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AIRPORT LAND USE COMMISSION
CORRESPONDENCE —July 11, 2001— August 6, 2001
Date
Received
/Sent
Incoming To
Outgoing To
From '
Subject
7/3/01
Jay Hanson, City of .
Chico Planning
Craig Sanders,
Sr. Planner
ALUCP Consistency,
Foothill Park East, Unit 4
omitted from priorpacket)
7/6/01
ALUC
County Counsel
Opinion 01-107 Proposed
Bylaws Amendments
7/20/01
Tom Hayes, Planning
Dept., City of Chico
Norm Rosene
Faxed & mailed copy of
letter dated June 1, 2001
sent previously to the City
of Chico Planning
Commission
7/23/01
Craig Sanders,
Butte County
ALUC
Jay Hanson, City
of Chico Planning
ALUCP Consistency,
Foothill Park East, Unit 4
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LAND OF NATURAL WEALTH. AND BEAUTY
AIRPORT LAND USE COMMISSION
7 COUNTY CENTER DRIVE • OROVILLE, CALIFORNIA 95965-3397
TELEPHONE: (530) 538-7801
FAX: (530) 538-7785
July 3, 2001
Jay Hanson
City of Chico
Planning Division
P.O. Box 3420
Chico, CA 95927-3420
Re: ALUC consistency, Foothill Park East Unit 4
Dear Jay,
ALUC staff has reviewed the above referenced project for consistency with the 2000 Airport Land Use
Consistency Plan (ALUCP). Until the City has brought their General Plan into conformity with the 2000
ALUCP, all Major Land Use Actions must be reviewed for consistency with the Plan. Major Land Use
Actions are defined in the ALUCP and include residential developments 'consisting'of five or more
dwelling units or parcels.
The proposed project is located in a Compatibility Zone."C —.Traffic Pattern Zone. Compatible residential
development in this zone is either one dwelling unit -per five acres or four or more dwelling units.per acre.
The compatible densities are based on gross, calculations:- The proposed subdivision has a gross density of
2.7 dwelling units per acre. It appears that the project. density is therefore incompatible with the
requirements of Zone "C." The determination of consistency must be made by the Airport Land Use
Commission (ALUC). Attached is an application for the project proponent to submit to ALUC. The
application fee is $300.00. Applications submitted by July 18, 2001 will be heard on August 15, 2001.
Applications received after July 18, 2001 may not be heard until September 19, 2001.
If there are any questions regarding the requirements of the 2000 ALUCP or the ALUC review process
please contact myself or M.A. Meleka at 538-7601.
Craig Sanders
Senior Planner
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' � 2001evrF
INTER-DEPARTMENTAL MEMORAN
0NTYOFFICE OF BUTTE COUNTY COUNR�oaE coMMlssloN
Opinion # 01-107
TO: Norm Rosene, Chair, Airport Land UseCommission
FROM: Neil McCabe, Special Counsel
SUBJECT: Proposed bylaw amendments
DATE: July 5, 2001
In your request of June 22, 2001, you asked County Counsel to review certain proposed
changes in the bylaws of the Airport Land Use Commission ("ALUC'). You pointed -out that
ALUC recently had a tie vote,,and the bylaws did not make it clear what the outcome of the
vote was under such circumstances. The County Counsel has asked me to respond to your
request. In the following sections I will discuss the current,bylaw provisions which seem
most relevant, the applicable law regarding vote requirements, and, possible bylaw
amendments.
Current bylaw provisions
Bylaw §1.5.4. provides as follows:
uorum. Four (4) commissioners present in person shall constitute a quorum. At
any time should the number of -Commissioners fall below that of a quorum, the
remaining Commissioners shall immediately adjourn the meeting and take no
further action.
Action. An affirmative vote of a majority of thefullCommission is required to
constitute an action of the Commission."
Since there are seven commissioners, four commissioners are a quorum, and an affirmative
vote of four commissioners is required for . any commission action (other than
adjournment) to be taken. Thus, if the minimum quorum is present, the vote on any,
motion must be unanimous for the proposed action to be taken.
Bylaw §1.5.6, regarding "voting", is consistent with the above "action" requirements.
§1.5.6 provides, in pertinent part, as follows:
"Voting. A vote of the Commission shall be taken .... If the motion receives an
affirmative vote of the majority of the full Commission, the motion carries .... If the
motion receives less than a majority, the motion is defeated..:."
Applicable Law Regarding Vote Requirements.
Your request was generated by uncertainty over the results of a tie vote. There is no
provision in the bylaws or Public Utilities Code provisions pertaining to ALUC which
expressly deal with the question of tie votes.
The bylaw provisions referred to above regarding "Quorum", "Action", and "Voting" are
based upon, .and must be read together with, the provisions of Public Utilities Code
§21671.5 (e), which provides in pertinent part that:
"A majority of the commission members shall constitute a, quorum for the
transaction of business. No action shall be taken by the commission except by the
recorded vote of a majority of the full membership."'.
A tie vote is not an affirmative vote of a majority of the full membership of the Commission
and does not constitute action under either the bylaw provisions discussed above or the
above Public Utilities Code section upon which they are based.
Furthermore, general parliamentary rules provide that when there is a tie among those
who vote, the motion is not adopted. 62 Ops. Cal. Atty. Gen. 698, footnote 3 at page 700,
citing Robert's Rules of Order.
You have not asked about the effect of abstentions. However, since we are considering
voting issues, I believe it is logical to consider this issue. General parliamentary rules
provide that abstentions are considered as "concurring" in the action taken by the majority
• of those who vote affirmatively or negatively. 66 Ops. Cal. Atty. Gen. 636, footnote 2 at
page.337, citing authorities, including Robert's Rules of Order. Absent some other bylaw
provision being adopted, it would appear that this general parliamentary rule would apply,
with the result that an abstention could, in some situations, be counted as a vote.
This general parliamentary rule regarding abstentions can also be modified. In the case
of Ory Creek Valley Association, Inc. v. Board of Supervisors (1977) 67 Ca1.App. 3d 839,
the court considered a rule adopted by the Board of Supervisors of.Sonoma County which
provided as follows:
"In the event that one less than the necessary number of 'aye' votes has
been cast, then an 'abstain' vote shall constitute concurrence and the Clerk
shall set forth in his minutes that the matter was passed pursuant to this
rule."
'The rules governing various local government bodies vary in this respect. For
instance, the rule for county boards of supervisors is similar to the above rule: no act of
a board of supervisors shall be valid or binding unless a majority of all the members
concur therein. Government Code §25005.` However, the rule for general law city
councils is otherwise: a majority of such a council constitutes a quorum, and action
may be taken by a majority of the quorum. Government Code §36810; Saks & Co. v.
City of Beverly Hills (1951) 107 Cal.App. 2d 260.
In that case only four of the'Sonoma County supervisors were present when the motion
in question was .made. Two voted in favor of the motion, one voted against, and one
abstained. The court concluded that the Sonoma County rule did not conflict with the
• requirements of Government Code §25005, which provides that no act .of a Board of
Supervisors shall be valid or binding unless a majority of all the members concur therein.
Under the' county's rule the abstention was counted as concurrence, and the motion
passed. Therefore, if ALUC adopted a similar bylaw provision, such would not conflict with
the corresponding requirements of Public Utilities Code §21671.5 (e).
It is not known whether the Sonoma County rule was intended to apply where there were
two votes in favor, two against, and one abstention. The rule could be read literally as
requiring the abstention to be counted as a vote in favor of the motion in the event of
such a tie, and there. is some authority for such an interpretation; however, we read the
rule as being limited in its application to the facts of Dry Creek Valley Association, Inc. v.
Board ofSupervisorscase: there, three votes were cast; the majority of the votes, namely
two,, were cast in favor of the motion, and the abstention was counted as concurring with
that majority; with the result that the three required concurrences were obtained.
Possible Bylaw Changes.
You have requested that "County Counsel review the following changes in the bylaws as
follows:
1. Definition of "Action."
2. Default decision.
3. Affirmative vote.
• 4. Cite examples of. how the recommended changes would facilitate the
interpretation of the bylaws (or make it easier:)."
ALUC is empowered to adopt rules and regulations consistent with the Airport Land Use
Commission law (namely, Article 3.5 of Chapter 4 of Part 1 of.Division 9 of the Public
Utilities Code, commencing with §21670) in order to carry out its responsibilities. See
Public Utilities Code §21674 (f). It is clear ALUC may adopt bylaws and amendments
thereto, so long as those bylaws and amendments are consistent with Article 3.5.
It should also be noted that the adopted bylaws include the following in section §1.5.5:
"General Rules. Except as otherwise provided herein, the. rules of order. governing
the conduct of business at all meetings of the Commission shall be the latest edition
of Robert's Rules of Order."
Thus, Roberts' rules- could be resorted'to if there were questions regarding parliamentary
procedure, including questions how to count votes.
However,. in -the event ALUC would prefer to set forth additional rules in the bylaws for
easy reference, the following possible amendments are offered for your consideration. In
each instance the existing bylaw provision is set forth and the possible changes are
indicated with underlining for additions and strtkeeuts for deletions.
Proposall.
1.5.4 Action. An affirmative vote of a majority of the full Commission is required to
constitute an action of the Commission. [§21671.5 (e)]. For purposes of these bylaws,
"Action" is defined as the passage of a motion duly made and seconded at a meeting of
the Commission held in compliance with the Brown Act (Chapter 9 of Part 1 of Division 2
of Title 5 of the Government Code, commencing with 15.54950).
Discussion.
The intent of this proposal is to make it.clear that ALUC. action, as contemplated by the
bylaws, is official, formal action taken by the commission as a body on a motion made at
a meeting for which all Brown Act requirements have been met, including proper
preparation and. posting, of the agenda. At. least four affirmative ("yes" or "aye') votes
would be required; however, in some instances an abstention could be counted as an
affirmative vote. (See discussion below regarding Proposal 3.)
Proposal2.
Default decision. No proposal.
Discussion. No change is proposed. An affirmative vote is required for action to' be
taken. A bylaw purporting to specify a "default" decision which would be deemed to have
been made in the absence of such a vote would be inconsistent with this requirement.
However, in some instances the proposal regarding abstentions may assist by allowing an
abstention to be counted as an affirmative vote. (See discussion below regarding Proposal
3.)
Proposal 3.
1.5.6 Voting. A vote of the Commission shall be taken on the issue motion. If the.motion
receives an affirmative vote of the majority of the full Commission, the motion earries
passes §21671.5(e)]. If the motion receives less than a majority, the motion is defeated
and the Chair may allow a subsequent motion(s) on the matter. If there are . no
subsequent successful motions,'the Chair shall declare that no
action has been taken on the matter.
Tie votes. If there is a tie vote on a motion, the motion fails.
Abstentions. If a Commissioner abstains from voting on a motion, (Alternative A. the
abstention shall constitute concurrence with the majority of those Commissioners who vote
affirmatively or negatively.)
(Alternative B. the abstention shall not be counted as an affirmative or a negative vote.)
(Alternative C. and one less than the necessary number of affirmative votes has-been
cast in order for the motion to pass, then the abstention shall constitute concurrence with.
the vote of the majority of the Commissioners who voted.)
Discussion.
Action. is taken by the passage of motions on matters or issues pending before the
Commission. No action can be declared as having occurred regarding a matter or issue
unless a motion is passed.
• The proposed language makes it clear that there is no "action" when a tie vote occurs.
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'This result follows from the requirement that no action shall be taken by the commission
except by the recorded vote of a majority of the full membership. If 6 commissioners were
present, and there were 3 affirmative and 3 negative votes, the motion in question would
• not pass. In such a situation, the current bylaws allow subsequent motions. It is preferable
for alternative motions to be made in an effort to resolve the impasse and allow action
to' be taken.
Regarding abstentions, Alternative A expresses the general parliamentary rule. Alternative
B would allow abstentions to simply be recorded as abstentions and not otherwise counted.
Alternative C, which is based in. part upon the .Sonoma County rule approved by the Court
of Appeal in DryCreek VaiieyAssociation, Inc. v. BoardofSupervisors, supra, would allow
an abstention to be counted in some circumstances if.one more vote were needed for
action to be taken.
For illustration of these alternative abstention rules, let us assume 6 commissioners are
present and a_motion is made and seconded.
For our first illustration, let us assume there are three affirmative votes on the motion, -two
negative votes, and one abstention. Since four votes are necessary for passage, the
motion fails, unless the abstention is counted as an affirmative vote. Under both
Alternatives A 'and C the abstention would be counted as an affirmative vote, and the
motion would pass. Under Alternative B, the abstention would not be counted and the
motion would not pass.
• For our second illustration, let us assume there are four affirmative votes, one negative
vote and one abstention.. The motion would pass without counting the abstention; but the
vote count would differ under the different alternatives: under Alternative A the vote would
be counted as five affirmative and one negative. Under Alternatives B and C the vote
would be counted as four affirmative, one negative, and one abstention.
For our third illustration, let us assume that seven commissioners are present and there,
,are three affirmative votes,. three negative votes, and one abstention. This would result
in a tie vote and no action would be taken. None of the alternative proposals regarding
abstentions -would alter this result. Abstentions are never counted as affirmative votes
under Alternative B, and there is no "majority" for the abstention to be counted with under
either Alternative A or C.
Conclusion
We hope the above responds satisfactorily to your request and that it will be, useful to
ALUC in considering amendments which will assist it in carrying out its responsibilities
consistent with the Public Utilities Code.
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41
MEMORANDUM obi .( c Ck;
DEPARTMENT OF DEVELOPMENT SERVICES. P o. &f- 31210
PLANNING DIVISION chrco'CA 115q a %i
Date: July 20, 2001
To: Tom Hayes, Planning Dept., City of Chico F
From: Norm Rosene, Chair, Butte County Airport Land Use Commission
Subject: General Plan Growth Area Analysis
Following our conversation regarding the letter that I wrote on behalf of the ALUC relative to the ,
Chico General Plan Growth Area Analysis, please find attached the mentioned letter which is dated
June 1, 2001.
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of"Affig
June 1, 2001
City of Chico Planning Commission
420 Main Street
Chico, CA 95926
Re: General Plan Growth Area Analysis
Honorable Chair and Commissioners:
FILE
COPY
loDu%Z
LAND OF .NATURAL WEALTH AND BEAUTY
AIRPORT LAND USE COMMISSION
7 COUNTY CENTER DRIVE • OROVILLE, CALIFORNIA 95965-3397
TELEPHONE: (530) 538-6571
FAX: (530)538-7785
www.buttecounty.net/dds/
The Butte County Airport Land'Use Commission (ALUC) commends the City and Planning
Commission for initiating the discussion on the City's land use needs to' accommodate future
growth. The City is taking a proactive stance by having this important public dialogue before a
• critical land use shortage occurs which would require. decisions to be made under pressured
circumstances.
As you are aware, the purpose of the adopted 2000 Airport Land Use Compatibility Plan (ALUCP)
is to guide decision makers in making sound land use decisions to ensure that development is
compatible and consistent with long term protection of Chico's Airport. When formulating a
recommendation on growth areas, I strongly urge the Planning Commission to incorporate the
policies and standards of the 2000 Plan and make such recommendation consistent with these
policies.
The 2000 ALUCP utilizes the best available data regarding present and future operations at the
airport, as well as existing and proposed land uses within the airport environs. The Plan takes into
consideration air traffic volumes, airspace protection, flight patterns, noise, and safety considerations
for pilots and persons on the ground. The Plan also utilizes the most current information from the
City's Airport Master Plan, including the potential for runway expansion.
The ALUC spent considerable time arriving at the final document. Public hearings/meetings
spanned a 9 -month period. Throughout the public hearing process the ALUC made sure that all
affected jurisdictions were notified of the process and had opportunity for input. The ALUC made
several changes to the plan to accommodate concerns raised by the City of Chico. For example, the
ALUC responded to the City's request to. lower the compatibility threshold in the C zones from 5
dwelling units per acre to 4 dwelling units per acre' The ALUC recognizes the City's desire to have
• a compact urban form and to provide for higher densities in the urban area. In support of these
desires, the C and C-2 zones provide that densities of 4 dwelling units or more are consistent with
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airport safety and operations. It should also be noted that after all of the public hearings,'
deliberations, and compromises, the Plan was unanimously adopted in a vote'that included the
Airport Manager of the Chico Municipal Airport.
On behalf of the Airport Land Use Commission I urge the Planning Commission to use the
provisions of the 2000 ALUCP, as written, when recommending land use policy for those areas
within the 'airport area of influence. I would also like to extend an offer to meet with .the
Commission on an agendized item to discuss the provisions of the ALUCP and the. aeronautic
principles that guided the land use recommendations contained therein.
. Sincerely,
Norm Rosen
Chair, Butte County ALUC
KAP1anning\ALUC\C0RRESP0\2001 Corresp\chicopc.wpd
COMMUNITY DEVELOPMENT
DEPARTMENT
PLANNING
ITYoFCHICO 411 Main Street
INC 1972 P.O. Box 3420
Chico. CA 95927
(530) 895-4851
FAX (530) 895-4726
ATSS 459-4851
Butte County Airport Land Use Commission
Attn: Craig Sanders, Senior Planner
7 County Center Drive
Oroville, CA 95965=3397
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July 16,.2001
Subject: Airport Land Use Compatibility Plan (ALUCP) Consistency, Foothill Park East
Unit 4
Dear Craig,
.Thank you for your response to the above noted. project. This project represents a single
phase of the larger Foothill, Park East Vesting Tentative Subdivision Map previously
approved by the Planning Commission in June of 1997 for which an environmental impact
report was certified. At that time, the entire project including subsequent phasing was
approved at an overall density of approximately 4.6 dwelling units per acre. In discussing
your comments with the Planning Director and Principal Planner, it was determined that
although the density for this single phase is less than the minimum allowed by the ALUCP,
• it is consistent with the overall plan of 4.6 dwelling units per acre and therefore with the
ALUCP.
.I trust that this will clarify our position regarding consistency of this project with the ALUCP.
If you should have any questions, you may contact me at 895-4858.
Sincerely,
Jay Hanson
Associate Planner
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