL PLAN OR PREPARE (AND ADOPT) OVERRIDNG FINDNGS WITHN 180 DAYS (OF THE ADOPTION
OF THE AMENDNfENTS TO THE CMAEP) WOULD ALUC HAVE THE AUTHORITY TO REVIEW
APPLICATIONS FOR SNGLE FAMILY BUILDNG PERMITS WITHIN THE OPZ?
The reference to the 180 day time limit in which the County is required to amend the general
plan is set out in Government Code Section 65302.3. That statute allows the Board of Supervisors to
either amend the general plan or, alternatively, adopt findings in accordance with PUC Section 21676,
"if the legislative body does not concur with any provision of the plan required under Section
21675...." The statutory intent here appears -to be to give the Board of Supervisors some limited ability
to overrule or to reject parts of the airport land use plan with which it may disagree.
In reading Section 65302.31 note that it does not track precisely with the provisions in Section
21676. Specifically, the authority of the Board to overrule the ALUC.by adopting findings is tied to
a decision by ALUC concerning the consistency of the two plans or any zoning ordinances or building
", The specific language that is of concern here is as follo\,vs:
"The area defined as Zone B (of the OPZ) is subject to less intensive overflight activity, In
Zone B no new single family residential uses shall be permitted. Any approval of multiple family
residential uses in Zone B shall contain conditions requiring the dedication of aviation easements to
the airport operator and notification of potential tenants of overflight activity."
Messrs. Hennigan & Parilo
May 13, 1999
Page 11
regulations adopted by the County. 12 In contrast, the requirement in Government Code Section
65302.3 for the County to amend the general or specific plan is triggered by the amendment of the
airport land use plan (CLUP), not by a separate determination of consistency between the two plans.
If we assume that it is possible that the CLUP could be amended in such a manner so as to be totally
c6nsistent with the existing County General Plan, it would follow that in such a case, the Board would
not have any obligation to take any further action under Section 65302.3. This raises the question then
of how the County is supposed to know when it is obligated to take action under Section 65302.3 and
the timing as to when the County's obligation arises.
Under the rules of statutory construction, these statutes should be read together so as to
harmonize them, if it is possible to do so. (See Mar v. Sakti International Corporation (1992) 9
Cal.AppAth 1780, at 1784) Reading these statutes in this manner leads to a conclusion that the 180
day time line for action by the Board of Supervisors should be begin with adoption or amendment of
the CLUP, which ALUC has specifically determined requires the County to make amendments to the
County General Plan. Unless ALUC specifically identifies existing provisions of the general Dlan
which AT iTC' f,nric arP inconsistent with the amendments to the CLUP when it adopts amendments
to the CLUP, the County could be left to guess as to whether ALUC as determined the existina
_g__w__ La
eneral lan
Lo be incon'stent_with-the q.w mendments_ In such a case, it would seem inappropriate
to view the County as having an obligation to take action unless spe,(;ific inconsistencies between the
two plans are identified by ALUC with direction given to the County to make appropriate amendments
to the general plan.
With respect to the 1998 amendments to the CLUP, the amendments do not appear to identify
specific provisions of the County General Plan that are inconsistent with these amendments. The letter
of transmittal notifying the County Planning Department of the 1998 amendments also does not appear
to identify specific inconsistencies. Rather, that letter merely cites the provisions of the PUC and
Government Code (discussed above) that create the obligation on the part of the County to take action,
if inconsistencies exist. In light of this, it is my opinion and recommendation that if ALUC believes
that there are inconsistencies between the CLUP, as amended in 1998, then ALUC should specifically
identi uty to make appropriate amendments.
The second portion of your third question seeks direction as to whether ALUC can require the
County to submit applications for specific building permits (and I assume, other land use actions
pending with the County) to ALUC for its review. In this regard, PUC Section 21676.5 states:
'= Also see PUC Section 21676.5 which authorizes ALUC to require the County to submit all subsequent ( land
use) actions to ALUC for review until the general plan is amended or specific findings are made.
Messrs. Hennigan & Parilo
May 13, 1999
Page 12
"(a) If the commission finds that a local agency has not revised its general plan or
specific plan or overruled the commission by a two-thirds vote of its governing body
after making specific findings that the proposed action is consistent with the purposes
of this article as stated in Section 21670, the commission may require that the local
agency submit all subsequent actions, regulations, and permits to the commission for
review until its general plan or specific plan is revised or the specific findings are
made. If, in the determination of the commission, an action, regulation, or permit of
the local agency is inconsistent with the commission plan, the local agency shall be
notified and that local agency shall hold a hearing to reconsider its plan. The local
agency may overrule the commission after the hearing by a two-thirds vote of its
governing body if it makes specific findings that the proposed action is consistent with
the purposes of this article as stated in Section 21670."
"(b) Whenever the local agency has revised its general plan or specific plan or has
overruled the commission pursuant to subdivision (a), the proposed action of the local
agency shall not be subject to further commission review, unless the commission and
the local agency agree that individual projects shall be reviewed by the commission."
Section 21676.5 gives ALUC the authority to require the County to submit pending land use
actions, including but not limited to the approval of permits to ALUC for its review until the general
plan is made consistent with the CLUP, or the Board of Supervisors adopts appropriate findings
overruling ALUC. Of interest here, nothing in Section 21676.5 expressly provides for or references
a 180 day grace period from the adoption of any amendments to the CLUP. As noted above, the 180
day time line is set out in Government Code Section 65302.3. Again, being mindful of the
requirement to read statutes in a manner so as to harmonize them, it would appear reasonable to infer
that the authority of ALUC to require review of land use actions by the County should not begin until
after the expiration of the 180 day time period set out in Government Code Section 653.02.3.
However, I also recognize, that from the standpoint of the public policy expressed in PUC Section
21670, there may be good reason to conclude that ALUC's authority to require review commences
Upon the adoption of any amendment to the CLUP which creates an inconsistency with the County
General Plan. Unfortunately, my research and review of the law here did not provide any dispositive
answer to this issue. Accordingly, I am at a loss to provide an opinion as to hen this obligation i i
However, in any event, and referring back to the above discussion regarding an implied obligation on
the part of ALUC to identify any inconsistencies between the two plans when the CLUP is amended,
it is my opinion that ALUC could not reasonably exercise its authority to require the County to submit
land use actions to it for review unless and until it finds that the general plan is inconsistent with e
C[UILand identifieL rhe inconsistencies.
s •
Messrs. Hennigan & Parilo May 13, 1999
,Page 13
f
It should also be noted that assuming that ALUC identifies inconsistencies between the CLUP
and the County General Plan, under PUC Section 21767.5 (b), once the Board of Supervisors amends
the general plan or overrules ALUC's consistency determination (with appropriate legally adequate
findings), ALUC's authority to require review of pending land use matters expires, unless the County
otherwise agrees to further review by ALUC. `
I trust that the foregoing is responsive to your request. If the members of the Butte County
Airport' Land Use Commission have any questions or wish to discuss the issues addressed herein, I
would be happy to attend their meeting to'address same. Thank you,for the opportunity'to be of
service.
Very truly yours,
J es A. Curtis
JAC:kbb
P:V AC\ButteWLUC-opn-fin. wpd
fA
'209.07
+BUTTE COUNTY AIRPORT LAND USE COMMISSION
• 7 County Center Drive, Oroville, CA 95965 • (530) 538-7601 FAX (530) 538-7785 •
AGENDA ITEM - E - 3.
TO: Honorable Chair, and AirportLand Use Commission
FROM: ALUC Staff
DATE: February 15, 2000
ITEM: Legal Opinion by Remy,Thomas and Moose, LLP, Attorneys at Law: At the
January 19, 2000, ALUC hearing, staff was directed to formally agendize this item
for review and discussion of the responses to ALUC's legal questions.' r
FOR: Airport Land Use Commission Meeting of February 16, 2000.
STAFF COMMENT:
Background: ,
At the ALUC meeting of September 15, 1999, the Commission discussed amending ALUC
Standard Operating Procedures (SOP's) and adding new conflict of interest criteria to the By-laws.
The Commission considered changes to the SOP's to include additional supporting findings of fact
for safety, noise, overflight protection, project conditions and time limits to keep project files. At
the conclusion of the hearing, staff was directed to obtain a Counsel opinion on the following:
Can ALUC find a project conditionally consistent with a CLUP?
Can ALUC adopt the proposed Conflict of Interest criteria as an amendment to its By-laws? '
What are the Statutory Time Limits for keeping project files?
Response and Analysis: '
4
a. Can ALUC find a project conditionally consistent with a CLUP:
According to Counsel's opinion, ALUC may apply conditions to a finding of
consistency. Counsel advised,, however, that if conditions are attached to a
consistency finding, it would be appropriate to not expressly say it is a "condition."
Instead Counsel appears to indicate that a condition should be worded as a
requirement in order to avoid potential exactions or takings issues. Counsel's opinion
also indicated that Caltrans' Counsel, Larry Thelen, indicated that attaching
conditions is probably an acceptable practice.
• Butte County #A irport Land Use Commission 0 '
1
i
i
Counsel's opinion.applies to SOP Section 3.1, "SPECIFIC FINDINGS." Staff
recommends that Section 3.1 be amended to indicate that, "Conditions may be
applied to a Consistency Finding with specific wording indicating that conditions
should be indicated as a requirement. "
b. Can ALUC adopt the proposed Conflict of Interest criteria as an amendment to its
By-laws:
According to Counsel's opinion, it would appear that the proposed conflict of interest
criteria would not be appropriate to include in the Commission's By-laws. Counsel
recommends that the proposed language be redrafted and has offered their assistance
to the Commission.
In the interim, staff recommends that the new conflict of interest criteria not be
included in 'the Commission's By-laws or SOP's. If it is the consensus of the
Commission, provide further direction to staff if different conflict of interest
r language is desired for the By-laws.
C. What are the Statutory Time Limits for keeping project files:
According to Counsel's opinion, there are no statutory time limits to keep project
files. I
Counsel's opinion applies-to`SOP Section 9.1 "KEEPING OF MINUTES AND
RECORDS." Staff recommends ALUC direct staff to amend SOP Section 9.1 as
proposed by the Commission on September 15, 1999, (new text in italics):
Destruction of Records. Written documents shall be kept for an indefinite period and.
may be reduced to a filmed copy at the end of 2 years. However, it is the policy of
AL UC to keep any file indefinitely if it may be subject to a lawsuit or other legal
action. Tape recordings may be destroyed after 2 years (02/16/00). '
K:\PLANNING\HLUC\MEETINGS\2000\02-16.00.MTG\E-3.RPT -
t'
1
• Butte County • Airport Land Use Commission •
f
7,
BUTTE COUNIt,AIRPORT LAND USE COMMISSION
■ 7 County Center Drive, Oroville CA 95965 il (530) 538-7601 FAX (530) 538-7785 ■
REGULAR MEETING OF THE COMMISSION '
Location: Butte County Administration Building, Supervisors' Chambers
25 County Center Drive, Oroville California ,
Date/Time: February 16, 2000 - 9:00 a.m.
AGENDA
ALL ITEMS ARE OPEN FOR PUBLIC COMMENT
3. Legal Opinion by Remy, Thomas and Moose, LLP, Attorneys at Law: At the January 19,
2000, ALUC hearing, staff was directed to formally agendize this items for review and
discussion of the responses to ALUC's legal questions. (Recommendation: Review and
discuss the opinion and direct staff to make changes to the SOPS as deemed necessary).
- t
• i
• i
T
- r
i
lam► n.( a -k 2L D 7
State of California Business, Transportation and Housing Agency
Memorandum
To: MARLIN BECKWITH Date: February 7, 2000
Program Manager
Aeronautics Program
File:
From: DEPARTMENT OF TRANSPORTATION
LEGAL
Mail Station 57
subject: Request for Legal Opinion Regarding Delegation of Override Authority '
Under Public Utilities Code Section 21675.1, Subdivision (d)
QUESTION PRESENTED
Can the governing body of a city or county delegate to a subordinate body its power,
found in Public Utilities Code section 21675.1, subdivision (d), to overrule an Airport
Land Use Commission ("ALUC") by a two-thirds vote?
CONCLUSION
The power of the governing body of a city or county (city council or board of
supervisors) to overrule an ALUC's disapproval of an action; regulation or permit by a
two-thirds vote may not be delegated to a separate public'entity.
7
ANALYSIS
Public Utilities Code section 21675.1, subdivision (d), states:
"If the commission disapproves an action, regulation, or a permit, the
commission shall notify the city or county. The city or county may overrule
the commission, by a two-thirds vote of its governing body, if it makes
specific findings that the proposed action, regulation, or permit is consistent
with the purposes of this article, as stated in Section 21670."
It is clear, therefore, 'that the "governing body" of a city or county may overrule an
ALUC's decision whether a particular project is consistent with a Comprehensive Land
Use Plan. However, because "governing body" is not defined in the Public Utilities
Code, it is necessary to look elsewhere for the Legislature's intent in using that term.
In American Canyon Fire Protection District v. County of Napa,(1983) 141 Cal.App.3d
100, the court sought a'.definition for the term "g6veming body'' found in Revenue and
Taxation Code section 98.6. The court stated, "The term 'governing body' is defined by
reference to section. 16271, subdivision (a), of the Government Code, which provides
Marlin Beckwith
February 7, 2000
Page 2
that 'Governing body" means.the board of supervisors....' ...." Id. at 1051. Iri Martinez
v. Board of. Supervisors (1972) 23 Ca1.App.3d 679, the court, in interpreting "governing
body" as used in Health and Safety Code section 34240, looked to Health and Safety
Code section 34205 and held that "'Governing'body' in the case of a county means the
-board of supervisors." Id. at 682, footnote 32.
Several other cases are also instructive, though less direct in their definitions, regarding
the Legislature's intent when using the term "governing body." In Jahr v. Casebeer
(1999) 70 Cal.App.4th 1250, the court, in interpreting "governing body" as used in a,
section of the'state constitution, stated, "[i]n the context of article XI, section 1(b),
;governing body' can only refer to a local legislative body such as the Board .. [of
'Supervisors]." Id. at 1255. In Committee of Seven Thousand v. Superior_ Court (1985)
221 Cal.Rptr. 616, the court appears to have equated "governing body," in the context of
a county, with the board of supervisors when it held that Government Code
section 66484.3, subdivision (a) "reposes the authority to actually assess the fees in the
respective governing bodies of the cities and county: "The board of supervisors of the
County of Orange and the city council of any city ...."' Id. at 621. And in';Voters for
'Responsible Retirement v. Board of Supervisors (1993) 16 Cal.App.4th 1306, the court
equated "governing body with the -board. of supervisors when it stated, " ... the
governing body-i.e., the Board....."
Thus, it is the finding of the, Department', of TransFortation that the term "-governing
body"- as used in Public Utilities Code; section 21675.1, subdivision (d), refers, in the
context of a county, to the- board of supervisors. Thus, it is necessary to analyze
whether the authority vested in the board of supervisors through section 21675.1,
subdivision (d), may be delegated.
In Bagley v.,City of Manhattan Beach (1976) 18 Cal.3d 22, the court. stated:
,"When the legislature has made clear its intent that one public body or
official is to exercise a specified discretionary' power, .the ,power is in_ the'
nature of a public trust and may not be exercised by others'in the .absence of
statutory authorization: [Citations.]" Id. at 24.
In'Myers. v-. City Council 7of Pismo Beach. -,(1966) 241 Cal.App.2d 237, the court
addressed the question whether a particular power contained in the Government Code
could be delegated:
'Government Code section 16271, subdivision (a), states, "'Governing body'
means the board of supervisors except that in the case of a subsidiary district
"government body" means the city council, and in the case of a multi -county district
'governing body' means the governing body of the multi -county district itself."
2Health and Safety Code section 34205 states, "'Governing body' means the city
council in the case of a city or the board of supervisors in the case of a county."
Marlin Beckwith
February 7, 2000
Page 3
"One of these general laws relates to the specific question at bench, viz.,
section 51030, Government 'Code, which confers upon 'the legislative body of
any city or county' the right to levy a room occupancy tax such as is here
involved.
"It will be noted that the authority to levy this tax is specifically delegated
to the legislative body of the city. That, of course, is the:6.ity council.3 Upon that
body is conferred the power and duty to deal with this subject matter. And
the city council, of course, has discretion, as in any legislative matter, to
determine what action, if any, should be taken.
"We are thus brought to this aspect of our problem: May the legislative
body of the city delegate the power and duty specifically conferred upon it in
this matter? We think not.
"On this point McQuillan says: 'The rule that public powers conferred
upon the council of a municipality cannot be delegated by it, has been applied
to the power conferred _upon municipalities to levy taxes, so that when power
to levy taxes has been delegated by the legislature to a certain body or
officers, they cannot delegate such power to another body or other officers."'
Id. at 241.
Finally, the court in' Younger v. Board of Supervisors. (1979) 93 Cal.App.3d 864, held:
"Since counties constitute merely political.' subdivisions of the state
[citations], they have independently only such legislative authority that has
been expressly conferred by the Constitution and laws of the state. If the
latter sources are silent in regard to the delegation of such authority, the
"authority must still rest with the Legislature." Id. at 870.
Thus, it is the opinion of this office that the Legislature intended that the power found in
,Public Utilities Code section 21675.1, subdivision (d), to overrule an ALUC.by a two
thirds vote rests solely, with the board of supervisors of a county (or the city council of a
city), and that said authority may not be delegated to any other public entity absent
further clarification by the Legislature.
3The Department of Transportation believes it is equally clear that the legislative
body of a county is its board of supervisors.
Filed 11/29/99
CERTIFIED FOR PARTIAL PUBLICATION"
copy
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
MELVIN E. OLIVER et al.,
Plaintiffs and Appellants,,
V.
AT&T WIRELESS SERVICES et al.,.
Defendants and Respondents.
CO29233
(Super.Ct.No. 119721)
APPEAL from the judgment of the Superior Court of
Butte County, Roger Gilbert, Judge. Affirmed.
James P. McKenna,.Peters, Rush, Habib & McKenna,
for Plaintiffs and Appellants.
Kevin R. Iams, Charles L. Post, Kelly E. Sutter,
Weintraub, Genshlea & Sproul, for Defendants and
Respondents.
* Pursuant to California Rules of Court, rules 976(b) and 976.1,
this opinion is certified for publication with the exception of
Parts II (C) and (D) .
1
After an existing 110 -foot cellular telephone transmission
tower on their neighbors' property was replaced by one that was
approximately 20 feet taller, plaintiffs Melvin E. Oliver and
Brigitte M. Oliver brought this action against their neighbors,
John J. and Joyce A. Permann (the Permanns), various cellular
telephone companies, and the County of Butte (the County),
claiming inverse condemnation, nuisance, intentional and negligent
misrepresentation, suppression of fact, and four other causes of
action.
The trial court granted summary judgment in favor of the
Permanns and the following cellular telephone companies:
AT&T Wireless Services, Cellular One, and McCaw Cellular
Communications.
The published portion of this opinion addresses the issues of
whether the construction of a cellular transmission tower on
a neighbor's property, in accordance with approvals from the
County and the California Public Utilities Commission (PUC), gives
rise to causes of action for inverse condemnation and'nuisance by
the adjoining property owners by reason of the transmission
tower's "looming" appearance, which has purportedly decreased the
value of their property.
Significantly, any remedy that is given to the plaintiff
property owners for the perceived infringement of their property
rights will result in an infringement of their neighbors' rights
to lease their land for the use of the transmission tower. In
this particular case, while we have sympathy for plaintiffs'
plight, not all plights give rise to legal rights. We conclude
that the mere displeasing appearance in size and shape of
a neighboring structure that is otherwise permitted by law, the
only admitted effect of which is an alleged diminution in value of
the adjacent property, cannot constitute a nuisance or give rise
to an inverse condemnation claim.1 Since a landowner has no
natural right to an unobstructed view (Posey v. Leavitt (1991) 229
Cal.App.3d 1236, 1250), the size and shape of an otherwise lawful
structure.on one side of a boundary cannot be deemed either to
damage (for purposes of inverse condemnation) or to interfere with
the enjoyment (for purposes of nuisance) of that which is on the
other side of the boundary. Otherwise, one person's tastes could
form the basis for depriving another person of the right to use
his or her property, and nuisance law would be transformed into
a license to the courts to set neighborhood aesthetic standards.
We affirm summary judgment in defendants' favor.
1 Throughout this appeal, the parties have assumed that the
defendant cellular telephone companies could exercise the right of
eminent domain, and thus expose themselves to an action for
inverse condemnation. Since this issue has not been presented to
us, we imply no view on it.
2
I. FACTS AND PROCEDURAL BACKGROUND
A. The Tower's Construction
For more than 26 years, plaintiffs, Mr. & Mrs. Oliver, lived
on a 20 -acre parcel on Power House Hill Road in Oroville,
California. Immediately adjacent to'plaintiffs' property is
a two -and -one-half acre parcel located on Bronson Court, Oroville,
owned by defendants, the Permanns.
a
In or about 1990, the Permanns leased a portion of their
property near the plaintiffs' parcel for the construction of
a cellular telephone transmission tower.2 In 1990, a 110 -foot
transmission tower, with a cargo container at its base (the
service module); surrounded by a chain link security fence, was
constructed on the leased portion of the Permanns' property (the
cell site). Although the plaintiffs later testified that they
"might not have liked" the transmission tower, they never
complained to the Permanns or anyone else about it.
In 1994, defendant Cellular One sought a use permit from the
County Planning Commission to upgrade several facilities,
including the cell site.
Before the cell site upgrade began, John Permann told Melvin
Oliver that the existing service module would be moved and that
a new service module would be constructed in its place. No other
defendant communicated with the plaintiffs about the upgrade of
the cell site prior to the construction of the new tower.
The County Planning Department approved the proposed upgrade,
subject to several conditions,.including that it "[m]eet the Fire
Department's requirements for 30 foot clearance." The PUC.also
approved the cell site improvements.
Thereafter, the 110 -foot tower and its service module were
replaced by a new, larger tower (from time to time referred to as.
the new tower)3 and a 10 -foot -by -20 -foot concrete outbuilding.
The center of the new tower is located 41 feet from plaintiffs'
property line. At its closest point, standing at an angle to the
property line, the outbuilding stands 13 feet from plaintiffs'
property line.. The chain link security fence that surrounds the
cell site, also standing at an angle to the property line, is only
seven feet from plaintiffs' property`at its closest point.
2 The cellular telephone company with which John Permann
originally contracted is nota party to this action.
3 The record'reflectsa fleeting dispute over the exact height of
the new tower. The trial court found the tower to be "some 130
feet tall," and plaintiffs in their reply brief and at oral
argument concede this.
3
B. Plaintiffs' Criticisms of the New Tower
Plaintiffs'. primary complaint about the new tower is
"visual." They find it a "big eyesore" and "oppressive." They
contend that it "looms" over their property.
Plaintiffs also observe that the tower produces'a "strumming"
noise when the wind blows and that the outbuilding produces an
intermittent "hum" sound. However, the cell site emits no
offensive odors or other effluent, and caused no actual physical
damage.to plaintiffs' property.
a
C. Plaintiffs' Complaint
Plaintiffs brought the instant action, which names as
defendants, among'others, the Permanns, the County, AT&T Wireless
Services, Cellular One, and McCaw Cellular Communications (the
latter three of which shall be referred to collectively as the
cellular defendants).4 The first amended complaint seeks damages
and an order rescinding the use permit allowing construction of
the new tower. It alleges the following nine causes of action:
inverse condemnation, nuisance, negligence,. and negligent
infliction of emotional distress (against all defendants);
trespass and negligent trespass (against all defendants except the
County); fraud/intentional misrepresentation and fraud/negligent
misrepresentation (against AT&T Wireless Services and Cellular
One); and suppression of fact (against Cellular One only).
D. The Trial Court's Grant of Summary Judgment
Following discovery, defendants moved for summary judgment,
or alternatively, for summary adjudication, on the grounds that
plaintiffs could not.establish any of their causes of action.
The trial court granted the motion, finding that defendants
were entitled to judgment as a matter of law on all causes of
action. Among other things, the court found that (1) no cause of
action for inverse condemnation could be maintained against the
Permanns because they lacked the power of eminent domain, and as
to the cellular defendants, "the tower does not create a burden on
the plaintiffs' property that is cognizable in eminent domain";
(2) Civil Code section 3482 bars plaintiffs' nuisance claim; and
(3) plaintiffs could not demonstrate that they relied upon the
alleged representations by Cellular One to the County for purposes
of their causes of action for misrepresentation and suppression of
facts.
4 Other defendants (who are not parties to this appeal) include
General Cellular Corporation, Western Wireless Corporation, and
Sierra Communications. Because only the cellular defendants and
the Permanns are parties to this appeal, we shall use.the term
"defendants" to refer to them.
4
Plaintiffs' appeal contends that the trial court erred in
determining that no triable issues of fact existed with respect to
the first five causes of action for inverse condemnation,
nuisance, intentional and negligent misrepresentation, and
suppression of fact. In the published portion of this opinion, we
address the causes of action for inverse condemnation and
nuisance.
II. DISCUSSION
A motion for summary judgment is properly granted if the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant is entitled to summary judgment if a necessary element
of the plaintiff's cause of action cannot be established or if
there exists a complete defense to the cause of action.
(Code Civ..Proc., § 437c, subd. (o)(2).)
"Because the trial court's determination is one of law based
upon the papers submitted, the appellate court must make its own
independent determination regarding the construction and effect of
the supporting and opposing papers. We apply the same three-step
analysis required of the trial court. We begin by identifying the
issues framed by the pleadings since it is these allegations to
which the motion must respond. We then determine whether the
moving party's showing has established facts which justify
a judgment in movant's favor. When a summary judgment motion
prima facie justifies a judgment, the final step is to determine
whether the opposition demonstrates the existence of a triable,
material factual issue." (Hernandez v. Modesto Portuguese
Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)
"The trial court's stated reasons supporting its ruling,
however, do not bind this court," as we review "the ruling, not
its rationale." (Szadolci v. Hollywood Park Operating Co. (1993)
14 Cal.App.4th 16, 19.) Consequently, "[i]f summary judgment was
properly granted on any ground, we must affirm regardless of
whether the [trial] court's reasoning was correct." (Jackson v.
Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836).
A. The First Cause of Action: Inverse Condemnation
As set forth in their first amended complaint, plaintiffs'
theory.of inverse condemnation is based on the allegations that
(1) the design, maintenance, and operation of the new tower caused
their property to "decrease[] in value"; and (2) because the outer
boundary of the cell site is only seven feet from the property
line, defendants will be required to intrude onto plaintiffs'
property to satisfy the fire department's requirement of a 30 -foot
clearance around the site.
5
Plaintiffs do not renew on appeal the latter contention that
a requirement for the 30 -foot fire clearance will necessitate an
intrusion on their property, and thus, we need not address it.5
We therefore turn to plaintiffs' primary contention -- that
the new tower's height, maintenance, 'and operation have caused
a diminution in their property's value -- thereby giving rise to
a claim for inverse condemnation. ""[A]n action in inverse
condemnation has its basis in the California Constitution,
article I, section 19, which requires payment of just compensation
when private property is taken or damaged for public use."
(Original emphasis; Harding v. State of California ex rel. Dept.
of Transportation (1984) 159 Cal.App.3d 359, 364; see San Diego
Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939-
940.)
However, while the court is sympathetic to the claimed loss
of value of plaintiffs' property, any such decline in value
cannot, in and of itself, establish inverse condemnation:
"[A] diminution in property value is not a 'taking or damaging' of
the property, but an element of the measure of just compensation
when such taking or damaging is otherwise proved." (San Diego Gas
&Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 942;
see also Los Angeles County Metropolitan Transportation Authority
v. Continental Development Corp. (1997) 16 Cal.4th 694, 713
[recovery of neighboring landowners in an inverse condemnation or
nuisance action requires more than a showing that the value of the
property has diminished as a result of the project]; Koll-Irvine
Center Property Owners Assn. v. County of Orange (1994)
24 Cal.App.4th 1036, 1042-1043.)
Accordingly, "`in an inverse condemnation action, the
property owner must first clear the hurdle of establishing that
the public entity has, in fact, taken [or damaged] his or her
property before he.or she can reach the issue of "just
compensation.""' (San Diego Gas & Electric v. Superior Court,
supra, 13 Cal.4th at p. 940.) In this case, plaintiffs cannot
5 In the trial court, plaintiffs alleged that the fire
regulations required a 30 -foot brush clearance around the tower in
accordance with Public Resources Code section 4291, which would
result in an intrusion onto their property. The trial court
rejected this claim on the ground that section 4291 only requires
clearance up to the property line. Specifically, Public Resources
Code section 4291, subdivision (a), requires the maintenance of
a firebreak "of not less than 30 feet on each side thereof or to
the property line, whichever is nearer" (italics added), absent
a finding that extra hazardous conditions exist. Because there is
no allegation of "extra hazardous conditions," nothing requires
defendants to maintain a firebreak beyond the Permanns' property
line.
0
establish that a
by virtue of the
their neighbors'
public entity
construction
property.
has taken or damaged their property
of a cellular transmission tower on
First, it is undisputed that the Permanns are private
individuals. They are not alleged by the complaint to -possess the
power of eminent domain. Accordingly, the trial court found that
no cause of action for inverse condemnation could be maintained
against them. We agree. (See Sheffet v. County of Los Angeles
(1970) 3 Cal.App.3d 720, 732 [where the damage is done by
a private person without powers of condemnation such as those
enjoyed by public utilities or educational institutions, "there
is, of course, no action in inverse condemnation"]; 7 Miller &
Starr, Cal. Real Estate (2d ed. 1977) Inverse Condemnation,
§ 23:1, p. 592 [a property owner has no action for inverse
condemnation "against a private entity that does not have the
power of eminent domain" (italics original)].)
With respect to the cellular defendants,6 plaintiffs argue,
noting how the tower "dominates the landscape around [their]
residence," that their property has been substantially burdened
and therefore damaged as a result of the location of the cellular
transmission tower on the Permanns' property, citing Varjabedian
v. City of Madera (1977) 20 Cal.3d 285, 296 (Varjabedian) .
Property is "taken or damaged" within the meaning of
article I, section 19 of the California Constitution, so as to
give rise to a claim for inverse condemnation, when: (1) the
property has been physically invaded in a tangible manner; (2) no
physical invasion has occurred, but the property has been
physically damaged; or (3) an intangible intrusion onto the
property has occurred which has caused no damage to.the property
but places a burden on the property that is direct, substantial,
and peculiar to the property itself. (San Diego Gas & Electric
Co. v. Superior Court, supra, 13 Cal.4th at p. 940; Varjabedian,
supra; 20 Cal.3d at p. 296.)
The first two circumstances that justify a claim are not
applicable here: Plaintiffs do not contend on appeal that their
property has been physically invaded or physically damaged.
This leaves the issue of an intangible intrusion.
To recover for inverse condemnation under this theory,
plaintiffs must be able to establish that their alleged.loss
resulted from an intangible intrusion onto their property which
has "resulted in a burden on the property that is direct,
substantial, and peculiar to the property itself." (See San Diego
Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 940;
Harding v. State of California ex rel. Dept. of Transportation,
supra, 159 Cal.App.3d at pp. 364-365.)
6 See footnote 1, ante.
7
The California Supreme Court has stated that a burden on
neighboring property is sufficiently direct and substantial if the
neighboring landowner can establish that the consequences of the
intangible intrusion are "not far removed" from a direct physical
intrusion. (See Los Angeles County Metropolitan Transportation
Authority v. Continental Development Corp., supra, 16 Cal.4th at
p. 713; Varjabedian, supra, 20 Cal.3d at p. 297.)
In Varjabedian, for instance, an injury resulting to
neighboring landowners from the gaseous effluent from a sewage
treatment facility, which allegedly rendered their land
"untenantable for residential purposes," was deemed "not far
removed from those core cases of direct physical invasion which
indisputably require compensation." (20 Cal.3d at p. 297.)
There, evidence was adduced that the odors ""destroy[ed] the
comfort and enjoyment of [plaintiff's] home and property" (id. at
p. 293) and caused such physical symptoms as the burning of eyes
and nausea. In reversing judgment on the pleadings dismissing
plaintiffs'- inverse condemnation cause of action, our Supreme
Court ruled that plaintiffs should be granted the opportunity of
demonstrating that the burden on their property from the noxious
sewage fumes was "direct, substantial, and peculiar," such that it
gave rise to an inverse condemnation claim. (Varjabedian, supra,
20 Cal.3d at -p. 299.)
Likewise, noise, dust and debris from a nearby freeway, and
the loss of light resulting from a 23 -foot embankment (resulting
in the loss of a vegetable garden), which made neighboring
property "virtually untenable," have been held to be sufficiently
analogous to a direct physical intrusion to maintain.a claim of
inverse condemnation in the face of a motion for summary judgment.
(Harding v. State of California ex rel. Dept. of Transportation,
supra, 159 Cal.App.3d at pp. 365-367.)
Here, however, defendants have demonstrated from plaintiffs'
own depositions that the burden imposed on plaintiffs' property by
the new tower and its attendant equipment does not resemble the
type of perceptible intrusion, such as strong odors, overpowering
noise, dust, vibration, or the loss of light, which directly and
substantially burden the property so as to give rise to an inverse
condemnation claim.
Plaintiffs testified that.the new tower has not prevented or
disrupted the use and enjoyment of,their proPerty. According to
Melvin Oliver, with the exception of the view from a,single small
window, the new tower cannot be seen from anywhere inside his
house. Melvin Oliver testified that the -"strumming" sound coming
from the tower when the wind blew is "not loud".and it has never
interrupted plaintiffs' sleep or disturbed their entertaining,
gardening, or other outdoor activities. He has heard generator -
initiated sounds from the tower only once a year, and the sounds
cannot be heard from inside the house. Likewise, although
Brigitte Oliver testified that she hears the tower's generator hum
every half an hour, she does not consider the sound unpleasant,
and it does not keep her from the yard. Plaintiffs suffer no
odors, dust, or vibrations. Melvin Oliver also testified that he
suffered no physical manifestations of emotional distress after
the new tower went up, but found it "depressing . . . when we
didn't have any say in it." Brigitte Oliver testified that she
experienced loss of sleep, but has not suffered any other symptoms
of distress.
Accordingly, plaintiffs' principal complaint about the tower
is visual. The mere appearance of a lawful structure on
neighboring property cannot give rise to an action in inverse
condemnation, which, after all, requires that property be "taken
or damaged for public use" (Cal. Const., art. I, § 19) -- unless
we are to do violence to the words "taken or damaged" in the
constitutional provision upon which such claims are founded.
There is no authority for the proposition (and the parties cite
none) that plaintiffs are entitled to compensation merely because
a large, unattractive structure went up next door.
The lack of substantial burden on the plaintiffs' property is
further reflected by the fact that the plaintiffs never complained
about the old, 110 -foot transmission tower, but only complained of
the "looming" appearance imposed by the new, marginally taller
tower constructed around 1994. A 20 percent increase in the
height of a 110 -foot tower (assuming the new tower is 130 feet)7
hardly transforms a tolerable burden into a "substantial" one,
even if we credit plaintiffs' point at oral argument that the new
tower has a different look to it.
Accordingly, the unattractive appearance of an otherwise
lawful cellular transmission tower on neighboring property cannot
give -rise to a claim for inverse condemnation in light of.
plaintiffs' deposition testimony that the new tower has not
disturbed their enjoyment of property for such outdoor activities
as entertaining or gardening and can only be seen from one small
window. Summary judgment on this claim was proper.
B. The Second Cause of Action: Nuisance
In their second cause of action, as set forth in the first
amended complaint, plaintiffs allege that the cell site
constitutes a nuisance because the new tower "dominates the
landscape around their home," the cell site emits loud noises in
windy conditions and other noises from its generator, and the
mandatory fire clearance will result in encroachment onto their
property.
In their appellate briefs, plaintiffs argue that the trial
court erred in ruling that Civil Code section 3482 bars their
nuisance claim. That section provides that "[n]othing which is
7 See fn. 3.
9
done or maintained under the express authority of a statute can be
deemed a nuisance." Plaintiffs argue that the authorization of
the County Planning Commission and the PUC were tainted by
defendants' misrepresentations concerning the location and setting
of the site.
We need not reach this -issue, which raises several complex
issues, because the record is clear, based on the plaintiffs'
declarations and deposition testimony, that a nuisance cannot be
made out here.8
Civil Code section 3479 provides in the relevant portion,
"Anything which is . . . indecent or offensive to the senses, or
an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property" is a nuisance.
"`So long as the interference is substantial and unreasonable, and
such as would be offensive or inconvenient to the normal person,
virtually any disturbance of the enjoyment of the property may
amount to a nuisance.' [Citation.] An interference need not
directly damage the land or prevent its use to constitute
a nuisance; private plaintiffs have successfully maintained
nuisance actions against airports for interferences caused by
noise, smoke and vibrations from flights over their homes
8 We review plaintiffs' nuisance claim as one for private
nuisance since the complaint is phrased in terms of an
interference solely with.plaintiffs' use and enjoyment of their
property. "Unlike public nuisance, which is an interference with
the rights of the community at large, private nuisance is a civil
wrong based on disturbance of rights in land." (Koll-Irvine
Center Property Owners Assn. v. County of Orange, supra,
24 Cal.App.4th at p. 1041; accord, Prosser & Keeton, Torts (5th
ed. 1984) § 86, p. 618.) In contrast, Civil Code section 3480
provides that "[a] public nuisance is one which affects at the
same time an entire community or neighborhood, or any considerable
number of persons . . . ." "To be considered public, the nuisance
must affect an interest common to the general public, rather than
peculiar to one individual', or several." (Prosser & Keeton,
Torts, supra, § 90, at p. 645; fns. omitted.) Plaintiffs do not
allege interference with an interest common to the general public.
Moreover, "[a] private party may maintain an action for a.
public nuisance if it is specifically injurious to himself, but
not otherwise." (Civ. Code, § 3493.) "The damage suffered [in
order for a private party to maintain an action for a public
nuisance] must be different in kind and not merely in degree from
that suffered by other members of the public." (Koll-Irvine
Center Property Owners Assn. v. County of Orange, supra,
24 Cal.App.4th at p. 1040.) Since the plaintiffs cannot make out
a claim for injury from a private nuisance (see discussion,
infra), it follows that they cannot show special injury for
purposes of maintaining an action for public nuisance.
10
[citations] and against a sewage treatment plant for interference
caused by noxious odors." (Koll-Irvine Center Property Owners
Assn. v. County of Orange, supra, 24 Cal.App.4th at p.,1041; see
Harding v. State of California ex rel. Dept. of'Transportation,
supra, 159 Cal.App.3d at p. 362 ["anything which interferes with
the free use and enjoyment of property including such things as
dust and noise, may constitute a nuisance"].)
However, the essence of a private nuisance is its
interference with the use and enjoyment of land. (Venuto v.
Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124;
accord, Prosser & Keeton, Torts, supra, § 87, at p. 619 ["The
essence of a private nuisance is an interference with the use and
enjoyment of land."].) The activity in issue must "disturb or
prevent the comfortable enjoyment of property" (Venuto v. Owens-
Corning Fiberglas Corp. supra, 22 Cal.App.3d at p. 126), such as
smoke from an asphalt mixing plant,,noise and odors from the
operation of a refreshment stand, or the noise and vibration of
machinery. (Ibid.)
No interference with the use or enjoyment of the land is made
out here and thus a nuisance claim cannot be maintained for the
following reasons: A diminution in value does not interfere with
the present use of property and cannot alone constitute"
a nuisance. (See Koll-Irvine Center Property Owners Assn. v.
County of Orange, supra, 24 Cal.App.4th at p. 1043.) As noted
earlier, it is undisputed that the noise from the cell site (the
"strumming" and "hum") does not interfere with plaintiffs"
enjoyment of their property. The only allegation in support of
plaintiffs' nuisance claim is that the new tower's appearance
interferes with their enjoyment of the property.9 They claim that
it is tall and "looms over" their property. Yet, they also admit
that the new tower cannot be seen from anywhere inside their
house, except from a single window. That has not disrupted their
use of their property.
The displeasing height and shape of the new tower cannot, in
and of itself, make it a nuisance to those who sit on the other
side of the property line. The interference that constitutes a
private nuisance must be "substantial and unreasonable." (Koll-
Irvine Center Property Owners Assn. v. County of Orange, supra,
24 Cal.App.4th at p. 1041; Prosser & Keeton, Torts, supra, §87, at
pp. 622-623.) Several California appellate court decisions have
ruled that the unpleasant appearance of neighboring property, in
and of itself, does not rise to the level of a nuisance. .(People
v. Oliver (1948) 86 Cal.App.2d 885, 887 ["the unsightly condition
of the premises" alone will not render the property a nuisance];
9 The maintenance of the fire clearance did not require any
interference with plaintiffs' property and thus did not constitute
a nuisance. (See footnote 5.)
11
Haehlen v. Wilson (1936) 11 Cal.App.2d 437, 441 ["ugly and untidy"
wooden fence was not a nuisance].)
In Haehlen v. Wilson, supra, 11 Cal.App.2d at p. 441, we
rejected a claim that a six -and -one -half -foot wooden fence along
plaintiffs' boundary constituted a nuisance on the grounds that it
created, among other things, "an ugly and untidy appearance" and
a fire hazard. We stated: "In the absence of some legislative
action the courts cannot set up esthetic standards to which
builders must conform. [9[] `No,case has been cited, nor are we
aware of any case, which holds that a man may be deprived of his
property because his tastes are not those of his neighbors.
Esthetic considerations are a matter of luxury and indulgence
rather than a necessity, and it is necessity alone which justifies
the exercise of police power to take private property without
compensation."' (Haehlen v. Wilson, supra, 11 Cal.App.2d at
p. 441, quoting Varney & Green v. Williams (1909) 155 Cal. 318,
320.)
In short, the displeasing appearance of an otherwise lawful
structure on one side of a boundary cannot be deemed to.
substantially interfere with the enjoyment of that which is on the
other side of the boundary without significantly diminishing the
rights associated with both sides of the boundary.
Other jurisdictions agree that the unsightliness of
a neighboring structure, in and of itself, does not constitute
a nuisance. (E.g., Oklejas v. Williams (1983) 165 Ga.App. 585,
302 S.E.2d 110 [an unsightly wall built by neighboring landowners
did not constitute a nuisance, even if it tended to devalue the
adjoining property]; Alabama Power Co. v. Stringfellow (1934)
228 Ala. 422, 153 So. 629 [allegation that an electric substation
was ugly and unsightly did not make it a nuisance]; McCaw v.
Harrison (1953) 259 S.W.2d 457, 458 [a cemetery does not
constitute a nuisance "merely because it is a constant reminder of
death and has a depressing influence on the minds of persons who
observe it, or because it tends to depreciate the value of
property in the neighborhood, or is offensive to the aesthetic
sense of an adjoining proprietor"].)
Moreover, "`[a]s a general rule, a landowner has no natural
right to air, light or an unobstructed -view and the law is
reluctant to imply such a right." (Posey v. Leavitt, supra,
229 Cal.App.3d at p. 1250, quoting Pacifica Homeowners' Assn. v.
Wesley Palms Retirement Community (1986) 17,8 Cal.App.3d 1147,
1152.) Since "[t]he courts have held that a building or structure
cannot be complained of as a nuisance merely because it obstructs
the view from neighboring property" (Venuto v. Owens-Corning
Fiberglas Corp., supra, 22 Cal.App.3d at p. 127), it follows that
the size and shape of a neighboring structure that does not
12
•
obstruct the view and is otherwise permitted by law, however
displeasing its appearance, cannot constitute a nuisance.10
Accordingly, based on plaintiffs' own admissions (see D'Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [summary
judgment appropriate where discovery has produced an admission or
concession on the part of the party opposing summary judgment
which demonstrates that there is no factual issue to be tried
. . ."]); plaintiffs have simply failed to show the existence of
a triable issue of fact as to whether the new tower, by its
appearance alone, constitutes -a nuisance. Indeed, while
plaintiffs may understandably be frustrated at the presence of
a large transmission tower adjacent to their property, they surely
can see the converse mischief (and infringement) on a homeowner's
property rights if homeowners could prevent their neighbors from
construction deemed unattractive. Here, -plaintiffs were aware of
the construction, and it behooved them to determine how,to
participate in the political process if they opposed the
construction of the transmission tower. Summary adjudication of
this cause of action was proper.
C. The Third and Fourth Causes, of Action: Intentional and
Negligent Misrepresentation
The first amended complaint alleges that defendant Cellular
One, through its employee, Michael Shoat, falsely represented to
the County Planning. Department in.its application for a use permit
the following: "The site itself is nestled amongst some trees
thereby make [sic]* the building and lower half of the tower
impossible to see from the public. There are a few other
residences around the site, however, these residences probably
could not see the facility due to tree coverage." This false
statement, the complaint alleges; was intended to induce the
County to issue the requested permit. In plaintiffs' view, these
facts gave rise to a cause of action against defendants AT&T
Wireless and Cellular One for intentional and negligent
misrepresentation.
Proof of both intentional and negligent misrepresentation
requires a showing that the defendant made false representations
with an intent to induce reliance by the plaintiff, and that the
plaintiff justifiably relied on those representations, resulting
in damage. (Civ. Code, §§ 1709, 1710; see Lazar v. Superior Court
(1996) 12 Cal.4th 6310" 638; B.L.M. v. Sabo & Deitsch (1997)
55 Cal.App.4th 823, 834.)
10 Our opinion only extends to structures that are displeasing
or unattractive in appearance and not to structures that are
obscene or similarly offensive, about.which we express no opinion.
13
It is undisputed here that•neither AT&T Wireless nor Cellular
One made any representations to plaintiffs. Thus, the complaint
fails to allege that plaintiffs relied upon any representations by
AT&T Wireless or Cellular One. The trial court ruled that
plaintiffs could not establish the element of reliance because
plaintiffs acknowledged that they were unaware of the
representations.
Plaintiffs concede that a plaintiff must ordinarily
demonstrate actual reliance to sustain a cause of action for
intentional or negligent misrepresentation. (See Mirkin v.
Wasserman (1993) 5 Cal.4th 1082, 1088 ["It is settled that
a plaintiff, to state a cause of action for deceit based on
a misrepresentation, must plead that he or she actually relied on
the misrepresentation."].) Plaintiffs insist, however, that the -
requirement of reliance is relaxed "where . . . there is
a personal injury component to the cause of action," citing the
California Supreme Court's decision in Randi W. v. Muroc Joint
Unified School Dist.(1997) 14 Cal.4th 1066. We do not agree.
In Randi W., the issue before the court was "'under what
circumstances courts may impose tort liability on employers who
fail to use reasonable care in recommending former employees for
employment without disclosing material information bearing on
their fitness." (Randi W. v. Muroc Joint Unified School Dist.,
supra, 14 Cal.4th at p. 1070.) The plaintiff there alleged that
she had been sexually assaulted by a school vice principal, and
sought to impose liability upon certain school districts and
others who had written recommendation letters for the vice
principal*which had failed to disclose his prior sexual
misconduct. Plaintiff had neither seen the recommendations nor
relied upon them. (Id. at pp. 1071-1073, 1084.) The Supreme
Court held that "consistent with Restatement Second of Torts
sections 310 and 311 . . . the writer of a letter of
recommendation owes to prospective employers and to third persons
a duty not to misrepresent the facts in describing the
qualifications and character of a former employee, if making these
misrepresentations would present a substantial, foreseeable risk
of physical injury to the prospective employer or third persons."
(Randi W., supra, 14 Cal.4th at p. 1081.)11 The court added,
11 Section 310 of the Restatement Second of Torts involves
intentional conduct.and provides that [a]n actor who makes
a misrepresentation is subject to liability to another for'
physical harm which results from an act done by the other or
a third person in reliance upon the truth of the representation,
if the actor [11 (a) intends his statement to induce or should
realize that it is likely to 'Induce action by the other, or
a third person, which involves an unreasonable risk of physical
harm to the other, and [1] (b) knows [11 (i) 'that the statement is
14
however, that "[i]n the absence . . . of resulting physical
injury, or some special relationship between the parties, the
writer of a letter of recommendation should have no duty of
care extending to third persons for misrepresentation made
concerning former employees." (Ibid.) Noting that the defendants
in Randi W. "intended or should have realized.that their
misrepresentations were likely to induce action . . . that
involved an unreasonable risk of physical harm to plaintiff"
(14 Cal.4th at p. 1084), the court held that the plaintiff's
failure to plead reliance did not justify sustaining a demurrer to
her complaint without leave to amend. (Id. at p. 1085.)
Randi W. does not excuse the plaintiffs' absence of reliance
on Cellular One's alleged misstatements here. Randi W. merely
held that a plaintiff need not demonstrate reliance on the alleged
falsehoods made to another party when the representations "were
likely to induce action . . . that involve[s] an `unreasonable
risk of physical harm to plaintiff.' [Citation.]" (14 Cal.4th at
p. 1084.) The court made clear that in the absence of resulting
physical injury, the writer of a letter of recommendation would
have no duty of care to third parties.
In this case, the alleged misrepresentations -- statements by
Cellular One to the County that the cell site probably could not
be seen by neighboring residences owing to tree coverage -- cannot
fairly be characterized as likely to induce action involving
a "substantial, foreseeable" risk of physical harm to third
persons. To the contrary, the undisputed facts are that* -
plaintiffs and their property have suffered no physical injury and
that plaintiffs have suffered no physical manifestation of their
alleged emotional distress. Under these circumstances, the rule
in Randi W. does not excuse plaintiffs from showing that they
relied on defendants'.reprbsentations. (See Gawara v. United
States Brass Corp. (1998) 63 Cal.App.4th 1341, 1354-1355
[declining to apply holding of Randi W. where no physical injury
is alleged] and Lempert v. Singer (D. V.I. 1991) 7661F.Supp. 1356,
1367 ["Misrepresentations concerning the -condition, boundaries,
and encumbrances of a piece of real property, without more, are
false, or [1) (ii) that he has not the knowledge which'he
professes."
Section 311 of the Restatement Second of Torts, involving
negligent conduct, provides that: "(1) One who negligently gives
false information to another -is subject to liability for physical
harm caused by action taken by the other in reasonable reliance
upon such information, where such harm results [11'(a) to the
other, or [4] (b) to such third persons as the actor should expect
to be put -in peril by the action taken. [51] (2) Such negligence
may consist of failure to exercise reasonable care JT1 (a) in
ascertaining the accuracy of the.information, or [11 (b) in the
manner in which it is communicated."
15
not the sort that ordinarily involve an unreasonable risk of
bodily harm" within the meaning of sections 310 and 311 of the
Restatement Second of'Torts].)
In any event, the purported misrepresentations do not appear
to be material and thus cannot serve as the basis for a claim for
misrepresentation, regardless of the party to whom they were made.
(Adkins v. Wycoff (1957) 152 Cal.App.2d 684, 689.) The element of
justifiable reliance requires that any°alleged misrepresentation
be material. (See Lacher v. Superior Court (1991) 230 Cal.App.3d
1038, 1049.) Looking -at the offending document in context -- an
unsigned document entitled "Use Permit Application Information"
which states that the "site itself is nestled among some trees,"
thereby making "the building and the lower half of the tower
impossible to see from the public" and that the surrounding
residences "probably cannot see the facility due to tree coverage"
-- the alleged misrepresentation does not appear to be materially.
false. The document notes that the existing tower is 110 feet and
that a new equipment building will replace the old service module.
In that context, a statement that the "lower half of the tower"
(emphasis added) is "impossible .to `see from the public" and that
the surrounding residences "probably cannot see the facility due
to tree coverage" cannot'be reasonably interpreted to mean that
the trees fully obscure a 110 -foot (or higher) tower from anyone's
vantage point.,
Plaintiffs also appear to argue that Cellular One's employee,
Mr. Shoaf, made a similar statement to the Butte County Planning
Commission: "The Ophir site is located in a predominantly
residential setting and is masked by a heavy growth of trees
making it virtually unnoticeable to surrounding parcels." But
this document is not from Mr. Shoaf, but from "Barry K. Hogan,
Planning Manager" to the "Honorable Chair and Planning
Commission." The declaration to which it is attached describes it
as "the Agenda Report from the Butte County,Planning Commission
dated May 11, 1994."12 Since the first amended complaint does not
cite it and there is nothing in the record that suggests that it
is attributable to defendants, it cannot create a triable issue of
fact. g
12 Although defendants objected to plaintiffs' declarations,
including the agenda report attached to the declaration of their
counsel, the trial court did not rule on those objections, but
stated generally in its ruling that it "considered the moving and
responding papers, admissible evidence, and oral argument." This
statement is not an implied ruling sustaining unspecified
evidentiary objections. (Laird v. Capital Cities/ABC, Inc. (1998)
68 Cal.App.4th 727,.736.) Because counsel failed to obtain
rulings on the evidentiary objections, they are waived and not
preserved for appeal. (Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666,'670, fn. 1.)
16
9 0
Finally, plaintiffs raise a third misrepresentation claim in
their briefs, although it, too, is not cited in the first amended
complaint: An advice letter to the PUC allegedly identified the
location of the tower on the area map as one approximately one
mile from where the site is actually located. The problem with
this purported misrepresentation is.that it appears on a map that
contains insufficient detail to pinpoint the precise location of
the cell site, and any misrepresentation premised on that sketchy
map (which was merely an attachment to the advice letter) was
cured by the specification of the correct address in several other
places in other attachments tc that same advice letter.
Accordingly, plaintiffs failed to raise a triable issue of
fact concerning their claims for misrepresentation and thus they
were properly summarily denied.
D. The Fifth Cause of Action: Suppression of Fact
'Plaintiffs allege that Cellular One's representations in its
application for a use permit to the County Planning Department
suppressed information and were intended to -prevent the County
from "further inquiring into the affect [sic] of the construction
and enlargement" of the cell site.
"The suppression of a fact, by one who is bound to disclose
it, or who gives information of other facts which are likely to
mislead for want of communication of that fact" may give rise to
a cause of action for fraudulent concealment. (Civ. Code, § 1710;
subd. (3) .) 13
On appeal, as in their opposition to the motion for summary
judgment, plaintiffs do not'attempt to raise a triable issue of
fact as to whether Cellular One owed a duty of disclosure, but
merely incorporate by -reference the arguments with which they
defend their third and fourth causes of action for
misrepresentation. For the same reasons we have summarily
rejected those causes of action, we likewise reject plaintiffs'
cause of action for suppression of fact.
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal. [CERTIFIED FOR PARTIAL PUBLICATION] -
13 Of course, even absent -a duty of disclosure, a defendant may
be liable for suppression of fact if facts are known or accessible
only.to defendant, and defendant knows they are not known to or
reasonably discoverable by the plaintiff. (See Warner Constr.
Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)
Plaintiffs neither allege nor argue that Cellular One should be
liable for suppression of facts because it failed to disclose
facts not known or reasonably discoverable by plaintiffs.
17
Za9. 07
a 0U rF.
INTER -DEPARTMENTAL MEMORANDUM
'co�N OFFICE OF BUTTE COUNTY COUNSEL
TO: Tom Parilo, Development Services Director
BY: Neil H. McCabe, Assistant County Counsel
SUBJECT: Opinion 99-153 re: ALUC
DATE: November 22, 1999
Please find enclosed, per the request in your letter dated October 6, 1999, the above
mentioned opinion.
If you have any questions or comments please feel free to contact me.
NBM/slt
(parilo4)
i
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• NOV
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- 1 REMY, THOMAS and MOOSE,, LLP
+' t ATTORNEYS AT LAW L S
MICHAEL. H. REMY
TINA A. THOMAS 455 CAPITOL MALL, SUITE 210GEORGANNA E. FOONDOS
SACRAMENTO; CALIFORNIA 95814
JAMES G. MOOSE • f 'r LAND USE ANALYST
'
WHITMAN F. MANLEY
-JOHN H. MATTOX
ANDREA A. MATARAZZO ` BRIAN J. PLANT„ !!
i Telephone: 443-2745 t
ERIK K. SPIESS _ Facsimile: (916)443-9017 y MARIAN KING 0
JENNIFER S. HOLMAN tt E-mail: 'randt@cwo.com OF COUNSEL r
RENE$ F. HAWKINS f http://www.cwo.conV-randt,
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED' r
J.,
_ Menioraiidum
Butte County CounW r r .
To: Susan Mlnaslan, County Counself
t ... i 740n MW
Butte County NAV
• From: Michael H. Remy + Vl�je; Ci0MIS
Date: November 16,1999 ®r0
Subject: ALUC Request for Legal Opinion
• Butte County's ALUC forwarded three questions to County Counsel for a legal opiriion..• County
Counsel asked Remy, Thomas aril Moose to prepare that opinion.
Question l: • When the ALUC reviewsla`project for consistency with its - �t
Com rehensive-LandUse Plan CLUP 'can it o_nl ,decid consistency or
r inconsistency; or• can the •ALUC find the project consistent'with certain ;.
�-fid= •-'',.�=.,._.._-�:...t-.�r _..-_...... �:..�.-.�....c::_.. -_. - -
conditions,? t
Response: The •ALUC m y attach'ednditions-to:a-finding ofco i'stency: l
As the ALUC staff noted; neither the,CalTrans Handbook nor the Code explicitly endorse A.
the practice of attaching conditions oil a finding of consistency of a project by an ALUC.
- _ - In practice, however, as the Handbook`notes on page 4-10;tsome=ALUC's find it more
� tially compatible,project than to find it
efficient to attach conditions to a pot
inconsistent and then have the project return to the ALUC at a later date. ,
t
• After polling several ALUCs, it seems that the practice is rather common. The ALUCs in,
El Dorado, Tuolomne, Saramento, Yolo, Sutter, and -Yuba counties"routinely attach
-- conditions, whereas in Colusa and Humboldt counties it is never done. Contra Costa ,
County has used conditions in the past, but is trying to get away from the practice unless i.
the conditions are very minor. (Because ALUCs may be comprised in three different �t
ways under the Aeronautics Act (separate ALUC body, designated existing agency, or `..
alternative process) and counties' populations and numbers of airports vary greatly, , E
comparisons maybe more or less helpful depending,on'degree of similarity.)
Page 1 of 4 ;.
If conditions are attached, it maybe wise to word them iri_ such a way as not'to explicitly
Asa"cd dition" t"" o oid of ntial exactions'or takings issued Tuolomne's ALUC words
Y P
the conditions.as ",the project will be consistent if X is done" (where X is signing off a
navigation easement or reducing project height, for example).
An alternative to using a conditional finding of consistency is.to'have applicants fill out a
pre -application checklist that will highlight any inconsistencies with the compatibility
plan early on in the process so that those areas can be modified before the ALUC reviews
the project. (This is how'some ALUCs avoid having to ever attach conditions.)
In talking with CalTrans Department of Aeronautics staff and their legal counsel, Larry
Theleri in particular, it appears that attaching conditions is probably an acceptable
practice.
Ouestion 2: " May41ie ALUC'adopt=its,proposed =conflict of interest bylaw?•
Response: Because the bylaw as proposed is vague as,to what a,conflict of interest is
and what should occur if a conflict arises, and 'also may conflict with state'
law, werecommend againsMaadopti-o o .the.bylaw.as,currently w a a ,.
' According to Public Utilities Code section 21672, "[e]ach;commission shall adopt rules
and regulations withL e pto_thempo_y disq I fic of its members from
• participating in the review or adoption of a proposal because of conflict of interest and _
with respect to appointment of substitute'members in such cases.17Conflict: of:inter_esfis
als'- o dealt.with extensively.by_the.P,olitical Reform Act.of.1974.7Gov. Code § 81000 et_ '
seq.) That code requires disclosure of financial interests by designated "reporting"
government employees. Many ALUCs simply incorporate and conform to the County's
d 1 d rt f I ' to ests accordin l' Thus it a ears that
con ict o interest co e an repo mancia m r
the bylaws required by Public Utilities Code section 21672 should be designed to address
the narrow question of when a commissioner has aconflict of interest and should not vote
on a matter. Ff Ymember+of tlietComm ssion=has a=financial-interest in�the�outcome_of:a
_ _..F----..r+--fir---.-,:..-..-�-_.
on that matter? See attached provision of Tuolomne County ALUC's by-laws.) g
decision that,the commission is makin ,. en he or,she.should;sim 1 .abstain from votin
• Additionally, some ALUCs provide for the possibility that a commissioner's
qualifications to.participate in a decision may be challenged during the course.of a•
hearing. (See attached provision of Contra Costa County ALUC's bylaws.)
I assume that the proposed language related to section 21672 and means that -if a listed
conflict is present, "the conflicted commissioner will not vote on that subject matter.. It.
should be clearer in the text of the amendment what should be done if an enumerated
conflicts arises. Also missing is a provision that would provide for appointment of
substitute_ commissioner in the event of a conflict.
Moving to the recognized'conflicts in.the proposed bylaw: '..
Page 2 of 4 _
The first recognized conflict (financial conflict) is vague in that "some possible financial
interest" is not defined. According to the amendment, it would be difficult to tell what
constitutes some possible financial interest. For instance, would it include value of a
primary residence? Or only a business interest? How much of a business interest? It
might be expedient to exclude the ownership of a primary residence in the area at issue
as a financial conflict.
eThe'secorid category�of conct (conflict of duties) is ii direct conflict with the State
_. fli...,- w -- - .�
Aeronautics Act provisions regarding the make-up of,AL;UCs. The Act requires that
Commissions be comprised of seven members: two, representative from the cities in the
county, two representatives of the county, two having expertise in aviation, and one
representative of the general public. (Public Utilities Code § 21670.) fsecfion 21670(c)`
explicitly states that elected or appointed public officers may serve on anALUC during
their terms rn office. -The second recognized conflict in the proposed amendment
seems to preclude any ALUC commissioner from ever serving in another elected or
appointed representative capacity within the county, which conflicts with state law and
would therefore be void.
,T_he tliird category_(conflicts of leyalties) is, similarly troubling_in that rt_does not clearly
define what`"an entity,impacted by A_LUC decisions" m_ eans.iAn entity could mean
either a local agency or a private corporation. And the degree of impact could be
anywhere from significant to insignificant. If this provision is passed, it should be
• clarified.
;Butte County ALUC "s proposed bylaw appears to be on the extremeside„especially since
itwo commissioners would'iinmediately fie disqualified from -servings. The ALUC might
be better served by adopting the language of the f rst paragraph of the amendment and
then more clearly delineating what types of conflicts of interest require.a commissioner to
abstain from voting and provide for how a substitute will replace a commissioner with a
conflict of interest for a particular vote. � If the ALUC-is interested in receivingassistance
redrafting the pioposed mer
aidm_ent'I would'be Happy to assist the'ALUC`in doirig that.
i& -do this, however, I would need more information as to what the ALUC's specific
concerns about conflict of interest are and what the ALUC would like to accomplish in
passing this bylaw. • . '
Question 3: jWhat are the,Statutory Time Limits for Keeping Files?
Response: tThere'are'no specifically applicable"time limits for keeping ALUC'files.
The ALUC should, however,;keep file`s for-af leasi two years asis
required of counties and probably longer just to be safe. The ALUC
should find out how the Planning Department deals with file retention
and consider doing the same thing.
Page 3 of 4
• No Code provision expressly addresses how long ALUC files ought to be retained." The
' most important ALUC files, I assume; are Project Review Requests;By_analogy to'cties;
the.generally'regutred're�cord retention period is'two y ars.- (Gov. Code § 34090:) If```F
` records -are microfrlmed;:they maybe -destroyed ooer1 (Gov. C6de § 34090.5.)
M
Similarly counties madestroy records aftef two years that are not ekpressly required by
law to be retained. ((Gov. Code § 26202.)
It- was. suggested byylegalcounsel at the ,CalTfans-Aeronautics Program;that doubt -oughts
.t
to beresolved in favor of keeping files longer rather than'shorter since litigation in the
,
"
r land use arena is common[Arpossible model totfollow would be whatever the Plawrig
Department of he county_does Once litigation commences -on an ALUClaction„they ,
. proposed amendment is correct in that the files'should•beretained indefinitelyor at least
,
until,an lrti ation has com letel. been resolved,.which could;well be several year
fun i a y. .g p y-
t
In suin,two.years seems to be the ininimu_m reco`rd'reteritidi period'�JIt is advisable,
+ }
- however, to keep reco=rds for longer. Besides being essential in the case of any litigation,
• the files may provide historical iriformation pertinent to a current Project Review
Request: ,If storage'rooni is an issue;'microfrlm maybe a good'optiori.
Attachments: +• ,t
. •'
Tuolomne County ALUC bylaws excerpt
Contra Costa County ALUC bylaws excerpt ► ,
• List of ALUCs
_
Contacts: i
+t
• CalTrans Aeronautical Program
Christa Engle, Aviation Planner,(916) 654-5553
41
”
w
Larry Thelen, Legal Counsel (916) 654-2630
'
' 91101096.002 • sem. , " ,
i '
• - !. _• •
. t .. Page 4 of 4
4
11/04/1999 17:00 209-533-5657 TUCL. CO. AIRPORTS PAGE 02
the absent Members shall be notified. If all Members are absent,
the Secretary of the Commission may adjourn the meeting to a
stated time and place. and notify all Members.
M-etingg QQPn tn thg -lublic All meetings of the Commission are
open to the public. All meetings shall adhere to all current
y Open Meeting laws, as established by the State of California, or
the policies of the Board of Supervisors of the County of
Tuolumne; whichever shall be the more stringent.
M=bara When the Commission is considering
a proposal, or is taking any action, as to which a Regular Member
r° of the Commission is personally interested, that Regular Member
is disqualified from participating in the proceedings of the
Commission with respect to such proposal or action. When a
disqualification for financial interest is required'by the
Political Reform Act/Fair Political Practices Commission, the
Member must disclose the financial interest causing the disquali-
fication. Such disclosure.miust be made a part of the ALUC's
official record, or made in writing to the appointing power, or
any other person specified in the ALUC's conflict of interest
code.
A Member's relationship with an agency or geographical area
having representation on the Commission shall not be the grounds
for such disqualification. All Members shall adhere to all
current conflict of interest laws established by the State of
California and administered by the Fair Political Practices
Commission, or the relevant policies of the Board of Supervisors
of the County of Tuolumne, whichever shall be the more stringent.
If the impartiality of any Member with
respect to any proposal is questioned by any person appearing
before the Commission, and the Member has not disqualified
himself, such Member may be permitted to participate in the
Proceedings by majority vote of the Members of .the Commission
present.
Each Member shall appoint .a single Proxy to represent him
in Commission affairs, and to vote on all Commission matters,
when the Member is. not in attendance. The Proxy shall be desig-
nated in a signed written instrument which shall be kept on file
with the Secretary. The Proxy shall serve at the pleasure of the
Member who appointed him. Any vacancy in the office of Proxy
shall be filled promptly by the appointment of a new Proxy by the
Member.
• 4
Nov -09-1999 10:.29 CONTRA CGS T A -CDD XIU 3a7 ' 1G4r. VJ_J/ tu"
Section 6.3. Hearing Notice.
The date and subject matter of each hearing shall be "Noticed" by publication at
least one time in.a newspaper having general circulation in the part of the
County in which the subject matter of, the hearing is situated. . The -hearing
notice shall be caused to.be published at least ten working days prior to the
date of the hearing. At the same time the published notice is submitted to the
newspaper, a special notice shall be sent to the ,local zoning authority. or
person requesting the hearing and to all public agencies having an interest in
the matter to be heard.
Section 6.4. Rules of Hearing.
The order of the hearings held by the Commission shall be:
A. Open hearing.
B. Staff to present evaluation and recommendations.
C. Proponents to present case.
D. Opponents to present case.
E. Rebuttal by proponents.
F. Any member of the Commission to call for such additional information, pros
^� and cons, in the order he desires.
G. Close hearing.
H. Commission discussion and deliberation.
• I. Motions and voting.
Section 6.5. Quorum and Action.
Four members of the Commission shall constitute a quorum for the conduct of
business. A majority of the Commissioners present and eligible to vote -shall be
required for any action of the Commission.
ICLE UTI: CONFLICT OF INTEREST. DISCLOSURE, AND DISOUALIFICATION.
Section 7.1. Conflict of Interest and Financial Disclosure.
Provisions relating to conflict of interest and financial disclosure are .con-
tained in the Conflict of Interest Code 'of the Airport Land Use Commission.
Section 7.2. Disqualification of Commission Member by Challenge.
The qualification of any member(s) to take part in the Commission deliberations
and voting may be challenged by any part to the* hearings. It shall be the duty
of the Commission Chairman to evaluate the challenge and the testimony presented
and then to rule upon ttie Qualification of the challenged•member. If the
_6_
NOv-09-1559 10:29 CONTRA COSTA -CDD 51YJ 3J' ��� r.YJ4�u4
Chairman is the member' so challenged, he. shall immediately surrender his chair
to the. -Vice -Chairman, who will act as Chairman until the qualification of the
challenged member has been' -decided.
ARTICLE ViII: COMMISSION'S STAFF MEMBERS.
The Secretary to the Commission shall be its administrative officer. The Contra
Costa County Director of Planning, or his designee, shall act as Secretary of
the Commission.
ARTICLE IX. PRESIDING OFFICER.
Section 9.1. Chairman and Vice -Chairman.
elect a Chairman and Vice -Chairman who shall
The members of the Commission shall
serve until the election of their successors.
Section 9.2. Successor to Chairman and Vice -Chairman.,
Commencing in 1972, and annually thereafter, at the first regular meeting of the
Commission held in May, the members of the Commission shall elect a Chairman and
Vice -Chairman to serve until the election of their successors.
Section 9.3. Duties of the Chairman.
The Chairman shall preside at all meetings of the Commission and shall conduct
the business of the Commission in the manner proscribed by these rules. The
Chairman shall preserve order and decorum and shall decide all questions of
order subject to the action of a majority of the Commission.members present.
ich
There may be circumstances
come to the' and/or actionttention of he. of the Comm issionh priorntohthe
he/she feels warrant the attention
next scheduled Commission meeting. In such circumstances, the Chairman should
attempt to call a special meeting of the Commission in accord with State law and
the Commission Rules and Regulations to allow the.matter to be reviewed. If the
Chairman determines that a special Commission meeting cannot be called in a
timely manner, then the Chairman shall be empowered to act on behalf of the
Commission to address the urgency of the situation in accord with the
Commission's duties and responsibilities. The Chairman shall report to the
Commission, at the next regularly scheduled meeti.ng on any action he/she
undertook on behalf of the Commission.
Section 9.4. Duties of the Vice -Chairman.
In the absence or inability to act of the Chairman, the Vice -Chairman shall act
as Chairman and when so acting shall have all of the powers and duties of the
Chairman. in the absence of the Chairman from the County of Contra Costa, the
authority of the Vice -Chairman includes the authority to call special meetings.
RD:rjs
. B063-:cccaluc.apx
-7-
TOTAL P.04
•
*Aeronautics Program
October 4, 1999
AIRPORT LAND USE CONMISSIONS
Alameda County
Alameda County ALUC
(510) 670-6511
FAX (510) 670-6529
Alameda County. Planning Department
224 West Winton Ave., Room 151
Hayward, CA 94544
Contact: Joanne Parker
Alpine County
No ALUC - (Exempt)
(916) 694-2255
(EXETTVIPT)
Alpine County Public Work
FAX (916 ) 694-2214
50 Diamond Valley Road. .
Markleeville, CA 96120
Contact: Leonard Turnbeaugh
A_madorCounty
Amador County ALUC
(209) 223-6380
(209) 223-0637
Amador County Land Use Agency
108 Court Street
Jackson, CA 95642
Contact: Gary Clark
Butte County
Butte County ALUC
(530) 538-7601
FAY (530) 538-7785
7 County Center Drive
Oroville, CA 95965
Contact: Paula Leasure / Laura Webster...........
(530) 533-1131
Calaveras County
Calaveras County ALUC
(209) 754-6394754-6566
( )
Calaveras209 County Planning Department
891 Mountain Ranch Road
San Andreas, CA 95249
Contact: Mary Pitto
Colusa County
Colusa County ALUC
(530) 458-0580
FAX (530) 458-5000
Colusa County Airport
100 Sunrise Boulevard, Suite F
Colusa, CA 95932
Contact: Harry A. Krug
r]
•
Fresno County
Fresno County ALUC
Planning & Resource
Management Department
2220 Tulare Street, Sixth -Floor.
Fresno, CA 93 72 1.
Contact: Joanne Striebich
Glenn County Glenn County
Glenn County Planning Department
125 South Murdock Avenue
Willows, CA 95988
Contact: John Benoit
Humboldt County
ImQerial County
Humboldt County ALUC
Department of Public Works,
Land Use Division
3033 H Street
Eureka, CA 95501
Contact: Harless McKinley
Imperial County
Planning Department
939 Main Street
El Centro, CA 92243-2856
Contact: Jura Heuberaer
-2-
(559) 262-4853
FAX (209) 262-4166
(530) 934-6540
F_A_X (530) 934-6542
(707)445-7205
FAX (707) 445-7388
A_j1.
E -Mail- hmckinley@co.humboldt.ca.us
(760) 339-4236
FAX (760) 353-8338
Contra Costa County Contra Costa County ALUC
(925) 335-1214
County Administration Bldg.
FAX
(925) 335-1222.
Community Development Department
651 Pine Street
4th Floor, North Wing
Martinez, CA 94553-0095
Contact: Bob Drake E -Mail:
bdrak@bicd.co.contra-costa.ca.us
Del Norte County Del Norte County ALUC
(707) 464-7229
Del Norte County Community
FAX
(707) 465-0340
Development Department
700 Fifth Street
Crescent City, CA 95531
Contact: Karl Brown
El Dorado County Foothill ALU.0
(530) 823-4703
Sierra Planning Organization
FAX
(530) 823-4142
560 Wall Street, Suite F
Auburn, CA 95603
Contact:'. -..
Fresno County
Fresno County ALUC
Planning & Resource
Management Department
2220 Tulare Street, Sixth -Floor.
Fresno, CA 93 72 1.
Contact: Joanne Striebich
Glenn County Glenn County
Glenn County Planning Department
125 South Murdock Avenue
Willows, CA 95988
Contact: John Benoit
Humboldt County
ImQerial County
Humboldt County ALUC
Department of Public Works,
Land Use Division
3033 H Street
Eureka, CA 95501
Contact: Harless McKinley
Imperial County
Planning Department
939 Main Street
El Centro, CA 92243-2856
Contact: Jura Heuberaer
-2-
(559) 262-4853
FAX (209) 262-4166
(530) 934-6540
F_A_X (530) 934-6542
(707)445-7205
FAX (707) 445-7388
A_j1.
E -Mail- hmckinley@co.humboldt.ca.us
(760) 339-4236
FAX (760) 353-8338
Invo County
Inyo County Planning Department
(Alternative process)
P.O. Drawer L
Independence, CA 93526
Contact: Peter Chamberlain
Kern County
Kern Co Planning and Development
(Alternative Process)
2700 "M" Street, Suite 100
Bakersfield, CA 93301
Contact: Lorelei H. Oviatt
Kings County
Kings County Planning Department
(Alternative Process)
Kings County Government Center
Hanford, CA 93230
Contact: Steven Sopp
Lake County.
Lake +County Planning Department
(Exempt)
255 North Forbes,
Lakeport, CA 95453
Contact: Mark Phillips
Lassen County
Lassen County ALUC ,
.
Lassen County Planning Department
707 Nevada Street, Room 236
Susanville, CA 96130 '
Contact: Kent Hector
Los Angeles County
Los Angeles County ALUC
Department of Regional Planning
320 West Temple Street, Room 1356
Los Angeles, CA 90012
Contact: Sorin Alexanian '
Madera County
Madera County ALUC
Madera County Planning Department
135,West Yosemite Avenue
Madera, CA 93637
Contact: Ken Young
Marin County
Mann County ALUC
Marin County Planning Department
3501 Civic Center Drive, Room 308
San Rafael, CA' 94903
Contact: Kim Hansen
3
(760) 872-2706
Ext -2263
Fax (760) 872-2712
(805) 862-8866
FAX (805)-862-8601
(209) 582-3211
Extension 2675
FAX (209) 584-8989
(707)263-2221
FAX (707) 263-2207
(530) 251-8264
FAX (530) 251-8373
(213) 974-6425
FAX(213) 626-0434
(209) 675-7821
(415) 499-6290
FAX (415) 499-7880
�1
I
-4-
Mariposa Countv
Mariposa County ALUC
(209) 966-5356
Mariposa County Public
FAX (209) 966-2828.
Works Department
4639 Ben Hur Road
Mariposa, CA 95338
Contact: Gwendolyn Foster
Mendocino County
Mendocino County ALUC
(707) 463-4281
Department of Planning and
FAX (707) 463-5709
Building Services
501 Low Gap Rd., Room 1440
Ukiah, CA 95482
Contact: Gary Pedroni
Merced County
Merced County ALUC
(209) 385 -7654 -
Merced County Planning Department
FAX (209) 726-1710
2222 "M" Street
Merced, CA 95340
Contact: Desmond Johnston E -Mail:
PL02@co.merced.ca.us
Modoc Countv
No ALUC - Contact
(5 30) 233 3)939
Modoc County Department
• (E)CEIVIPT)
of Public Works
202 West Fourth Street
Alturas, CA 96101
Mono County
Mono County ALUC
Mono County Planning Department
P_0. Box' 47
Mammoth Lakes, CA 93 546
Contact: Scott Burns/Mammoth
(760) 924-5450
Fax (760) 924-5458
Keith Hartstrom/Bridgeport
(760) 932-5217
FAX (760)9.)2-7145
Nlonterev County
Monterey County ALUC
(408 ) 755-5141
County Planning and
FAX (408) 755-5487
Building Department
P.O. Box 1208,
Salinas, CA 93902
Contact: Bill Hopkins
Napa County
Napa County ALUC
(707) 259-8228
Napa County Conservation,
FAX (707) 253-4176
•
Development, & Planning Department
1195 - 3rd Street, Room 210
Napa, CA 94559-3092
-4-
•
Nevada County
Orange County
Contact:. Michael Miller
Foothill ALUC
Sierra Planning Organization
560 Wall Street, Suite F
Auburn, CA 95603
Contact: Andrew Reid
Orange County ALUC
John Wayne Airport
3160 Airway Avenue
Costa Mesa, CA 92626
Contact: Eric Freed -
Placer County Placer County Transportation
Planning Agency
550 High Street, Suite 107
Auburn, CA 95603
Contact: Kathryn F. Mathews
Plumas Countv Plumas County ALUC
Plumas County Planning Department
P.O. Box 10437
Quincy, CA 95971-6012
Contact: John S. McMorrow
Riverside Countv
Sacramento County
San Benito County
County of Riverside
Attention: ALUC
3525 14'hST.
Riverside, CA 92501-3813
Contact: Keith Downs
11VIO: mmiller@co.napa.ca.us
(530) 823-4703
FAX (530) 823-4142
(949)252- - 5170
FAX (949) 252-290
E -Mail: efreed@ocair.com
(530) $23-4033
FAX (5 _3 823-4036
(530)283-6210
FAX (530) 282-0946
(909)'955-5990
FAX (909) 955-6686
E -Mail: eda 1. kdowns@co . riverside. ca. us
Sacramento County ALUC (916) 457-2264
Sacramento Area Council of FAX (916) 457-3299
Governments (SACOG)
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer ...................................... (916)7-) 3-3227
San Benito County ALUC
San Benito County Council
of Governments
3216 Southside Road
Hollister, CA 95023
Contact: John Johnson
(408) 637-3725
FAX (408) 637-2378
San Bernardino County.
San Bernardino County Planning Department.
(909) 387-4180
(Alternative Process)
385 North Arrowhead Avenue
FAX (909) 38773223
Third Floor
San Bernardino, CA 92415-0182
Contact: Tun Squire E -Mail: jsquire@lus.co.san-bernardino.ca.us t
San Diego County_
San Diego ALUC
(619) 595-5372
San Diego Association of Governments
FAX (619) 595-5605
First Interstate Plaza
401 "B" Street, Suite 800
San Diego, CA 92101
Contact: Jack Koerper
San Francisco County
NO ALUC REQUIRED
San JoaguinyCounty
San Joaquin County ALUC
(209) 468-39U
San Joaquin County Council
FAX (209) 468-1084
of Governments
6 South El Dorado Street, Suite 400
Stockton, CA. 95202
•
Contact: Lara Delaney
San Luis ObiWo
San Luis Obispo County ALUC
(805) 781-5600 }
County
San Luis Obispo County Department.
cf Planning and Building
County Government Center
San Luis Obispo, CA 93408
Contact: Michael.Draze/Ted Bench
San Mateo County
San Mateo County ALUC
(650) 363-4417
Planning & Building Division
FAX (650) 363-4849
Environmental Services Agency
.455 County Center, 2nd Floor
,
Redwood City, CA 94063
Roundtable Office
Contact: David F.' Carbone
(650) 876-7812
•
Santa Barbara County
Santa Barbara County ALUC
(805) 568-2546
Santa Barbara County Association
FAX (805) 568-2947 ; l
of Governments
222 East Anapamu Street, Suite 11
Santa Barbara, CA 93101-2006
Contact: Bill Yim
(805).568-2914
•
Michael Powers, Dir.
6-
is
Santa Clara County
Santa Cruz County
(Alternative Process)
Shasta County
Sierra Countv
(EXEMPT)
Siskivou Countv
Solano County
City of Watsonville Planning Department
(408) 728-6020
Santa Clara County ALUC
(408) 299-2454 X 233
Santa_Clara County Planning Office
FAX (408) 279-8537
70 West Hedding Street, East Wing -7th Floor
r
San Jose, CA 95110
(530) 225-5532
Contact: Rachael:Gibson
FAX (530) 245-6468
E -Mail:
Santa Cruz County
•(408) 454-3183
Planning Department
FAX (408) 454-2131
Governmental Center
(530) 823-4703
701 Ocean Street
FAX (530) 823-4142
Santa Cruz, CA 95060-4071
Contact: Mark Deming
City of Watsonville Planning Department
(408) 728-6020
P.O. Box 50000
FAX (408) 728-6173
Watsonville, CA 95077-5000
Contact: Paul Kaneko
r
Shasta County ALUC
(530) 225-5532
Shasta County Planning Division
FAX (530) 245-6468
1855 Placer Street'
Redding, CA 96001-1795
Contact: ' Paul Bolton or Tim Cook
Foothill ALUC
(530) 823-4703
Sierra Planning Organization
FAX (530) 823-4142
560 Wall Street, Suite F
Auburn, CA 95603
Contact: Andrew Reid
•
Siskiyou County ALUC
(530) 842-8269
305 Butte Street
(530) 842-8288 .
Yreka, CA 96097
Contact: Tom'Anderson E -Mail: stage@snowcrest.net
Solano County ALUC
(707) 421-6765
Solano County Department of
FAX (707) 429-7912
Environmental Management
601 Texas Street "
Fairfie!d, CA 94533
Contact: Gary Lane
-7-
-8-
Sonoma Countv
Sonoma County ALUC
(707) 527-1948
Permit Resource Management
FAX (707) 527-3767
2550 Ventura Avenue
Santa Rosa, CA 95403
Contact: Ron Taddei E -Mail: Rtaddei@sonoma-county.org
South Lake Tahoe
South Lake Tahoe ALUC
(530)_542-6020
c/o Teri Jamin
City Planning Director
1900 Lake Tahoe Boulevard
South Lake Tahoe, CA 96150
Stanislaus County
Stanislaus County ALUC
(209) 525-6330
Stanislaus County Department
FAX (209) 525-5911
of Planning & Community Development
1100 H Street
Modesto, CA 95354
Contact: Fran Sutton -Berardi
Sutter County
Sacramento County ALUC
(016)457-2264
Sacramento Area Council of
FAX(916)457-.)299
Governments (SACOG)
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer
(916) 733-3227
Tehama County
Tehama County ALUC
(530) 527-2200
Tehama County Planning Department
FAX (530) 527-2655
Court House Annex, Room 1,
444 Oak Street
Red Bluff, CA 96080
Contact: George Robson
Trinity Countv
Trinity County ALUC
(530) 623-1351
Trinity County Department of
FAX (530) 623-1353
Transportation & Planning
P.O. Box 2819
Weaverville, CA 96093-2819
Contact: Scott White
Tulare Countv
Tulare County ALUC
(209) 733-6291 ext. 4201
Resource Management Agency
FA.Y (209) 730-26.53
5961 South Nfooney Blvd.
Visalia, CA 93277
Contact: Dave Bryant
-8-
-9-
Tuolumne Count. Tuolumne County ALUC
(209) 533-5685
10723,Airport Road
FAX (209) 532-1609
Columbia, CA 95310
Contact: Mark Bautista
Ventura Countv Ventura County ALUC
(805) 642-1591 ext.105
950 County Square Drive, Suite 207
FAX (805) 6424860
Ventura, CA 93003
Contact: Chris Stephens E -Mail.:
cstephens@goventura.org
Yolo County Yolo County ALUC
(916) 457-2264
Sacramento Area Council of
FAX (916)457-3299
Governments (SACOG)
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer
(916) 733.-3227
Yuba County Yolo County ALUC
(916) 457-2264
Sacramento Area Council of
FAX (916)457-3299
Governments (SACOG
3000 "S" Street, Suite 300
Sacramento, CA 95816
Contact: Dave Boyer
•
(916) 733-3227
-9-
zo 9. 67
Planning Division
SHINE, COMPTON & NELDER, APC AUG 1-61999
ATTORNEYS AT IW oroviNO, caufomia
Raymond E. Shine The Old Post Office
Charles A. Compton 131 S. Auburn Street
Maralee Nelder Suite 200
(� " � Grass Valley, California 95945
James A. Curtis, Of Counsel \ v
• Certified Specialist in Family Law (530) 272-2686
California State Board of Legal Specialization fax (530) 272-5570
August 12, 1999
Mr. Thomas A. Parilo, Director of Development Services
Ms. Paula Leasure
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 95965
RE: Authority of Butte County Airport Land Use Commission to Establish Fees
Dear Mr. Parilo and Ms. Leasure:
In response to your request of June 28, 1999, f am providing the following opinion concerning
the authority of the Butte County Airport Land Use Commission to establish fees for the review of land
use applications and airport plans.
Public Utilities Code ("PUC") Section 21671.5, subparagraph (f) states:
"The commission may establish a schedule of fees necessary to comply with
this article. Those fees shall be charged to the proponents of actions,
regulations, or permits, shall not exceed the estimated reasonable cost of
providing the service, and shall be imposed pursuant to Section 66016 of the
Government Code. Except as provided in subdivision (g), after June 30,1991,
a commission which has not adopted the comprehensive land use plan required
by Section 21675 shall not charge fees pursuant to this subdivision until the
commission adopts the plan.."
Mr. Thomas A. Parilo August 12, 1999
Ms. Paula Leasure Page 2
You have indicated that the Butte County Airport Land Use Commission (hereinafter referred
to as "ALUC" or the "Commission") is interested in adopting a schedule of fees and in that regard, the
following questions have been raised:
QUESTIONS:
1. Would a fee adopted by ALUC be subject to approval by the Butte County Board of
Supervisors?
2. If, Board of Supervisors' approval is not required, what is the correct method for
collection of fees and who is responsible for accounting?
3. Would ALUC have to reach an agreement with the Board of Supervisors in order for
the Butte County Auditor's Office to establish a fund for fees received and expended?
4. If approval of the Board of Supervisors is required in order for ALUC to adopt fees,
does the Board have authority to amend the amount of the fee as set by the
Commission?
CONCLUSIONS:
1. No. The statute provides ALUC authority to adopt fees without the Board of
Supervisors' concurrence.
2. In order to impose fees, ALUC will need to have a study prepared to establish the
reasonable amounts for the various categories of fees. The manner for the collection
of the fees should be set out in the resolution or ordinance that adopts the fees and
when. received, should be turned over to the County Treasurer. The County Auditor
should provide accounting for the fees.
3. No. Since ALUC is an arm of the County, the County Auditor and Treasurer should
provide accounting and management of the fees without the need for a separate
agreement.
4. Not applicable.
ANALYSIS:
It is my opinion that the language used by the legislature in Section 21671.5(g) is clear on its
face and vests in the Commission, the authority to establish fees. The scope of the fees and'the nature
of the projects that the fees apply to is described in the second sentence of Section 2167.1.5(g) as
"charged to proponents of actions, regulations or permits" (which may come before the Commission
•
s
Mr. Thomas A. Parilo August 12, 1999
Ms. Paula Leasure Page 3
under its authority set out in Article 3.5 of Chapter 4 of Part 1 of Division 9 of the. Public Utilities
Code).
The above quoted language from Section 21671.5(g) does not appear to require approval by
the County Board of Supervisors, of ALUC's decision to impose fees. Thus, on the face of statute,
ALUC has authority to impose fees without the concurrence of the Board of Supervisors. However,
as I shall explain next, since ALUC is funded -and staffed by the County and is not authorized to
employ staff or retain independent contractors with the consent of the County, the fees generated by
ALUC, could only be used to reimburse the County for the cost of providing staffing and support to
ALUC.
As noted above, subsection (f) of 21671.5 states that the fees charged by the Commission shall not
exceed the reasonable cost of providing services and shall be imposed pursuant to Government Code
Section 66016, which states in pertinent part:
"(a) Prior to levying a new fee or service charge, or prior to approving an increase in
an existing fee or service charge, a local agency shall hold at least one open and public
meeting, at which oral or written presentations can be. made, as part of a, regularly
scheduled meeting. Notice of the time and place of the meeting, including a general
explanation of the matter to be considered, and a statement that the data required by
this section is available, shall be mailed at least 14 days prior to .the meeting to any
interested party who files a written request with the local agency for mailed notice of
the meeting on new or increased fees or service charges.... At least 10 days prior to the
meeting, the local agency shall make available to the public data indicating the
amount of cost, or estimated cost, required to provide the service for which the fee
or service charge is levied and the revenue sources anticipated to provide the
service, including General Fund revenues. Unless there has been voter approval, as
prescribed by Section 66013 or 66014, no local agency shall levy a new fee or service
charge or increase an existing fee or service charge to an amount which exceeds
the estimated amount required to provide the service for which the fee or service
charge is levied...."
(b) Any action by a local agency to levy a new fee or service charge or to approve an
increase in an existing fee or service charge shall be taken only by ordinance or
resolution. The legislative body of a local agency shall not delegate the authority to
adopt a new fee or service charge, or to increase a fee or service charge."
(Emphasis added.)
The importance of these procedures is that in order to establish a schedule of fees, ALUC will
need to prepare an analysis, the end result of whichwould quantify the cost to ALUC to process and
review the various land use matters that may come before it. The end result would be the production
of a report that would be a public document (open for public review and copying) that includes data
tracking the amount of time and expense of the Commission in processing the various types of land
•
Mr. Thomas A. Parilo
Ms. Paula Leasure
0
August 12, 1999
Page 4
use applications that the Commission is involved with. The absence of such a study/report would be
a fatal flaw and could subject any attempt to establish fees to litigation and a reversal of the
Commission's action. (For a further discussion of the requirements here, see Abbott, Moe and
Hanson, Public Needs & Private Dollars, Solano Press, pp. 122-124.)
Since under PUC Section 21671.5(c)' all of ALUC's costs are paid by the County, this raises
the question as to whether there is any real basis for ALUC to impose fees. It is my opinion that the
statute should not be read so narrowly to effectively nullify the grant of authority to charge fees. The
rules of statutory construction followed by the courts requires that we give the statute the plain
meaning of the words used and are to avoid an interpretation that would nullify any word or phrase.
Further we are to read the statute so as to harmonize its various parts and with other statutes. (See
Briggs v. Eden Council for Hope & Opportunity (1999) 19 CalAth 1106.)
Following the rules of statutory construction, it is my opinion that Section 21671.5 gives the
Commission -the authority to establish fees to recover all of the reasonable and necessary costs for the
operation of the Commission. This would include the costs of providing County staff and any
independent contractors that may be authorized by the Board of Supervisors. It again bears repeating
that fees may only be established following the procedural requirements in Government Code Section
66016, which includes the preparation of an analysis (report), documenting the cost for the processing
of the various types of land use permits and other matters that parties may be required to submit to the
Commission for its review. However, as will be discussed next, in light of the fact that the County is
responsible for all of the usual and necessary costs of the Commission, any fees imposed by the
Commission would need to be returned to the County to reimburse the County for the operation of the
Commission.
Under Section 21671.5(f), the fees charged to proponents of actions, regulations or permits
"shall not exceed the estimated reasonable cost of providing the services ...." This limitation is also
contained in the language in Government Code Section 66016, above. The clear intent of these
statutes is to limit the authority of local agencies (including ALUC) in levying fees, to the amount that
represents the recovery for the cost of providing the particular service. Since it is the County that
funds the cost of the Commission's services, the logical importhere is that the funds would flow to
the County, which is in keeping with the legislative intent to allow recovery of the cost of providing
the service. It simply would not make any sense to allow ALUC to retain fees that were charged for
services that were funded by the County.
' Public Utilities Code Section 21671.5(c) states:
"Staff assistance, including the mailing of notices and the keeping of minutes and
necessary quarters, equipment, and supplies shall be provided by the county. The
usual and necessary operating expenses of the commission shall be a county
charge."
•
Mr. Thomas A. Parilo
Ms. Paula Leasure
•
August 12, 1999
Page 5
This conclusion is also supported by the recognition that ALUC does not appear to have any
statutory authority to expend funds, by hiring its own staff or independent contractors or by leasing or
otherwise acquiring its own quarters, equipment and supplies. In this regard subsection (d) of 21671.5
states:
"Notwithstanding any other provisions of this article, the commission shall not employ
any personnel either as employees or independent contractors without the prior
approval of the Board of Supervisors." The Legislature's express directive that ALUC
be supported by the County operates to the exclusion of any implied powers here. (See
Miller v. McKinnon (1942) 20 Cal. 2d 83.)
From the above, it is clear that the Legislature has expressly denied the Commission the
authority to employ its own staff or to contract with independent contractors without the prior approval
of the Board of Supervisors. If the funds raised by the Commission could not be used to hire
additional staff or independent contractors unless the Board of Supervisors agreed to such action, any
fees raised by the Commission would have to go back to the County general fund to reimburse the
County for the costs of the operation of the Commission.
This conclusion is further supported from a review of the statutory grant of powers and duties
to ALUC in PUC Section 21674, which does not include any power to adopt a budget for its
operations.' In summary, read together these statutes make it clear that the County has the obligation
to provide the staff and equipment that reasonably necessary to support the operation and functions
of the Commission. While the Commission has some independent decision making authority from
the County Board of Supervisors on the subject of the adoption of land use plans and the review of
permits, the statutes requiring the establishment of airport land use commissions, makes them
dependent upon the County for their fiscal and operational support. In context then, the Commission's
authority to establish fees appears to merely serve as a vehicle to lessen the Commission's fiscal
impact on the County. The fee authority in Section 21671.5(f) cannot be read as empowering ALUC
to spend funds to hire its own staff or to otherwise acquire autonomy from the County (without the
approval of the Board of Supervisors), since such a result would conflict with the express provisions
in subsections (c) & (d) of Section 21671.5.
In light of this conclusion the other questions posed in your letter of June 28, 1999, do not
appear to need detailed analysis. In short, it is my opinion that any fees established by the Commission
would need to be paid and accounted for through normal County procedures. IF the Commission
elected to proceed with the adoption of a schedule of fees, the Commission would be required. Parties
with proposals before the Commission would need to pay their fees to the Commission, which would
be deposited in the County Treasury and be accounted for by the County Auditor's office. Since it
' Compare this to the power granted to LAFCO to establish a budget; see Government
Code Section 56381. Also note that under Government Code Section 56380, the costs of
operating LAFCO is a charge against the County.
Mr. Thomas A. Parilo August 12, 1999
Ms. Paula Leasure Page 6
does not appear that the Commission can be viewed as a special district (as that term is used in various
statutory provisions) but rather an arm of county government, it follows that the County Treasurer and
Auditor would have control and responsibility for any fees received by the Commission. Further, in
that regard, it would not be appropriate for the Commission to establish its own account in a local bank
or financial institution, as such action would not be authorized under the Government Code. (See
generally, Section 53600 et. seq..) Since the County is required to provide for the operation of the
Commission; including staff assistance, I do not believe that there is any need for a separate agreement
between the County and the Commission in order for the Commission to be able to use the services
of the County Auditor.
I hope this complies with your request and please let me know if you have any further
questions.
Very truly yours,
James A. Curtis l
JAC:kbb
P:UAC\Butte\ALUC-fee-opn-fin.wpd
cc: Robert Hennigan, Chairman .
Butte County Airport Land Use Commission
•
U
SHINE, COMPTON & NELDER, APC
ATTORNEYS AT U -W
Raymond E. Shine The Old Post Office
Charles A. Compton 131 S. Auburn Street
Maralee Nelder * -Suite 200
Grass Valley, California 95945
James A. Curtis,. Of Counsel
• Certified Specialist in Family Law (530) 272-2686
California State Board of Legal Specialization fax (530) 272-5570
May 13, 1999
Robert Hennigan, Chairman
Butte County Airport Land Use Commission
Mr. Thomas A. Parilo, Director of Development" Services
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 95965
RE: Butte County Airport Land Use Commission
Dear Messrs. Hennigan & Parilo:
Pursuant to your letter of April 6, 1999, you have requested my opinion for the guidance of the
Butte County Airport Land Use Commission on the following matters, regarding their 1998
amendments to the Chico Municipal Airport Environs Plan.'
1. Does the Butte County Airport Land Use Commission ("ALUC") have the authority
to prevent construction of single_ family dwellings on existing parcels (that are presently
zoned for such use) through the adoption of amendments to the 1978 Chico Municipal
Airport Environs Plan ("CMAEP")?Z .
I note that the request for a legal opinion contained a fourth question concerning when private property
owners can be said to have obtained "vested rights". In my subsequent conversation with Mr. Parilo I was informed
that an opinion on this question is no longer desired.
'- The CMAEP is also sometimes referred to as the Comprehensive Land Use Plan for the Airport or "CLUP".
Messrs. Hennigan & Parilo
2.
3.
i •
May 13, 1999
Page 2
If so, can the Butte County Board of Supervisors override these amendments to the
CMAEP?
If the Board of Supervisors does not take action to either amend the County General
Plan or prepare.(and adopt) overriding findings within 180 days (of the adoption of the
`amendments to the CMAEP) would ALUC have the authority to review single family
building permit (applications) within the new CLUP?
As is explained below, it, is my opinion that:
1. ",ALUC does not have the authority to adopt changes to the comprehensive land use plan
for the Chico Airport (the "CLUP") so as to prevent the construction of single family
dwellings on existing parcels that are zoned "R-1", if the practical effect is to prohibit
any reasonable use of the real property, resulting in a taking of the private property.
2. • The Board of Supervisors has authority under Public Utilities Code Section 21676 to
overrule the Airport Land Use Commission's determination as to consistency between
the CLUP and the County General Plan and thereby, in effect, override the subject
amendments -to the CLUP. Any such action by,the Board of"Supervisors must be
supported by specific and• legally adequate findings that the proposed ,action is
consistent with the purposes set out in Public Utilities Code Section 21670.
3. If ALUC finds that the County has not revised the County General, -Plan or,
alternatively 'adopted findings overrule ALUC (in accordance with Public Utilities
Code Section 21676), ALUC may require the County to submit all subsequent actions,
regulations and permit applications to. ALUC for review until the general plan is
amended or such overruling findings are made.
FACTUAL BACKGROUND
Factually, I have been advised that in October 1998, the Butte County Airport Land Use
Commission (ALUC). adopted amendments to the 1978 Chico Municipal Airport Environs Plan
(CMAEP). The CMAEP constitutes a comprehensive land use plan ("CLUP") for the Chico airport
consistent with the provisions for such plans contained in the Public Utilities Code Section 21675.
In pertinent part, the 1998 amendments to the CLUP created an Overflight Protection Zone
("OPZ") around the Chico Airport. The "1998 amendments state that within the OPZ "development
of new residential uses shall be prohibited in the area defined as Zone A..." and, "in Zone B no new
single family residential uses shall be permitted." The amendments then, state that "approval of,
t
Ft
t
Messrs. Hennigan & Parilo May 13, 1999
• Page 3
multiple family residential uses in Zone B'shall contain conditions requiring dedication of aviation
easements.:.."
Your opinion request of April 6, 1999 states, "the Airport Land Use Commission does not want
single family dwellings to be permitted on existing legally created parcels in Zone "A" even though
they are currently zoned R-1, R-2, R-3, SR, SR -1, and SR -3. It is my understanding that some of the
property within the OPZ has previously been subdivided and zoned for single family residential use.
I have been informed that due to the size of some of the subdivided property, such properties may not
be suitable for other productive uses, other than for development with single family residences. In any
event, it is my understanding that the County's general plan and zoning ordinances do not presently
contemplate or allow multi -family residential uses on property that is zoned R-1, R-2, SR, SR, SR -1,
or SR -3.3
Accordingly, the initial question here that ALUC' seeks advice on is whether the 1998
amendments to the CMAEP can legally prohibit the construction of single family homes on the
previously subdivided property that is within the OPZ. -
ANALYSIO
I begin my analysis with a recognition that the State Legislature has declared it to be in the
public interest to provide for the orderly development of public airports and the land surrounding those
airports. Among the objectives of the state law is the protection of "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." (See Public Utilities Code
Section 21670)5. State law requires the establishment of a local airport land use commission
("ALUC") in each county that has an airport operated for the benefit of the general public. The ALUC
is responsible for the preparation and adoption of a comprehensive airport land use plan (CLUP)
pursuant to PUC Section 21675.
In turn, pursuant to Government Code Section 65302.3, the County's general plan is required
to be consistent with the airport land use plan adopted by ALUC. Further, upon amendment of the
CLUP, the County is required to amend the general plan, if it is necessary to do so in order to maintain
' See Sections 24-120 and 24-135 of the Butte County Zoning Ordinance.
Hopefully the indepth nature of this analysis will also serve as guidance to the Commission in future land ,
use planning efforts.
' The Public Utilities Code is hereinafter referred to as the "PUC".
L�
Messrs. Hennigan & Parilo May 13, 1999
Page 4
consistency with the CLUP. If the County does not concur with ALUC's determination of the
consistency between the CLUP and the County general plan, the County may overrule ALUC's
determination by adopting specific findings, supported by evidence, that the County's action is
consistent with the purposes set out is PUC Section 21670. The instant legal opinion concerns certain
amendments to the land use plan adopted'for the Chico Municipal Airport in 1978, referred to as the
Airport Environs Plan or CMAEP.
QUESTION # 1. CAN THE AMENDMENTS TO THE CMAEP LEGALLY PROHIBIT THE CONSTRUCTION
OF SINGLE FAMILY HOMES ON THE PREVIOUSLY SUBDIVIDED PROPERTY THAT IS WITHIN THE OPZ?
While it is clear that under state law ALUC has the power to adopt a land use plan that restricts
the right to use and to develop property within the planning area around the' airport, the facts as
presented in the instant opinion request raise the question as to whether the CLUP can, in effect,
prohibit the building of single family residences on property that has been subdivided and zoned for
that purpose. The answer to this question involves an analysis of the right of governmental entities
to regulate the use of private property, where the regulation has the potential to effectively deny the
private property owners all economically viable and beneficial use of their property. Modernly, both
• the federal and state courts have characterized such regulations as constituting. a "taking of real
property" that requires compensation in accordance with the Fifth and Fourteenth Amendments to the
United States Constitution. In the absence of payment of just compensation, such regulations are
viewed as unconstitutional.
In Lucas v. South Carolina Coastal Commission (1992) 120 L Ed 2d 798, the United States
Supreme Court considered the question of whether South Carolina's Beachfront Management Act
("BMA") constituted a taking of two parcels of land, located on a barrier island off of the coast, owned
by Mr. Lucas. At the time that Lucas purchased his -property it had been subdivided and zoned for
residential development. In adopting the BMA, the South Carolina legislature stated that (among other
reasons) the BMA was necessary to protect life and property, to promote tourism and to protect the
beaches and dunes along the coast. The trial court found that the effect of the BMA was to prohibit
Lucas from building single family residences upon his two parcel and that this prohibition deprived
Lucas of any reasonable economic use of the lots and rendered them valueless. (See Lucas v. South
Carolina Coastal Commission (1992) 120 L. Ed. 2d 798 at 809.) 6
In discussing the law in this area the U.S. Supreme Court commented:
• e In considering the case before it got to the United States Supreme Court, the South Carolina Supreme Court
had concluded that when a regulation respecting the use of private property is designed to prevent serious public harm,
no compensation is constitutionally required See Lucas v. South Carolina Coastal Commission (1992) 120 L. Ed. 2d
798 at 809. The U. S. Supreme Court disagreed.
Messrs. Hennigan & Parilo May 13, 1999
Page 5 .
,"As we have said on numerous occasions, the Fifth Amendment is violated when land
use regulation `does not substantially advance legitimate state interests or denies al;.
owner economically viable use of his land'." (Id. at pg. 813)
The Supreme Court acknowledged that governmental entities are clearly entitled to regulate
land use and the fact that the' regulations may. negatively affect the value of property does not give rise
to a violation of the constitution and a taking of property.
."And the functional basis for permitting the government, by regulation, to affect
property values without compensation — that `Government hardly could go on if to
some extent values incident to property could not be diminished without paying for #
every such change in the general law', does not apply to the relatively rare situations
.where the government has deprived a landowner of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a compensation requirement,
is the fact that regulations that leave the owner of land without economically beneficial
or' productive options for its use - typically; as here, by requiring land to be left
substaintially.in.its natural state — carry with them a heightened risk that private
property is being pressed into some form of public service under the guise of mitigating
serious public harm." (Id. at pg. 814) r
In Lucas the Supreme Court concluded that when a private property owner is denied all
reasonable and economically viable use of his property, such regulations can be upheld only when their
affect is to prohibit harmful uses that, under common law, would amount to a nuisance by the private
property owner. (Id. at pgs. 8197821)
In the recent decision in Kavanaugh v. Santa Monica Rent Control Board (1997) 16 Cal. 4`h
761, at 773-774, the California Supreme Court provided further clarification of the law, in stating:
"The state and federal Constitutions prohibit government from taking private property
t for public use without just compensation. (Cal. Const., Art. I, § 19; U.S. Const., 5th
Amend.), ... the United States Supreme Court recognized that a regulation of property
that `goes too far' may effect a taking of that property, though its title remains in
private hands. In such a case, the property owner may bring an inverse condemnation
action, and if it prevails, the regulatory agency must either withdraw the regulation or i
pay just compensation. (First Lutheran Church v. Los Angeles County (1987)'482 U.S. ;
304, 317, 321 [107 S.Ct. 2378, 2389, 96 L.Ed.2d 250].) Even if the agency withdraws
the regulation, the property owner may have a right to just compensation for the ,
temporary taking while the regulation was in effect. (Citation omitted.)
Messrs. Hennigan & Parilo May 13, 1999
Page 6
The United States Supreme Court has struggled to articulate a standard for when a
regulation "goes too far" and effects a taking. The court has stated broadly that the
takings clause is `designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.' (Citation omitted.) (Emphasis added.)
"A regulation, however, may effect a taking though, as is true here, it does not involve
a physical invasion and leaves the property owner some economically beneficial use
of his property. In Lucas, the high court expressly rejected the "assumption that the
landowner whose deprivation is one step short of complete is not entitled to
compensation." (Id. at pg. 774)
This last statement is significant since it represenis a clarification by the California Supreme
Court that a regulatory taking may exist even though the owner of private property is left with some
economical value to his or her property. The determination of when a regulation goes too far and
effects a taking can be made either from a review of the face of the regulation, a "facial challenge" or
from the application of the regulation to the specific facts of individual properties, an "as applied"
challenge. The latter inquiry requires the court to evaluate the regulation's effect on specific property
in light of a number of factors.'
In Kavanaugh the Supreme Court stated, at pgs 775-776:
"When a regulation does not result in a physical invasion and does not deprive the property owner
of all economic use of the property, a reviewing court must evaluate the regulation in light of the
"factors" the high court discussed in Penn Central and subsequent cases. Penn Central emphasized
three factors in particular: (1) "[t]he economic impact of the regulation on the claimant"; (2) "the
extent'to which the regulation has interfered with distinct investment -backed expectations"; and (3)
"the character of the governmental action." (Penn Central, supra, 438 U.S. at p. 124 [98 S.Ct. at p.
2659]; MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340,,349 [106 S.Ct. 2561,
2566,91 L.Ed.2d 285]; Kaiser Aetna v. United States (1979) 444 U.S. 164,175 [ 100 S.Ct. 383, 390,
62 L.Ed.2d 332].) Subsequent cases, as well as a close reading of Penn Central, indicate other
relevant factors: (1) whether the regulation "interfere[s] with interests that [are] sufficiently bound
up with the reasonable expectations of the claimant to constitute 'property' for Fifth Amendment
purposes" (Penn Central, supra, 438 U:S. at p. 125 [98 S.Ct. at p. 2656]); (2) whether the regulation
affects the existing or traditional use of the property and thus interferes with the property owner's
"primary expectation" (id. at pp. 125, 136 [98 S.Ct. at pp. 2659, 2665]); (3) "the nature of the State's
interest in the regulation" (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470,488
[107 S.Ct. 1232, 1243, 94 L.Ed.2d 472] (Keystone); see also Mugler v. Kansas (1887) 123 U.S. 623,
668-669 [8 S.Ct. 273, 300-301, 31 L.Ed. 205]) and, particularly, whether the regulation is "reasonably
necessary to the effectuation of a substantial public purpose" (Penn Central, supra, 438 U.S. at p. 127
• [98 S.Ct. at p. 2660]); (4) whether the property owner's holding is limited to the specific interest the
regulation abrogates or is broader (id. at pp. 127-128 [98 S.Ct. at p: 2661]); (5) whether the
government is acquiring "resources to permit or facilitate uniquely public functions," such as
government's "entrepreneurial operations" (id. at pp. 128, 135 [98 S.Ct. at pp. 266, 2665]); (6)
Messrs. Hennigan & Parilo May 13, 1999
Page 7
Applying the courts' above teachings to the question of whether the 1998 amendments to the
CLUP constitutes a taking of private property will most likely require an analysis of each of the
individual parcels that are affected by these amendments and is beyond the scope of the opinion
request. However, to the extent that the 1998 amendments prohibit any reasonable economically
viable use of specific properties within the OPZ, then the regulation would constitute a taking of
property and no further analysis would be needed and no further action would be required by the
property owner in order to be able to proceed with litigation against the public entity adopting same.'
From the facts described above, it is my opinion that to the extent that the 1998 amendments
to the CMAEP are read as prohibiting the building of single family residences on parcels that have
been subdivided and zoned for such use, there is a very real prospect that these amendments could be
found to be unconstitutional as a "taking" of private property.'
THE 1998 AMENDMENTS READ AS NOT CONSTITUTING A TAKING OF PRIVATE PROPERTY
As noted above, the 1998 amendments to the CMAEP prohibit development of new residential
uses within the OPZ. Of potential import here is the fact the these amendments do not provide any
definition of what constitutes residential development, or more precisely, "development of new
residential uses". The absence of language in these amendments (or in the original 1978 CMAEP)
whether the regulation "permit[s the property owner] ... to profit [and] ... to obtain a 'reasonable
return' on ... investment" (id. at p. 136 [98 S.Ct. at p. 2665]); (7) whether the regulation provides the
property owner benefits or rights that "mitigate whatever financial burdens the law has imposed" (id.
at p. 137 [98 S.Ct. at p. 2666]; Keystone, supra, 480 U.S. at p. 491 [107 S.Ct. at p. 1245]; Agins v.
Tiburon, supra, 447 U.S. at p. 262 [ 100 S.Ct. at p. 2142]); (8) whether the regulation "prevent[s] the
best use of [the] land" (Agin v. Tiburon, supra, 447 U.S. at p. 262); (9) whether the regulation
"extinguish[es] a fundamental attribute of ownership" (ibid.); and (10) whether the government is
demanding the property as a condition for [page 776]the granting of a permit (Dolan v. City of Tigard
(1994) 512 U.S. 374,385 [114 S.Ct. 2309, 2316, 129 L.Ed.2d 304] (Dolan); Nollan, supra, 483 U.S.
at pp. 831, 841 [ 107 S.Ct. at pp. 3150-3151 ])".
"This list is not a comprehensive enumeration of all the factors that might be relevant to a takings
claim, and we do not propose a single analytical method for these claims. Rather, we simply note factors the
high court has found relevant in particular cases. Thus, instead of applying these factors mechanically,
checking them off as it proceeds, a court should apply them as appropriate to the facts of the case it is
considering."
s In the U.S. Supreme Court's recent decision in Suitum v. Tahoe Regional Planning Agency (1997) 137
L.Ed.2d. 980, the Supreme Court found that the effect of the Tahoe Regional Planning Agency's environmental
regulations was to prohibit Ms. Suitum from building a modest residence on her property in the Lake Tahoe basin and
provided a basis for a suit against the Agency for a taking of private property.
• v For a good discussion of the law relating to "regulatory takings" see Chapter 12, Curtin's California Land
Use and Planning Law, 18" Ed (1998); also see article on "Zoning Regulations Limiting Use of Property Near Airports
As Taking of Property", 18 ALR 4", 542.
Messrs. Hennigan & Parilo May 13, 1999
0 Page 8
clarifying what is meant by this. term appears to invite.(or require) interpretation by the reader. It is
one of the maxims of the law pertaining to the interpretation of statutes (and ordinances) that where
a law is susceptible of several interpretations, one of which invites serious constitutional problems,
courts will construe the statute, if possible, to avoid the problems. (See F&L Fam Company v. City
Council (1998) 65 Cal.App.4th 345.)
If the choice here is between a reading of the 1998 amendments in a manner that results in an
unconstitutional taking of real property (by depriving property owners of individual parcels that are
zoned for single family use, the right to build homes) or, alternatively, construing the phrase
"development of new residential uses" as applying to property that is susceptible of further land
divisions or more intense development such as for commercial purposes, the courts may apply the
latter construction, since it would not amount to an unconstitutional taking of private property.
QUESTION #2 DOES THE BUTTE COUNTY BOARD OF SUPERVISORS HAVE AUTHORITY TO OVERRIDE
THE 1998 AMENDMENTS TO THE CMAEP?
• PUC Section 21676 states in relevant part:
"a) Each local agency whose general plan includes areas covered by an airport land
use commission plan shall, by July 1, 1983, submit a copy of its plan or specific plans
to the airport land use commission. The commission shall determine by August 31,
1983, whether the plan or plans are consistent or inconsistent with the commission's
plan. If the plan or plans are inconsistent with the commission's plan, the local
agency shall be notified and that local agency shall have another hearing to
reconsider its plans. The local agency may overrule the commission after such
hearing by a two-thirds vote of its governing body if it makes specific findings
that the proposed action is consistent with the purposes of this article stated in
Section 21670." (Emphasis added.)
Section 21670 states in relevant part:
"(a) The Legislature hereby finds and declares that:
(1) It is in the public interest to provide for the orderly development of each public use
airport in this state and the area surrounding these airports so as to promote the overall
goals and objectives of the California airport noise standards adopted pursuant to
Section 21669 and to prevent the creation of new noise and safety problems.
(2) It is the purpose of this article to protect public health, safety, and welfare by
ensuring the orderly expansion of airports and the adoption of land use measures that
Messrs.. Hennigan & Parilo May 13, 1999
• Page 9
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." (Emphasis added.)
And as noted above,. Government Code Section 65302.3 requires the County to amend its
general plan, as may be necessary to maintain consistency with the airport land use plan (CLUP),
within 180 days of any amendment to the CLUP. Section 65302.3 further states that "if the legislative
body does not concur with any provision of the plan required under PUC Section 21675, it may satisfy
the provisions of this section by adopting findings pursuant to Section 21676 of the Public Utilities
Code." (See also PUC Section 21676.5, discussed below.)
Read together, it is clear from these statutes that the County Board of Supervisors has the
authority to overrule a decision by ALUC concerning the consistency of the County General Plan (and
the County's implementing ordinances) with the airport land use plan. However, an important
limitation on the Board's authority here is that any such action by the Board must be supported by
specific findings.10
With regard to the 1998 amendments it appears that in addition to the above discussion, the
Board of Supervisors might have several reasons for concluding that continuing to allow the
construction of single family homes on existing parcels is consistent with the purposes set out in PUC
Section 21670.
First, to the extent that the decision is to simply to allow private property owners to build single
family residences on individual parcels that are zoned for this purpose and are the product of past
subdivision approvals, the County may determine that the subject parcels have "already been devoted
to incompatible uses", within 4the meaning of Section 21670 (highlighted above). In concept, the
argument here would be that the real discretionary decisions concerning land development typically
occurs first with the adoption of the general plan and'zoning ordinances which.establish the uses to
which property may be put, followed by more detailed decisions regarding the use of specific property
when a property owner seeks subdivision approval. At each of these stages the public entity has the
inherent discretion to allow onto prohibit the development in an'area within its jurisdiction. Each of
10 The question of the requirement for specific findings and what generally constitutes findings was addressed
in the case of California Aviation Council v. City of Ceres (1992) 9 Cal.App.4th 1384. In Ceres the court concluded
that the decision of the Ceres City Council to overrule the local airport land use commission's determination that an
ordinance approving a specific plan for property covered by the local land use plan was not consistent with that plan,
was not supported by adequate findings. The court concluded that the decision to overrule was adjudicatory in nature
and required the Council to identify the facts that it- was relying upon and to link those facts to its decision that the
purposes of PUC Section 21670 were met in the instant case. The court referenced the case of Topanga Association
for a Scenic Community v. County of Los Angeles (1974) as to the requirements for specific factual findings for
adjudicatory decisions. (Id at pg. 1392-1394)
Messrs. Hennigan & Parilo May 13, 1999
• Page 10
these decisions must also be preceded with an evaluation of. the environmental consequences and
potential impacts stemming from the public agency's decision, as required by the California
Environmental Quality Act ("CEQA"). Once these approvals are iri place and property has been
subdivided and sold off to individuals, it can be hard, if not legally impossible, to roll back the clock
without creating an unconstitutional taking of private property. The exception would be in those
extraordinary situations where the use of the individual residential parcels may create a nuisance ( per
the above discussion.)
Another basis for the Board's decision to overrule the ALUC might exist in what appears to
be somewhat contradictory provisions of the 1998 amendments. To the extent the text in these
amendments appears to allow development of multiple family residential projects while prohibiting
development of single family homes on some or all of the property within the OPZ Jt could be argued
that such action would increase the population density within the OPZ and thereby be counter to the
goals in PUC Section 21670, to minimize the public's exposure to noise and safety hazards in areas
around the airport."
• QUESTION 0 IF THE BOARD OF SUPERVISORS DOES NOT TAKE ACTION TO EITHER AMEND THE COUNTY
GENERAL PLAN OR PREPARE (AND ADOPT) OVERRIDING FINDINGS WITHIN 180 DAYS (OF THE ADOPTION
OF THE AMENDMENTS TO THE CMAEP) woULD ALUC HAVE THE AUTHORITY TO REVIEW
APPLICATIONS FOR SINGLE FAMILY BMDING PERMITS WITHIN THE OPZ?
The reference to the 180 day time limit in which the County is required to amend the general
plan is set out in Government Code Section 65302.3. That statute allows the Board of Supervisors to
either amend the general plan or, alternatively, adopt findings in accordance with PUC Section 21676,
"if the legislative body does not concur with any provision of the plan required under Section
21675...." The statutory intent here appears to be to give the Board of Supervisors some limited ability
to overrule or to reject parts of the airport land use plan with which it may disagree.
In reading.Section 65302.3 I note that it does not track precisely with the provisions in Section
21676. Specifically, the authority of the Board to overrule the ALUC by adopting findings is tied to
a decision by ALUC concerning the consistency of the two plans or any zoning ordinances or building
" The specific language that is of concern here is as follows:
• "The area defined as Zone B (of the OPZ) is subject to less intensive overflight activity. In
Zone B no new single family residential uses shall be permitted. Any approval of multiple family
residential uses in Zone B shall contain'conditions requiring the dedication of aviation easements to
the airport operator and notification of potential tenants of overflight activity."
•
Messrs. Hennigari & Parilo May 13, 1999
Page 11
regulations adopted by the County.12 In contrast, the requirement in Government Code Section
65302.3 for the County to amend the general or specific plan is triggered by the amendment of the
airport land use plan (CLUP), not by a separate determination of consistency between the two plans.
If we assume that it is possible that the CLUP could be amended in such a manner so as to be totally
consistent with the existing County General Plan, it would follow that in such a case, the Board would
not have any obligation to take any further action under Section 65302.3. This raises the question then
of how the County is supposed to know when it is obligated to take action under Section 65302.3 and
the timing as to when the County's obligation arises.
Under the rules of statutory construction, these statutes should be read together so as to
harmonize them, if it is possible to do so. (See Mar v. Sakti International Corporation (1992) 9
Cal.AppAth 1780, at 1784) Reading these statutes in this manner leads to a conclusion that the 18.0
day time line for action by the Board of Supervisors should be begin with adoption or amendment of
the CLUP, which ALUC has specifically determined requires the County to make amendments to the
County General Plan. Unless ALUC specifically identifies existing provisions of the general plan
which ALUC finds are inconsistent with the amendments to the CLUP when it adopts amendments
to the CLUP, the County could be left to guess as to whether ALUC has determined the existing
general plan to be inconsistent with the new amendments. In such a case, it would seem inappropriate
to view the County as having an obligation to take action unless specific inconsistencies between the
two plans are identified by ALUC with direction given to the County to make appropriate amendments
to the general plan.
With respect to the 1998 amendments to the. CLUP, the amendments do not appear to'identify
specific provisions of the County General Plan that are inconsistent with these amendments. The letter
of transmittal notifying the County Planning Department of the 1998 amendments also does not appear
to identify specific inconsistencies. Rather, that letter merely cites the provisions of the PUC and
Government Code (discussed above) that create the obligation on the part of the County to take action,
if inconsistencies exist. In light of this, it is my opinion and recommendation that if ALUC believes
that there are inconsistencies between the CLUP, as amended in 1998, then ALUC should specifically
identify the inconsistencies and notify the County of its duty to make appropriate amendments.
The second portion of your third question seeks direction as to whether ALUC can require the
County to submit applications for specific building permits (and I assume, other land use actions
pending with the County) to ALUC for its.review. In this regard, PUC Section 21676.5 states:
12 Also see PUC Section 21676.5 which authorizes ALUC to require the County to submit all subsequent (land
use) actions to ALUC for review until the general plan is amended or specific findings are made.
Messrs. Hennigan & Parilo May 13, 1999
Page 12
"(a) If the commission finds that a local agency has not revised its general plan or '
specific.plan or overruled the commission by a two-thirds vote of its governing body
after making specific findings that the proposed action is consistent with the purposes
of this article as stated in Section 21670, the commission may require that the local
agency submit all subsequent actions, regulations, and permits to the commission for
review until its general .plan or specific plan is revised or the specific findings are
made. If, in the determination of the commission, an action, regulation; or permit of
the local agency is inconsistent with the commission plan, the local agency shall be
notified and that local agency shall hold a hearing to reconsider its plan. The local
agency may overrule the commission after the hearing by a two-thirds vote of its
governing body if it makes specific findings that the proposed action is consistent with
the purposes of this article as stated in Section"21670."
"(b) Whenever the local agency has revised' its general plan or specific plan or has
overruled the commission pursuant to subdivision (a), the proposed action of the local
agency shall not be subject to further commission review, unless the commission and
the local agency agree that individual projects shall be reviewed by the commission."
Section 21676.5 gives ALUC the authority to require the County to submit pending land use
actions, including but not limited to the approval of permits to ALUC for its review until the general
plan is made consistent with the 'CLUP, or the Board of Supervisors adopts appropriate findings
overruling ALUC. Of interest here, nothing in Section 21676.5 expressly provides for or references
a 180 day grace period from the adoption of any amendments to the CLUP. As noted above, the 180
day time line is set out in .Government Code Section 65302.3. Again, being mindful of the
requirement to -read statutes in a manner so as to harmonize them, it would appear reasonable to infer
that the authority of ALUC to require review of land use actions by the County should not begin until
after the expiration of the 180 day time period set out -in Government Code Section 65302.3.
However, I also recognize, that from the standpoint of the public policy expressed in PUC Section
21670, there may be good reason to conclude that ALUC's authority to require review commences
upon the adoption of any amendment to the CLUP which creates an inconsistency with the County
General Plan. Unfortunately, my research and review of the lawhere did not provide any dispositive
answer to this issue. Accordingly, I am at a loss to provide an opinion as to when this obligation arises.
However, in any event, and referring back to the above discussion regarding an implied obligation on
the part of ALUC to identify any inconsistencies between the two plans when the CLUP is amended,
it is my opinion that ALUC could not reasonably exercise its authority to require the County io submit
land use actions to it for review unless and until it finds that the general plan is inconsistent with the
CLUP and identifies the inconsistencies.
40
Messrs. Hennigan & Parilo May 13, 1999
Page 13
It should also be noted that assuming that ALUC identifies inconsistencies between the CLUP
and the County General Plan, under PUC Section 21767.5 (b), once the Board of Supervisors amends
the general plan or. overrules ALUC's consistency determination (with appropriate legally adequate
findings), ALUC's authority to require review of periding land use matters expires, unless the County
otherwise agrees to further review by ALUC.
I trust that the foregoing is responsive to your request. If the members of the Butte County
Airport Land Use Commission have any questions' or wish to discuss the issues addressed herein, I
would be happy to attend their meeting to address same. Thank you for the opportunity to be of
service.
Very truly yours, .
J es A. Curtis
JAC:kbb
P:UAC\Butte\ALUC-opn-fin.wpd
W
October 6, 1999
Susan Minasian, County Counsel
County of Butte
25 County Center Drive
Oroville, CA 95965
RE: Request for Legal Opinion
Dear Susan:
. butte Li
LAND OF NATURAL WEALTH AND BEAUTY
AIRPORT LAND USE COMMISSION
7 COUNTY CENTER DRIVE • OROVILLE, CALIFORNIA 95965-3397
TELEPHONE: (530) 538-7601
FAX: (530) 538-7785
The Airport Land Use Commission has directed staff to request legal assistance on three issues
discussed at the September 15; 1999 Airport Land Use Commission,
1. Conditions and Consistency - The Commission would like clarified whether ALUC can
only decide consistency versus inconsistency, or can the ALUC attach conditions
stipulating that a project can be found consistent based upon meeting specific required
conditions.
The Cal -Trans Handbook provides the following information:
After Adoption of a Compatibility Plan - After the Commission has adopted a
compatibility plan for an airport, the nature of its review of land use matters changes. It
now has' -or should have= a set of policies and criteria by which to evaluate the land use
proposal. The question then becomes one of determining whether the proposal is
consistent or inconsistent with the compatibility plan. (Page 4-10, 2nd to last paragraph.)
The Aeronautics Act (Sections 21676(a) and 21676.5(a)) mentions only these two choices
Of action. No mention is made about finding a proposal consistent with conditions
attached. Nevertheless, some ALUCs have found this to be an acceptable action choice.
It is reasoned that such an action saves the applicant the step of returning to the
Commission with a revised proposal incorporating the Commission's conditions for
approval. Regardless of which set of action choices an individual AL UC allows for itself,
the compatibility plan 's policies should indicate what the action choices are. (Page 4-10,
last paragraph.)
Susan Minasian, County Counsel
October 8, 1999
Page 2
2. Commissioner Conflict of Interest - At the September ALUC meeting, Chair Hennigan
submitted the following proposed amendment to the Airport Land Use Commission By -
Laws.
Members of the Commission must recognize their obligation to represent the interest of
all the public of the region served by the airport. It is inappropriate for a member to
merely be an advocate representing a small geographical area (i.e. city, District, or
county) or a single interest group (i.e. pilots, builders). Elected officials may be
members, but have a moral obligation to represent citizens who are unable to vote for
that elected position.
Three categories of conflicts are recognized in the law:
(1) Financial conflicts when 'a Commissioner has some possible financial interest
in the outcome of a vote.
(2) Conflict of duties is when a Commissioner has other positions that put'him/her
in the position of voting on the same issue in more than one forum and
representing a different constituency, and
(3) Conflict of loyalties is when a Commissioner works for, or represents as an
elected member; an entity impacted by ALUC decisions.
Staff advised the Commission that this amendment to the By -Laws would have
significant ramifications with a minimum of two Commissioners being disqualified.
Staff further advised that Commissioner and staff conflicts of interest is already regulated
by the Political Reform Act and the Brown Act.
The Commission then directed staff to forward the proposed amendment to County
Counsel's Office for a legal opinion as to whether the Commission can legally adopt the
proposed amendment.
3. Statutory Time Limits for Keeping Files - Chair Hennigan proposed an
amendment to ALUC Standard Operating Procedures to include the following:
"Any written records, documents, files, and tape recordings involving an AL UC decision
under legal dispute or resulting in an override shall be kept intact (unedited or unpurged)
indefinitely. "
By consensus of the Commission, it was agreed to retain ALUC files for one year prior to
microfilming. However, the Commission would like to know what the legal
requirements are for retaining project files and those files which maybe subject to a
lawsuit.
•
Susan Minasian, County Counsel
October 8, 1999
Page 3
Cortese -Knox requires LAFCo to retain project files for two years after a project'is
complete. Files can then be microfilmed. I did not find anything in the Aeronautics
Code or the Cal -Trans Handbook regarding file maintenance.
We would appreciate your assistance in resolving some of these issues within the next month or:
two. If you determine that County Counsel's Office cannot provide assistance on these matters,
we would appreciate your sending'them to outside legal counsel for review.
Sincerely,
Paula Leasure
Principal Planner
PL/bd
1 h
K: IAL U000RR£SP01M/NAS/AN;VPD
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0� ; ° Planning Division
SHINE, COMPTON & NELDER, APC AUG 1 61999
ATTORNEYS AT Uw
Raymond E. Shine The Old Post Office
Charles A. Compton 131 S. Auburn Street
Maralee Nelder * Suite 200
Grass Valley, California 95945
James A. Curtis, Of Counsel
Certified Specialist in Family Law (530) 272-2686
California State Board of Legal Specialization " fax (530) 272-5570
August 12, 1999
Mr. Thomas A. Parilo, Director. of Development Services
Ms. Paula Leasure
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 95965
RE: Authority of Butte County Airport Land Use Commission to Establish Fees
Dear Mr. Parilo and Ms. Leasure:
In response to your request of June 28, 1999, I am providing the following opinion concerning
the authority of the Butte County Airport Land Use Commission to establish fees for the review of land
use applications and airport plans.
Public Utilities Code ("PUC") Section. 21671.5, subparagraph (f) states:
"The commission may establish a schedule of fees necessary to comply with
this article. Those fees shall be charged to the proponents of actions,
regulations, or permits, shall not exceed the estimated reasonable cost of
providing the service, and shall be imposed pursuant to Section 66016 of the
Government Code. Except as provided in subdivision (g), after June 30,1991,
a commission which has not adopted the comprehensive land use plan required
by Section 21675 shall not charge fees pursuant to this subdivision until the
commission adopts the plan."
1
Mr. Thomas A. Parilo August 12, 1999
Ms. Paula Leasure Page 2
You have indicated that the Butte County Airport Land Use Commission (hereinafter referred
to as "ALUC" or the "Commission") is interested in adopting a schedule of fees and in that regard, the
following questions have been raised:
QUESTIONS:
1. Would a fee adopted by ALUC be subject to approval by the Butte County Board of
Supervisors?
2. If Board of Supervisors' approval is not required, what is the correct method for
collection of fees and who is responsible for accounting?
3. Would ALUC have to reach an agreement with the Board of Superyisors in order for
the Butte County Auditor's Office to establish a fund for fees received and expended?
4. If approval of the. Board of Supervisors is required in order for ALUC to adopt fees,
does the Board have authority to amend the amount of the fee as set by the
Commission?
CONCLUSIONS:
1. No. The statute provides ALUC authority to adopt fees without the Board of
Supervisors' concurrence.
2. In order to impose fees, ALUC will need to have a study prepared to establish the
reasonable amounts for the.various categories of fees. The manner for the collection
of the fees should be set. out in the resolution or ordinance that adopts the fees and.
when received, should be turned over to the County Treasurer. The County Auditor
should provide accounting for the fees.
3. No. Since ALUC is an arm of the County, the County Auditor and Treasurer should
provide accounting and management of the fees without the need for a separate
agreement.
4. Not applicable.
ANALYSIS:
It is my opinion that the language used by the legislature in Section 21671.5(g) is clear on its
face and vests in the Commission, the authority to establish fees. The scope of the fees and the nature
of the projects that the fees apply to is described in the second sentence of Section 21671.5(g) as
"charged to proponents of actions, regulations or permits" (which may come before the Commission.
Mr. Thomas A. Parilo
Ms. Paula Leasure
August 12, 1999
Page 3
under its authority set out in Article 3.5 of Chapter 4 of Part 1 of Division 9 of the Public Utilities
Code).-
The
ode):
The above quoted language from Section 21671.5(g) does not appear to require approval by
the County Board of Supervisors, of ALUC's decision to impose fees. Thus, on the face of statute,
ALUC has authority to impose fees without the concurrence of the Board of Supervisors. However,
as I shall explain next, since ALUC is funded and staffed by the County and is not authorized to
employ staff or retain independent contractors with the consent of the County, the fees generated by
ALUC, could only be used to reimburse the County for the cost of providing staffing and support to
ALUC.
As noted above, subsection (f) of 21671.5 states that the fees charged by the Commission shall not
exceed the reasonable cost of providing services and. shall be imposed pursuant to Government Code
Section 66016, which states in pertinent part:
"(a) Prior to levying a new fee or service charge, or prior to approving an increase in
an existing fee or service charge, a local agency shall hold at least one open and public
meeting, at which oral or written presentations can be made, as part of a regularly
scheduled meeting. Notice of the time and place of the meeting, including a general
explanation of the matter to be considered, and a statement that the data required by
this section is available, shall be mailed at least 14 days prior to the meeting to any
interested party who files a written request with the local agency for mailed notice of
the meeting on new or increased fees or service charges.... At least 10 days prior to the
meeting, the local agency shall make available to the public data indicating the
amount of cost, or estimated cost, required to provide the service for which the fee
or service charge is levied and the revenue sources anticipated to provide the
service, including General Fund revenues. Unless there has been voter approval, as
prescribed by Section 66013 or 66014, no local agency shall levy a new fee or service
charge or increase an existing fee or service charge to an amount which exceeds
the estimated amount required to provide the service for which the fee or service
charge is levied...."
(b) Any action by a local agency to levy a new fee or service charge or to approve an
increase in an existing fee or service charge shall be taken only by ordinance or
resolution. The. legislative body of a local agency shall not delegate the authority to
adopt a new fee or service charge, or to increase a fee or service charge."
(Emphasis added.)
The importance of these procedures is that in order to establish a schedule of fees, ALUC will
need io prepare an analysis; the end result of which would quantify the cost to ALUC to process and
review the various land use matters that may come before it. The end result would be the production
of a report that would be a public document (open for public review and copying) that includes data
tracking the amount of time and expense of the Commission in processing the various types of land
• 1 0.
Mr. Thomas A. Parilo
Ms. Paula Leasure
August 12, 1999
Page 4
use applications that the Commission is involved with. The absence of such a study/report would be
a fatal flaw and could subject any attempt to establish fees to litigation and a reversal of the
Commission's action. (For a further discussion of the requirements here, see Abbott, Moe and
Hanson, Public Needs & Private Dollars, Solano Press, pp. 122-124.)
Since under PUC Section 21671.5(c)' all of ALUC's costs are paid by the County, this raises
the question as to whether there is any real basis for ALUC to impose fees. It is my opinion that the
statute should not be read so narrowly to effectively nullify the grant of authority to charge fees. The
rules of statutory construction followed by the courts requires that we give the statute the plain
meaning of the words used and are to avoid an interpretation that would nullify any word or phrase.
Further we are to read the statute so as to harmonize its various parts and with other statutes. (See
Briggs v. Eden Council for Hope & Opportunity (1999) 19 CalAth 1106.)
Following the rules of statutory construction, it is my opinion that Section 21671.5 gives the
Commission the authority to establish fees to recover all of the reasonable and necessary costs for the
operation of the Commission. This would include the costs of providing County staff and any
independent contractors that may be authorized by the Board of Supervisors. It again bears repeating
that fees may only be established following the procedural requirements in Government Code Section
66016, which includes the preparation of an analysis (report), documenting the cost for the processing
of the various types of land use permits and other matters that parties may be required to submit to the
Commission for its review. However, as will be discussed next, in light of the fact that the County is
responsible for all of the usual and necessary costs of the Commission, any fees imposed by the
Commission would need to be returned to the County to reimburse the County for the operation of the
Commission.
Under Section 21671.5(f), the fees charged to proponents of actions, regulations or permits
"shall not exceed the estimated reasonable cost of providing the services ...." This limitation is also
contained in the language in Government Code Section 66016, above.. The clear intent of these
statutes is to limit the authority of local agencies (including ALUC) in levying fees, to the amount that
represents the recovery for the cost of providing the particular service. Since it is the County that
funds the cost of the Commission's services, the logical import here is that the funds would flow to
the County, which is in keeping with the legislative intent to allow recovery of the cost of providing
the service. It simply would not make any sense to allow ALUC to retain fees that were charged for
services that were funded by the County.
' Public Utilities Code Section 21671.5(c) states:
"Staff assistance, including the mailing of notices and the keeping of minutes and
necessary quarters, equipment, and supplies shall be provided by the county. The
usual and necessary operating expenses of the commission shall be a county
charge."
•
Mr. Thomas A. Parilo
Ms. Paula Leasure
40
August 12, 1999
Page 5
This conclusion is also supported by the recognition that ALUC does not appear to have any
statutory authority to expend funds, by hiring its own staff or independent contractors or by leasing or
otherwise acquiring its own quarters, equipment and supplies. In this regard subsection (d) of 21671.5
states:
"Notwithstanding any other provisions ofthis article, the commission shall not employ
any personnel either as employees or independent contractors without the prior
approval of the Board of Supervisors." The Legislature's express directive that ALUC
be supported by the County operates to the exclusion of any implied powers here. (See
Miller v. McKinnon (1942) 20 Cal. 2d 83.)
From the above, it is clear that the Legislature has expressly denied the Commission the
authority to employ its own staff or to. contract with independent contractors without the prior approval
of the Board of Supervisors. If the funds raised by the Commission could not be used to hire
additional staff or independent contractors unless the Board of Supervisors agreed to such action, any
fees raised by the Commission would have to go back to the County general fund to reimburse the
County for the costs of the operation of the Commission.
This conclusion is further supported from a review of the statutory grant of powers and duties
to ALUC in PUC Section 21674, which does not include any power to adopt a budget for its
operations .2 In summary, read together these statutes make it clear that the County has the obligation
to provide the staff and equipment that reasonably necessary to support the operation and functions
of the Commission. While the Commission has some independent decision making authority from
the County Board of Supervisors on the subject of the adoption of land use plans and the review of
permits, the statutes requiring the establishment of airport land use commissions, makes them
dependent upon the County for their fiscal and operational support. In context then, the Commission's
authority to establish fees appears to merely serve as a vehicle to lessen the Commission's fiscal
impact on the County. The fee authority in Section 21671.5(f) cannot be read as empowering ALUC
to spend funds to hire its own staff or to otAerwise acquire autonomy from the County (without the
approval of the Board of Supervisors), since such a result would conflict with the express provisions
in subsections (c) & (d) of Section 21671.5.
In light of this conclusion the other questions posed in your letter of June 28, 1999, do not
appear to need detailed analysis. In short, it is my opinion that any fees established by the Commission
would need to be paid and accounted for through normal County procedures. IF the Commission
elected to proceed with the adoption of a schedule of fees, the Commission would be required. Parties
with proposals before the Commission would need to pay their fees to the Commission, which would
be deposited in the County Treasury and be accounted for by the County Auditor's office. Since it
z Compare this to the power granted to LAFCO to establish. a budget; see Government
Code Section 56381. Also note that under Government Code Section 56380, the costs of
operating LAFCO is a charge against the County.
Mr. Thomas A. Parilo August 12, 1999
Ms. Paula Leasure Page 6
does not appear that the Commission can be viewed as a special district (as that term is used in various
statutoryprovisions) but rather an arm of county government, it follows that the County Treasurer and
Auditor would have control and responsibility for any fees received by the Commission. Further, in
that regard, it would not be appropriate for the' Commission to establish its own account in a local bank
or financial institution, as such action would not be authorized under the Government Code. (See
generally, Section 53600 et. seq..) Since the County is required to provide for the operation of the
Commission, including staff assistance, I do not believe that there is any need for a separate agreement
between the County and the Commission in order for the Commission to be able to use the services
of the County Auditor.
I hope this complies with your request and please let me know if you have any further
questions.
Very truly yours,
JAW
James A. Curtis
JAC:kbb
P:UAC\Butte\ALUC-fee-opn-fin.wpd
cc: Robert Hennigan, Chairman
Butte County Airport Land Use Commission
i-O-APR798 FRI 09:47 AM
MICHAEL. H. REMY
TINA A. THOMAS
JAMES G. MOOSE
wurrmAN P. MANLEY
JOHN H. MATTOX
ANDREA M. KLON
KATHRINE CURRIE PMARD
ERIK K. SPIESS
S MYL S. FREWAN
LEE AREL.RAD
• aDLi', c
REMY, THOMAS •and MOOSEy LLP
ATTORNEYS AT LAW
4ss CAPITOL MALL, SUrM 210
SACRAMENTO. CALIFORNIA 95814
Telephoue: (916) 443-2745
Facsimile: (916) "3-9017
1im40: randtomo.com
hup:/hrww.ewo.eom/— molt
TO: Paula Leasure, Principal Planner
Neil McCabe, Assistant County Counsel
FROM: Michael H. Remy
Ae--7-
DATE: April 8, 1998
RE: Ranchaero Airport flight hazard
QUESTION PRESENTED
GBORGANNA E. FOONDOS
LAND USS ANALYSTS
BRIAN L PLANT
OF COUNSEL
You ' inquire as to what options the County might have to eliminate a flight path
obstruction on land neighboring the Ranchaero Airport.
DISCUSSION
I. BACKGROUND
The facts, as described in this memo, are derived from your facsimile transmission to us
dated March 9, 1998, your letter dated April 1, 1998, and conversations with Butte County
Planning staff and California Department of Transportation (CalTrans) Aeronatics staff. If you
know any of these facts to be imprecise or incomplete, please notify us promptly, since our legal
analysis depends upon their accuracy.
The Ranchaero Airport is a privately owned/publicly operated airport. It is currently
operating under a4estricted CalTrans permit, severely cuitailing the public beniefit needs served
by the airport. The impairment on the airport is attributed to a neighboring landowner's orchard,
which has grown: to obstruct the airport flight path: The offending trees were planted some time
after 1992, and have since grown to a height presenting a potential flight hazard. ;`The airport
has always used this same.flight path over the neighboring property.
The airport owner's mother, originally acquired the airport property in 1966 from the
neighboring landowner as part of an estate settlement. T'he_neighiioring• landowner retained the '
' adjoining property17 upon which the offending orchard trees were subsequently planted. The
'10 -APR -98 FRI 09:48 AM
0
E
P. 03/08
landowner maintains a residence on the same property as the orchard. The- airport owner has
made repeated attempts to negotiate the'purchase of either fee title or an easement from the
landowner. Several times the landowner's counsel indicated that agreement had been reached,
but each time the landowner ultimately refused to sell.
H. APPLICABLE LAWS
Unfortunately, the law in this area is multi -layered, complex, and uncertain in many
respects.
A ' Cou ty Code
1. Airport Air .Zoning
The County Code specifically prohibits allowing trees to grow into any airport approach
zone, turning zone, transition zone or conical zone. (Butte Co. Code § 24-4.) Unfortunately,
the County Code also confines the applicable article "Airport Air Zoning," by definition, to the
Chico Municipal Airport." (Butte Co. Code §§ 24-1 and 24-3.)
You have indicated that the Airport Land Use Commission (ALUC) has been directed
to prepare an amendment correcting this overly narrow definition. When this is done, you will
need to consider the potential "downzoning" effect, prospective versus retroactive application
of the definition, and related legal issues. (See e.g. Peacock v. Sacramento Co. (1969) 271
Cal.App.2d 845 [77 Ca1.Rptr. 391], and Sneed v. County of Riverside (1963) 218 Cal.App.2d
205 [32 Cal.Rptr. 318], both cases finding that rezoning of property to impose height restrictions
and right of flight within zone of airport approach required compensation.) Downzoning is in
part a notice problem. A person acquiring land does so with certain investment -backed
expectations, and post -purchase regulatory limitations on these expectations may produce a right
to continue a nonconforming use.' Regardless, County Code section 24-4 is presently
inapplicable to the instant problem. There are, however, other options.
2. Misdemeanor Airport Obstruction
You also note "Ordinance No. 364" which was written more broadly to apply to "any
airport in the County of Butte ... that is owned, operated, or controlled, either directly or
indirectly, by the County of Butte or any agency ... or ... municipality thereof, the State of
California ... or the United States of America." This ordinance imposes (or imposed)
misdemeanor liability for the creation or maintenance of an airport approach or glide path
obstruction.
The Airport Air Zoning article, sections 24-1 through 24-12, may have superseded
Ordinance Number 364. Ordinance Number 364 does not appear to still be "on the books."
' Note also that zoning changes for land within a mile of an airport can be suspended by
injunction in the absence of an airport land use plan properly adopted by the ALUC. (Pub. Util.
Code § 21679.)
�?- prinwwRwyew PV11
'10 -APR -98 FRI 09:48 AM P.04/08
while your research to date shows no evidence that Ordinance Number 364 was ever specifically
rescinded, some time between 1952 and 1963 Ordinance Number 364 disappeared from the
Code, and may have been rescinded in 1952 by general repealer language in Ordinance No. 467.
Apart from the question of whether Ordinance Number 364 is still in force, its
elusiveness raises another legal. hurdle for the District Attorney. To constitute a crime, an act
must be done with some level of "scienter" or "intent." This element of proof could be
addressed in this setting by proof that the landowner knew that the trees have become a flight
hazard and has continued to allow the hazard to exist (even acting to further the obstruction by
watering and tending the offending trees). As a practical matter, however, with the absence of
this section from the County Code as published over the last forty-five years, it is probably
unenforceable for failure to give fair notice of what is prohibited conduct.
3. Nuisance
Finally, the County has more general nuisance abatement authority, explicitly set out in
the County Code in sections 32A-1 through 32A-12. This authority could be useful, when
combined with a State statutory definition of nuisance, discussed below. There is another
County -created potential hurdle, however, in that the orchard is an agricultural use, and the
County's "Right to Farm" code provides that agricultural practices "consistent with proper and
accepted customs and standards" are not a nuisance. (Butte Co. Code § 32A -12(b).) The legal
argument in response would be that the State law, as the more specific and superseding law,
applies instead of the County's Code.
B. State law
1. Airport Hazard as Public Nuisance
in Government Code section 50485.2 the State Legislature found that "the creation or
establishment of an airport hazard is a public nuisance and an injury to the community served
by the airport in question." Government Code section 50485.1 defines "airportbroadly enough
to encompass the Ranchacro Airport.
Judicial interpretation of a prior version of this nuisance provision found compensation
for the landowner's property interest to be required. (Sneed, supra, 218 Cal.App.2d 205.)
There is no interpretive case law on the current version.
The Public Utilities Code provides that "jnjo person shall ... permit any natural growth
to grow -at a height which exceeds the obstructions set forth" in federal regulations. (Pub. Util.
Code § 21659.) As noted below, the State does not enforce this height restriction against
neighboring landowners, only by permit action against airports. CalTrans relies upon local
governments to use local zoning and land use police power to prepare and enforce implementing
regulations and zoning restrictions. (See Airport Land Use planning Handbook, CalTrans, 1993)
The County has the authority to adopt and implement regulations enforcing the "Airport
Approaches Zoning Law," through a zoning and regulatory permit system (Gov't Code §§ 50485
- 50485.14) and the creation 'of an airport land use plan by the ALUC (Pub. Util. Code §§
9 _._ ._a.. sem..
i0 -APR -98 FRI 09:49 AM P.05/08
21670 - 21679.5). In the absence of applicable zoning and regulations, however, the County
could look to the language of Government Code section 50485.2 which provides that it is
"necessary in the interest of the public health, public safety, and general welfare that the creation
or establishment of airport hazards be prevented by appropriate exercise of the police power 21
the authority conferred by [the Airport Approaches Zoning Law]." (Gov't Code § 50485.2,
emphasis provided.) The "or" in this statute is fairly read to mean that the zoning and
regulatory enforcement authority is in addition to an independent police power enforcement
authority to enjoin a nuisance. -If this reasoning prevailed, however, it is still not clear that the
County would be permitted to enforce Government Code section 50485.2 or Public Utilities
Code section 21659 against a neighboring landowner without compensation.
Note, however, that any nuisance abatement action must be preceded by notice and an
opportunity to cure. This process is reflected in the Butte County Code, which requires the
Butte County Health Department to "attempt to attain the abatement of said nuisance voluntarily
by the person or persons maintaining the nuisance." (Butte County Code, section 32A-4.) If
the landowner fails to abate the nuisance, the problem is then referred to the Board of
Supervisors, which is required to conduct a noticed hearing on the matter. ad__, section 32A-5.)
2. Eminent Domain
The County has the authority to acquire any real property interest necessary for "public
airport" purposes through condemnation. (Gov't Code §§ 26020 and 26021, and Pub. Util.
Code § 21652.) A four-fifths vote of the Board of Supervisors may be required. (Gov't Code
§ 26021.) The term "public airport" in Government Code section 26020 raises a predicate
question of whether this authority extends to a "privately owned, publicly operated" airport.
There is also a more general grant of eminent domain authority to the County to "acquire land
to carry out any of its powers or functions. (Gov't Code section 25350.5.) All eminent domain
authority is limited to use for public purposes.
Under either the specific or the general eminent domain authority, Legal Counsel at the
CalTrans Aeronautics Division takes the view that a County cannot exert the power of eminent
domain to acquire an easement to benefit a privately owned airport unless the County can
demonstrate a public purpose. He suggests that a public purpose could be shown by an
agreement with the landowner providing assurances of public use of the airport for a specific
number of years, with some limit on the fee schedule, e.g. requiring fees to remain comparable
to publicly owned airports. CalT cans does not have a direct approval authority to require this
arrangement, and section 26020 could arguably be read more broadly than he suggests,' but
Z Government Code section 26020 reads: "As a necessary adjunct to aerial transportation
and the use of aerial highways, the board of supervisors may provide and maintain public
airports and landing places for aerial traffic for the use of the public. For such purposes the
board of supervisors may [exercise eminent domain authority]." (Emphasis provided.) It could
reasonably be argued that the reference to "landing places ... for the use of the public" must
mean something more or different from "public airports," else that language would be surplusage
and meaningless, contrary io accepted ruics of statutory construction. The phrase "landing
places ... for the use of the public," could arguably be read to include privately owned, publicly
_:.... _ ems.. ,...
10 -APR -98 FRI 03;29 PM
0
following his suggestion would strengthen the County's position.
P. 01/01
The County might be eligible for a federal grant under the "federal Aviation
Administration. Airport Improvement Program," which is available for acquisition of property
for approach protection. (See Airport Land Use Planning Handbook, CalTrans, 1993, p. 5-22;
See also Gov't Code § 21680.) CalTrans' Counsel informs us that there is a high demand for
these grants, and that CaITrans would not look favorably on an application for a grant to be used
to benefit a privately owned airport, absent a public benefit agreement such as described above.
Alternatively, the County could look to the airport owner for this funding.
3. Prescriptive Easement
There is, in theory, the possibility of claiming a prescriptive easement over the land in
question, if there has been an actionable invasion of the rights of the neighboring landowner in
his land for a continuous five year period. (Civ. Code § 1007, Code Civ. Proc. § 318 et seq.)
No court in the country, however, has yet awarded a prescriptive avigation or clearance
easement. Several courts, including a California court, have stated that it is theoretically
possible to establish an avigation or obstruction easement by prescription, while not finding one
in the facts in hand. (See e.g. Drennan v. County of Ventura (1974) 38 Cal.App.3d 84 [112
Cal.Rptr. 9071; ke an v. Port of Se the (1960) 348 P.2d 664 (55 Wash.2d 4001; Shigp v.
Louisville and Jefferson Co. Air Board (1968) 431 S.W.2d 867, 870, cert. denied, 393 U.S.
1088.) In Drennan the court found that because the landowner did not occupy or actively use
his land in any way, the overflights never interfered with his use of the land and therefore never
triggered the statute of limitations on adverse possession. The facts at hand can be distinguished
from Dreman on the basis that Ranchaero's neighboring landowner occupies his land and uses
it for commercial purposes.
Other courts have found that such prescriptive easements are an impossibility. (See e.g.
Fiese v. Sitorius (1995) 526 N. W.2d 86 (247 Neb. 227]; County of Westchester N 'Y' v Town
of Greenwich (1993) 629 A.2d 1084 [227 Conn. 495]; and 'c en v. ICitrle (1981) 287 S.E.2d
148 [168 W.Va. 147]; Classen v SWLgf-Alaska. Dept of H wave (1980) 621 P.2d 15.) The
reasoning is that since federal law provides the "right of flight," over another's land, such use
is a permissive license, therefore not adverse, or on the theory that a clearance or obstruction
easement (height restriction) is in fact a "negative right" with no affirmative conduct by the
"adverse possessor" to trigger the cause of action. A good argument can be made to the
contrary however, since California case law has affumed the compensability of damages in
inverse condemnation actions based on the impacts of overflights. (See Baker v. Burbank -
Glendale -Pasadena Airport Authority► (1985) 39 Ca1.3d 862 (218 Cal.Rptr. 293), and Cityo
Oakland v. Nutter (1970) 13 Cal.App.3d 752 [92 Cal.Rptr. 347].) This bolsters the adverse
possession argument because, since overflight of occupied Iand is actionable under inverse
condemnation, it is adverse to the possessor, warranting the triggering of the statue of limitations
for adverse possession.
operated airports, The weight of eminent domain law, however, weighs heavily in favor of a
clear public benefit in every case;
3
'10 -APR -98 FRI 09;49 AM P,06/08
One consideration is the proper plaintiff in an action to claim a prescriptive easement.
The courts have shown a distrust of government use of police power to avoid compensating
landowners. (See e.g. Peacoc , supra, 271 Cal.App.2d 845; and Sneed, fid, supra, 218 Ca1.App.2d
205, noting that "when private rights are conferred upon the public for public use, eminent
domain principles are applicable. ") On this basis, it might be advisable if it is the landowner
that pursues the easement by prescription, instead of the County.
An avigation easement is used to establish height limitations, prevent other flight hazards,
and permit noise impacts. A "clearance," a.k.a. "obstruction" or "approach protection"
easement, also imposes land use restrictions to compatible uses. (Airport Land Use Planning
Handbook, CalTrans, 1993, pp. 5-23 and Appendix D.) An approach easement might therefore
be a superior easement for the airport's needs.
Also bear in mind that a prescriptive easement will be limited in scope to the uses
establishing the right. In other words, a prescriptive easement will not adapt to flight path or
usage changes.
111, LEGAL OPTIONS AVAILABLE
In light of the above, the preferred method for dealing with a privately owned airport's
neighboring landowner problem is for the airport owner to negotiate fee title to, or an avigation
or approach protection easement on, the neighboring property. The owner in this case, as noted
above, is said to have tried to do so, to no avail.
Public Utility Code section 21242 arguably conveys upon CalTrans the authority to bring J
an action to enforce the applicable state laws. CalTrans' position, however, is that it enforces c1
only against the airport and local governing body, not neighboring landowners. This is why the e4
Ranchaero permit has been restricted.
That leaves the problem to the airport owner and local government. Since the airport ' • v
outside Chico City limits, the County has jurisdiction. In the absence of an effective local J
compatibility program (airport land useplan), the ALUC's jurisdiction is less clear. v
A Criminal action
As noted above, authority to pursue criminal remedies under the Butte County Code is
highly questionable. If the County wished to offer the criminal option first to the District
Attorney before pursuing non -criminal remedies, the District Attorney could decide in his or her
discretion whether a misdemeanor charge is warranted. A criminal action. however, appears
unlikely to be successful.
B. Nuisance action
The County could attempt to bring an action under its County nuisance abatement code
(Butte County Code, Chapter 32A, §§ 32A-1 - 32A-12), basing its finding of a nuisance on
Government Code section 46585.2. As reflected in County Code Chapter 32A, there are several
steps involving notice and opportunity to cure that are predicate to a nuisance action. The
Ic s ._. — ..-..
10 -APR -98 FRI 09:50 AM P,07/08
landowner might respond with an inverse condemnation action, the outcome of which is
uncertain, as described previously.
C. Prescriptive Bement
As set out in greater detail above, in theory the airport owner, or less clearly the County,
could claim a prescriptive easement over the neighboring property. The law is by no means
clear on this issue.
D. Eminent domain
The Board of Supervisors has the authority to acquire whatever interest in the land is
necessary to serve "public airport" needs, (Gov't Code §§ 26020 and 26021, and Pub. Util.
Code § 21652), as well as a more general authority to acquire land in eminent domain necessary
to carry out any of its powers or functions. (Gov't Code § 25350.5.) The public benefit issue
would need to be addressed, and the Board would need to meticulously follow eminent domain
procedures. (Code Civ. Proc. § 1230.010 et seq.)
The advantage to bringing an eminent domain action is the avoidance of potentially losing
on an inverse condemnation claim. Prevailing plaintiffs in inverse condemnation proceedings
are entitled to attorneys fees, expert fees, and other litigation costs above and beyond the costs
normally available to the condemnee in an eminent domain action. (See t M ty of. Los Angeles
y Ortiz (1971) 6 Cal.3d 141, 144; City of Lake Elsinore y--&I]d Development Co (1998)
Ca1.App.4th ; 98 C.D.O.S. 362; 8 Witkin, Summary of Cal. Law, Constitutional Law, §§
1053, 1062.)
RECOMMENDATIONS
The three most viable options, though not in any order of preference, are: 1) initiate a
nuisance action; 2) acquire the fee or an easement under threat of eminent domain; or 3) have
the airport owner attempt to quiet title in an avigation or approach easement under an adverse
possession claim.
Before initiating a nuisance action against the neighboring landowner, the County should
notify the landowner in writing of a) the unacceptable conditions on his property, b) a reasonable
timeline for the landowner to remedy the situation without further action by the County, and c)
the actions and timing of the actions the County will take if the neighboring landowner fails to
remedy the problem. If the neighboring landowner responds to the nuisance abatement action
with an .inverse condemnation claim, or if the nuisance abatement action otherwise fails, the
County could attempt to argue a prescriptive avigation or approach protection easement.
If the County chooses an eminent domain action, to address the question of whether the
acquisition of a property interest benefitting a privately owned airport is within the County's
eminent domain authority, the County should enter into an agreement with the airport owner,
assuring specified public benefits.
Alternatively, the airport owner could bring a quiet title action to claim a prescriptive
7 0-..�-a—WP�
"I 0-:-APR-98 FRI 09:50FAM P. 08/08,
easement on, the neighboring land As with a County clamp to a prescriptive 'h
Y P easement, then
i outcome would be unclear. �The �airport owner, however, �s more• likely'_ to succeed --- n adverse
possession claim than the .Couaty; bX avoiding the: perception, of a government attempt _to, avoid
_ _ . �compensating,th,e landowner. � .
Regardless of how this specific problem is resolved the"County should ` _
`
I` hazard -code' to address :all airpotts,rcreate an rt � revise a"iipo ;
•.h'•zoning'code_ to be consistent VOkthe use Pig plan and conform tsJ ,
P set out j the Airport` Land .Use - Pl
Hifidb6bk. (See Pub. Util.' Code § 21670 et and Gov't annmg
• Code 50485 et seq•)
8032049.002. '
• • s , 1 ... � y _ ! ;T _ . '' y. _, * ..`; 1:: to
SHINE, COMPTON & NELDER, APC
ATTORNEYS AT 6w
Raymond E. Shine
Charles A. Compton
Maralee Nelder
James A. Curtis, Of Counsel
• Certified Specialist in Family Law
California State Board of Legal Specialization
May 13, 1999
Robert Hennigan, Chairman
Butte County Airport Land Use Commission
Mr. Thomas A. Parilo, Director of Development. Services
Butte County Department of Development Services
7 County Center Drive
Oroville, CA 95965
RE: Butte County Airport Land Use Commission
Dear Messrs. Hennigan & Parilo:
The Old Post Office
131 S. Auburn Street
Suite 200
Grass Valley, California 95945
(530) 272-2686
fax (530) 272-5570
Pursuant to your letter of April 6,1999, you have requested my opinion for the guidance of the
Butte County Airport Land Use Commission on the following matters, regarding their 1998
amendments to the Chico Municipal Airport Environs Plan.'
1. Does the Butte County Airport Land Use Commission ("ALUC") have the authority
to prevent construction of single family dwellings on existing parcels (that are presently
zoned for such use) through the adoption of amendments to the 1978 Chico Municipal
Airport Environs Plan ("CMAEP")?Z
t I note that the request for a legal opinion contained a fourth question concerning when private property
owners can be said to have obtained "vested rights". In my subsequent conversation with Mr. Parilo I was informed
that an opinion on this question is no longer desired.
2 The CMAEP is also sometimes referred to as the Comprehensive Land Use Plan for the Airport or "CLUP".
Messrs. Hennigan & Parilo
May 13, 1999
Page 2
2. If so,. can the Butte County Board of Supervisors override these amendments to the
CMAEP?
3. If the Board of Supervisors does not take action to either amend the County General
Plan or prepare (and adopt) overriding findings within 180 days (of the adoption of the
amendments to the CMAEP), would ALUC have the authority to review single family
building permit (applications) within the new CLUP?
As is explained below, it is my opinion that:
1. ALUC does not have the authority to adopt changes to the comprehensive land use plan
for the Chico Airport (the "CLUP") so as to prevent the construction of single family
dwellings on existing parcels that are zoned "R-1 ", if the practical effect is to prohibit
any reasonable use of the real property, resulting in a taking of the private property.
2. The Board of Supervisors has authority under Public Utilities Code Section 21676 to
overrule the Airport Land Use Commission's'determination.as to consistency between
the CLUP and the County General Plan and thereby, in effect, override the subject
amendments to the CLUP. Any such action by the Board of Supervisors must be
supported by specific and legally adequate findings that the proposed action is
consistent with the purposes set out in Public Utilities Code Section 21670.
3. If ALUC finds ' that the County hasnot revised the County General Plan or,
alternatively adopted findings overrule ALUC (in accordance with Public Utilities
Code Section 21676), ALUC may require the, County to submit all subsequent actions,
regulations and permit applications to ,ALUC' for review until the general plan is
amended or such overruling findings are made.
FACTUAL BACKGROUND
Factually, I have been advised that in October 1998, the Butte County Airport Land Use
Commission (ALUC) adopted amendments to the 1978 Chico Municipal Airport Environs Plan
(CMAEP). The CMAEP constitutes a comprehensive land use plan ("CLUP") for the Chico airport
consistent with the provisions for such plans contained in the Public Utilities Code Section 21675.
In .pertinent part, the 1998 amendments to the CLUP created an Overflight Protection Zone
("OPZ") around the Chico Airport. The 1998 amendments state that within the OPZ "development
of new residential uses shall be prohibited in the area defined as Zone A.,." and, "in Zone B no new
single family residential uses shall be permitted." The amendments then state that "approval of
Messrs. Hennigan& Parilo May 13, 1999
Page 3
multiple family residential uses in Zone B shall contain conditions requiring dedication of aviation
easements...."
Your opinion request of April 6,1999 states, "the Airport Land Use Commission does not want
single family dwellings to be permitted on existing legally created parcels in Zone "A" even though
they are currently zoned R-1, R-2, R=3, SR, SR -1, and SR -3. It is my understanding that some of the
property within the OPZ has previously been subdivided and zoned for single family residential use.
I have been informed that due to the size of some of the subdivided property, such properties may not .
be suitable for other productive uses, other than for development with single family residences. In any
event, it is my understanding that the County's general _plan and zoning ordinances do not, presently
contemplate or allow multi -family residential uses on property that is zoned R-1, R-2, SR, SR, SR -1,
or SR -3.3
Accordingly, the initial question here that ALUC, seeks advice on is .whether the 1998
amendments to the CMAEP can legally prohibit the construction of single family homes on the
previously subdivided property;that is within the OPZ.
ANALYSIS:'
I begin my analysis with a recognition that the State Legislature has declared it to be in the
public interest to provide for -the orderly, development of public airports and the land surrounding those
airports. Among the objectives of the state law is the protection of "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." (See Public Utilities Code
Section 21670)5. State law requires the establishment of a local airport land use commission
("ALUC") in each county that has an airport operated for the benefit of the general public. The ALUC
is responsible for the preparation and adoption of a comprehensive airport land use plan (CLUP)
pursuant to PUC Section 21675.
In turn, pursuant to Government Code Section 65302.3, the County's general plan is required
to be consistent with the airport land use plan adopted by ALUC. Further, upon amendment of the
CLUP, the County is required to amend the general plan, if it is necessary to, do so in order to maintain
' See Sections 24-120 and 24-135 of the Butte County Zoning Ordinance.
Hopefully the indepth nature of this analysis will also serve as guidance to the Commission in future land
use planning efforts.
' The Public Utilities Code is hereinafter referred to as the "PUC".
•
Messrs. Hennigan & Parilo
•
May 13, 1999
Page 4
consistency with the CLUP. If the County does not concur with ALUC's determination of the
consistency between the CLUP and the County general plan, the County may overrule ALUC's
determination by adopting specific findings, supported by evidence, that the County's action is
consistent with the purposes set out is PUC Section 21670: The instant legal opinion concerns certain
amendments to the land use plan adopted for the Chico Municipal Airport in 1978, referred to as the
Airport Environs Plan or CMAEP.
QUESTION # 1. CAN THE AMENDMENTS TO THE CMAEP LEGALLY PROHIBIT THE CONSTRUCTION .
OF SINGLE FAMILY HOMES ON THE PREVIOUSLY SUBDIVIDED PROPERTY THAT IS WITHIN THE OPZ?
While it is clear that under state law ALUC has the power to adopt a land use plan that restricts
the right to use and to develop property within the planning area around the airport, the facts as
presented in the instant opinion request raise the question as to whether the CLUP can, in effect,
prohibit the building of single family residences on property that has been subdivided and zoned for
that purpose. The answer to this question involves an analysis of the right of governmental entities
to regulate the use of private property, where the regulation has the potential to effectively deny the
private property owners all economically viable and beneficial use of their property. Modernly, both
the federal and state courts have characterized such regulations as constituting a "taking of real
property" that requires compensation in accordance with the Fifth and Fourteenth Amendments to the
United States Constitution. In the absence of payment of just compensation, such regulations are
viewed as unconstitutional.
In Lucas v. South Carolina Coastal Commission (1992) 120 L Ed 2d 798, the United States
Supreme Court considered the question of whether South Carolina's Beachfront Management Act
("BMA") constituted a taking of two parcels of land, located on a barrier island off of the coast, owned
by Mr. Lucas. At the time that Lucas purchased his property it had been subdivided and zoned for
residential development. In adopting the BMA, the South Carolina legislature stated that (among other
reasons) the BMA was necessary to protect life and property, to promote tourism and to protect the
beaches and dunes along the coast. The trial court found that the effect of the BMA was to prohibit
Lucas from building single family residences upon his two parcel and that this prohibition deprived
Lucas of any reasonable economic use of the lots and rendered them valueless. (See Lucas v. South
Carolina Coastal Commission (1992) 120 L. Ed. 2d 798 at 809.) 6
In discussing the law in this area the U.S. Supreme Court commented:
e In considering the case before it got to the United States Supreme Court, the South Carolina Supreme Court
had concluded that when a regulation respecting the use of private property is designed to prevent serious public harm,
no compensation is constitutionally required See Lucas v. South Carolina Coastal Commission (1992) 120 L. Ed. 2d
798 at 809. The U. S. Supreme Court disagreed.
Messrs. Hennigan & Parilo May 13, 1999
Page 5
"As we have said on numerous occasions, the Fifth Amendment is violated when land
use regulation `does not substantially, advance legitimate state, interests or denies an
owner economically viable use of his land'." (Id. at pg. 813)
The Supreme Court acknowledged that governmental entities are clearly entitled to regulate
land use and the fact that the regulations may negatively affect the value of property does not give rise
to a violation of the constitution and a taking of property.
"And the functional basis for permitting the government, by regulation, to affect
property values without compensation — that `Government hardly could go on if to
some extent values incident to property could not be diminished without paying for .
every such change in the general law', does not apply to the relatively rare situations
where the government has deprived a landowner of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a compensation requirement,
is -the fact that regulations that leave the owner of land without economically beneficial
or productive options for its use typically, as here, by requiring land. to be left
substantially in its natural state - carry with them a heightened risk that private
property is being pressed into some form of public service under the guise of mitigating
serious public harm." (Id. at pg. 814)
In Lucas the Supreme Court concluded that when a private property owner is denied all
reasonable and economically viable use of his property, such regulations can be upheld only when their
affect is to prohibit harmful uses that, under common law, would amount to a nuisance by the private
property owner. (Id. at pgs. 819-821)
In the recent decision in Kavanaugh'v. Santa Monica Rent Control Board (1997) 16 Cal. 4`h
761, at 773-774, the. California Supreme Court provided further. clarification of the law, in stating:
"The state and federal Constitutions prohibit government from taking private property
for public use without just compensation. (Cal. Const., Art: I, § 19; U.S. Const.:5th
Amend.), ... the United States Supreme Court recognized that a regulation of property
that `goes too far' may effect ,a taking of that property, though its title remains in
private hands. In such a case, the property owner may bring an inverse condemnation
action, and if it prevails, the regulatory agency must either withdraw the regulation or
pay just compensation. (First Lutheran Church v. Los Angeles County (1987) 482 U.S.
304, 317, 321 [107 S.Ct. 2378, 2389, 96 L.Ed.2d 250].) Even if the agency withdraws
the regulation; the property owner may have a right to just compensation for the
temporary taking while the regulation was in effect. (Citation omitted.)
i
Messrs. Hennigan & Parilo May 13, 1999
Page 6
The United States Supreme Court has struggled to articulate a standard for when a
regulation "goes too far" and effects a taking. The court has stated broadly that the
takings clause is `designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.' (Citation omitted.) (Emphasis added.)
"A regulation, however, may effect a taking though, as is true here, it does not involve
a physical invasion and leaves the property, owner some economically beneficial use
of his property. In Lucas, the high court expressly rejected the "assumption that the
landowner whose deprivation is one step short of complete is not entitled to
compensation." (Id. at pg. 774)
This last statement is significant since it represents a clarification by the California Supreme
Court that a regulatory taking may exist even though the owner of private property is left with some
economical value to his or her property. The determination of when a regulation goes too far and
effects a taking can be made either from a review of the face of the regulation, a "facial challenge" or
from the application of the regulation to the specific. facts of individual properties, an "as applied"
challenge. The latter inquiry requires the court to evaluate the regulation's effect on specific property
in light of a number of factors.'
In Kavanaugh the Supreme Court stated, at pgs 775-776:
"When a regulation does not result in a physical invasion and does not deprive the property owner
of all economic use of the property, a reviewing court must evaluate the regulation in light of the
"factors" the high court discussed in Penn Central and subsequent cases. Penn Central emphasized
three factors in particular: (1) "[t]he economic impact of the regulation on.the claimant"; (2) "the
extent to which the regulation has interfered with distinct investment -backed expectations"; and (3)
"the character of the governmental action." (Penn Central, supra, 438 U.S. at p. 124 [98 S.Ct. at p.
2659]; MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 349 [106 S.Ct. 2561,
2566,91 L.Ed.2d 285]; Kaiser Aetna v. United States (1979) 444 U.S. 164,175 [ 100 S.Ct. 383, 390,
62 L.Ed.2d 332].) Subsequent cases, as well as a close reading of Penn Central, indicate other
relevant factors: (1) whether the regulation "interfere[s] with interests that [are] sufficiently bound
up with the reasonable expectations of the claimant to constitute 'property' for Fifth Amendment
purposes (Penn Central, supra, 438 U.S. at p. 125 [98 S.Ct. at p. 2656]); (2) whether the regulation
affects the existing or traditional use of the property and thus interferes with the property owner's'
"primary expectation" (id. at pp. 125,136 [98 S.Ct. at pp. 2659,2665]); (3) "the nature of the State's
interest in the regulation" (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470,488
[ 107 S.Ct. 1232, 1243, 94 L.Ed.2d 472.] (Keystone); see also Mugler v. Kansas (1887) 123 U.S. 623,
668-669 [8 S.Ct. 273,300-301,31 L.Ed. 205]) and, particularly, whether the regulation is "reasonably
necessary to the effectuation of a substantial public purpose" (Penn Central, supra, 438 U.S. at p. 127
[98 S.Ct. at p. 2660]); (4) whether the property owner's holding is limited to the specific interest the
regulation abrogates or is broader (id. at pp. 127-128 [98 S.Ct. at p. 2661]); (5) whether the
government is acquiring "resources to permit or facilitate uniquely public functions," such as
government's "entrepreneurial operations" (id. at pp. 128, 135 [98 S.Ct. at pp. 266, 2665]); (6)
•
Messrs. Hennigan & Parilo
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May 13, 1999
Page 7
Applying the courts' above teachings to the question of whether the 1998 amendments to the
CLUP constitutes a taking of private property will most likely require an analysis of each of the
individual parcels that are affected by these amendments and is beyond the scope of the opinion
request. However, to the extent that the 1998 amendments prohibit any reasonable economically
viable use of specific properties within the OPZ, then the regulation would constitute a taking of
property and no further analysis would be needed and no further action would be required by the
property owner in order to be able to proceed with litigation against the public entity adopting same.'
From the facts described above, it is my opinion that to the extent that the 1998 amendments
to the CMAEP are read as prohibiting the building of single family residences on parcels that have
been subdivided and zoned for such use, there is a very real prospect that these amendments could be .
found to be unconstitutional as a "taking" of private property.9
THE 1998 AMENDMENTS READ AS NOT CONSTITUTING A TAKING OF PRIVATE PROPERTY
As noted above, the 1998 amendments to the CMAEP prohibit development of new residential
uses within the OPZ. Of potential import here is the fact the these amendments do not provide any
definition of what constitutes residential development, or more precisely, "development of new
residential uses". The absence of language in these amendments (or in the original 1978 CMAEP)
whether the regulation "permit[s the property owner] ... to profit [and] ... to obtain a 'reasonable
return' on ... investment" (id. at p. 136 [98 S.Ct. at p. 2665]); (7) whether the regulation provides the
property owner benefits or rights that "mitigate whatever financial burdens the law has imposed" (id.
at p. 137 [98 S.Ct. at p. 2666]; Keystone, supra, 480 U.S. at p. 491 [107 S.Ct. at p. 12451; Agins v.
Tiburon, supra, 447 U.S. at p. 262 [100 S.Ct. at p. 2142]); (8) whether the regulation "prevent[s] the
best use of [the] land" (Agin v. Tiburon, supra, 447 U.S. at p. 262); (9) whether the regulation
"extinguish[es] a fundamental attribute of ownership" (ibid.); and (10) whether the government is
demanding the property as a condition for [page 776]the granting of a permit (Dolan v. City of Tigard
(1994) 512 U.S. 374; 385 [114 S.Ct. 2309, 2316,129 L.Ed.2d 304] (Dolan); Nollan, supra, 483 U.S.
at pp. 831, 841 [107 S.Ct. at pp. 3150-3151])".
"This list is not a comprehensive enumeration of all the factors that might be relevant to a takings
claim, and we do not propose a single analytical method for these claims. Rather, we simply note factors the
high court has found relevant in particular cases. Thus, instead of applying these factors mechanically,
checking them off as it proceeds, a court should apply them as appropriate to the facts of the case it is
considering."
e In the U.S. Supreme Court's recent decision in Suitum v. Tahoe Regional Planning Agency (1997) 137
L.Ed.2d. 980, the Supreme Court found that the effect of the Tahoe Regional Planning Agency's environmental
regulations was to prohibit Ms. Suitum from building a modest residence on her property in the Lake Tahoe basin and
provided a basis for a suit against the Agency for a taking of private property.
9 For a good discussion of the law relating to "regulatory takings" see Chapter 12, Curtin's California Land
Use and Planning Law, 18`" Ed (1998); also see article on "Zoning Regulations Limiting Use of Property Near Airports
As Taking of Property", 18 ALR 4`'', 542.
�J
Messrs. Hennigan & Parilo
May 13, 1999
Page 8
clarifying what is meant by this term appears to invite .(or require) interpretation by the reader. It is
one of the maxims of the law pertaining to.the interpretation of statutes (and ordinances) that where
a law is susceptible of several interpretations, one of which invites serious constitutional problems,
courts will construe the statute, if possible, to avoid the problems. (See F&L Fam Company V. City
Council (1998) 65 Cal.App.4th 345.)
If the choice here is between a reading of the 1998 amendments in a manner that results in an
unconstitutional'taking of real property (by depriving property owners of individual parcels that are
zoned for ' single family use, the right to build homes) or, alternatively, construing the phrase
"development of new residential uses" as applying to property that is susceptible of further land
divisions or more intense development such as for commercial purposes, the courts may apply the
latter construction, since it would not amount to an unconstitutional taking of private property.
QUESTION #2 DOES THE BUTTE COUNTY BOARD OF SUPERVISORS HAVE AUTHORITY TO OVERRIDE
THE 1998 AMENDMENTS TO THE CMAEP?
PUC Section 21676 states in relevant part:
"a) Each local agency whose general plan includes areas covered by an airport land
use commission plan shall, by July 1, 1983, submit a copy of its plan or specific plans
to the airport land use commission. The commission shall determine by August 31,
1983, whether the plan or plans are consistent or inconsistent with the commission's
plan. If the plan or plans are inconsistent with the commission's plan, the local
agency shall be notified and that local agency shall have another hearing to
reconsider its plans. The local agency may overrule the commission after such
hearing by a two-thirds vote of its governing body if it makes specific findings
that the- proposed action is consistent with the purposes of this article stated in
Section 21670." (Emphasis added.)
Section 21670 states in relevant part:
"(a) The Legislature hereby finds and declares that:
(1) It is in the public interest to provide for the orderly development of each public use
airport in this state and the area surrounding these airports so as to promote the overall
goals and objectives of the California airport noise standards adopted pursuant to
Section 21669 and to prevent the creation of new noise and safety problems.
(2) It is the purpose of this article to protect public health, safety, and welfare by
ensuring the orderly expansion of airports and the adoption of land use measures that
•
Messrs. Hennigan & Parilo
May 13, 1999
Page 9
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." (Emphasis added.)
And as noted above,. Government Code Section 65302.3 requires the County to amend its
general plan, as may be necessary to maintain consistency with the airport land use plan (CLUP),
within 180 days of any amendment to the CLUP. Section 65302.3 further states that "if the legislative
body does not concur with any provision of the plan required under PUC Section 21675, it may satisfy
the provisions of this section by adopting findings pursuant to Section 21676 of the Public Utilities
Code." (See also PUC Section 21676.5, discussed below.)
Read together, it is clear from these statutes that the County Board of Supervisors has the
authority to overrule a decision by ALUC concerning the consistency of the County General Plan (and
the County's implementing ordinances) with the airport land use plan. However, an- important
limitation on the Board's authority, here is that any such action by the Board must be supported by
specific findings.10
r
With regard to the 1998 amendments it appears that in addition to the above discussion, the
Board of Supervisors might have several reasons for concluding that continuing to allow the
construction of single family homes on existing parcels is consistent with the purposes set out in PUC
Section 21670.
First, to the extent that the decision is to simply to allow private property owners to build single
family residences on individual parcels that are zoned for this purpose and are the product of past
subdivision approvals, the County may determine that the subject parcels have "already been devoted
to incompatible uses", within the meaning of Section 21,670 (highlighted above). In concept, the
argument here would be that the real discretionary decisions concerning land development typically
occurs first with the adoption of the general plan and zoning ordinances which establish the uses to
which property may be put, followed by more detailed decisions regarding the use of specific property
when a property owner seeks subdivision approval. At each of these stages the public entity has the
inherentdiscretion to allow, or to prohibit the development in an area within its jurisdiction. Each of
10 The question of the requirement for 'specific findings and what generally constitutes findings was addressed
in the case of California Aviation Council v. City of Ceres (1992) 9 Cal.AppAth 1384. In Ceres the court concluded
that the decision of the Ceres City Council to overrule the local airport land use commission's determination that an
ordinance approving a specific plan for property covered by the local land use plan was not consistent with that plan,
was not supported by adequate findings. The court concluded that the decision to overrule was adjudicatory in nature
and required the Council to identify the facts that it was relying upon and to link those facts to its decision that the
purposes of PUC Section 21670 were met in the instant case. The court referenced the case of Topanga Association
for a Scenic Community v. County, of Los Angeles (1974) as to the requirements for specific factual findings for
adjudicatory decisions. (Id at pg. 1392=1394)
k
Messrs. Hennigan & Parilo May 13, 1999
Page 10
these decisions must also be preceded with an evaluation of the environmental consequences and
potential impacts stemming from the public- agency's 'decision, as required by the California
Environmental Quality Act ("CEPA"). Once these approvals are in place and property has been
subdivided and sold off to individuals, it can be hard, if not legally impossible, to rollback the clock
without creating an unconstitutional taking of private property.' The exception would be in those
extraordinary situations where the use of the individual residential parcels may create a nuisance( per -
the above discussion.) '
Another basis for the Board's decision to overrule the ALUC might exist in what appears to
be somewhat contradictory provisions of the 1998 amendments. To the extent the text in these
amendments appears to allow development of multiple family residential projects while prohibiting .
development of single family homes on some.or all of the property within the OPZ, it could be argued
that such action would increase the population density within the OPZ and thereby be counter to the
goals in PUC Section 21670; to minimize the. public's exposure' to noise and safety hazards in areas
around the airport."
QUESTION 0 IF THE BOARD OF SUPERVISORS DOES NOT TAKE ACTION TO EITHER AMEND THE COUNTY
GENERAL PLAN OR PREPARE (AND ADOPT) OVERRIDING FINDINGS WITHIN 180 DAYS (OF THE ADOPTION
OF THE AMENDMENTS TO THE- CMAEP) WOULD ALUC HAVE THE AUTHORITY TO REVIEW
APPLICATIONS FOR SINGLE FAMILY BUILDING PERMITS WITHIN THE OPZ?
The reference to the 180 day time limit in'which the County is required to amend the general
plan is set out in Government Code Section 65302.3. That statute allows the Board of Supervisors to
either amend the general plan or, alternatively, adopt findings in accordance with PUC Section 21676,
"if the legislative body does not concur with any -provision of the plan required under Section
21675...." The statutory intent here appears to be to give the Board of Supervisors some limited ability
to overrule or to reject parts of the airport•land use plan with which it may disagree.
In reading Section 65302.31 note that it does not track precisely with the provisions in Section
21676. Specifically, the authority of the Board to overrule the ALUC by adopting findings is tied to
a decision by ALUC concerning the consistency of the two plans or any zoning ordinances or building •
" The specific language tliat is of concern here is as follows:
"The area defined,as Zone B (of the OPZ) is subject to less intensive overflight activity. In
Zone B no new single family residential uses shall be permitted. Any approval of multiple family
residential uses in Zone B shall contain conditions requiring the dedication of aviation easements to
the airport operator and notification of potential tenants of overflight activity."
in
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Messrs. Hennigan & Parilo
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May 13, 1999
. Page 11
regulations adopted by the County.12 In contrast, the requirement in Government Code Section
65302.3 for the County to amend the general or specific plan is triggered by the amendment of the
airport land use plan (CLUP), not by a separate determination of consistency between the two plans.
If we assume that it is possible that the CLUP could be amended in such a manner so as to be totally
consistent with the existing County General Plan, it would follow that in such a case, the Board would
not have any obligation to take any further action under Section 65302.3. This raises the question then
of how the County is supposed to know when it is obligated to take action under Section 65302.3 and
the timing as to when the County's obligation arises.
Under the rules of statutory construction, these statutes should be read together so as to
harmonize them, if it is possible to do so. (See Mar v. Sakti International Corporation (1992) 9
Cal.AppAth 1780, at 1784) Reading these statutes in this manner leads to a conclusion that the 180
day time line for action by the Board of Supervisors should be begin with adoption or amendment of
the CLUP, which ALUC has specifically determined requires the County to make amendments to the
County General Plan. Unless ALUC specifically identifies existing provisions of the general plan
which ALUC finds are inconsistent with the amendments to the CLUP when it adopts amendments
to the CLUP, the County could be left to guess as to whether ALUC has determined the existing
general plan to be inconsistent with the new amendments. In such a case, it would seem inappropriate
to view the County as having an obligation to take action unless specific inconsistencies between the
two plans are identified by ALUC with direction given to the County to make appropriate amendments
to the general plan.
With respect to the 1998 amendments to the CLUP, the amendments do not appear to identify
specific provisions of the County General Plan that are inconsistent with these amendments. The letter
of transmittal notifying the County Planning Department of the 1998 amendments also does not appear
to identify specific inconsistencies. Rather, that letter merely cites the provisions of the PUC and
Government Code (discussed above) that create the obligation on the part of the County to take action,
if inconsistencies exist. In light of this, it is my opinion and recommendation that if ALUC believes
that there are inconsistencies between the CLUP, as amended in 1998, then ALUC should specifically
identify the inconsistencies and notify the County of its duty to make appropriate amendments.
The second portion of your third question seeks direction as to whether ALUC can require the
County to submit applications for specific building permits (and I assume, other land use actions
pending with the County) to ALUC for its review. In this regard, PUC Section 21676.5 states:
" Also see PUC Section 21676.5 which authorizes ALUC to require the County to submit all subsequent (land
use) actions to ALUC for review until the general plan is amended or specific findings are made.
Messrs. Hennigan & Parilo May 13, 1999
Page 12
"(a) If the commission finds that a local agency has not revised its general plan or
specific plan or overruled the commission by a two-thirds vote of its governing body
after making specific findings that the proposed action is consistent with the purposes
of this article as stated in Section 21670, the commission may require that the local
agency submit all subsequent actions, regulations, and permits to the commission for
review until its general plan or specific plan is ,revised or the specific findings are
made. If, in the determination of the commission, an action, regulation, or permit of
the local agency is inconsistent with the commission plan, the local agency shall be
notified and that local agency shall hold a hearing to reconsider its plan. The local
agency may overrule the commission after the hearing by a two-thirds vote of its
governing body if it makes specific findings that the proposed action is consistent with
the purposes of this article as stated in Section"21670."
"(b) Whenever the local agency has revised its general plan or specific plan or has
overruled the commission pursuant to subdivision (a), the proposed action of the local
agency shall not be subject to further commission review, unless the commission and
the local agency agree that individual projects shall be reviewed by the commission."
Section 21676.5 gives ALUC the authority to require the County to submit pending land use
actions, including but not limited to the approval of permits to ALUC for its review until the general
plan is made consistent with the CLUP, or the Board of Supervisors adopts appropriate findings
overruling ALUC. Of interest here, nothing in Section 21676.5 expressly provides for or references
a 180 day grace period from the adoption of any amendments to the CLUP. As noted above, the 180
day time line is set out in Government Code Section 65302.3. Again, being mindful of the
requirement to read statutes in a manner so as to harmonize them, it would appear reasonable to infer
that the authority of ALUC to require review of land use actions by the County should not begin until
after the expiration of the 180 day time period set,- out in Government Code Section 65302.3.
However, I also recognize, that from the standpoint of the public policy expressed in PUC Section
21670, there may be good reason to conclude that ALUC's authority to require review commences
upon the adoption of any amendmentto the CLUP which creates an inconsistency with the County
General Plan. Unfortunately, my research and review of the law here did not provide any dispositive
answer to this issue. Accordingly, I am at a loss to provide an opinion as to when this obligation arises.
However, in any event, and referring.back to the above'discussion regarding an implied obligation on
the part of ALUC to identify any inconsistencies between the two plans when the CLUP is amended,
it is my opinion that ALUC could not reasonably exercise its authority to require the County to submit
land use actions to it for review unless and until it finds that the general plan is inconsistent with the
CLUP and identifies the inconsistencies.
i
Messrs. Hennigan & Parilo May 13, 1999
' Page 13
It should also be noted that assuming that ALUC identifies inconsistencies between the CLUP
and the County General Plan, under PUC Section 21767.5 (b), once the Board of Supervisors amends
the general plan or overrules ALUC's consistency determination (with appropriate legally adequate
findings), ALUC's authority to require review of pending land use matters expires, unless the County
otherwise agrees toTurther review by'ALUC.
I trust that the foregoing is responsive to your request. If the members of the Butte County
Airport Land Use Commission have any questions or wish to discuss the issues addressed herein, I
would be happy.to attend their,meeting to address, same. Thank you for the opportunity,to be of
service.
Very truly yours,
J es A. Curtis.
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--FA e
"Stephen Irwin" <stepheni@geocities.com> on 12/02/98 02:15:29 PM
Please respond to stepheni@cwnet.com
To: "SWAAAE: Airport News" <airport@swaaae.org>
cc: (bcc: Christa Engle/HQ/Caltrans/CAGov)
Subject SWAAAE: Airport News, "Airport_ Land Use: Appeals court overturns decision in dispute
over use of land near Wisconsin airport"
Wednesday, December 2, 1998
Appeals court overturns decision in dispute over use of land'near airport
WAUSAU, Wis. (AP) -- A state appeals court sided with public safety over
landowner wishes in a dispute involving how many duplex apartments could be
built on land near the Outagamie County airport.
The 3rd District Court of Appeals said Tuesday that a judge erred in his
ruling that favored the landowner' s wishes.
Outagamie County contended Northwest Properties could build only two
duplexes on 5.5 acres it owns. The developer argued there was room for 14
units because there was no rational reason for restricting the number.
The county adopted an airport zoning ordinance in 1981 to protect the
airport and its runway approaches through height restrictions. The ordinance
also outlined restrictions for uses of land within a three-mile boundary of
the airport.
Northwest' s land was about 2.4 miles from the end of the runway, which is
within the three-mile boundary, court records said.
The ordinance required any homes to be built on a minimum of one acre of
land. Outagamie County Circuit Judge John Des Jardins ruled that restriction
was constitutionally arbitrary and irrational, but the appeals court
overturned the decision Tuesday.
The county has power'to promote the public safety along the approaches that
airplanes use -to land at a rports, the thr:2e.-judgo panel"said' The one -acre minimum is " rationally related to the purpose of public safety
in that it lessens the number of residences within the aerial approach to -
injury and damage due to falling',debris and possible emergency or crash
landings within the.approaches,, " Judge MichaelHooverwrote.
The state Department of Transportation filed court papers supporting the
county' s stance in the dispute.
1998 Associated Press.
x x LAND OF NATURAL WEALTH .AND BEAUTY
AIRPORT LAND USE COMMISSION
7 COUNTY CENTER DRIVE • OROVILLE, CALIFORNIA 95965-3397
;. t..
TELEPHONE: (530) 538-7601
77
FAX: (530) 538 7785
November 24, 1998
Neil McCabe, Assistant County Counsel
County Counsel's Office
25 County Center Drive --
Oroville, CA 95965
Re: Airport Land Use Commission - Request for Legal Opinion Vested Development Rights
Dear Neil:
At the Airport Land Use Commission of November 18, 1998, several- questions came up regarding
the Commissions right to limit development around. airports.
Would you please provide information on the following:
At what point in a project does a developer become vested?
Does ALUC have the authority to prevent single family dwellings on existing parcels? i.e.,
can the Commission approve or deny building permits?
After ALUC amendment to the. CLUPs, jurisdictions have 180 days to bring their General
plan into conformance or adopt overriding findings. During the 180 -day time, they should
submit what types of projects to ALUC for review?
The Commission would appreciate your review and opinion by the end of December. If you have
any questions regarding this request, please give me a call.
Sincerely,
Paula Leasure
Principal Planner
cc: Bob Hennigan -
Laura Webster