HomeMy WebLinkAboutLEGAL 209county
• PLANNING DIVISION ?
DEPARTMENT OF DEVELOPMENT SERVICES
7 COUNTY CENTER DRIVE - OROVILLE• CALIFORNIA 95965-3397
TELEPHONE: (916) 538-7601
FAX: (916) 538-7785
May 27, 1997
Neil McCabe
County Counsel
7 County Center Drive
F
Oroville, CA 95965
Dear Neil`
At the May 21, 1.997 Airport Land Use Commission (ALUC) meeting, the Commission
continued the discussion of the ALUC By -Laws to June 18, 1997. The Commission
requested staff to provide them with a copy of the Local Agency Formation Commission .
Memorandum of Understanding (MOU) with the Board of Supervisors. They further
requested that county counsel attend the June ALUC meeting and be prepared to advise i
the Commission how ALUC would proceed in establishing an MOU with the Board of
Supervisors and how to create a fee ordinance for ALUC projects to enhance funding of
the Commission. There was discussion about generating a budget separate from the
Planning Division, but no direction was provided to staff.
Please contact me to set a date and time so we can meet regarding this issue.
Sincerely,
Paula Leasure ,
ALUC, Principal Planner
Attachments: LAFCo MOU '
LAFCo Fee Schedule
Aeronautics Code re:. staff/fees }
cc: John Franklin, Chairman ,
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P. SCOTT BROWNE
ATTORNEY AT LAW
The Old Post Office
13 1 South Auburn Street
Grass Valle}, California 95945
E-mail at hrowneps@nccn.net
(916)272-4250
Fax (916) 272-1684
April 16, 1997
Butte County Airport
Land Use Commission CONFIDENTIAL
County -of Butte
7 County Center Dr.
Oroville, CA 95965-33967
RE: .Evaluation of. Potential Litigation regarding Failureof-the City of Chico to Comply with
Airport Land Use, Commission Statutes in the Area of the. Chico Municipal Airport
Dear Commissioners:
At the Commission meeting of March 19, 1997 you requested that I do a confidential evaluation .of
potential litigation -regarding failure of the City of Chico to comply with. Airport Land Use Commission
(ALUC) statutes in the area of the Chico Municipal Airport: This letter is intended to set forth my -
findings and conclusions -based on the information -that has been made available to me. Please understand .
that it.is not an exhaustive analysis. of all possible issues: It is a limited evaluation of major issues evident
in the proposed litigation.
Based .on the information available to' -me. I conclude that 1) ALUC has statutory authority to sue to
enforce compliance with the. statutory requirements governing land use decisions within its scope of.
authority, 2) that the, particular proposed legal actions here.face substantial. statute of limitations defenses
and -3) that the. Commission. should consider alternate means. of, seeking compliance that may be more .
effective than this particular action. .
1. The Airport.Land Use Commission Has Authority to Sue
In evaluating the proposed litigation, an initial issue:that must be resolved is whether airport land
use commissions even have authority to. bring any action. To answer this question we must first -review .
the statutes creating ALUC.
Airport Mand_ use commissions were established by the Legislature in 1967 pursuant Division 9, .
Aviation—Part 1, State Aeronautics, Act --Chapter 4, Airports'and Air Navigation Facilities=Article3.5,
Airport Land -Use Commission; Article added Stats 1.967 ch -852''§1.] Section 21.670 et.seq. of the Public.
Utilities Code. (Note that all section references hereafter are to the Public Utilities Code unless otherwise
indicated). Section 21670 sets forth the general purpose of airport land use commissions as follows:
` 21670. Establishment of county airport. land use commissions
"(a). The Legislature hereby fnds'and,declares that: -
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico
April 16., 1997
Pg. 2
"(1) It is in the public interest to provide for the orderly development ofeach public use
airport in this state and the areasurrounding Mese 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 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. .
"(b) In order. to achieve the purposes of this -article, every county in which there is located an
airport which is senied by a .scheduled airline shall establish an "airport land use commission"
. Section 21671.5 sets forth various matters with respect to the operation of the Commission: It
establishes the term of commissioners and provides that staff and expenses shall be a county charge. It
restricts the Comnussion from hiring employees or contractors.without county approval. The section
authorizes ALUC to charge fees for review'of projects.
Section 21-6.74 sets forth the powers and duties of the ALUC as follows
"(a) To assist local agencies in ensuring compatible land uses in the vicinity of all new
airports. and in the vicinity of existing airports to the extent, that the land -in the vicinity of
those airports is not already devoted to incompatible uses.
"(b) To coordinate planning. at the state, regional, and local levels so as to provide for the
-orderly. development of air transportation, while at the same time protecting the public.
health, safety, and welfare.
"(c) To prepare and adopt an airport laird use plan pursuant to Section 21675.
"(d) ' To review the plans, - regulations, and other actions -of local agencies and airport
operators pursuant to Section 21676.
"(e) -The powers of the commission shall in no way be construed to give the commission
jurisdiction over the operation of any airport.
"(f) In order to carry. out its. responsibilities, the- commission. may. adopt rules and regulations .
consistent with this article..".
Nothing in this section expressly gives ALUC authority -to sue. I have made a careful review of the
entire ALUC:provisions and have found r o&Tpeciftc authorization for ALUCs to sue to enforce
compliance with their decisions. On the other hand, I have not found any express prohibition of such.a
condition.* -Section 21675.2 addresses .the failure of ALUC to act on a proposal and authorizes an action
"to compel the Commission to act".. Thus the Legislature clearly contemplated that the Commission
could be a defendant in its own name in a lawsuit.. If it can be &defendant, then would it not follow that
it can also be a plaintiff in a lawsuit?
Section 945 of the Government Code provides general statutory authority for all public entities to
sue and be sued. G. C. § 811.2. defines a "Public entity" foi the purposes of Section 945, as including "the
State, the Regents of the University of California, a county, city, district, public authority, public agency,
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico
April 16, 1997
Pg. 3
and any other political subdivision or public corporation in -the State." The Law Revision Commission w
Commentary states of this definition that it "is intended to include every kind of independent political or
governmental entity in. the State". Thus, it would seem that.there is express statutory authority for all `
\ public agencies of every type to sue. This definition is so broa as�ude even limited jurisdiction
a ncies such as ALUC.
Notwithstanding the lack of express authority in the enabling statutes for ALUC to sue, I would
.conclude that the general grant of authority in*Section�945 of the Government Code is sufficient to,
authorize ALUC to sue.
2. The Proposed Litigation Faces Serious Statute of Limitations Problems -
I have been given a draft of proposed litigation against -the City of Chico prepared by Jay White on
behalf of.the California Pilots Association. He is asking ALUC to join in the litigation..
..A review .of the draft indicates it seeks to challenge three actions by -the City of Chico that- are
-alleged to have violated the provisions of the Public Utilities Code that relate to Airport Land Use
Commissions. The first action was the. approval of the Comprehensive Update of the General Plan for
the City -at a hearing on November 16, 1994, where the City Council apparently voted to override
ALUC.'s finding that the Plan did not comply with the Comprehensive Land Use Plan (CLUP) for the
Chico Municipal Airport: The second action challenged was the approval by the City of Chico of a.use
permit.for the Cal Northern School of Law. on October 21, 1996.without making findings to override .
ALUC's finding of°non-compliance with the CLUP.. The third action was the approval of a use permit
for: an Assisted Living Center by the Chico Planning Commission on January 6, 1997, also without
making findings to override _ALUC's finding of non-compliance with -the CL•UP. .
The petition seeks declaratory relief and a writ of ordinary mandamus under CCP § 1085 to order .
the: City of Chico to reverse these decisions and comply with the requirements of theTublic Utilities
Code.'
.. A. The Challenge to.the General. Plan Finding Maybe Untimely .
ALUC's authority to -review general plans is.set forth in Sections 21.676 as follows:
`§ 21676. Local agency's submission of general -plan to airport land use commission
"(a) Each local agency whose general plan -includes areas covered by an airport land use'
commission plan shall, by .July. l; 1983, submit a copy of its plan or:specific. plans to the .
'Mr. White for the California Pilots Association has recently sent me information
, .suggesting that he may,add an additional cause of action relating to violation of FAA
requirements in connection with grants the City'has received. I have not had the opportunity
to investigate that possible cause of action and it. has not been evaluated as part of this opinion.
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico
April 16, 1997
Pg. 4
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 he.. 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
makesspecific findings that the proposed action is consistent with. the purposes of this article
stated in Section 21670.
"(b) Prior to the amendment, ofa general plan or specific plan, or the -adoption or approval '
of a zoning ordinance or building regulation within the planning boundary established by the
airport land use commission pursuant to Section 21675, the local agency shall first refer the .
proposed action to the commission. If the commission determines that the proposed action'is
inconsistent with the commission's plan, the referring agency shall be notified.. The local
agency may, after.a public hearing; overrule the commission, 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. .
"(c) Each public agency owning any. airport within the boundaries.of an airport land use
commission -plan. shall prior -to modification of its airport -master plan, refer such proposed
change to the airport land use commission. -If the commission determines that the proposed
action is.inconsistent with the commission's plan, the referring agency shall be. notified.. The
public agency may, after a public hearing, overrule the commission by a two-thirds vote of its
governing body if it -makes specific findings that the proposed action is consistentwith the
purposes of this article stated in Section 21670.
"(d).Each commission determination pursuant to-subdivision.(b) or (c) shall be made within
60 days from.the date of referral -of the -proposed action. If a commission fails to make the
determination within that period, the proposed action shall. be deemed consistent -with the
commission's plan.
Pursuant to 21676(b), the City of Chico was.required to submit its updated plan for ALUC's
review. This was done and ALUC.found it not be be in compliance with. the Airport CLUP: The City
Council thereafter apparently included a finding for override in the voluminous findings it made upon
adoption of the. General Plan Update. From what.I have been advised, that decision was madewithout
' specific notice that an override finding would be included in the decisions nor a specific public hearing .to
consider the override of ALUC's decision. If true, these would appear to be substantial grounds. for.
challenging the override.
-Timing, however, isa serious issue here. The override was adopted by the City Council on
November. 16,.1994, nearly two and one-half years ago. The City would certainly assert at "the outset that
any challenge -to the action was untimely under the applicable statute of limitations set forth in Section
65009 of the Government .Code.
Section 65009 established a-90 day time,limitto challenge a general -plan after -its approval. The
section contains strong language of legislative intent:
•
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico ,
April 16, 1997
Pg. 5
""(2)The.Legislature further finds -and declares that a legal action challenging a decision of a
city, county, or city. and county has a chilling effect on the confidence with which property
owners and local governments can proceed.with projects. Legal actions filed to attack,
review, set aside., void, or annul a decision of a city; county, or city and county pursuant to
this division can prevent the completion of needed developments even though the projects
have received required.governmental approvals.
"(3) The purpose of this section is to provide certainty for.property owners and local
governments regarding decisions made pursuant to this division...
"(c) Except as provided in subdivisions (d) and (i), no action or proceeding shall be
maintained in any of the following cases by any -person unless the action or proceeding is
commenced --and service is made on the legislative body within 90 days after the legislative
body's decision:
"(1) To attack, review, set aside; void, .or annul the decision of a legislative -body to adopt or
amend a general or specific plan. This paragraph does not apply where an. action is brought
based. upon. the complete absence of a. general plan or a mandatory element thereof, but does
apply to an action attacking a general plan or mandatory element thereof on the. basis that it
is inadequate. "
Given this clear statute of limitations.and the -extended period from the date of approval; it will, be
an uphill battle to convince the court a challenge to the general plan: override can still be made, no matter -
how meritorious the substance of the case.
It may be possible to assert that the City's failure to provide notice should. estop or bar it from
raising the. statute of limitations as. a defense. Such relief is exceptional and the burden is on the plaintiff
to -convince the Court of the extraordinary circumstances that justify such an exception.
B. The Challenges to the Use Permits for the Law. School. and Assisted -Living Center. Face "
Similar Limitations Issues
The challenges to the -law school and assisted living center use permits face.two serious procedural
hurdles. First; ALUC's right to require review those -projects may have terminated.upon the adoption of
the City's General Plan Update and.Overriding Findings. -Second, even if.this is.not-the case, the
applicable statute of limitations for challenge of these use permits may have passed:
ALUC's right to require individual projects to be submitted to it for review. is limited. Under
S-ection 21675.1(b), ALUC can require submission of individual'projects for review until ALUC has
...adopted an Airport CLUP. Under Section 21676.5, the Commission can.require submittal of individual
projects to the Commission where "the Commission finds that a. local agency has not revised its general
plan or specific plan or overruled the .commission by .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".
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico
April 16, 1997
Pg. 6
Here, the City contends that in adopting the 1994 General Plan Update, it overrode.the findings of
ALUC. Hence 21676.5 did not apply and it was not required to submit individual projects such as the
law school or assisted living .center to. ALUC for its review.. Since it was not required to submit these
projects to ALUC, it had no obligation to adopt overriding findings after ALUC found the projects not in
compliance.
While the original override finding of the City is of questionable legality, the.time for challenging
that. action has probably passed. If so; -the action may stand and protect the.two. individual projects that
are also being challenged.
One possible counter argument lies in the.particular wording of Section 21676.5. That section
states that.°If the. Commission finds that" the -local agency has not revised it plan or .overrode the'
Commission, then the .Commission can require individual. projects be.submitted to ALUC for review.
This language suggests that it is up to ALUC. to make those findings. Thus, if ALUC were'to specifically
find. that the City of Chico had not properly overridden ALUC's findings .in adoption of the General Plan
Update, it could then have a reasonable legal argument that individual projects must come before it for
review.
Given the ambiguous nature of the statutory language; :and the :lack of any significant. caselaw to
provide guidance, it:is.impossible to predict whethera court would buy such an interpretation of the law
However, for it to even be a possible argument, ALUC would have to hold a hearing and make an
express finding that the Chico General Plan override was invalid. This would be a procedural-
prerequisite
rocedural prerequisite to any such -argument. '
Beyond the issues:raised by Section 21676.5, there is.also the -question whether. the approvals of the.
law school and the assisted living center can be challenged at this late date. Section 65009 of the
Government Code not only sets'a 9.0 day limit for challenge to generalplan approvals, it also sets that..
same 90 day limit for challenge to conditional use permits (§65.009(c)(5)) and rezonings (§65009(c)(2)).
Here the permit for the law school was issued October.21, 1996, more.than five months ago. The use
permit for the assisted living center was issued January 6, .1997,:99 days ago as of April 15, 199.7.
It is possible that the assisted living center approval could be viewed as.having been extended to
January 17, 1997 as -.a result of the submission of the matter to .the '.City Council as of that date..' even.
though they apparently.took no action on.the matter. If so, -only 87 days have passed and an action filed
immediately may be held to be .timely. If the Commission desires to do this, it.mus.t act immediately!.-.
. The bottom line is that I believe. it more probable than not that ALUC would not succeed in
overcoming:the statute of limitations defenses and other technical defenses that the -City can raise.
Evaluation of Potential Litigation by the Butte County Airport Land Use
Commission against the City of Chico
April 16, 1997 -
Pg. 7`
III.. Alternative Means of, Seeking City Consideration of ALUC Concerns
Given the problems with the proposed suit, I would recommend that ALUC investigate other
Alternatives means of getting. the. City of Chico to address ALUC concerns: Some of the alternatives` are .
as follows:
® Seek the voluntary cooperation of the City and an MOU clarifying ALUC's role
O Wait for another project .to be approved without a proper override of the ALUC, findings and then .
timely challenge that project.
• Hold a hearing and adopt a formai finding that the City's attempted override of ALUC in the
General P1an.Update was invalid and that specific projects henceforth.must be brought for review by
ALUC. Follow this up either with a declaratory relief action -or wait for a project to -be approved
without submission to ALUC.and then timely'challenge .it.
Of these alternatives, the first is the least expensive and-the.most effective, if the City will -
cooperate: I understand that the Commission is meeting with the City on April 16" in a joint session.
This is your opportunity to convince -the City that it. is as much in their interest to protect. the airport as it
is -of ALUC. If.there is motivation on thepart-ofthe City to cooperate, I would recommend you consider
developing- a Memorandum of Understanding with the Cityso that you have an enforceable agreement
setting out areal role for ALUC. in city planning around the. airport.
If this does not work, then the other two alternatives maybe considered. The chief advantage .of
these alternatives is that -you don't start out with the procedural handicaps that .the proposed action -
currently faces.
I trust this opinion adequately responds to your question. Please contact me if you have any
questions regarding this opinion.
Inc rely,
P. Scott Browne
Special Counsel:for. Butte Airport Land Use Commission .
cc.' Paula Leasure
[psb:4/16/97: W:\BUTTE04\E V.ALUE.OPI]
r
0 •
MEMORANDUM
TO: File
FROM: Paula
SUBJECT: Mtg. W/ Neil McCabe
DATE: September 26,1996
\• ALUC request to do Personnel evaluation and troubled relationship w/ Planning.
?Can ALUC do eval? je-5
?Can'closed session be held? Y&5
?Will Neil be able to attend me ting on Oct. 16? ye,5
Advise of Foothill Park and Bidwell Ranch status.
3. Casa del Ray - advise of situation and Carl's idea to handle.
4. Ted Crawford wants opinion on CSA's - who owns facilities after a CSA is formed. Who has right to
allow additional parcels? Can original applicant for formation restrict inclusion or charge buy in fees?
J AIafcolmemltrsW eiI. mtg
- Local Agency Formation Commission - Butte County -
• tf INTER -DEPARTMENTAL MEMORANDUM
OFFICE OF BUTTE COUNTY COUNSEL
OVNS ;
TO: Chuck Nelson, Planning Commissioner
BY: Neil H. McCabe, Assistant County Counsel
SUBJECT: ALUC and the CSA 87 Area Specific Plan / `a
DATE: March 15, 1994
At the meeting on March 2, 1994, between City and County representatives regarding tTie`proposed CSA 87 Area
Specific Plan, Mayor Owens raised an issue pertaining to liability of an `airport operator for damages.
I am enclosing for your information a copy of an'article iii, the Winter 1994 Issue of Land Use and Environment
Forum which discusses the role of Airport Land Use Commissions:. The article touches on the role of ALUC pertaining
to the adoption of a specific plan and in determining whether or not the plan is consistent with the adopted Airport
Comprehensive Land Use Plan. The article also touches on liability questions.
Also enclosed is a copy of the Daily Journal article Mayor Owens referred to. regarding airport operator "noise
• liability."
NHM/slt
(nelson.mem)
Enclosure
cc: Nina Lambert, Planning Commissioner >
Mary Anne Houx, Supervisor
Bill Farrel, Development Services Director
Barry Hogan, Planning Division Manager
Steve Honeycutt, Heritage Partners
i
Planning Department
MAR 16 1994
Orovilie, k':alilornla
•
•
•
�f •
Common Sense,'
Uncommon Confusion
Your heirloom teacups rattle on the shelf as the airplane lifts out
of the nearby Happy Valley airport here in hypothetical Pacific County.
One of these days you'll lose another of Grandma's cups or, worse yet,
a pilot will dump a plane in your backyard. There ought to be a law.
Well, there .is. Or, at least; there is a remnant of a state statute to
d rt B t recent le islation has confused
adopt a CLUP for every public use air-
port. The "mandate relief' bill did not
amend Pub Util C §21675(x), the com-
p anion mandate that requires ALUCs
to adopt CLUPs. See also Pub Util C
§21670.2 (still requiring Los Angeles
County's Regional Planning Commis-
sion to serve as the ALUC; it too must
still adopt CLUPs.
So far, only San Bernardino County
has axed its ALUC. All the rest still ex-
ist along with the 190 previously .
adopted CLUPs. Attorneys wid plan
tiers cannot. ignore such considerable
regulatory power and its implications
for liability.
PLANNING AND DEVELOPMENT
control land use aroun atrpo s. u c g
attorneys, planners, and pilots. Here's a quick look at the present If an ALUC exists, it must adopt a
CLUP for each public use airport and
condition of the airport land use planning law (Pub Util C §§21670-
the surrounding area. (ALUCs cxtl also
21679.5). ' . Iadopt CLUPs. for military "Iirports, but
TWO STEPS FORWARD,
ONE STEP BACK
To reduce conflicts over airport land
use and noise, in 1967 the legislature
required counties to create airportTl�ind,
use commissions.(AL'UCs),, that were
tC-I— PA )These requirements were co-
dified to - Pub. Util C §§21670,
21675(a). Until 1984; ALUCs bad to
adopt-CLUPs only' for airports with
scheduled air carrier service. In 1984,
the legislature expanded this planning
mandate to include all public use air-
ports. For a discussion of the origins
and- structure of ALUCs, see Selmi &
Peter M. Detwiler -•
36 WINTER 1994
Peter M. Detwiler is Staff Director of the California
State Senate's Comnuttee on Local Government. Be-
fore joining the Committee's staff in 1982, he
worked for the Governor's Office of Planning and
Research and the San Diego Local Agency Forma-
tion Commission (LAFCO). He also teaches in the
Graduate Program in Public Policy and Administra-
tion at ('alifornia State University, Sacramento. Mr.
Detwiler received his B.A. from Saint Mary's Col-
lege of ('alifortua and his M.A. from the University
of Wisconsin. He is an Executive Editor of the Fo-
rum.
Editor's Note: The Forum's newest
Feature, "Road Map, " is designed to
briefly introduce readers to very -spe-
cialized ureas of law and provide u
guide for further research. We will fo-
cus on topics—e.g., airport land use
commissions—that come up in prac-
tice but, for most practitioners, ire off
the beaten path. As with all our fea-
tures, we welcome readers' comments
and suggestions for topics.
they cannot control the federal facili-
Manaster, California Environmental
ties' bald use.) The CLUP relies on ei-
long-range master or
Law, §§65.12-65.16 (Matthew-Benderffhe
a airport plan
1993).
impler airport layout planNt spect-
Concerned about the local costs of
fees land uses, and sets 1511dtng restric-
state mandated programs, however, the
tions and standards. Pub Util C §21675.
does
legislature ind the Governor agreed to
Although the statute not requirjhe
repeal dozens of state mandated local
notipublic hearing(Pu"Utilprograms
as part of the_ compromise
§21675(c)t isprudent practice forleading
to the passage of the 1993-94
ALUCto hold one anyway. -See Sel,
state budget. In doing so, the legislature
& Manaster §65.15[1] n4. (The best
drastically amended 'the ALUC law:
- reference source on CLUPs generally is
State law now permits, but does not re-
Airport Lund Use Planning Handbook
quire, a county to have an ALUC. See
(Division of -Aeronautics, California
Pub Util C §21670(b) (as amended by
Department of Transportation 1983). A
Stats 1993, cb 59, §17, effective June
new edition is due in early 1994.)
30, 1993). Nevertheless, if. in ALUC
Once the ALUC adopts a CLUP, the I
still exists, the commission must still
affected -cities anti counties have 180
o amend their own general plans
nform to 'the' Govt C}'
plan.
L
1.3.�All major landu 6dooisions
must be consistent with general plans
and these general plans must be consis-
Peter M. Detwiler is Staff Director of the California
State Senate's Comnuttee on Local Government. Be-
fore joining the Committee's staff in 1982, he
worked for the Governor's Office of Planning and
Research and the San Diego Local Agency Forma-
tion Commission (LAFCO). He also teaches in the
Graduate Program in Public Policy and Administra-
tion at ('alifornia State University, Sacramento. Mr.
Detwiler received his B.A. from Saint Mary's Col-
lege of ('alifortua and his M.A. from the University
of Wisconsin. He is an Executive Editor of the Fo-
rum.
Editor's Note: The Forum's newest
Feature, "Road Map, " is designed to
briefly introduce readers to very -spe-
cialized ureas of law and provide u
guide for further research. We will fo-
cus on topics—e.g., airport land use
commissions—that come up in prac-
tice but, for most practitioners, ire off
the beaten path. As with all our fea-
tures, we welcome readers' comments
and suggestions for topics.
tent with CLUPs. Repealing the man-
etennination- by-a--two=thirds-vote.) In
court found that a citv's land use re -
date to have an ALUC did not affect the
overriding the ALUC, however, a city
strictions near an airport were a regula-
equirement that general plans and sub-
decisions be
council or county board of supervisors
specific findings that its
tory taking that required compensation
for the landowners. Blosser v City of
Sequent land use concis-
4must adopt
tent with an adopted CLUP. Pub Util C
plan is consistent with the statute's pur-
Fresno (June 26, 1991, 5 Civ F013074;
§21676; Govt C §65302.3.
poses of protecting the public health,
unpublished opinion). The city re -
If an ALUC has not adopted a
safety, and welfare. Pub Util C §21676.
quired an emergency touchdown zone
CLUP, nearby landowners can seek in-
That makes a(tough_ qi ndard, to meet
(ETZ) and a clear zone on private prop -
junctions against a city or county's pro-
and such findings are unlikely to stand
erty at the end of the runway, consistent
posed zoning changes, variances, per-
mits, or other regulations. A court can
up to a well -researched challenge. tlf7
rthe city or county neither amends its
with the airport's adopted CLUP On
court jury awarded
remand a superior
suspend those decisions until the city or
? plan nor overrides the ALUC, the,
damages of over $6 million to the land -
county: (1) determines that its action is
l ALUC can require the city or county to �
owners, and the city appealed again.
consistent with the purposes of the
submit all of its land use "actions, regu-
Oral arguments will occur this winter.
ALUC law; (2) rescinds its action; or
' lations, and permits" in that affected~
b
In our hypothetical Happy V111ey,
(3) amends its action to be consistent
area for review. Pub Util C §21676.5. !
-- - - --- - - - -
the airport was here first and the houses
with the purposes of the ALUC law.
Pub Util C §21679. The opportunity to
_
LIABILITY LOOMS
came later. Maybe Pacific County offi-
impose a development moratorium
�Jf a city or county overrides -a CLUP
cials should have followed the ALUC,
near a public airport remains un-
<md danages_ _Oc_cur, (e.g., a plane
adopted a CLUP, and prevented my .
touched. Even though state law no
crashes, noise becomes a nuisance),
house from being built. Actually, the
longer requires an ALUC; adjacent
(then thepublic airport operator is statu-,
statute is supposed to protect the gener-
lvndowtners atnd aviators can still sue to
rtorily immune from liability. Pub Util
al public from airport noise and safety
block encroaching development.
- J
C §21678. Although untested, this rule
hazards, just as it protects airports from
�Tlie- ALUC_.determines= -Whether- a
stands as a sober warning against Capri-
encroaching land uses. The roaring air-
general plan,�specifacplan, zoning or-'.
cious land use decisions.
plane climbs out over Happy Valley
dinance, or building regulationis-con-.
A case pending in the Fifth District
and the tea cups settle down in their
--sistent with its adopted-CLUP.If the .
Court of Appeal also worries public
saucers. Your blood pressure slowly .
_ - —.
plvi_'or action is'inconsistent, -the city
agencies and their attorneys. In an un-
decreases, along with your anxiety. But
or county -can overrule-the-ALUC's dei
published June 1991 decision, that
there's always tomorrow. +
Continuing Education Of The Bar and the State Bar Environmental Law Section
Present
THE ECONOMY. V/
THE ENVIRONMENT
THE 1994 CEB ENVIRONMENTAL LAW INSTITUTE
Friday and Saturday, April 29 & 30
Hotel Nikko 222 Mason Street, San Francisco
CALL TOLL-FREE 1-800-CEB-3444
LAND USE & ENVIRONMENT FORUM 37
THS PRACTITIONERMICHAEL M. BERGEfl 0a;G�(�UV��� a�9�
40 -Year Taking's Retrospective
*In Memory of Jerrold A. Fadem
n era ended on Jan. 13, when Jerry
Fadem died. Jerry was a fixture in
the eminent domain community
for 40 years and my partner for more than
half of them. It seems appropriate to mark
his passing by reflecting on his place in
the development of takings law.
Jerry believed that the function of the
courts was to protect individuals against
oppressive government activity. He
spent his legal life on. the cutting edge,
seeking constantly to enlarge the consti-
tutional protections available to private
property owners. Confounding those who
believe they can pigeonhole people inter-
ested in protecting "property rights,"
Jerry acted from a liberal Democratic
point of view. His visions brought about
certain changes, including:' -
Lo _Airport_mi
ncluding: -
Airport_noi dln the 1960s, single-
family homes crowded the boundaries of
Los Angeles International Airport. The
homes on the east and west, literally
across the street from the end of runways
used by jet aircraft, were constantly bom-
barded by noise and jet exhaust, causing
the inhabitants to suffer medical prob-
lems, emotional trauma and diminution of
•property values.
Los Angeles refused to acquire any of
the property or to rezone any of it for uses
compatible with the airport. The home-
owners banded together and sued. Thou-
sands of them were represented by a firm
known then as Fadem and Kanner, later
as Fadem, Berger & Norton. The client
pool eventually included neighbors of
many other California airports.
From the mid -'60s to the mid -'80s, liti-
gation raged throughout California over
the adverse effects of airport noise on
property values. Eventually, the courts
decided that owners whose prpperty was
severely damaged by the operation of a
public facility had a right to compensation
on a theory of inverse condemnation. The
courts also concluded that related tort
theories (nuisance, negligence, danger-
ous condition of public property) could be
used to recover for both property value
diminution and emotional distress. See
Nestle v. City of Santa Monica, 6 Cal.3d 920
(1972); City of San Jose v. Superior Court,
12 Cal.3d 447 (1974); Britt v. Superior
Court, 20 Cal.3d 844 (1978); Greater
Westchester Homeowners Assn. v. City of
Los Angeles, 26 Cal.3d 86 (1979).,
And those homes surrounding LAX?
They're gone. The city was compelled (or
convinced) to buy them all. The west side
toremains vacant. The north side now has a
buffer between the airport and the more
distant homes. The east side is developed
with airport -related uses, primarily park-
ing lots for car rental agencies. For a dis-
cussion of the airport cases see Berger,
"Airport Noise in the 1980s: It's Time for
Airport Operators to Acknowledge the In-
jury They Inflict on Neighbors, Institute
on Planning, Zoning, and Eminent Do-
main," ch. 10 (Sw. Legal Foundation
1987).
■ Business goodwill. The goodwill of a
business is bought and sold in the market.
Bus. & Prof. Code section 14102. It is rou-
tinely taxed. Miller & Lux v. Richardson,
V,142 Cal.115 (1920). It is also included in
the community property pot to be divided
when a marriage is dissolved. In re Mar-
riage of Foster, 42 Cal.App.3d 577 (1974).
Unfortunately, the same courts that
treated goodwill as property for purposes
of transfer, taxation and marital division
il-_1
Michael M. Berger is a partner in Berger
& Norton of Santa Monica.
en. Government planners concentrated
on land acquisition and project develop-
ment, ignoring the cost's and.other effects
on people who had to tear up roots and re-
locate.
Each of these areas has seen change
during the past four decades. The system
now provides a more level playing field
LETTERS TO THE EDITOR
T T T . 7 'T1 0 7 . In R•
T T
The ter
traveljn
imagine
bogged
enthusi,
users to
won't c
provider
and a fairer opportunity for property own -
refused to order agencies to compensate
ers to obtain the just compensation the
business owners for the loss of goodwill.
Constitution guarantees.
caused by the taking of their property for'
I There is no more burden of proof on
public use. For years, Jerry fought against' .
value. The Legislature (at the recommen-
this unfairness in the law. The LegisN-
dation of the Law Revision Commission,
ture firially made recovery for lost good-,
on which Fadem served as an adviser on
will statutorily permissible. See -C.C.P.
eminent domain)• finally agreed that, on
section 1263.510. (In an ironic twist, Fa-
the issue of value, placing any burden of
dem's father-in-law was probably the last
proof made no sense: See C.C.P. section
condemnee denied compensation for lost
. 1260.210...
goodwill (Community Redevelopment
The refusal to permit owners' apprais-
Agency v. Abrams, 15 Cal.3d 813 (1975).) A
ers to explain theirconclusions by testify -
discussion of the background on this issue
ing about sales of comparable properties
can be found in Kanner, "When Is
was finally discarded by the Supreme
'Property' Not'Property Itself: A Critital
Court in County of Los Angeles v. Faus, 48
Examination of the Bases of Denial of
Cal.2d672(1957).
Compensation for Loss of Goodwill in
Punishment for appraisal report strip -
Eminent Domain," 6 Cal.West.L.Rev. 57
ping has had a bit more of a bumpy ride. In
(1969).
one case Fadem tried, Regents of the Uni-
■ Condemnation practice. Given all the
versity of California v. Morris, 266
statutes and regulations with which litiga-
.
Cal.App.2d 616 (1968), the court of appeal
tors now have to comply, it is startling to
castigated the condemnor's counsel and
recall that during the Eisenhower years
remanded the case so it could be retried
the courtroom scene here — at least in
with all the cards on the table. The retrial
condemnation trials — really was the
led to the highest. condemnation award
"Wild West," and the scales of justice
then on record. Another of his trials, Nes-
were heavily tipped in favor of the govern-
tle v. City of Santa Monica, 6 Cal.3d 920
ment. Some of the crusty old-timers in
(1972), showed the same sort of skuldug-
condemning agencies (notably the State
gery, but the reviewing court was less in -
Division of Highways) had it that anyone
clined to redress the problem. For a fuller
who differed with them on the law was a
fool and anyone who disagreed on vatua-
discussion see Kanner, "Sic Transit Glo-
tionwas acrook.
ria: The Rise and Fall of Mutuality of I)is-
For example, although in condemns-
covery in California Eminent Domain Lit=
igation," 6 Loy.L.A.L.Rev. 447 (1973).'
tion proceedings the government is the
The relocation problem was tackled
plaintiff seeking to obtain a judgment and
the only issue is how much the property is
statutorily. In Congress enacted leg-
worth, the burden of proving the value of
ing f
requiring federal agencies to pro -
vide
the property being acquired was placed on
substantial
vide substantial assistance to people dis-
placed in the name of progress. 42 U.S.C.
the property owner. San Francisco v.
Tillman Estate. Co., 205 Cal.651 (1928).
"section 4601etseq. Fadem worked stren-
Thus, in addition to being dragged into
uously with state legislators to ensure
court and divested of property they didn't:
that these benefits would be mirrored by a
want to sell at a time not of their choosing,
strong California'statufe. The result was
Government Code section 7260 et seq.
property owners had to obtain appraisers,
who were not merely competent to testify
When the plain words of the statute are
'
on value but persuasive enough to carry;
not sufficient, the -prod of litigation has
the burden of proof on the issue..
been used. -See Albright v. State, 101
Cal.App.3d• 14. 1979); 7hlitakis v. Dept. of
Moreover, in an,exercise in jurisprii `, ,
dential surrealism, the owner's lawyer
;
'Gen. Serus., l4 Cal.App.3d 684 (1983).
could not ask the expert about the sale
Forty. years, many changes. Anyone
prices of comparable properties that pro-
who scans the:appellate reports for emi-
vided the basis for the expert's opinion on
, nent domain cases during the last several
value. On cross, however, the lawyer for
decades will be struck by a recurrence:
the opposition was permitted to ask the
Many of the cases were tried by Fadem, a
appraiser about "comparable" sales —
trial lawyer; most of the appeals were
most likely the sales the opposition ap- .
handled by Gideon Kanner or me.
praiser relied on. Honest. Look it up. Peo-
Jerry Fadem was irascible, determined
ple v. La Macchia, 41 Cal.2d 738 (1953).,
and dedicated to his clients. More than
Some outrageous gamesmanship also
that, he understood how the law func-
went on. For example, although local
tioned as an institution and devoted him -
rules required an exchange of appraisal
self to effecting long-term changes for the
reports (a Specialized form of mutual dis-
general benefit of the field in which he
covery designed to ensure fairness at .tri-
practiced. There are not many lawyers
al), some government lawyers "stripped"
who spend their careers searching for the
the reports they exchanged with the own-
incremental gains which, in the aggre-
er's counsel, holding back key pieces of
gate, make substantial contributions to
information to spring at an appropriate
the overall growth of the law. As Goethe
moment during trial. (A former Los Ange-
put it, "Daring ideas are like chessmen
les City Attorney went so far as to de-
moved forward; they may be beaten, but
scribe this practice in a trial tactics
they may start a winning game."
course. Arnebergh, "Trial Tactics From
Jerry was willing to commit his time, ef-
the Standpoint of .the Condemnor,"
fort and money undertaking cases that in -
Eighth Institute on Eminent Domain 1, 6
dividually promised little more than hard
(Sw. Legal Foundation 1968).) .'
work and long odds, out of a recognition
Government was also quite cavalier
that long-range goals are only reached
about the relocation problems it created
through painful, case-by-case accretion.
for property owners whose land was tak-
Jerry was a rarity. He will be missed.
LETTERS TO THE EDITOR
T T T . 7 'T1 0 7 . In R•
T T
The ter
traveljn
imagine
bogged
enthusi,
users to
won't c
provider
i
MAR 2 1.1995 •
1 LANNY T. WINBERRY, ESQ.
State Bar No. 85342
2 777 Campus Commons Road #180
Sacramento, CA 95825
3 Telephone: (916) 920-1100
Facsimile: (916) 920-2309
4
Attorney for Petitioners
5 CLAYEO ARNOLD and LISA ARNOLD and RIO LINDA
ELVERTA RESIDENTS FOR QUALITY RURAL LIVING
6
7, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SACRAMENTO
9
10 CLAYEO ARNOLD, LISA ARNOLD )
and RIO LINDA ELVERTA RESIDENTS ) Case No. 378981
11 FOR QUALITY RURAL LIVING, a )
12
California Nonprofit Corporation, ; )
Petitioners,
13 )' NOTICE OF
V. '
14 ) ENTRY OF
COUNTY OF SACRAMENTO; AIRPORT ) JUDGMENT
15 LAND USE COMMISSION OF THE OF AND ISSUANCE
COUNTY OF SACRAMENTO,, and DOES 1 ) OF PEREMPTORY.
WRIT OF MANDATE
16 through 20, inclusive, )
17 Respondents. )
19
PLEASE TAKE NOTICE that the Judgment Granting Petition for Writ
20
21 of Mandate, a copy of which is attached hereto as Exhibit A, was entered March 15, 1995.
Please also take notice that the Peremptory Writ of Mandate, .a copy of w
22 hich is attached
hereto as Exhibit B, was issued March 15, 1995.
23
24 Date: March 17, 1995LAW OFFICES OF LANNY T. WINBERRY
25
26 BY. j
Lan y T. Winbe
27 Attorney for Pes
28 `
M
Ff EA.
j
i
r,
IJ
PROOF OFI SERVICE BY -MAIL
SACRAMENTO COUNTY+ SUPERIOR COURT
NO. 3789831
'I, Nancy Rishel, am a citizen of ahe United States and a resident of Sacramento,
California. I am over the age of eighteen years and not a party to the within action. My
business address is 777 Campus Commons Road, Suite 180, Sacramento, California 95$25.
On March 17, '1995, I ;served the Notice- of Entry of Judgment and Issuance of
Peremptory Writ of Mandate upon the'parties by placing a true copy thereof, enclosed in
a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail
box at Sacramento, California, addressed as follows: V
Robert Willett, Esq.
Office of Sacramento County Counsel'
'700 H Street
Sacramento, CA 95814. t
Harriet A. Steiner, Esq.
McDonough, Holland & Allen
555 Capitol Mall, Ninth Floor
Sacramento, Ca ;95814
I declare under penalty 'of perjurydnder the laws of the State of California that the '
foregoing is true and correct.
Dated: March 17, 1995 -
Q,'�1 l�
N Jansen Rishel
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y I0 C0URTS
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY'OF SACRAMENTO
CLAYEO ARNOLD, LISA ARNOLD )
and RIO LINDA ELVERTA RESIDENTS' } Case No. 378981
FOR QUALITY RURAL LIVING, a
California Nonprofit Corporation, )
Petitioners, JUDGMENT
GRANTING
V.,
) PETITION
} FOR WRIT OF
COUNTY OF SACRAMENTO; AIRPORT. ) MANDATE
LAND USE COMMISSION OF THE )
COUNTY OF SACRAMENTO, .and DOES.1 )
through 20, inclusive, )
Respondents.
This cause came on regularly for hearing before this court on February 27, 1995,
in Department N, pursuant to the verified Petition of Petitioner's, CLAYEO ARNOLD
and RIO ELVERTA RESIDENTS FOR QUALITY RURAL LIVING.
Lanny T. Winberry, Esq. appeared as attorney for Petitioners, .
Harriet Steiner, Esq
appeared as attorney for Respondent, AIRPORT LAND USE COMMISSION OF THE
COUNTY OF SACRAMENTO and Robert S. Willett, Esq. appeared as attorney for the
Respondent, COUNTY OF_ SACRAMENTO.
The cause was heard and evidence, both oral and" documentary, was received.
The cause having been argued and submitted for decision, the court being fully
advised, the hearing having' been concluded in approximately two hours and no statement
ET
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of decision having been requested prior to submission or the matter, and the court having
directed that Judgment 'and a Peremptory Writ of Mandate should issue in the cause;
IT IS ORDER,; ADJUDGED AND DECREED:
1. That a Peremptory Writ of Mandate, in the form attached he as Exhibit
A, issue from this Court; commanding Respondent, Airport Land Use Commission of the
County of Sacramento ("ALUC") to:
A: Forthwith revoke, rescind and set aside its Resolution number
9-1994 entitled "Adoption of a Negative Declaration of .Environmental
Impact for AmenJments to the Noise Contours and Safely 'Lone
Dimensions contained in the McClellan Air Force. Base Comprehensive
Land Use Plan," adopted on or about June 30, 1994; and,
B Forthwith! revoke, rescind and set aside itsresolution-number 10-
1994
U-
1994 entitled "Adoption of Amendments to the Noise Contours and Safety
Zones Dimensions' ' Contained in 'the McClellan Air Force. Base
Comprehensive Land Use Plan," adopted on or about June 30, 1994;
andprohibiting Respondent ALUC"From readopting said amendment to the McClellan Air
Force Base Comprehensive Land Use Plari -("CLUP")-or any substantially equivalent
amendment to said CLOP prior to:
A; Exercising its discretion as to whether or not to adopt any such
new amendment in fight of the projected duration of any noise contours or,
other conditions giving rise to any such proposed new amendment and in
light of the provisions of § 21675 of the California Public Utilities Code,
which grants ALUC's broad discretion as to whether or not to adopt -
CLUP's Ifor military, airports; and,
B The preparation and adoption of an Environmental Impact
Report iin accordance with.the requirements - of the California
Environmental Quality.Act, California Public Resources Code, §§ 21000 e!-
vey
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2. That Petitioners have and recover from Respondent Airport Land Use
Commission, all of Petitioners' costs in this action in a sum to be determined hereafter in,
accordance with the applicable law and which. shall thereafter be inserted by the clerk in
the -following blank ($ )
3. That the Petition as against the County of Sacramento is hereby dismissed.
4. That, pursuant to § 6103.5 of the Government Code, Respondent, County of
Sacramento shall have,' and recover from Petitioners, .cost of filing fees said Respondent
would have paid but for the provisions of § 6103 of the Government Code, the amount of
which shall be. inserted in the following blank ($ ) by the clerk of the
Court, and the same thereafter shall be paid to the clerk of the Court forthwith.
5. That nothing in this Order shall require Respondent ALUC to take any action
to further amend or to again amend the McClellan Air Force Base CLUP following .the
actions hereinabove commanded.
Dated: March 1 1'995
JOHN R. LEWIS
THE HONOR BLE JOHN R. LEWIS.
JUDGE OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF
SACRAMENTO
Judgment entered on
1995, in Judgment Book Volume
Page
• • j t
5
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO {
t
r
CLAYEO ARNOLD, LISA AR14OLD
and RIO LINDA ELV'ERTA RESIDENTS ) Case No. 378981 `
FOR QUALITY RURAL LIVING, a ) t
California Nonprofit Corporation,' i; f
r Petitioners, - ) PEREMPTORY WRIT ;
OF MANDATE
v. ` ) (CCP § 1087)
COUNTY OF SACRAMENTO; }11RPORT • �-
LAND USE COMMISSION OF THE )
COUNTY OF SACRAMENTO, and DOES 1 )' ►
through 20jnclusive,
Respondents. )
TO: •The Airport Land Use -Commission of the County of Sacramento, Respondent:
WHEREAS, Petitioners served and filed herein their duly verified Petition for Writ
of Mandate, and a hearing thereon was held herein on February 27,'1995;
WHEREAS, it�appears to this Court that Petitioner has no other plain, speedy and
i t
adequate remedy in the ordinary course of law; a
WHEREAS it a `
� ppears `lo this Court that Respondent. .Airport Land Use. +
F •
Commission has abused its discretion or lias failed to exercise its discretion in its adoption
on -June 30, 1994, of an Amendnient to the Comprehensive Land Use Plan for McClellan
Air Force Base ("CLUP") and has abused its discretion by adopting a Negative Declaration
to allow said Amendment instead! of preparing end adopting an Environmental Impact'.
. I EXHIBIT A
r [[
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Report although a fair argument supported by substantial evidence in the record had been
raised that the Amendment to the CLUP might significantly and adversely affect the `
environment.
THEREFORE, you, the Airport Land Use Commission of the County of
Sacramento, duly constituted under California Public Utilities Code §§ 21670 et seq., are
hereby commanded, immediately after receipt of this Writ and in all events before May 1,
1995, to do each of the following:
,A. Forthwith revoke, rescind and set aside your Resolutign number
9-1994; entitled "Adoption of a Negative Declaration of -Environmental
Impact for Amendments to the Noise Contours and Safety Zone
Dimensions contained in (lie McClellan Air Force Base Compreliensive°
Land Use Plan," adopted on or about June 30, 1994; and'
II: Forthwith revoke, rescind and set aside your resolution number
10-1994 entitled "Adoption of Amendments to the Noise Contours and
Safety: Zones Dimensions Contained in the McClellan Air Force Base
Comprehensive Land Use Plan," adopted on or about June 30, 1994;
and you, the Airport Land Use :Commission of the County of Sacramento, are hereby
prohibited from readopting said amendment to the McClellan Air Force Base CLUP or
any substantially equivalent amendment to said CLUP prior to:
'A. Exercising your discretion as to' whether or not to adopt any.-.
such new amendment in light of the projected duration of the noise
contours or other conditions giving rise to any such proposed new
amendment and in light of the provisions of § 21675 of the California
Public -Utilities Code, which grants ALUC's broad discretion as to whether -
or not to adopt CLUP's for military airports; and,
B. The preparation and adoption of an Environmental Impact.,.
Report in accordance with the requirements of the California
Environmental (Quality Act, California Public Itesources Code, §§ 21000 et ,
2
seq.
2 You are further commanded to make and Gle a return to this Writ on or before
3 May 10,. 1995,, showing what you .have done to comply with this Writ.
4 Witness the Honorable Jolin It. Lewis Judge of the Superior Court of the State -of
5 California; in and for the County: of Sacraniento.
G
7 Attest my hand and seal of this Court, this day of March, 1995.
8 MICHAEL RODDY,
Clerk of. the Superior Court ,
9 of the Slate of California
in and for the County of
lU Sacramento
11
12 By.
Deputy Clerk
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'IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
CLAYEO ARNOLD, j LISA ARN; OLD )
and RIO LINDA ELVERTA RESIDENTS ) Case No. 378981
FOR. QUALITY RURAL LIVING, a )
California Nonprofit Corporation, )
Petitioners,, ) PEREMPTORY WRIT
V. )-OF
MANDATE
(CCP § 1087)
COUNTY OF SACRAMENTO; `AIRPORT )
LAND USE COMMISSION OF ,THE )
COUNTY OF SACRAMENTO, and DOES `1 )
through 20; inclusive,
Respondents.
TO: The Airport Land Use Commission of the County of Sacramento Respondent:
WHEREAS; Petitioners seined and filed herein their duly verified Petition for Writ
of Mandate, and a hearing thereon was held herein on February 27, 1995;
WHEREAS, it{appears to this Court that Petitioner has no other plain, speedy and
.adequate remedy i
y is the ordinary course of law; •
WHEREAS, it, appears -to this Court that Respondent Airport Land Use
Commission has abused its discretion or has failed to exercise its discretion in its adoption
r
on June 30, 1994, of an^Amendment to the Comprehensive Land Use Plan for McClellan
• r r
Air Force Base ("CLUP") and has abused its discretion by adopting a Negative Declaration
to allow said Amendment instead of preparing and adopting an Environmental Impact
f r F 1 .EXIA I SIT E3,.
r
r
I .Report although a fair argument supported by substantial evidence in the record had been .
2 raised that the Amendment to the CLUP might significantly and adversely affect the
3 environment.
4 THEREFORE, you, the Airport Land Use Commission of the County of
5 Sacramento, duly constituted under California Public Utilities Code §§ 21670 et seq., are
6 hereby commanded, immediately after receipt of this Writ and in all events before May 1,
7 1995, to do each of the following:
8 A. Forthwith revoke, rescind and set aside your Resolution number
9 9-1994 'entitled "Adoption of a Negative Declaration of Environmental
10 Impact for Amendments to the Noise Contours and Safety. Zone
11 Dimensions contained in the McClellan Air Force Base Comprehensive
12 Land Use Plan," adopted on or about June 30,,1994; and,.
13 B. Forthwith revoke, rescind and set aside your resolution number
14 10-1994! entitled "Adoption of Amendments to the Noise Contours and
15 Safety Zones Dimensions Contained in the McClellan Air Force Base
16
Comprehensive Land Use Plan," adopted on or about June 30,'1994
17 and you, the Airport Land Use Commission of the County of Sacramento, are hereby
18 prohibited from readopting said amendment to -the McClellan Air Force Base CLUP or
19 any substantially equivalent amendment to said CLUP prior to:
20 A. Exercising your discretion as to whether or not to adopt any
21 such new amendment in light of the projected duration of the noise
22 contours or other conditions giving rise to ansuch: proposed new
23 amendment and in light of the provisions of § 21675 of the California
24 Public Utilities Code, which grants ALUC's broad discretion as to whether
25 or not to adopt CLUP's for military airports; and,
26 B The preparation and adoption of an Environmental Impact
27 Report in accordance with the requirements of the California
28 Environmental Quality Act, California Public Resources Code, §§ 21000 et
2
1 seq.
2' You are further commanded to make and file a return to thisWrit on or before
3 May 10, 1995, showing what you have done to comply with this Writ.
4 Witness -the Honorable John R. Lewis Judge of the Superior, Court of the State of
5 California, in and forthe County of Sacramento.
6
7 Attest my hand, and seal 'of this Court, this IS day of March; 1995.
8 MICHAEL RODDY,
Clerk of the Superior 'Court
9 of the State :of California
in and for the County of
10 Sacramento------------
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12 By: WUU—A J C--1
Deputy Cle
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MEMORANDUM
To: Neil McCabe
From: Stephen Lucas
Date: April 24, 1996
Subject: ALUC issues raised by Commissioners.
The ALUC Commissioners have compiled a list of concerns/questions as to the limits of their
authority/responsibility. The following list represents these concerns. Although many of these issues have
been researched and answered by staff, some Commissioners would like a "legal" opinion before they accept
the responses given them. If you could review these items and respond, it would be greatly appreciated.,
1. When a specific plan has been approved in an area covered by a CLUP and there have been overriding
findings adopted by the approving authority to address any inconsistency issues, do all subsequent
development plans have to return to ALUC for review prior to their consideration or approval? Does the specific
plan need to include language addressing the ALUC override one way or the other?
2. Can ALUC find in the first case above, that only certain projects must first go to them?
3. Can ALUC give ALUC staff the authority to find consistency with adopted CLUPs? If so, can it be for only
selected projects or for all projects?
4. If ALUC updates the CLUP's the law states that the jurisdiction affected by the CLUPs, i.e. the cities and
county, have 180 days to bring their general plans into conformance with the CLUPs. Is it possible to not
comply with this law by simply making overriding findings as to why the jurisdiction does not want to update its
plans? What are the consequences if the jurisdiction chooses to do nothing?
5. Some Commissioners feel that when ALUC restricts the use of a parcel of land by adopting compatibility
guidelines in a CLUP that are in conflict with local zoning, this constitutes a taking. Could you address the
"legal" interpretations of a taking?
6. There is much debate as to the required findings necessary to support an override of ALUC action, it is clear
in the Caltrans Handbook as to what issues must be addressed, but it is not clear how thorough a local agency
must be in its findings? It is simply an issue of findings need to be as good as the potential for litigation?
7. It has been suggested that ALUC's have authority over traffic circulation issues on roadways that service
public use airports to prevent congestion that may impact the use of the airport. Does ALUC have the authority
to comment or approve/deny development that will create traffic congestion?
8. The League of California Cities, California Municipal Law Handbook, 1994 Edition, Sections IV and V. speak
to ALUC authority over "actions, regulations or permits" (Cal. PUC 21675.2), does this include building permits,
design standards, and other ministerial projects that could affect airport use?
9. There is much debate whether or not CLUP's are a project under CEQA. Caltrans says they are not a
project, but has no authority to make this decision. The State OPR has not been clear as to the need for CEQA
compliance other than to say groups have successfully litigated the need for environmental review of CLUPs.
Under CEQA, does a CLUP constitute a project or is it simply a policy document for the safe operation of an
airport and has no direct land use regulatory power, i.e. establishing zoning and general plan designations?
If and when your responses are completed or if further discussion is desired, please me know.
cc: Bill Farrel
Barry Hogan
Paula Leasure
Ualuc/legal.mem
League of California Cities. Ile California Municipal Law Handbook
19% Edition
1
• I
f 1
Section rv,- Public Property, Public Works and Public Utilities I`/-77
�•'
d. OTHER HANDBOOK REFERENCES.-
EFERENCES;For
Forrelated material, please'see the following sections in this handbook:
j t
(1) VI.C.: Environmental Quality, Air Quality;
p/ (2) VIIAA: Finance, Revenue, Fees, Charges and Rates.
AIRPORTS ,
r
i
a. BASIC OPERATION AND REGULATION
.(I), IN;GENEFAI7Y
. , . A
The .operation of a tpublic airport requires compliance with federal, state
`
and local regulations. Cities'may exercise their police power to regulate
local 'airport operation, and some aspects of aircraft operations. However, a
'
city, in its capacity as airport proprietor, is quite restricted by both state
and federal requirements. 49 U.S.C. App. §§ 1301 a M. (Federal.
Aviation Act of 1958, as amended); Cal. Pub. Util. Code §§ 21600!;l Mg.;
�
Cal. Gov't Code §§ 50470 gt aQ.
;
(2) JFEDERArPREEMPTION
- ' , '
Federal preemption precludes municipal action which attempts to regulate
t
the iise of. navigable airspace, aircraft traffic, or flight safety. See. e•¢•• SM
Diego Unified Port District v. Supgrior Court. 67 Cal. App. 3d 361, 376,
136 Cal. Rptr. 557 (1977); United States V. City of New Haven. 496 F.2d
452, 454 (2d Cir. 1974). , Federal preemption also extends to on-ground
activities and preempts portions of the state airport regulatory system.
Federal Express Corporation v. California Public Utilities Commission. 936
F.2d 1075 (9th Cir., 1991).
(3) PERMISSIBLE AREAS OF CONTROL
(a) NOISE AND POLLUTION. While federal preemption broadly
• restricts local control of air operations and many ground operations; it does
not prohibit all common law remedies for airport noise and pollution.
'
Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988).
(b) :,' TORT ACTIONS. In addition, state tort law remedies may be
,.
sought under a nuisance theory against a city airport operator as long as
the action does not frustrate the purposes of the Federal Aviation Act.
{
Greater Westchester Homeowners Association v. Los Angeles. 26 Cal. 3d
t
86, 160 Cal. _Rptr. 733 (1979); Bethman v. Citv of Ukiah, 216 Cal. App. 3d
1395, 265 Cal. Rpte. 539 (1989).
`
f
i
c
League of California Cities. Ile California Municipal Law Handbook
19% Edition
1
IV -78 Section IV - Public Property, Pubtk Works and Public Utilities
(c) , PROPRIETARY ACTIONS. Furthermore, a city airport
proprietor may impose some regulations, ZA. regarding noise and flight
operations, in its proprietary capacity when it cannot so regulate under its
police power. See National Aviation v. City of Hayward. 418 F. Supp. 417
(N.D. Cal. 1976).
b. NOISE REGULATION ti
(1) CITY AS AIRPORT PROPRIETOR
Although the federal statutory scheme preempts regulation of aircraft noise
by state or local governments, municipalities acting in their capacity as
airport proprietors may impose noise control regulations as long as the
regulations are reasonable and not unjustly discriminatory. 49 U.S.C. App.
§ 1305(b)(1);'City of'Burbank v. Lockheed Air Terminal. Inc., 411 U.S.
624, 635, 93 S. Ct. 1854(1973); City and County of San Francisco v. FAA.,
942 F.2d 1391 (9th Cir. 1991). Airport noise restrictions will not be upheld
if they are discriminatory or if they have the effect of excluding an entire
class of aircraft, such as jets. Santa Monica Airport Association v. City of
Santa Monica. 481 F. Supp. 927 (C.D. Cal. 1975).
(2) COMMERCE CLAUSE RESTRICTIONS
Noise restrictions must be carefully tailored to avoid creating an
impermissible burden on interstate commerce. A permissible noise
restriction is one that is not illusory and does not favor in-state industry
over out-of-state industry. egg Alaska Airlines. Inc. v. City of Long Beach.
951 F.2d 977, 984 (9th Cir. 1991) (holding ordinance imposing noise limits
on individual aircrafts did not violate the commerce clause because "[t]he
goal of reducing airport noise to control liability and improve the aesthetics
of the environment is a legitimate and permissible one").
(3) - FEDERAL AVIATION ADMINISTRATION (FAA) RESTRICTIONS
Any noise restriction must comply with the Airport Noise and Access
Restrictions, 14 C.F.R. Part 161, which were promulgated by the Federal
Aviation Administration (FAA) in order to implement the Airport 'Noise
and Capacity Act of 1990, 49 U.S.C. App. §§ 2153 gt Mg. These rules
provide that noise or access restrictions on stage 2 aircraft may not be
adopted unless the airport operator conducts an in-depth analysis of the
costs and benefits of the restriction and considers alternatives to the
proposed restriction. 14 C.F.R. §§ 161.201 -'161.213. Most proposed
noise or access restrictions on stage 3 aircraft must be submitted to the
FAA for review and approval. 14 C.F.R. §§ 161.301 - 161.325. See 14
C.F.R. §§ 161.7, 161.101 gi M. (for exceptions).
League of California Cities 'lice California Municipal Law Handbook
19% Edition
•
Section IV - Public Property, Public Works and Public Utilities IV -79
C. ZONING AND LAND USE REGULATIONS
(1) POWER TO ZONE
The power to zone for airports is within the general power to zone. Cal.
Const. art XI, § 7. City zoning actions, however, may be preempted by
federal law if they are inconsistent with federal regulations regarding air
transportation. United States V. City of Berkeley, 735 F. Supp. 937 (E.D.
Moi 1990).
(2): TAKINGS ISSUES
Zoning which restricts development in flight -approaches, may constitute an
unconstitutional=taking-of-property;-, Peacock v. Countv-of Sacramento. 271
Cal: App. 2d-845, 77 -Cal: Rptr.-391(1969). Height restrictions in the
vicinity of an airport are particularly problematic. Unlike commonly
accepted zoning height restrictions, height restrictions designed to protect
airport flight approaches contemplates the use of the airspace and is in
effect a taking of property for the purpose of creating an easement in the
airspace. Sneed v. County of Riverside. 218 Cal. App. 2d 205, 32 Cal. Rptr.
318 (1963).
x, (3) AIRPORT LAND USE COMMISSIONS
(a) ! ROLE. California has established airport land use commissions
(ALUC) in each county to regulate land use around airports. Cal. Pub.
Util. Code §§ 21670 gj mg. The role of the ALUC is to formulate a
comprehensive airport land use plan (ALUP) that will provide for the
orderly growth of and around each public airport. Cal. Pub. Util. Code
§ 21675. The ALUC approves ALUPs and reviews local government's
implementing land use decisions for conformity.
CTI
(b) � jJURISDION.l The type of, local decis, ns.}within an area
"covered by a land iie plan and reviewable by the ALUCave >iroadei than`l
I.sunp 1Their authority includes review of "actions, regulations or
` permits " Cal: Pub. Util. Code § 21675.2.
(c) , CITY OVERRIDE. While the local government can override the
ALUC's decision, an override requires a two-thirds vote of the local
legislative body and the adoption of certain findings. Cal. Pub. Util. Code
§ 21676. 75 Cal. Op. Att'y Gen. 47 (1992). The finding overriding the
ALUC must be supported by substantial evidence and must comply with
the standards set forth in Topanga Association for a Scenic Community v.
County of Los Angeles, it Cal. 3d 506, 113 Cal. Rptr. 836 (1974);
California Aviation Council v. City of Ceres. 9 Cal. App. 4th 1384, 12 Cal.
Rpti. 2d 163 (1992).
League of California Cities 11w California Municipal Law HandbAok
19% Edition
IV -80 Section 1V - Public Property, Public Works and Public Utilities
d. RENTS, FEES AND'TENANT REQUIREMENTS
j (1) GENERAL REQUIREMENTS
leases to fixed -base - operators (FBO) and other flight -related
' operators must be awarded on a nondiscriminatory basis. In addition, an
r .. airport proprietor, may not grant an exclusive right to operate to any
individual providing aeronautical services.. 49 U.S.C. App. § 1349. The
' FAA's goal is to ensure maximum competition' in the provision of services
to the flying public. FAA Order 5190.6A, Chapter 3.
(2) FEDERAL FUNDING REQUIREMENTS
. Any municipal anport'prop'netor receiving federal funds must make all
airport facilities and services available on fair and reasonable terms without
unjust discrimination. 49 U.S.C.'App. § 2210. The Airport Compliance
Requirements identified as FAA Order` No. 5190.6A should be consulted in
attempting to comply with -this requirement.
e. HELIPORTS
Heliports are state -regulated. The standards for permitting heliports vary with
frequency of. use. , Heliport regulations are by their nature more fleidble, but there
are some statutory restrictions for any permanent heliport. Cal. Pub. Util. Code
§ 211623. 'In this area, the federal role isprimarily advisory.
f. ! CLOSING'AIRPORTS
A city can close its airpoit and go`out of the airport business. Seltenrich v. Town
of Fairbanks. 211 F.2d 83 (9th Cir. 1954). `However, closure may breach conditions
of federal grant funds or -grant' deed provisions and may cause federal reversionary
interests to cloud the city's title.
g. FREE SPEECH REGULATIONS
The Supreme Court"has recently upheld New York's regulations for charitable
solicitors on'airport property because the airport. terminal was considered a
non-public forum "International Societv•for Krishna Consciousness Inc v Lee
U.S. ' + , 112' S. Ct. 2701; 120 L. Ed. 2d 541.(1992).
.. .`sem •{ 1- .} } r • ,'r�', ,.{
PRACTICE TIPS:
1' + `,
1.* Always check the terms'of any grants the city, may havereceived from the FAA or the state for airport
improvements. The grants often require the airport operator to con tinue "certain airport operations long after the
work is done. -Each grant condition may vary., ,g Airport Compliance Requirements FAA Order 5190.64.
2. Many municipal airports were converted military airfields. Most of the title documents contain
reversionary clauses that cause title to return to the federal govemment if the property is not used for airport
purposes-
Leagoe of California Cities
c
The California Municipal Lw Handbook� ^
19% Edition ',
I
Section IV - Public Property, Public Works and Public Utilities IV -81
3. Regulatory actions involving airports may be, discretionary projects requiring CEQA review. Cal. Pub.
Res. Code §§ 21000 gf Aga.
4. Even if the city knows its small, municipal airport cannot support two FBOs, the city's regulations must
allow access to the competing FBO to by and to fail.
t h. OTHER HANDBOOK REFERENCES
,For related material, please see the following sections in this handbook:
(1) V.13.4 c: Police Power, Land Use, Regional Planning Issues, Airport
Planning,
(2) .N V:F.:! Police Power, First Amendment;
(3) VI.F.: , Environmental Quality, Hazardous Waste and Contaminated
Property Laws; and
(4) VIIA.6.: Finance, Revenue, Fees, Charges and Rates.
4. HARBORS
a. INTRODUCTION
A "harbor" is generically defined as "a portion of the'ocean or inland waters within' ...
the jurisdiction of this state either naturally or artificially protected so as to be a
place of safety. for vessels, including the artificially protective works, the public lands
ashore and the structures and facilities provided within the enclosed body of water
and shore for, the mooring and servicing of vessels and the servicing of their crews
and passengers." Cal. Harb: & Nay. Code § 34. Various acts which deal with
specific kinds'of harbors contain other definitions of the term "harbor" (see below
for listing of acts).
b. DEPARTMENT OF BOATING AND WATERWAYS
Harbors and waterways are extensively regulated by state law through the California
Harbors and Navigation Code. The California Harbors and Navigation Code-
establishes
odeestablishes a Department of Boating and Waterways, a Boating and Waterways
Commission and the position of Director of Boating and Waterways. Cal.'Harb. &
Nay. Code §§ 150 gI §Q. (amended by 1978 Stats., chap. 365).
;i
league of California Cities i' The California Municipal law Handbodlc
1994 Edition
,i
Section V - Police Power V43
(g `I:OCAL REGULATION' ,
fir" �o.--.------ _ .
61i" ntetructurec_and trees
Cal. Gov't Code §§ 50485 50485.14.
(6) OTHER HANDBOOK REFERENCE
For related material, please see the following section in this handbook:-
(a):!
andbook:
(a); IV.C3.: Public Property, Public Works and Public Utilities,
Operation of Utilities, Transit and Public Utilities, Airports.
d. WASTE MANAGEMENT
(1) IN GENERAL
Under the California Integrated Waste Management Act (IWMA), each
city must prepare and submit to the Integrated Waste Management Board
a county -wide integrated waste management plan (IWMP). Cal. Pub. Res.
Code § 41750.
(2) SOURCE REDUCTION AND RECYCLING ELEMENTS
The first component of the IWMP is the "source reduction and recycling
element from each city. Cal." Pub. Res. Code § 41750. Each source
reduction element must include a program for the management of solid
waste generated within the city. Cal. Pub. Res. Code § 41001. Each
source reduction element must evaluate all feasible programs for recycling,
composting and reducing solid waste, and including the necessary landfill
capacity. Cal. Pub. Res. Code §§ 41002 - 41003.
(3) HOUSEHOLD HAZARDOUS WASTE ELEMENT
The second component of the IWMP is the household hazardous waste
element. Cal. Pub. Res. Code § 41750(c). The element must contain a
program for the safe collection, recycling, treatment and disposal of
household hazardous wastes which should be separated from the solid
waste stream. Cal. Pub. Res. Code"§§ 41500, 41510.
(a) SITING ELEMENTS. The third component of the IWMP is a
county -wide siting element. Cal. Pub. Res. Code § 41750.
i) CONSISTENCY WITH GENERAL PLANS. All
facilities identified must be consistent with the applicable city
general plan. Cal. Pub. Res. Code § 41701.
League of California Cities The California Municipal Law Handbook
1994 Edition
V-42 Section V - Police Power
AIRPORT PLANNING
(1) IN GENERAL
Each county that has an airport must establish an airport land use
commission (ALUC) charged with planning for the orderly growth of
public airports. The ALUC must adopt a comprehensive airport land use
plan (ALUP) for the airport and the surrounding area. Cal. Pub. Util.
Code §§ 21670 - 21677. See also City of Coachella v. Riverside County
Airport Land Use Commission. 210 Cal. App. 3d 1277, 258 Cal. Rptr. 795
$ (1989). +
(2) BEFORE ALUP APPROVAL
Until the ALUP is adopted, the city must submit all regulations and
permits within the vicinity of the airport to the ALUC for approval. egg
Cal: Pub. Util. Code § 21675.1.
(3) AFTER ALUP APPROVAL
(a) ALUC APPROVAL. The city must submit to the ALUC
proposed land use actions in the area covered by the ALUP. egg Cal. Pub.
Util. Code § 21676.
(b)' RESUBMISSION OF PLAN. If the ALUC determines an action
is inconsistent with the airport plan, the city must repeat the original
airport land use plan review. $gg Cal. Pub. Util. Code $ 216765.
(c): MANDAMUS. If the ALUC fails to act, an applicant may use
administrative mandamus to compel action. jr& Cal. Pub. Util. Code
§§ 216715, 21675, 21675.1- 21675.2 and 216795. See also 71 Cal. Op.
Att'y Gen. 213 (1988). See section VIIIJ. (relating to mandamus actions)
of this handbook.
(4) CITY OVERRIDE
An ALUP may be overridden by a city. ,5gg Cal. Pub. Util. Code
§ 216703(d); 63 Cal. Op. Att'y, Gen. 641 (1980). A two-thirds vote of the
quorum of the city council overrides an adverse determination of an ALUC
concerning the city's proposed amendment of its general plan. 5M Cal.
Pub. Util. Code § 21676; 75 Cal. Op. Att'y Gen. 47 (1992). When a city
overrides the ALUP, the operators of the airport are not liable for
damages which result from the city's action to override. Cal. Pub. Util.
Code § 21670.7(f).
League of California Cities . Mw California Municipal Lew Handbook
19% Edition
DRM ACKNOWLEDGMENT
!
ACKNOWLEDGMENTS, PROOFS AND VERIFICATIONS
This section is intended, to provide information for the Recordable Document Examiner
regarding acknowledgments taken in California and elsewhere. It is the responsibility. of
the Recordable Document Examiner to determine which documents require an
acknowledgment, which .require a verification and which require only a signature. The
requirement for a document to be acknowledged in order to be recorded is found in
Government Code Sections 27287 and 27288. Documents which are exempt from an
acknowledgment are described in Government Code Sections 27282 and 27285.
!
Acknowledgments and verifications may be part of a printed form or may be attached
to the document by the person taking the acknowledgment. The laws governing
acknowledgments are ; found in the Civil Code, Chapter 4, Article 3. Most
acknowledgments are taken by notaries public that are appointed and governed by the
Secretary of State.
!
ACKNOWLEDGMENT - A formaldeclaration made before an authorized person
such as a notary, public, by a person who has -executed an instrument stating
that the execution was his / her act: Authenticates the identity of the signor.
JURAT - The portion of a verification stating when, where and before whom it
was sworn.
PROOF - A certification made ' by a notary public based on the word of a credible
witness, such as. a proof of ;subscribing witness or proof of handwriting.
SWORN STATEMENT ( VERIFICATION) -A sworn statement before a qualified
officer ( often a notary public) that the contents of a writing are true.
i !
UNSWORN STATEMENT ( VERIFICATION) -A statement by an individual under
penalty of perjury that the contents of a writing are true.
j
VENUE -The portion of an acknowledgment or verification that states the place
where the acknowledgment or verification was taken.
. ACKNOWLEDGMENTS TAKEN IN CALIFORNIA ( CC - -118
.ny acknowledgment taken within the State of California shall be substantially in the
)rm described in Civil Code Section 1189. The following is an example of that format:
State of California '}
County of ;}
On (date) before me, (name and title of officer)
personally appearedf Insert name of person sianino 1
personally known to me ( or proved to m® on the basis of satisfactory evidence) to be the person(s)
whose name(s) Is/are subscribed to the within Instrument and acknowledged to me that he/she/
they executed the same in his/her/their authorized capactty(les), and that by his/her/their signature(s)
on the Instrument, the person(s), or the entity upon behalf
SEAL
Signature (of offer)
IR94
A-1
R
SUMMAR)40F CHANGES TO CALIFORNIA ROORDING LAWS
EFFECTIVE JULY 1, 1994
Effective July 1, 1994, significant changes will take effect regarding any document submitted for recording in California.
summary of the new requirements and a brief review of .the ones which will not change follows.' Please note: The
qgpw requirements apply to any document executed on or after July 1, 1994.
1. Any instrument, paper, or notice submitted for recording must be authorized, or required by law to be recorded, meet,
the requirements of statute, and contain original signatures, except as otherwise provided by law, or be originally certified
by a government agency.
2. Any document submitted must indicate the title or titles of the document(s) contained therein. The Recorder,
however, shall be required to index only those titles which appear on the first page directly below the space reserved for
the Recorder.
3. Recording fees for documents which contain only 8 1/2" x 11" pages will not change. However, for any document
which contains a sheet or. sheets which do not measure 8 1/2" x 11 ", an additional `recording penalty of $3.00 for ey v
page of that document will apply.
Example: If you submit a 50 page document which contains one sheet which measures other than 8 1/2" x 11"' (one of
the smallnotary acknowledgment forms we're used to, or one sheet that is 8 1/2" x 14") the additional recording penalty
for that document will be 5150.00 IN ADDITION TO THE CURRENT 56.00 FOR THE FIRST PAGE AND
53.00 FOR EACH ADDITIONAL PAGE. Maximum permissible size is 8.1/2" x 14".
4. Any document submitted for recording shall have at least a 1/2" margin on each vertical side. In addition, the top 2
1/2" of the first page shall be reserved for recording information, with the left hand 3 1/2" used by the public to show the
name of the person requesting recording and the name and address to which the document is to be returned following
ding. The right-hand portion of the space is for use by the County Recorder only.
5. In the event the first page or sheet of a document does not contain the space required by #4 above, a separate page
shall be attached by the party requesting recording -to the front of the document. This page shall contain the information
specified in #4 and shall reflect the title or titles of the document.
6. If a document modifies, releases, or cancels provisions of a previously -recorded document, it must contain the
recording date and identification number of the prior document.
GUIDELINES FOR PREPARATION OF NEW FORMS
In addition to compliance with the requirements outlined above, any form developed for recording should also follow
these general guidelines:
1. 8 1/2" x 11" white paper, preferably 16 lb. bond or heavier.
2. Black print, preferably a minimum 10 -point type on the first page and 8 -point on subsequent pages.
3. Wherever possible, names of the parties to the document, `
P� � p t, signatures, and notary acknowledgments should appear on
the first page with the document title, return information and space for the Recorder. In addition, deeds M= have the
tax statement mailing address at the bottom of the first page.
#Exhib appear on separate pages, be properly marked, and be referred to in the body of the main document.
bishou'ld
All information required by the statute which provides for the creation of the document must be there. In addition, all
other recording requirements must be met.
BEFORE recording, a document must:
• Be submitted wlth.the proper fees and taxes (G.C.6103 and 27361)
• Contain sufficient Information to be Indexed (G.C.27288; CIv:C.,C.C.P.;etc.)
Be authorized or required by law to be'recorded (G.C..CIv.C.,C.C.P..eto.)
• Be In compliance with state and local laws '
• Have original` signature(s), except. as otherwise provided by law, or be a certified copy of the original
(G.C.27201b)
• Be photographically, reproducible -When the text of a document, Including the notary seal, Isnot
sufficiently legible to reproduce, a readable photographic record, the recorder may require the person
presenting the document to substitute a legible original document or to prepare a legible copy of the
document by handwriting or typewriting and attach it to the original record. The legible:copy shall be,
certified by the party creating the copy under penalty of perjury as being a true copy of the original
(G.C.27361.6 S 27361.7)
OTHER RECORDING REQUIREMENTS
1. Property must be In the County of the office. (1169 CC,1872)
2. Document must be acknowledged and acknowledgement must be proper, unless exempt.
(G.C.27282.1987;27285,1979;27287,1.981)
3. Parcel number may be required on documents conveying property. (Local Ordinance)
4. Documentary Transfer. Tax statement must be completed and signed. (Local Ordinance)
5. Location of land. Incorporated city or unincorporated area. must appear on, the face of the document.
(11932 RSTI968)
6. Each Grant Deed must be examined for Survey Monumentation Fund Fee applicability, when applicable
the Survey Monumentation Fund Fee stamp must be placed,on the document, or there must be a
declaration that 'None' Is due. (Local Ordinance)
7. Each Trust Deed or mortgage with power of sale must show address of trustor or mortgagee.
(27321.5G.C.1972).
8. If document effects or evidences a transfer or encumbrance of an Interest In real property, the name or
names In which such Interest appears of record must show. (27288.1G.C.1988)
9. If document releases or terminates any Interest, right or encumbrance, it must contain or have appended
thereto all of the names of those persons and entitles owning the title or Interest being relieved thereby,
or the names of the owners of such title or interest as they appeared at the time and in the document
creating such Interest, right or encumbrance. (27288.1G.C.1988)
10. If document contains references to more than one previously recorded document which requires
additional Indexing. an additional tee must be charged. (27361.2G.C.1971)
II. It document requires additional Indexing to give notice and. does not refer to previously recorded
document by reference, an additional fee must be charged for each group of 10 names or fractional
portion thereof atter 'the Initial group of 10 names. (27361.8G.C.1980)
12. If document conveys an Interest in or easement upon real estate to a political corporation or
governmental agency for public purposes, it must have atttached the consent of the political
subdivision evidenced by its certillcation or resolution of acceptance. (27281.G.C. 1986)
13. It document Is a notice required by law to be recorded, it must be signed by the person giving notice, or.
his agent.-(27289:G.C.1967)
14., If document is.an involuntary lien, additional fees are required for furnishing the notice of involuntary
Ilan. (27297.5 G.C.1982)
15: Each document must be checked for legibility before acceptance. (27361.7 G.C.1981)
16. Documents evidencing a conveyance of property must have a Preliminary Change of Ownership
Report(PCOR) or pay $20.00 tee. (27321 G.C.1982;480 RST 1989)
Candace J. Grubbs
.Butte County Clerk -Recorder.}
25 County Center :Drive
+t
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November`18, 1993
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LANDUSE
■ DEPARTMENTS
2 Perspectives
Patrick W. Dennis
36
Roadmap
Airport Land Use
Commissions:_
Common Sense,
Uncommon Confusion
Peter M. Detwiler
The Law in Focus
38
Air Quality
41
CEQA
44
Fees & Exactions
46
Hazardous & Toxic
Substances
51
Housing
53
Inverse Condemnation
57
Judicial Review
58 .
Planning and Zoning
59
Regional Planning/Growth
Management
59
Taxes & Assessments
61
Transportation
62
Water,
65 Upcoming Events
67 MCLE Self -Assessment
Test
69 Index
73- Table of Cases
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Volume 3, Number I / Winter 1994
ENV I RONME NT
■ FEATURES
3 Improving Air Quality With Strategic
Land Use & Transportation Planning
Overview: Curtis L. Coleman
6 Integrating Local Input Into the TCM
Development Process
Mark Pisano
10^ Why Developers Can't-Areathe Easy
David A. Gold and Donald I. Berger
15 City Air Quality Policies: The Missing Link?
David M. linkens
18 The Role of Urban Form in Improving
Air Quality .
Jananne Sharpless
21 Growing Up, Not Out: The Crucial Role of
Land Use Reform in California
Michael D. Fitts
24 The Problem of Ex Parte Contacts
John W. Witt
31 Ex Parte Contacts: A Less Restrictive View
Daniel J. Curtin, Jr.
32 Hypotheticals & Commentary
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Legal Research
CEB Legal Research
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36
0 0
Common Sense,
Uncommon Confusion
Your heirloom tea cups rattle on the shelf as the airplane lifts out
of the nearby Happy Valley airport here in hypothetical Pacific County.
One of these days you'll lose another of Grandma's cups or, worse yet,
a pilot will dump a plane in your backyard. There ought to be a law.
Well, there is. Or, at least, there is a remnant of a state statute to
control land use around airports. But recent legislation has confused
attorneys, planners, and pilots. Here's a quick look at the present
condition of the airport land use planning law (Pub Util C §§21670-
21679.5).
TWO STEPS FORWARD,
ONE STEP BACK
To reduce conflicts over airport land
use and noise, in 1967 the legislature
required counties to create airport land
use commissions (ALUCs), that were
mandated to adopt special airport plans
called comprehensive land use plans
(CLUPs). These requirements were co-
dified in Pub Util C §§21670,
21675(x). Until 1984, ALUCs had to
adopt CLUPs only for airports with
scheduled air carrier service. In 1984,
the legislature expanded this planning
mandate to include all public use air-
ports. For a discussion of the origins
and structure of ALUCs, see Selmi &
Peter M. Detwiler
WINTER 1994
Manaster, California Environmental
Law, §§65.12-65.16 (Matthew -Bender
1993).
Concerned about the local costs of
state mandated programs, however, the
legislature and the Governor agreed to
repeal dozens of state mandated local
programs as part of the compromise
leading to the passage of the 1993-94
state budget. In doing so, the legislature
drastically amended the ALUC law.
State law now permits, but does not re-
quire, a county to have an ALUC. See
Pub Util C §21670(b) (as amended by
Stats 1993, ch 59, §17, effective June
30, 1993). Nevertheless, if an ALUC
still exists, the coirunission must still
Peter M. Detwiler is Staff Director of the California
State Senate's Committee on Local Government. Be-
fore joining the Committee's staff in 1982, he
worked for the Governor's Office of Planning and
Research and the San Dieeo Local Agency Forma-
tion Commission (LAFCO). He also teaches in the
Graduate Program in Public Policy and Administra-
tion at California State University. Sacramento. Mr.
Detwiler received his B.A. from Saint Mary's Col-
leee of California and his M.A. from the University
of Wisconsin. He is an Executive Editor of the Fo-
n, m.
adopt a CLUP for every public use air-
port. The "mandate relief' bill did not
amend Pub Util C §21675(x), the com-
panion mandate that requires ALUCs
to adopt CLUPs. See also Pub Util C
§21670.2 (still requiring Los Angeles
County's Regional Planning Commis-
sion to serve as the ALUC; it too must
still adopt CLUPs).
So far, only San Bernardino County
has axed its ALUC. All the rest still ex-
ist along with the 190 previously
adopted CLUPs. Attorneys and plan-
ners cannot ignore such considerable
regulatory power and its implications
for liability.
PLANNING AND DEVELOPMENT
If an ALUC exists, it must adopt a
CLUP for each public use airport and
the surrounding area. (ALUCs can also
adopt CLUPs for military airports, but
they cannot control the federal facili-
ties' land use.) The CLUP relies on ei-
ther a long-range airport master plan or
the simpler airport layout plan. It speci-
fies land uses, and sets building restric-
tions and standards. Pub Util C §21675.
Although the statute does not require a
noticed public bearing (Pub Util C
§21675(c)), it is prudent practice for the
ALUC to bold one anyway. See Selmi
& Manaster §65.15[1] n4. (The best
reference source on CLUPs generally is
Airport Land Use Planning Handbook
(Division of Aeronautics, California
Department of Transportation 1983). A
new edition is due in early 1994.)
Once the ALUC adopts a CLUP, the
affected cities and counties have 180
days to amend their own general plans
to conform to the plan. Govt C
§65302.3. All major land use decisions
must be consistent with general plans
and these general plans must be consis-
Editor's Note: The Forum's newest
feature, "Road Map, " is designed to
briefly introduce readers to ven, spe-
cialized areas of law and provide u
guide for further research. We will fo-
cus on topics—e.g., airport land use
commissions—that come up in prac-
tice but, for most practitioners, are off
the beaters path. As with all our fea-
tures,. we welcome readers' comments
and suggestions for topics. .
F-
2
4.�
.
Peter M. Detwiler
WINTER 1994
Manaster, California Environmental
Law, §§65.12-65.16 (Matthew -Bender
1993).
Concerned about the local costs of
state mandated programs, however, the
legislature and the Governor agreed to
repeal dozens of state mandated local
programs as part of the compromise
leading to the passage of the 1993-94
state budget. In doing so, the legislature
drastically amended the ALUC law.
State law now permits, but does not re-
quire, a county to have an ALUC. See
Pub Util C §21670(b) (as amended by
Stats 1993, ch 59, §17, effective June
30, 1993). Nevertheless, if an ALUC
still exists, the coirunission must still
Peter M. Detwiler is Staff Director of the California
State Senate's Committee on Local Government. Be-
fore joining the Committee's staff in 1982, he
worked for the Governor's Office of Planning and
Research and the San Dieeo Local Agency Forma-
tion Commission (LAFCO). He also teaches in the
Graduate Program in Public Policy and Administra-
tion at California State University. Sacramento. Mr.
Detwiler received his B.A. from Saint Mary's Col-
leee of California and his M.A. from the University
of Wisconsin. He is an Executive Editor of the Fo-
n, m.
adopt a CLUP for every public use air-
port. The "mandate relief' bill did not
amend Pub Util C §21675(x), the com-
panion mandate that requires ALUCs
to adopt CLUPs. See also Pub Util C
§21670.2 (still requiring Los Angeles
County's Regional Planning Commis-
sion to serve as the ALUC; it too must
still adopt CLUPs).
So far, only San Bernardino County
has axed its ALUC. All the rest still ex-
ist along with the 190 previously
adopted CLUPs. Attorneys and plan-
ners cannot ignore such considerable
regulatory power and its implications
for liability.
PLANNING AND DEVELOPMENT
If an ALUC exists, it must adopt a
CLUP for each public use airport and
the surrounding area. (ALUCs can also
adopt CLUPs for military airports, but
they cannot control the federal facili-
ties' land use.) The CLUP relies on ei-
ther a long-range airport master plan or
the simpler airport layout plan. It speci-
fies land uses, and sets building restric-
tions and standards. Pub Util C §21675.
Although the statute does not require a
noticed public bearing (Pub Util C
§21675(c)), it is prudent practice for the
ALUC to bold one anyway. See Selmi
& Manaster §65.15[1] n4. (The best
reference source on CLUPs generally is
Airport Land Use Planning Handbook
(Division of Aeronautics, California
Department of Transportation 1983). A
new edition is due in early 1994.)
Once the ALUC adopts a CLUP, the
affected cities and counties have 180
days to amend their own general plans
to conform to the plan. Govt C
§65302.3. All major land use decisions
must be consistent with general plans
and these general plans must be consis-
Editor's Note: The Forum's newest
feature, "Road Map, " is designed to
briefly introduce readers to ven, spe-
cialized areas of law and provide u
guide for further research. We will fo-
cus on topics—e.g., airport land use
commissions—that come up in prac-
tice but, for most practitioners, are off
the beaters path. As with all our fea-
tures,. we welcome readers' comments
and suggestions for topics. .
tent with CLUPs. Repealing the man-
date to have an ALUC did not affect the
requirement that general plans and sub-
sequent land use decisions be consis-
tent with ail adopted CLUP. Pub Util C
§21676; Govt C §65302.3.
If ail ALUC has not adopted a
CLUP, nearby landowners can seek in-
junctions against a city or county's pro-
posed zoning changes, variances, per-
mits, or other regulations. A court can
suspend those decisions until the city or
county: (1) determines that its action is
consistent with the purposes of the
ALUC law; (2) rescinds its action; or
(3) amends its action to be consistent
with the purposes of the ALUC law.
Pub Util C §21679. The opportunity to
impose a development moratorium
near a public airport remains un-
touched. Even though state law no
longer requires an ALUC, adjacent
landowners and aviators can still sue to
block encroaching development.
The ALUC determines whether a
general plan, specific plan, zoning or-
dinance, or building regulation is con-
sistent with its adopted CLUP. If the
plan or action is inconsistent, the city
or county can overrule the ALUC's de-
termination by a, two-thirds vote. In
overriding the ALUC, -however, a city
council or county board of supervisors
must adopt specific findings that its
plan is consistent with the statute's pur-
poses of protecting the public health,
safety, and welfare. Pub Util C §21676.
That makes a tough standard to meet
and such findings are unlikely to stand
up to a well -researched challenge. If
the city or county neither amends its
plan nor overrides the ALUC, the
ALUC can require the city or county to
submit all of its land use "actions, regu-
lations, and permits" in that affected
area for review. Pub Util C §21676.5.
LIABILITY LOOMS
If a city or county overrides a CLUP
and damages occur (e.g., a plane
crashes, noise becomes a nuisance),
then the public airport operator is statu-
torily immune from liability. Pub Util
C §21678. Although untested, this rule
stands as a sober warning against capri-
cious land use decisions.
A case pending in the Fifth District
Court of Appeal also worries public
agencies and their attorneys. In an un-
published June 1991 decision, that
court found that a city's land use re-
strictions near an airport were a regula-
tory taking that required compensation
for the landowners. Blosser v City of
Fresno (June 26, 1991, 5 Civ F013074;
unpublished opinion). The city re-
quired an emergency touchdown zone
(ETZ) and a clear zone on private prop-
erty at the end of the runway, consistent
with the airport's adopted CLUP. On
remand a superior court jury awarded
damages of over $6 million to the land-
owners, and the city appealed again.
Oral arguments will occur this winter.
In our hypothetical Happy Valley,
the airport was here fust and the houses
came later. Maybe Pacific County offi-
cials should have followed the ALUC,
adopted a CLUP, and prevented my
house from being built. Actually, the
statute is supposed to protect the gener-
al public from airport noise and safety
hazards, just as it protects airports from
encroaching land uses. The roaring air-
plane climbs out over Happy Valley
and the tea cups settle down in their
saucers. Your blood pressure slowly
decreases, along with your amxiety. But
there's always tomorrow. +
Continuing Education Of The Bar and the State Bar Environmental.Law Section
Present
THE E-.0O3N0MY, WTHE- ENVI'RON-MENT'
THE 1994 CEB ENVIRONMENTAL LAW INSTITUTE
LAND USE & ENVIRONMENT FORUM' 37
Z
ALUC law 2rd CSA 87: page 1 of 3 from S. �4enr
To: Mary Ann and Steve
Re: Our ineeting Thursday
Fax " f- 12X__1
�G3;j �` f�f Cages
From f,
�N
.44
7 Y
F.;Y. S
I'll] sure that I was 00t at all successful irr getting et;rvss ghat i considered
to be my real point. 1 was not attacking the pian that Steve has drafted. It's
a very good plan and he has obwiousiy spent.some time and effort to deal
with the aviation community concerns..
However, the prowess that slivuld have been hi plelutu-befund the
even started --has been disregarded. In 1967, the state !egislatur':
recognized that airports �r�ere essential for economic deveioprne>-,::
emergency services. Airpoas were being last at an alarming rat£ r
the legislature imposed special planning requirements to protect a:jy. vs
well as to protect people on the ground In the vlclnit, of the alrpc:'-
The ALUC law (PUC Sec 21875.1 [q]) states
"if the commission has not designated a study area for tt,_ ,
then "vicinity" means land within two miles of the bounds,
public airport."
Thcsc special planning req'wirenionts enake planning in the vic.irri^ ,
airport different from the planning of the other 99% of Butte Count-
` Compatible'Land-Use FAan (CLUP) as ouit!lned in the Stale ALUC-71V
handbook Dec 1993 contains these four essential eleMer, .s, (page 2-101
I (i)Noise'(we do have a brand new PACS 150 study by McClintock, Becker),
-' (2)Safe '(we do have the FAA defined runway protection zone, .he "clear
zone" but as the ALUC handbook states "safety concems also extend to
other portions on an airport's environs"),'I3,P�'�1io we dry
` have designated FAR 77 guidelines to protect aircraft from something
projecting into the airspace) andi(4) Overall h "'ahfsJcafeory�t policles,�
frequently omitted from dbmpatibility'plans is intended to-addressrpuilia
concerns _over ,aircraft overflights in areas._beyond the.defined noise
contours and safety -zone bour�dries".,I,(AV6e,do,not have.:thi9J ,,
For almost two years, Bob has been saying at meetings (public & private)
that "the law requires starting with an airport master plan; (then the County
ALUC adopts a CLUP, then genaral pians and'specifc plans are to be
brought into conformity with that CLUP." "We have been starting at the
wrong end of the processll" He has been ignored:
A decade ago (according to ALUC minutes) Nina Lambert was protesting
that Butte County was not ccnif)1yir g -with the ALUC laws. $he was
ignored. Perhaps her voice is a soft. As the po! sS sor of a 'little'
0 6
ALUC law and CSA 37: page <^ of 3 frog ri S. rennigan Cec ' 0, 1 G?4
voice, 1 sympathize with her. But now her voice leas been joined by others
and we are a!1 being dismissed as irrelevant. Butte„Cauniy,A es not now,
,nor have' they ever had, an overflight and safety element in Chico's CMA
Environs Plan.
from the - IVIA Env -irons plan 1977. 5.2.5. Conclusion
"The investigations described in this section have reviewed the
Chico Minicipal Airport historical accident data, examined the
location and causes of past accidents, provided calculations of
Chico accident rata5 drrd public risk prubabilidL-s, acid curripared
these statistics with national averages. The results of these
investigations indicate the flight operations associated with the
Chico Airport have been substantially safer than the operations at
other airports throughout the nation. This finding combined with
the fact that no discernible pattern of accident locations could be
defined, leads to the decision to not recommend additional safety
restriction zones around the airport. (our emphasis) Based on the
results of the safety analysis, it is concluded that the restrictions
imposed by the FAA extended approach area, obstruction
criteria, and noise zone criteria, will adequately protect the safety
of flight operations and the safety of the general public."
This probably made good sense in 1977 when the land around the airport
was zoned agriculture. It was ,grazing land and populated solely by cows.
But you are intending to remove a cow and replace it with a concentration
of elementary schoolchildren. They are not the same, the consequences
of an accident ars not the some, the criteria of 1977 docs not apply.
The ALUC handbook devotes two chapters (# 8 & g) to the issues of aircraft
accidents and safety compatibility.
11mFeb 1994,-the*Butter.C.ounty_ ALUC voted that the CSA 87 plan. did, not *t
: conform to their_"safety-arid'overflight concerns, specifically mentioning4tw
�SaCLO Sj�e in tapir. dis ussi ps. dThe Board of Supervisors may vote to
override the ALUC determination of non-compliance, but this vote cannot
be made on anything but a finding that the plan does agree with the state
guidelines:
"The city or county may overrule the commission, by a two-thirds
vote of its governing body if it makes specific findings the the
proposed action , regulation , or permit is consistent with the
purposes of this article, as stated---
i-PUC_ Sec. 21675.1
=..i"1 Eli_I � T =�=I 1' r" I IEhll IR': HL T; _;.:7 c- P.
0
ALUC law and CSA %87: paoe 3 of 3 from B. Hennigan Dec 10, 1994
And ....your override vote means that you are so certain that it does meet
all those guidelines,,;hha1- .ou ar -,, ilr i. to ,take al(liab�litty for�operations at
the airport on to the county.
"With respect to a publicly owned airport that a public agency
does not operate, if the public agency pursuant to Section 21676
• or 21676.5 overrides a commission's action or recommendation,
= the operator of the iarport shall be immune from liability for
damages to property or personal injury caused by or resulting
directly or indirectly from the public agency's decision to override
the commissioo's action or recommendation. "
PUC Sec. 21678.
There are at Several questions you ought to be asking.
1) of Mike Mcclintock. Is the FAR 150 report his company has just
completed adequate to address the safety and overflight concerns
designated in the State ALUC handbook Chapters 8 & 9? _
2) of County Counsel. How does the law view the override vote as regardsff
to county and personal liability?#
3)4)of County:Counsel::. Does„the civerri.de vote -cause lost of stafe funding
;cited.in .various sections of the state codes �eg�grding building in theme
+ _.�,.
vicinity : ef�airports? (Education Code, #39007, #81003, Public Utilities Come
16551 t, )
Again, the problem is not with Steve's plan so much'as the fact that # eja-
1 � ritten-to_protect-both"people-and-airports has not been followed! #&h6
LUG law tiad been followed, v, believe- that there would have been smal1.1
b t.Important changes.regardiiig locatigns-of-concentrations.o.f pecipl.e f
(churches,:schools, theaters;:.etc) inahe overflight zones
am including copies of part of the CLUP guidelines developed for
Sacramento Metro. This is what we should: have looks like.
1 appreciate your patience with what must seem to you irrational "buzzing"
by the airport nuts, but I'm going to have.to apologize to the aviation
community for my inability to articulate their concerns as well.
Thank you for your time.
B1':�E --'R I P. L
DE(-I17,�7, FF"ill BI (-:I-1 -JIE-1�11
Exhibit C-11 A
Land Use Compatibility Guidelines for Safety,
Sacrimen to Nletropoiftn Alrpcxt
December 1993 C-29
E 1'-'1 _ .. 16:07 FROM BUTTE _ _ 196 Y`1E'1C1 1 H•_
December 1993
Exhibit C•11A Continued
C -3f
' .I
LE, 1r,: =r:! i :[_tTTF_ _i_ __ - ,i•`1 L a
Sample Corapatlbuity Crltaria and Maps Appen Jix G�
• I
.. ... �r/.! a.-w rte••- _�..--••---�
li•
1.r 11 r � 11 I
SK g ,i
cw
CLEM WWI
V APPPZACH/M:
3.- �;�..�
4 muno AA PAW
$PECiAL KAMM;* WA �
source: Sammenlo Metropolitan Airport Comprahensfve Land Use Plan (7883) f
Airport Safety Zones
Sacramento Metropolitan Airport
i
C-33
r=:'_1,1 'B -TTE _iii 1'=% Ti_ Fl.
_I^
•.10
Exhibit C -11A Continued
C-30 D000n er 1993
5Ei_— I I I'i E _I -j ., _ E 1-F. 11:4L Tie
Sample compeffbi ity Criterlta and Maps ! Appendix C
SACRAMENTO' METROP'OUTAM AIRPORT
LAND USE COMPAT1BIUYY GUIDE UNr;S"F,;)R SA,FETY
LAND USE CATEGORY
COMPATIMUTY WiT11
AND
�-
(Standard Industrial Ciasaiflcatlon Code)
APPROACH-
CLEAR
OF-PAPTURE
OYFRF-13CRT
---- .I.
I ZONE
ZONE
ZONE
_
AGRICULTURE ANQ MIHINr
Row & field cross (011, 013, 016)
Yes�'a'
Ye31•e
YG58''�
Tree crop (012)
op
No
Yes'.e
Yes`'
tntenslve livestock (021, 024, 027)
No
i Yes''e
Yesb"
Nursery products (018)
No
Yesl•e
hese''
Poultry (025) r ,
:No
Yosl.t
Yost.') i
I
Pasture & grazing
Yasa.e
Ye37'e
YesS'"
Agricultural services (7)
No
Yes'
Minty & quarrying (10, 12, 14) .a
No
Yes";
Yash"
Oil & ypa extraction (13)
Nc
No
Yost,
I�
FO.OTNOTES:
Use 001TtpaL049 ONY rt d.r" re4atad m aeAcurWfai Isao of tht tk3PerlY t•x C'Ia PrWillon of dtvaflin2 UnWU for tht 104J Cwnsr'timmt:,ate
family. Of for 0 mpaoyees regu ew for vu protktiort Of tris P(OPtr1Y ail J+ #I 1-41Nn9$ shall be aacwrapod t* lords® oar tYA of tt.e AC;rca:r •
Oepanure Zoos it psfoel snot WM".
' Use compaiible only if k does not reaLft {,n a Cormntravott of parsons 9reaia than. 25 pors*ns ser Wig at any bmo or the 140r42• of
nammacts or sxplosiw nimatfai .cove Orowtc. .
' No building, tuvctures. aS*w ound,truwnisafon t nae, or atota9e of fiarnmabk w exF aeir4 maw-I&I 00vo 0,10ur%d, vtd nc uses reurt:r:;
in a gadwring of mora 9W 10 pancna Par tae at arty true.
' NO bulk patrntaum Aroduelt or chaniJew ttorAge.
Toy► optraElx passenger laeilitiet not aitaaad>
' Use$ cllmPA04 only if VWy do not (AMA in a pdewibdity that a setter 4:06 may r -sum ground fog a'resta,Y in a bird ,taWd.
t a'ic."Mo4d hat ardous Waafa fadiiiti►a oAerated &&"A Of an ifto2tatr3 watts Tana emat It"am and rasa
OQ� ftLty in x.ly tamperrrr amara
of muetiala is Ubwed. .
4 Usaa In buildings must be compatlbSs.
4 fibs tompa0bw only N rsquirwrtanyf of Caufxnia Education Leda. $eettx+s 390;$.7, COS and it03e art V1141et:.
" No Chapel$ of funeral florae%, .
No dub houata, baea, rot4utanta tirbanguat tadthlaa. Anally uws such a! proVMPt, tMW* bar$. and tpecaalytoota artd bova,a9a serV•Cel
sfa Nb.*O. Nsvr count uyoutt i Peviaions to #xiVM2 ootvseti must t» rtviewed by V.UC fix sUaty ImfAa
pa. This renrietion does net aro:ll
to VW (taairo Air Pak SpeeW Alarini g Ana.
n No nigh intensity uwt a fold"", arias a ttNCt17yi7 pla'ygrounga, r?/1frN'.dl.:A Akroc paylliam.
" U405 MmPallbie only if C+ey do not swan in s *VA concentradai of ;top's. A laps concentration a;400W 1t dsf ,,vd as a patnIn ; :'
"diwidutb M an area that would reauk Ir. An avotegs density of grWir then 2S persons Per tore par ?Wuy dWitt9 any 24 oar period .r o,p;
at m,anipM, tot to •.wad 70 LV,90.1e rrer aua u spy tin.i. This raat:Kuat J Tws .',art u+Nt7 w �WatOnntfal 16'4"7 In Inv Mfvo .4• Pat -
Special Planning Ate&.
" NO us" that would cauie sloct kW :nisrfaiancs that wou:d be datrimwj! h "ofrafa50n jf s;Fcrll or airueh t:Wurtenu•itxt.
SACMEnIOtS�FEfY • , >
Exhtbtt C -11A Continued
9
C-32 r Defmn"r 1993 t
ISSUE
t
Thomas A. Parilo, Director of Development Services, queries whether s
State law requires that a county board of supervisors dedicate paid county i
staff members and/or a yearly budget for operations to a requesting airport i
land use commission (ALUC).
SHORT ANSWER
State law provides that counties are obligated to provide ALUCs staff
assistance, necessary quarters, equipment -and supplies and that the.'usual and
necessary operating expenses of ALUCs shall be a county charge.. Approval of.,'
the Board of Supervisors is required before an ALUC may hire employees or .`
consultants at county expense.
INTRODUCTION }'
Mr: Parilo's concern apparently stems from an anticipated request by the
Butte County Airport Land Use Commission (the Commission) for dedicatee staff
and an annual budget. Development Services Administrative Analyst Brian A.
Larsen included in the request for an opinion by this of f ice a copy of a
draft of proposed Commission bylaws which includes a provision that the
Commission shall develop a work program for the following year, determine the`
expenses necessary to perform the tentative work program (with the help of
Development Services Department staff) and submit its recommended. work
program and cost estimates to the Director of Development Services, who shall,
include them in the Department's annual budget proposal to the Board of
Supervisors.
I. APPLICABLE LAW
A. Airport Land Use Commissions: What Are They?
Public Utilities Code §21670, enacted in 1967 and amended
1994, currently mandates that all counties in which there is
4
1
1
in' 1993 and
an airport-
f d
1--de. ALUL —
_-
,�
• Oma, a 107/.h eon
Is
i.
INTER-DEPARTMENTAL MEMORANDUM
f+
1
OFFICE OF BUTTE COUNTY COUNSEL
0lJN
Opinion #97-016
/
TO:
Thomas A.
Parilo, Director of Development Services
BY:
Robert W.
MacKenzie, Chief Deputy County Counsel
SUBJECT:
Limits on
anticipated Request for annual Budget and Dedi ated
Staff
by County
Airport Land Use Commission
DATE:
July 10,
1997
ISSUE
t
Thomas A. Parilo, Director of Development Services, queries whether s
State law requires that a county board of supervisors dedicate paid county i
staff members and/or a yearly budget for operations to a requesting airport i
land use commission (ALUC).
SHORT ANSWER
State law provides that counties are obligated to provide ALUCs staff
assistance, necessary quarters, equipment -and supplies and that the.'usual and
necessary operating expenses of ALUCs shall be a county charge.. Approval of.,'
the Board of Supervisors is required before an ALUC may hire employees or .`
consultants at county expense.
INTRODUCTION }'
Mr: Parilo's concern apparently stems from an anticipated request by the
Butte County Airport Land Use Commission (the Commission) for dedicatee staff
and an annual budget. Development Services Administrative Analyst Brian A.
Larsen included in the request for an opinion by this of f ice a copy of a
draft of proposed Commission bylaws which includes a provision that the
Commission shall develop a work program for the following year, determine the`
expenses necessary to perform the tentative work program (with the help of
Development Services Department staff) and submit its recommended. work
program and cost estimates to the Director of Development Services, who shall,
include them in the Department's annual budget proposal to the Board of
Supervisors.
I. APPLICABLE LAW
A. Airport Land Use Commissions: What Are They?
Public Utilities Code §21670, enacted in 1967 and amended
1994, currently mandates that all counties in which there is
4
1
1
in' 1993 and
an airport-
r
Tom Parilo
July 10, 1997
Page 2.
served by a scheduled airline or operated for public benefit shall establish
an ALUC for the purpose of promoting orderly development and expansion of
each public use airport in the State so as to protect public health, safety
and welfare and minimize the public's exposure to excess noise and safety
hazards within areas around public airports.
The Legislature has flip-flopped on whether the creation of an ALUC in
each county is mandatory or optional. The 1993 amendment made creation of
an ALUC optional under some conditions. The 1994 amendment made the creation '
of an ALUC mandatory for -every county in which there is an airport served by
a'scheduled airline or operated for public benefit.
B. Powers and Duties of Airport Land Use Commissions
Public Utilities Code §21674 sets forth the following duties of ALUCs: ;
"(a) To assist local agencies in ensuring compatible land
uses in the vicinity of all new airports and in the,
vicinity of existing airports to the extent that the
land in the vicinity of those airports is not already
devoted to incompatible uses.
(b) To coordinate planning at the state, regional, and
local levels so as to provide for the orderly
development of air transportation, while at the same
time protecting the public health, safety, and welfare.
(c) To prepare and adopt an airport land use plan
pursuant to Section 21675.
(d) To review the plans,,, regulations, and other actions
of local agencies and :airport operators pursuant to
Section 21676.
(e) The' powers of the ,commission shall in no way be
construed to give the commission jurisdiction over the
operation of any airport.
(f) In order to carry out its responsibilities, the
commission may adopt rules and regulations consistent
with this article.°
I
ALUCs are empowered to review "all actions, regulations and permits
within the vicinity of an airport" prior to adopting a comprehensive. airport`
land use plan. The Caltrans Airport Land Use Planning Handbook defines "all
actions" as general and specific plans, ordinances and regulations, individual
development projects and airport plans (Caltrans Airport Land Use Planning'
Handbook, 4-2, 4-3). Public Utilities Code §21675.1 provides, in pertinent
part:
"(b) Until a commission adopts a comprehensive land use
plan, a city or county shall first submit all actions,
regulations, and permits within the vicinity of a public
airport to the commission for review and approval.
K
y
Tom Parilo
July 10, 1997.
Page 3
Before the commission approves or disapproves any
actions, regulations, or permits, the commission shall
give public notice in the same manner as the city or
county is required to give for those actions,
regulations, or permits. As used in this section,
"vicinity" means land which will be included or'
reasonably could be included within the plan. Tf the
commission has not designated a study area for the plan,
then "vicinity", means land within` two miles of the
boundary of a public airport."
(c) The commission may approve an action, regulation,'or
permit if it finds, based on substantial evidence in the
record, all of the following:
(1) The commission is making substantial progress toward
the completion of the plan.
(2) There is a reasonable probability that the action,
regulation, or permit will be consistent with the plan
being prepared by the commission.
(3) There is little or no probability of substantial
detriment to or interference with the future adopted
plan if the action, regulation, or permit is ultimately
inconsistent with the plan.
(d) If the commission disapproves an action, regulation,
or 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.
(e) If a city or county overrules the commission
pursuant to subdivision (d), that action shall not
relieve the city or county from further compliance with
this article after the commission adopts the plan.
s
(f) If a city or county overrules the commission
pursuant to subdivisioh•(d) with respect to a publicly
owned airport that the city or county does not operate,
the operator of the airport is not liable for damages to
property or personal injury resulting from the city's or
county's decision to proceed with the action,
regulation, or permit.
(g) A commission may adopt rules and regulations which
exempt' any ministerial permit for single-family
dwellings from the requirements of subdivision (b) if it
makes the findings required pursuant to subdivision (c)
for the proposed rules and regulations, except that the
3
Tom Parilo
July 10, 1997
Page 4
rules and .regulations may not exempt either of the
following:
(1) More- than two single-family dwellings by the same
applicant within a.subdivision prior to June 30,.1991.
(2) Single-family dwellings in a subdivision where 25
percent or more of the parcels are undeveloped.
Public Utilities Code §21675 provides:
"(a) Each commission shall formulate a comprehensive land
use.plan that will provide for the orderly growth of
each public airport and the area surrounding the airport
within the jurisdiction of the commission, and will
safeguard the general welfare of the inhabitants within
the vicinity of the airport and the public in general.
The commission plan shall include and shall be based on
a long-range master plan or an airport layout plan, as
determined by the Division of Aeronautics of the
Department of Transportation, that reflects the
anticipated growth.of the airport during at least the
next 20 years. In formulating a land use plan, the
commission may develop height restrictions on buildings,
specify use of land, and determine building standards,
including soundproofing adjacent to airports, within the
planning area. The comprehensive. land use plan shall be
reviewed as often as necessary in order to accomplish
its purposes,'but shall not be amended more than ,once in
any calendar year.
(b) The commission may include, within its plan
formulated pursuant to subdivision (a), the area within
the jurisdiction of the commission surrounding any
federal military airport for all of the purposes
specified in subdivision (a). This subdivision does not
give the commission any jurisdiction or authority over
the territory or operations of any military airport.
(c) The planning boundaries shall be established by the
commission after hearing and consultation with the
involved agencies.
(d) The commission shall submit to the Division of.
Aeronautics of,the department one copy of the plan and
each amendment to the plan.
(e) If a comprehensive land use plan does not include
the matters required to be included pursuant to this
article, the Division of Aeronautics of the department
shall 'notify the commission responsible for the plan."
In City of Coachella v Riverside County Airport Land Use Commission,
(1989) 210 Cal.App.3d 1277, the California Court of Appeal set aside an
'4
Tom Parilo
July 10, 1997
Page 5
ALUC'S long-range land use plan because the plan did not comply with the
requirement in Public Utilities Code §21675(a) that airport land use plans
must include a long-range master plan reflecting anticipated growth over the
next 20;years. Thus, it is essential that the Commission develop a long-
range airport land use.plan which incorporates a study of anticipated growth
of the airport during at least the next 20 years.
: r
Public Utilities Code §21674.5._provides that the Department of
Transportation shall assist in the training and development of the staff of
ALUCs and suggests the following type of assistance:
"(1) The establishment of a process for the development
and adoption of comprehensive land use plans.
(2) The development of criteria for determining. -airport
land use planning boundaries.,
(3) The identification of essential elements which
should be included in the•comprehensive plans.
(4) Appropriate criteria and procedures for reviewing
proposed developments and determining whether proposed
developments are compatible with the airport use.
(5) Any other organizational, operation, procedural, or
technical responsibilities and functions which the
department determines to be appropriate to provide to
commission staff and for which it determines there is a
need for staff training or development.
(c) The department may provide training and development
programs for airport land use commission staff pursuant.
to this section by any means it deems appropriate.
Those programs may be presented in any of the following
ways:
(1) By offering formal courses or training programs.
(2) By sponsoring or assisting in the organization and
sponsorship of conferences, seminars, or other similar
events.
(3) By producing and making, available written
information.
(4) Any other feasible method of providing information
and -assisting in the training and development of airport
land use commission staff."
•t
Public Utilities Code §2167447 provides that the formulation, adoption
and amendment of comprehensive airport land use plans by ALUCs shall be.
guided by information provided by the -Department of Transportation
(Caltrans). Caltrans has developed and published written guidelines for ALUCs
entitled Alport Land Use Planning Handbook. The handbook is lengthy and
5
Tom Parilo
July 10, 1997
Page 6
imposes the consideration of a significant number of factors on an ALUC which
is developing a comprehensive airport land use plan.
Public Utilities Code §21676 provides, in pertinent part:
(b) Prior to the amendment of a general plan or specific
plan, or the adoption or approval of a zoning ordinance or
building regulation within the planning boundary established
by the airport land use commission pursuant to Section 21675,
the local agency shall first refer the proposed action to the
commission. If the commission determines that the proposed
action is inconsistent with the commission's plan, the
referring' agency shall be notified. The local agency may,
after a public hearing, overrule the commission 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.
(c) Each public agency owning any airport within the
boundaries of an airport land use commission plan shall,
prior to modification of its airport master plan, refer such
proposed change to the airport land use commission. If the
commission determines that the proposed action is
inconsistent with the commission's plan, the referring agency
shall be notified. The public agency may, after a public
hearing, overrule the commission 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.
(d)Each commission determination pursuant to subdivision (b)
and (c) shall be made within 60 days from the date of
referral of the proposed action. If a commission fails to
make the determination within that period, the proposed
action shall be deemed consistent with the commission's plan.
It is apparent from Section 21676 that each ALUC has ongoing duties
which continue long after the formulation, adoption and amendment of its
comprehensive airport land use plan has been completed. In California
Aviation Council v. Ceres (1992) 9 Cal. App.4th 1384, the City of Ceres
enacted an ordinance approving development within the approach and
transitional surface of the Modesto Airport. The local ALUC reviewed the
ordinance and found it incompatible with its Airport Comprehensive Land Use
Plan. After a public hearing, the city overruled the ALUC's finding of
inconsistency and found the ordinance compatible with its Airport
Comprehensive Land Use Plan. The California Aviation Council sued the city
on the basis that the findings made by the city when it had overruled the
ALUC's finding of inconsistency were inadequate. Although the trial court
sided with the city, the Court Of Appeal reversed the trial court and held
that the city's findings were insufficient because the findings were not fact
'specific, but merely conclusory. Thus, if a.city or county disagrees with
an ALUC by overruling a finding by the ALUC that a plan is inconsistent with
a comprehensive airport land use plan, in order to prevail in a lawsuit
brought against it, the city or county must have made fact specific findings
6
Tom Parilo
July 10, 1997
Page 7
that the plan is indeed compatible with the ALUC's comprehensive airport land
use plan.
After an, ALUC has developed a comprehensive airport land use plan, if
a city or county has neither revised its general plan or specific plan to be
compatible with the ALUC's comprehensive airport land use plan nor overridden
the ALUC with regard to the general plan or specific plan, the ALUC may
require that it review all subsequent actions of that city or county until
its general plan or specific plan is revised or it overrides the ALUC.
Public Utilities Code §21676.5 provides:
"(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."
C. Required County Expenditures; Limitations on Required Expenditures;;
Authorization for ALUC Fees
Public Utilities Code §21671.5 provides, in pertinent part:
"(c) 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.
(d) '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.
7
Tom Parilo
July 10, 1997
Page 8
(f) 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.
(g) In any county which has undertaken by contract or
otherwise completed land use plans for at least one-half
of all public use airports in the county, the commission
may continue to charge fees necessary to comply with
this article until June 30, 1992, and, if the land use
plans are complete by that date, may continue charging
fees after June 30, 1992. If the land use plans are not
complete by June 30, 1992, the commission shall not
charge fees pursuant to subdivision (f) until the
commission adopts the land use plans."
II. DISCUSSION
The legislature granted ALUCS certain powers and duties, required
them to consult written materials prepared by the Department of
Transportation in exercising their duties and provided that counties must
provide staff assistance, necessary quarters and supplies to ALUCS and
also that the usual and necessary operating expenses of ALUCS shall be a
county charge. To the extent that ALUC requests for staff and/or
particular items in an annual budget are actually required for the
exercise of the ALUC'S powers and the performance of the ALUC'S duties,
the county is legally obligated to grant those requests.
A statute imposing county requirements similar to those discussed
above, which requires counties in the Lake Tahoe region to pay a share of
the support costs for the Tahoe Regional Planning Agency, has been held to
be a constitutional exercise of the Legislature's power. In People ex
rel. Younger v. County of E1 Dorado, (1971) 5 Cal.3d 480, the California
Supreme Court ordered the Counties of E1 Dorado and Placer to pay to the
Tahoe Regional Planning Agency their statutory share of the support costs
for the agency's activities, pursuant to Government Code §66801. The
Legislature created the Tahoe Regional Planning Commission and provided
for the financing of its operations by enacting Government Code §66801.
The two counties had refused to pay the amount which the Commission had
determined they owed. In Younger, the court rejected a number of state
and federal constitutional challenges by the two counties to Government
Code §66801.
At least one other statute requiring counties to pay "necessary"
expenses of county agencies has been held to require county boards of
8
•
Tom Parilo
July 10, 1997
Page 9
supervisors to pay incurred expenses which the agencies had demonstrated
were necessary to the performance of their statutory duties. In Hicks v.
Board of Supervisors, (1977) 69 Cal.App.3d 228, the Court of Appeal held
that the Orange County Board of Supervisors was obligated to pay the
expenses of the District Attorney for investigators assigned to
investigate criminal activity. The Board of Supervisors had transferred
22 District Attorney investigators to the Sheriff's department. The
transfer was characterized by the Board as budgetary in nature. The Court
of Appeal held that the transfer was, in effect, an attempt to implement a
plan of reorganization which would place all investigative functions under
the control of another agency.
The Hicks court specifically noted the language of Government Code
§29601, which provides that certain expenses which are necessarily
incurred by the Sheriff and/or the District Attorney are county charges,
and ruled that a board of supervisors may not, by failing to appropriate
funds, prevent the District Attorney from incurring those expenses.
The language of Government Code §29601 is similar to that of Public
Utilities Code §21671.5(c), which provides.that the usual and necessary
operating expenses of an ALUC shall be a county charge. Thus, it appears
that if the Commission can demonstrate that specific items included in a
request for an annual budget are necessary for it to perform its statutory
duties, the County would be legally obligated to pay those expenses.
There are limits, however, to the demands for resources that a
county agency can make on a county board of supervisors. In County of
Butte v. Superior Court, (1985) 176 Cal.App.3d 693, the Butte County
Sheriff and several other parties filed a Petition for a Writ of Mandate
in the Butte County Superior Court in an effort to halt implementation of
a County budget which reduced the Sheriff's staff by eliminating 23
positions. The Sheriff requested that the Superior Court order the County
to provide for staffing at the previous year's level in its budget. The
Superior Court did so. In reversing the Superior Court's order, the Court
of Appeal held that the Board of Supervisors was acting within the scope
of its constitutional role in undertaking to reduce the size of the
Sheriff's staff, in light of evidence which indicated that it had reduced
the size of the staff of a number of County departments during a financial
crisis. The Court distinguished Hicks by noting that the Butte County
Board of Supervisors had not engaged in the type of reorganization
condemned by Hicks. There was no evidence in the County of Butte case to
suggest that the Board's action had been calculated to transfer any of the
Sheriff's functions to another County office.
The County of Butte Court also found that Government Code §29601 did
not constitute a legal basis for an action by the Sheriff to compel Butte
County to include in its budget sufficient funding to provide ongoing law
enforcement services at the level desired by the Sheriff, because §29601
discusses expenses that have already been incurred, not proposed future
expenses.
One might contend that County of Butte allows a county to refuse to
appropriate a future annual budget to an agency such as the Commission,
because the County of Butte Court drew a distinction between future
E
Tom Parilo
July 10, 1997
Page 10
expenses and those already incurred. A categorical refusal to appropriate
funds for an ALUC, however, may be unlawful because the usual method -which
is utilized to pay necessary expenses of agencies which a county is
required to fund is for the board of supervisors to approve all or a
portion of an agency's proposed budget for the next fiscal year, based on
the agency's needs and the county's available revenue.
In a situation similar to the one being considered here, the County
has entered into a Memorandum of Understanding with the Butte County Local
Agency Formation Commission (LAFCo), in -which the County has agreed, among
other things, to pay for various LAFCo support services and also to pay
for an Executive'Officer, who has specified duties. It is relevant to
compare and contrast the statutes through which the, legislature imposed
duties on counties to fund LAFCos and ALUCs, because the two entities are
similar and the responsibilities imposed on counties to fund them are also
similar..
The Legislature created LAFCos by statute to encourage orderly
development and discourage urban sprawl. As is stated above, LAFCos are
very similar to ALUCs. This is true both in terms of their respective
duties and also in terms of the statutory responsibilities placed on
counties to fund their activities. Government Code §56380 provides that
the board of supervisors shall furnish the LAFCo within its borders
necessary quarters, equipment, and supplies, and that the usual and
necessary operating expenses incurred by a county's LAFCo shall be a
county charge. This portion of Government Code §56380 is identical to the
language of Public Utilities Code §21671.5(b) and (c), describing what
counties shall provide ALUCs. There are, however, important differences
between the requirements imposed on counties to fund LAFCos and those
imposed on counties to fund ALUCs.
Government Code §56380 also requires that counties use the budget
Spoft8priatidnattceledurt'heet forth in Government Code §56381, in meeting
a requirement that county boards appropriate at least as much money to an
ALUC as the ALUC has determined is necessary for its activities. These
areas appear to be left up to the discretion of each county board of.
supervisors.
There is another significant area which is also left to the
discretion of a county board of supervisors. Government Code §56375(m)
empowers LAFCos "To appoint and assign staff personnel and to employ or
contract for professional or consulting services to carry out and effect
the functions of the commission." In contrast, Public Utilities Code
§21671.5(d).provides:
"Notwithstanding any other provisions of this article, the
10 -
Tom Parilo
July 10, 1997
Page 11
commission shall not employ any personnel either as employees or
independent contractors without the prior approval of the board
of supervisors."
One might contend that by not mandating that counties utilize a
budget appropriations process to fund ALUCs, by not requiring that
counties fund ALUCs at the level that the ALUC determines is necessary and
by providing that the board of supervisors must approve any hire of ALUC
employees or independent contractors at county expense, that the
Legislature meant to allow counties to refuse to appropriate a future
annual budget to an ALUC and/or refuse categorically to dedicate county
staff or hire independent contractors at county expense for an ALUC..
Such an approach would be fraught with danger, however, as a county
which. refused to appropriate any budget for an ALUC, or which refused
categorically to dedicate county staff or to hire independent contractors
for an ALUC might very well be viewed by the courts as attempting to
circumvent statutory requirements to pay an ALUC's necessary expenses.
This might be particularly true if the ALUC had demonstrated a necessity
for the dedication of county staff or the hiring of independent
contractor(s).
Thus, although the above referenced statutes discussing ALUCs appear
to grant county boards of supervisors discretion in the actual process
they use to fund ALUCs, there is definitely a legal duty imposed on
counties to provide necessary expenses for ALUCs. The difference between
the statutory responsibilities imposed on counties funding ALUCs and
LAFCos is mainly that the actual determination of what is "necessary and
usual," and, in particular, whether the hiring of ALUC employees or
independent contractors at county expense is necessary, is left up to the
discretion of the board of supervisors.
Apparently, members of the Airport Land Use Commission have expressed
their desire for a dedicated staff, independent of any existing county
agency, yet paid for by the county. Although the question of whether the
county must merely provide staff assistance to the commission or whether
the county must provide a dedicated staff was not resolved for every
future situation by the legislature, it is apparent that the legislature
provided language which each county may use to resolve the question. For
instance, if conflict(s) develop between the county and the commission,
then it may become quite difficult for county staff members, who answer to
a county department head, to perform tasks requested by the Commission.
Thus, if ALUC's request for dedicated staff were accompanied by an
explanation of why ALUC members believe a dedicated staff is necessary to
do the agency's business, the Board of Supervisors would be much more able
to assess whether a dedicated staff is necessary under the mandate of
§21675(c).
III. CONCLUSION
The Legislature did not provide a blueprint with which to decide all
future ALUC funding issues. The Legislature did, however, provide county
boards of supervisors with a standard by which each board could determine
whether or not to grant specific requests for funding and/or staff on a
11
Tom Parilo
July 10, 1997 •}
Page 12 t
case-by-case basis. Butte County, it appears, should proceed on such a
case-by-case basis to decide whether the Commission will receive the
budget and staff services which it'requests.
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INTER -DEPARTMENTAL MEMORANDUM �
•co�N�,1' OFFICE OF BUTTE COUNTY'COUNSEL- c
TO: Paula Leasure, Planning
BY: Neil H. McCabe, Assistant CountyCounsel
SUBJECT: Airport Land Use Commission Decisions Subject to Mediation
DATE: January 16, 1997
Enclosed for your future reference is a copy of Government Code Section 66031, as amended in 19666You will
note that pursuant to Subsection (a)(10) when an action is brought in the Superior Court relating to the validity
of any decision made pursuant to Article 3.5 (commencing with Section 21670) of Chapter 4 of Part 1 of
Division 9.of the Public Utilities Code, the matter may be subject to a mediation proceeding.
NHM/slt
(leasure. mem)
Planning Division
JAN 2 - 1 1997
Oroville, California
- • ,�,`. - <: Esc• ,rtia. k,C-C4�.T�.�y��ny� .
§: 66025 GOVERNMENT 'CODE
Law Review and Journal Commentaries
Review of selected 1994 California legislation. 26 Pac.
L.J. 202 (1995).
§ 66030. Legislative findings and intent
(a) The Legislature finds and declares all of the
following-•
(1) Current law provides that aggrieved agencies, project proponents, and affected residents may bring
suit against the land use decisions of state and local governmental.agencies.. In practical terms, nearly
anyone can sue once a project has been approved.
(2) ,Contention often arises over projects involving local general plans and zoning, redevelopment plans,
the California Environmental QualityAct (Division 13 (commencing with Section 21000) of the Public
Resources Code), development impact fees, annexations and incorporations, and the Permit Streamlining
Act (Chapter 4.5 (commencing with Section 65920)).
(3) When a public agency approves a development project.that is not in accordance with the law, or
when the prerogative to bring suit is abused, lawsuits can delay development, add uncertainty and cost to
the development process, make housing more expensive, and damage California's competitiveness. This
litigation begins' in the superior court, and often progresses on appeal to the Court of Appeal and the
Supreme Court, adding to the workload of the state's already overburdened judicial system.
(b) It is, therefore, the. intent of the. Legislature to help litigants resolve their differences by
establishing formal mediation processes for. land use disputes. In establishing these mediation processes,
it is not the intent of the Legislature to interfere with the ability of litigants to pursue remedies through
the courts.
(Added by Stats.1994, C. 300 (S.B.517), § 1.)
§,66031. Actions subject to mediation proceeding; selecting a mediator, considerations; failure to
select a mediator
(a) Notwithstanding any other provision of law, any action brought in the superior court relating to any,
of the following subjects may be subject to a mediation proceeding conducted pursuant to this chapter:
(1) The approval or denial by a public agency of any development project.. .
(2) Any act or decision of a public agency made pursuant to the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources Code).
(3) The failure of a public agency to meet the time limits specified in Chapter 4.5 (commencing with
Section 65920), commonly known as the Permit Streamlining Act, or in the Subdivision Map Act (Division
2 (commencing with Section 66410)).
(4) Fees determined pursuant to Sections 53080 to 53082, inclusive, or Chapter 4.9 (commencing with
Section 65995).
(5) Fees determined pursuant to Chapter 5 (commencing with Section 66000). \
(6) The adequacy of a general plan or specific plan adopted. pursuant to Chapter 3 (commencing with
Section 65100).
(7) The validity of any sphere of influence, urban service area, change 'of organization or reorganiza-
tion, or any other decision made pursuant to the Cortese -Knox Local Government Reorganization Act
(Division 3 (commencing with Section 56000) of Title 5).
(8) The adoption or amendment "of a redevelopment plan pursuant to the Community Redevelopment
Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code).
(9) The validity.of any zoning decision made pursuant to Chapter 4 (commencing with Section 65800).
— A- -..—,. t M e.r,nlp 1.9; (enmmencine with Section 21670) of
vy(b) Within five days after the deadline for the respondent or defendant to file its reply to an action, the
court may invite the parties to consider resolving their dispute by selecting a mutually acceptable person
to serve as a mediator, or an organization or agency to provide a mediator.
(c) In selecting a person to serve as a mediator, or an organization or agency to provide a mediator, the
parties shall consider the following:
(1) The council of governments having jurisdiction in the county where the dispute arose.
(2) Any-subregional or countywide council of governments in the county where the dispute arose.
Additions or changes indicated by underline; deletions by asterisks*.
96
GOVERNMENT" CODE, § 66033
(3) The Office of Permit Assistance within the Trade. and Commerce Agency, pursuant to its authority
in Article 1 (commencing with Section 15399.50) of Chapter 11 of Part 6.7 of Division 3 . of Mtle 2.,
(4) Any other person with experience or training in mediation including those with experience in land
use issues, or any other organization or agency which can provide a person with experience or training in
mediation, including those with experience in land use issues.
(d) If the court invites the parties -to consider mediation, the parties shall notify the court within 30 .
days if they have selected a mutually acceptable person to serve as a mediator. If the parties have not i
selected a mediator within. 30. days,. the action shall proceed. The court shall not draw any implication,.
favorable or otherwise, from the refusal by a party to accept the invitation by the court to consider !
mediation. Nothing in this section shall_ preclude the parties from using mediation at any other time
while the action is pending.
(Added by Stats.1994, c..300 (S.B.517), § 1. Amended. by Stats.1995, a 686 (S.B.660), §..7, eff. Oct. 10, i
1995, operative Jan. 1, 1996; Stats.1996, c. 799 (S.B.1748), § 7.)
Historical and Statutory Notes
1996 Legislation
Title of act, and legislative findings and declarations
relating to Stats.1996, c. 799, see Historical and Statutory
Notes under Education Code §: 42238:'
Law Review and Journal Commentaries
Review. of'selected 1995 California legislation.. 27 Fac.. ,
L.J. 349 (1996).
§ 66032. Tolling of time limitations; consideration of -mediation as meeting of legislative or state
body; reactivation of action; findings of mediator, applicability of Evidence!Code
sections
(a) Notwithstanding any provision of law to the contrary, all time limits with respect to an action shall
be tolled while the mediator conducts,the mediation; pursuant to this chapter.
(b) -Mediations conducted by a mediator pursuant to this chapter that -involve less than a quorum of 'a
legislative body or a-statebody shall not -be considered meetings:of a -legislative •body.pursuant•to the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1. of Division 2 of Title. 5),:nor
shall they be considered meetings of a state body pursuant to the Bagley -Keene Open. Meeting Act
(Article 9 (commencing with Section 11120) of Chapter 1 of Part'11•of Division 3 o Title 2).
(c) Any action taken regarding mediation conducted pursuant to. this chapter shall. be taken in
accordance with the provisions of current law.
(d) Ninety days after the commencement of the mediation, and every'90 days thereafter, the action
shall be reactivated unless the parties to the action do either of the following:
(1) Arrive at a"settlement and implement it in accordance with:the provisions of current law.
(2) Agree by written stipulation to extend the mediation for an another 90 -day period.
(e) A -mediator shall not file, and a,court shallnot consider, any declaration. or finding•of any kind by
the mediator, other than a required statement of agreement or nonagreement, unless all parties in the
mediation expressly agree otherwise, in writing.
(f) Sections 703.5 and 1152.5 of the Evidence Code shall apply to any mediation conducted pursuant to
this chapter.
(Added by Stats.1994, c. 300 (S.B.517), § 1.)
§ 66033. Completion of mediation; report to office of permit -assistance
(a) At the end of the mediation, the mediator. shall file a report"with the Office of Permit Assistance_
consistent with Section 1152.5 of the. Evidence Code, containing.each of the following:
(1) -The title of the action.
(2) The names of the parties to the action.
(3) An estimate of the costs avoided, if any, because the parties used mediation instead of litigation to
resolve their dispute.
Additions or changes indicated by -underline; deletions by asterisks.*
97
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James A. Honer, Esq.
,HONER, STENSON, FULTZ & WIENS
°3353 Bradshaw Road, Suite 209
Sacramento, California 95827
Telephone: (916) 362-3100
Attorneys for Claimant
SENSENICH CORPORATION
IN THE MATTER OF* THE, CLAIM , OF c+ ;
SENSENICH CORPORATION against
BUTTE COUNTY AIRPORT LAND USE
COMMISSION.
OROVILLE, CALIFORNIA
JA IV"
161986
80AR0 OF SUPERVISORS
SU48 Co" RAMI" CWM
JAN 16 198b
Oroville, Cm6farok
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The undersigned," -claimant, by its attorneys, hereby makes
claim against BUTTE COUNTY AIRPORT LAND USE COMMISSION for
indemnity with respect to -the claims being made against SENSENICH
CORPORATION by Jacqueline Thomas and Dennis Vest in action
numbers 87149 and 87150 in the Superior Court of the- State of
California in and for the County of. Butte. In support of this
claim for indemnification, claimant represents as follows:
1. The claim arises out of an accident that occurred on or
about July 15, 1984, at or near the Oroville Airport. "
2. The accident occurred in the County of Butte near the
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Oroville Airport when an"`'aircraft owned by Jacqueline Thomas and
operated by. Dennis Vest crashed during the course of its
participation in an air show.
At this time, SENSENICH CORPORATION, is not aware of all of
the details of the subject accident since it has only recently
learned of the accident through service of the* complaint in
actions numbers 87149' -and 87150. However, it is claimed on
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James A. Honer, Esq.
,HONER, STENSON, FULTZ & WIENS
°3353 Bradshaw Road, Suite 209
Sacramento, California 95827
Telephone: (916) 362-3100
Attorneys for Claimant
SENSENICH CORPORATION
IN THE MATTER OF* THE, CLAIM , OF c+ ;
SENSENICH CORPORATION against
BUTTE COUNTY AIRPORT LAND USE
COMMISSION.
OROVILLE, CALIFORNIA
JA IV"
161986
80AR0 OF SUPERVISORS
SU48 Co" RAMI" CWM
JAN 16 198b
Oroville, Cm6farok
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The undersigned," -claimant, by its attorneys, hereby makes
claim against BUTTE COUNTY AIRPORT LAND USE COMMISSION for
indemnity with respect to -the claims being made against SENSENICH
CORPORATION by Jacqueline Thomas and Dennis Vest in action
numbers 87149 and 87150 in the Superior Court of the- State of
California in and for the County of. Butte. In support of this
claim for indemnification, claimant represents as follows:
1. The claim arises out of an accident that occurred on or
about July 15, 1984, at or near the Oroville Airport. "
2. The accident occurred in the County of Butte near the
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Oroville Airport when an"`'aircraft owned by Jacqueline Thomas and
operated by. Dennis Vest crashed during the course of its
participation in an air show.
At this time, SENSENICH CORPORATION, is not aware of all of
the details of the subject accident since it has only recently
learned of the accident through service of the* complaint in
actions numbers 87149' -and 87150. However, it is claimed on
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behalf of plaintiffs Jacqueline Thomas and Dennis Vest that there
were no adequate escape or emergency landing routes available in
connection. with the air show being held at or near the Oroville
Airport. on July 15, 1984, -thus forcing a crash landing of the
aircraft operated by Dennis Vest and owned by Jacqueline Thomas
in an unsafe area.
3. It is the contention of claimant that the accident was
due to a dangerous condition of public property in that the
governmental agency to whom this claim is directed negligently
caused, sponsored, planned, conducted, promoted, operated,
provided, assured, maintained, licensed, permitted, managed,
created, secured, and leased the Oroville Airport and its
surrounding streets, roads, and property so as to permit said
premises to be in a dangerous, defective, hazardous, or deficient
condition in the area reasonably expected by the governmental
agency to which this claim is directed to be operated in
conjunction with the air racing show being held at the time of
the subject accident. It is further claimed and contended that
the governmental agency to which this claim is directed
negligently supervised, inspected, and/or controlled the air show
and.race being conducted or performed at the time of the subject
accident so as to proximately result in the occurrence of the
accident or the damages resulting from said accident.
Specifically, but without limitation, it is also contended that
the governmental agency to which this claim is directed failed to
take appropriate steps or procedures to insure proper crash
landing or emergency landing locations for aircraft involved in
the air show being conducted at the time of the subject accident
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and failed to provide appropriate emergency procedures to be
utilized in connection with�the air*show and/or race.
4. The identities of the governmental entity officers
causing the damages complained of herein are presently unknown.
5. The damages claimed herein consist of the following:
a. Property damage to the aircraft of Jacqueline
Thomas in a presently unknown amount;
b. Personal injuries to Dennis - Vest in a presently
unknown amount, including claimed general damages, plus special
damages for past, present, and future medical expenses and loss
of earnings or earning capacity;
C. Prejudgment interest;
d. Cost of court.
SENSENICH CORPORATION seeks indemnification from the
government entity to which this claim is directed based upon its
respective or proportionate percentage of fault or culpability
with respect to the subject accident.
6. Witnesses to the subject accident or related events
which are presently known to SENSENICH CORPORTION include the
following:
a. Jacqueline Thomas, address unknown;
b. Dennis Vest, address unknown.
7. Notices pertinent to this claim should be sent to:
James A. Honer, Esq.
HONER, STENSON, FULTZ & WIENS
3353 Bradshaw Road, Suite 209
Sacramento, California 95827
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8. Claimant first learned of the claims of Jacqueline
Thomas and Dennis Vest by service of their complaint on it
October 22, 1985.
DATED: December 28, 1985 HONER, STENSON, FULTZ & WIENS
By:
ames A. Honer
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James A. Honer, Esq..
HONER, STENSON-, FULTZ & WIENS oROy'uE CAIIFORIV
3 3 51 Bradshaw,' Road, � Suite -209
Sacramento, California, 95827 -.-
Telephone:. (916)..362-3100 JAN 1 6.1986.
Attorneys .for- Claimant BpARDOFSUPERWSORS
SENSENICH CORPORATION
IN THE MATTER OF THE CLAIM OF: `
SENSENICH CORPORATION against
BUTTE -COUNTY AIRPORT LAND USE
COMMISSION.. �
The claimant; by. its attorneys, hereby 'makes,
claim against BUTTE COUNTY AIRPORT LAND USE COMMISSION for ,
indemnity with respect to the claims being made against SENSENICH
CORPORATION by Jacqueline. Thomas and Dennis Vest inaction
numbers 87149 and. 87150. in the Superior Court of the State'. f '
California in and for the County of Butte. In support of this
claim for indemnification, claimant represents as follows:
1. The claim arises out of an accident that.occurred on or
about July 15, 1984, at or near the Oroville Airport.
2.. The accident occurred in the County of Butte near the
Oroville Airportwhen an' aircraft owned by Jacqueline Thomas and
operated by Dennis Vest crashed during the course of its
participation in.an air show. ,
At this time, SENSENICH CORPORATION, is not aware of a1'l of
the details of the subject accident since it has. only recently
learned of the accident through service of the complaint in
actions numbers 87149 and 87150. However, it is claimed on
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behalf of plaintiffs Jacqueline Thomas and Dennis Vest that there
were no adequate escape or.emergency landing routes available in
connection with the air show being held at or near the Oroville-
Airport on July 15, 19.84, thus forcing a'crash landing of the,
aircraft operated by Dennis Vest and owned by Jacqueline Thomas
in an unsafe area.
3. It is the contention of claimant that the. accident was
due to a dangerous condition of public property in that the
governmental agency to. whom this claim is directed negligently
caused, sponsored, planned, conducted, promoted, operated,
provided, assured, maintained,- licensed, permitted, managed,
created, secured, .and leased the Orovlle Airport and its
surrounding streets.,, roads, and property so as to permit said
premises to be in a dangerous, defective, 'hazardous, or)deficient
condition in the area reasonably expected by the governmental
agency to which this claim is directed to be operated. in
conjunction with the air racing show being.held at .the time of
the subject accident. It is further. claimed and contended that
the governmental agency to which this claim is directed
negligently supervised, inspected, and/or controlled the air show
and race being conducted or performed.at the time of the subject
accident so as to proximately result in the occurrence of the
accident or the damages resulting from said accident.
Specifically, but without limitation, it As also contended that-
the
hatthe governmental agency to which this claim is directed failed to
take appropriate steps or procedures to insure., proper crash
landing or emergency landing locations for aircraft involved in
the air show being conducted at the time, of the subject accident
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and failed to provide appropriate emergency procedures to 'be
utilized in—connection with the air show and/or race.
4. The identities of -'the governmental entity- officers
causing the damages complained of herein are presently unknown.
5. The damages claimed herein consist of the .following:
a.. Property damage to the aircraft of Jacqueline
Thomas in a presently unknown amount;
b. Personal 'injuries to .Dennis Vest in a presently
unknown amount, including claimed, general damages, plus special
damages for past, present, and future medical expenses and loss
of earnings or earning capacity;
C. Prejudgment interest;
d. Cost of court.
SENSENICH CORPORATION seeks indemnification from the
government entity to which this claim is directed based upon its
respective or. proportionate percentage of fault or culpability
with respect to the subject accident.
6. Witnesses to the subject accident or related events
which. are presently known to SENSENICH CORPORTION include the
following:
a. Jacqueline Thomas, address unknown;
b. Dennis Vest, address unknown.
7. Notices pertinent to this claim should be sent to:
James.A. Honer, Esq.
HONER, STENSON, FULTZ & WIENS
3353 Bradshaw Road, Suite 209
Sacramento, California 95827
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8. Claimant first learned of the claims of Jacqueline
Thomas and Dennis Vest. by service of their complaint on it
October 2211, 1985.
.DATED: December 28, 1985 HONER, STENSON, FULTZ & WIENS
v�e )
Sanies A. Honer
4
V-42 ; Section V - Police Power.
r
0(c. / AIRPORT PLANNING
(1) 1N GENERAL
Each county that'has an airport must establish an airport land use
commission (ALUC) charged with planning for the orderly growth of
public airports. The ALUC must adopt a comprehensive airport land use
plan (ALUP) for the airport and the surrounding area. Cal. Pub. Util.
Code §$ 21670 - 21677. See also Cityof Coachella v. Riverside County
Airport Land Use Commission. 210 Cal. App. 3d 1277, 258 Cal. Rptr. 795
(1989):
(2) BEFOREALUP=APFRO
Until the ALUP is adopted, the city must submit all regulations and
permits within the vicinity of the airport to the ALUC for approval. S -u
Cal. Pub. Util. Code $ 21675.1.
(3) AFTER ALUP APPRO_VAL:y
(a) ALUC APPROVAL. The city mast submit to the ALUC
proposed land use actions in the area covered by the ALUP. S= Cal. Pub.
Util. Code $ 21676.
(b) RESUBM1SS10N OF PLANIf th UC determines an action
is inconsistent with the airport plan, -thecity
murepeat the original
airport, land use plan review. ,egg Cal. Pub. Util. Code g 216765.
(c) I MANDAMUS. If the ALUC fails to act, an applicant may use
administrative mandamus to compel action. egg Cal. Pub. Util. Code
$§ 21671.5, 21675, 21675.1 - 21675.2 and 21679.5. See also 71 Cal. Op.
Att'y Gen. 213 (1988). See section VIII.J. (relating to mandamus actions)
of this handbook.
(4) CITY OVERRIDE
An ALUP may be overridden by a city. Su Cal. Pub. Util. Code
$ 216703(d); 63 Cal. Op. Att'y Gen. 641 (.1980). A two-thirds vote of the
quorum of the city council overrides an adverse determination of an ALUC
conceining the city's proposed amendment of its general plan. egg Cal.
Pub. Util. Code $ 21676; 75 Cal. Op. Att'y Gen. 47 (1992). When a city
overrides the ALUP, the operators of the airport are not liable for
damages which result from the city's action to override. Cal. Pub. Util.
Code $ 21670.7(f).
League of California Cities 11w California Municipal Law Handbook
IM Edition
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. Section V - Popce Power ! V-43
(5) LOCAL REGULATION
Local governments may regulate uses and .heights of structures and trees
adjacent to an airport. >&& Cal. Gov't Code §$ 50485 50485.14.
(6) OTHER HANDBOOK REFERENCE.
For related material, please see the following section in this, handbook:
(a) MCA: Public Property, Public Works and Public Utilities,
Operation of Utilities, Transit and Public Utilities, Airports.
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League of Caufornla Cllks The California Munkipal,Law lldndbook
1991 Edition
Section tV =.Public Property, Public *orki and Mile Utilities IV -71
d. - OTHER HANDBOOK. REFERENCES
For related material, please' gee the following sections in this handbook:
(1) VI.C.: Environmental Quality, Air Quality,
(2) VIIA.6: Finance, Revenue, Fees, Charges and Rates. .
AIRPORTS
a. NBASIC_OPERATION AND REGULATIO, N
(1) fINGENERAL::
The operation of a public airport requires compliance with federal, state
and' local regulations. Cities may exercise their police power to regulate
local airport operation and some aspects of aircraft operations. however, a
city, in its capacity as airport proprietor, is quite restricted by both state
and federal requireerents.. 49 U.S.C. App." 1301 g1 UA. (Federal
Aviation Act of 1958, as amended); Cal. Pub. Util. Code §§ 21600 ;1 Mg.;
Cal. Gov't Code $§ 50470 g1 nq.
(2) FEDERAL PREEMPTION
—E
Federal preemption precludes'muaicipal action which attempts, to regulate
the use of navigable airspace, aircraft traffic or alight safety.:_ See, e.¢.. SM
Wiest, Unified Port Districty Sutterior t::Qmd, 67 Cal. App. 3d 361, 376,
136 Cal. Rptr. 557 (1977); United States v_,City of. New Haven, 496 F.2d
452, 454 (2d Cir. 1974). Federal preemption also extends to on -ground
activities and preempts portions of the state airport regulatory system.
Feftrgl Express Corpgrationy California Public Utilities Commission 936
F.2d 1075 (9th Cir. 1991).
(3) PERMISSIBLE AREAS OF CONTROL•y-;
(a) NOISE AND .POLLUTION. While federal preemption broadly
restricts local control of, air operations and many ground operations, it does
not prohibit all common law remedies for airport noise and pollution.
Bieneman v. Cily of Chig=,.864,F.2d 463 (7th,Cir. 1988).
(b) . TORT ACTIONS., In -addition, state tort law remedies may be
sought under a nuisance theory against a city airport operator as long as
the action does not frustrate the purposes of the Federal Aviation Act.
Greater Westchester Homeowners Association v. Los Angeles, 26 Cal. 3d
86, 160 Cal. Rptr. 733 (1979);.Bethman v. City of Ukiah, 216 Cal. App. 3d
1395, 265.Cal. Rptr. 539 (1989).
;1
League of California Cities The California Muntelpal Law tlandbftk
1994 Edition
IV -78 Section tV . Public Property, Public Works end Nblk Utilities
b.
A,
Levigue of California Cities
(c) PROPRIETARY ACTIONS. Furthermore, a city airport
proprietor may impose some regulations, M„ regarding noise and flight
operations, in its proprietary capacity when it, cannot so regulate under its
police power. Sj& National Aviation v. City oijjaLar_d, 418 F. Supp. 417
(N.D. Cal. 1976).
NOISE REGULATION
(1) CITY AS AIRPORT PROPRIETOR
Although the federal statutory scheme preempts regulation of aircraft noise
by state or local governments, municipalities acting in their capacity as
airport proprietors may impose noise control regulations as long as the
regulations are reasonable and not unjustly discriminatory. 49 U.S.C. App.
$ 1305(b)(1); S itj of Burbank v. Lockheed Air Terminal. Inc., 411 U.S.
624, 635, 93 S. Ct. 1854(1973); Cit"nd CQunty of San Francisco v. FAA.,
942 F.2d 1391 (9th Cir. 1991). Airport noise restrictions will not be upheld
if they are discriminatory or if they have the effect of excluding an entire
class of aircraft, such as jets. Santa Monica Airport Association v. City of
Santa Monica, 481 F. Supp. 927 (C.D. Cal. 1975).
(2) COMMERCE CLAUSE RESTRICTIONS
Noise restrictions must be carefully tailored to avoid creating an
impermissible burden on interstate commerce. A permissible noise
restriction is one that is not illusory and does not favor in-state industry
over out-of-state industry. SS& Alaska Airlines Inc, v. City of Long Beach,
' 951 F.2d 977, 984 (9th Cir. 1991) (holding ordinance imposing noise limits
on individual aircrafts did not violate the commerce clause because "111he
goal of reducing airport noise to control liability and improve the aesthetics
of the environment is a legitimate and permissible one").
(3) FEDERAL AVIATION ADMINISTRATION (FAA) RESTRICTIONS
Any Boise restriction must comply with the Airport Noise and Access
Restrictions, 14 C.F.R. Part 161, which were promulgated by the Federal
Aviation Administration (FAA) in order to implement the Airport Noise
and Capacity Act of 1990, 49 U.S.C. App. N 2153 gl Kq. These rules
provide that noise or access restrictions on stage 2 aircraft may not be
adopted unless the airport operator conducts an in-depth analysis of the
costs and benefits of the restriction and considers alternatives to the -
proposed restriction. 14 C.F.R. 69 161.201 - 161.213. Most proposed
noise or access restrictions on stage 3 aircraft must be submitted to the
FAA for review and approval. 14 C.F.R. §§ 161.301 - 161.325. SU 14
C.F.R. 6§ 161.7, 161.101 rA m. (for exceptions).
d#
The California Municipal Imo► (landbook
1991 Edition
Section tV - Publk Property, Publk Works and Publk 13111111es IV -79
C. ZONING AND LAND USE REGULATIONS
(1) POWER ZONE—
The power to zone for airports is within the general power to zone. Cal.
Const. art XI, $ 7. City zoning actions, however, may be preempted by
federal law if they are inconsistent with federal regulations regarding air
transportation. 'United States v. City of Berkeley, 735 F. Supp. 937 (E.D.
Mo. 1990).
(2) �`TAKI:NGS UES
Zoning which restricts development in flight approaches may constitute an
unconstitutional taking of property. Peac :k v: County of Sacramento. 271
Cal. App. 2d 845, 77 Cal. Rptr. 391 (1969). Height restrictions in the
vicinity of an airport are particularly problematic. Unlike commonly
accepted zoning height restrictions, height restrictions designed to protect
airport flight approaches contemplates the use of the airspace and is in
effect a taking of property for the purpose of creating an easement in the
airspace. Sneed v. County of Riverside, 218 Cal. App. 2d 205, 32 Cal. Rptr.
318 (1963).
(3), AIRFORT9I:AND`USE=_COMMISSIONS
(a) . ROLE., California has established airport land use commissions
(ALUC) in each county to regulate land use around airports.'' Cal. Pub.
Util. Code $$ 21670 gl ;eltti. The role of the ALUC is to formulate a
comprehensive airport land use plan (ALUP) that will provide for the
orderly growth of and around each public airport. Cal. Pub. Util. Code
$ 21675. The ALUC approves ALUPs and reviews local government's
implementing land use decisions for conformity.
(b) JURISDICTION:: =The type of local decisions within an area
covered by a land use plan and reviewable by the ALUC are broader than
simple zoning. Their authority includes review of "actions, regulations or
permits." Cal. Pub. Util. Code $ 21675.2.
(c) CITY OVERRIDE. While the local government can override the
ALUC's decision, an override requires a two-thirds vote of the local
legislative body and the adoption of certain findings. Cal. Pub. Util. Code
$ 21676. 75 Cal. Op. Att'y Gen. 47 (1.992). The finding overriding the
ALUC must be supported by substantial evidence and must comply with
the standards set forth in Tooan¢g_Association for a Scenic Community v.
County of Los Angeles, 11 Cal. 3d 506, 113.Cal. Rptr. 836 (1974);
California Aviation Council v. City of Ceres 9 Cal. App. 4th 1384, 12 Cal.
Rptr. 2d 163 (1992).
League of California Cities 11w California Munklpal Ln. tlandbeok
1991 Edition
IV -$0 i Section IV - Pu
blk iProperty, (Public Woiki and Fublk Ullltlta
d RENTS, FEES.AND TENANT`REQUIREMENTS
(1) GENERAL REQUIREMENTS
k
a Ground leases to fixed -base operators (FBO) and other (light -related
+ operators must be awarded on a nondiscriminatory basis. In addition, an
i airport proprietor may not grant an exclusive right to operate to any
2... individual providing aeronautical services. 49 U.S.C. App. S 1349. The'
FAA's goal is to ensure maximum competition in the provision of services
to the flying public. FAA Order 5190.6A, Chapter 3.
�r
(2) FEDERAL FUNDING REQUIREMENTS
Any municipal airport proprietor *receiving federal funds must make all
airport facilities arid -services available on fair and reasonable terms without
unjust discrimination. 49,U.S.C. App. 5 2210.• The Airport Compliance
'+ Requirements identified 'as FAA Order No. 5190.6A should be consulted in
` attempting to comply with this requirement: •
e. HELIPORTS '
Heliports are state -regulated. The standards for permitting heliports vary with
frequency. of use. Heliport regulations are by their nature more flexible, but there
are some statutory restrictions for any permanent heliport. Cal. Pub. Utd. Code
$ 211625. In this area, the federal role is primarily,advisory-
-
L 4 CLOSING AIRPORTS .+ r
A•city can close its airport and go out of the airport business. Seltenrich v. Town
- of Fairbanks, 211' F.2d 83 (9th Cir. •1954). However, closure may breach conditions
of federal grant funds or giant deed provisions and,may cause federal reversionary
interests to cloud the city's title. ,
g. FREE SPEECH' REGULATIONS
r
The Supreme Court has recently upheld New Xork's'regulations for charitable
solicitors on airport property, because the airport terminal was considered a
non-public forum. Intgrnational Society for Krishni'Consciousness •inc v Lee _
U.S. , 112 S.. Ct. 2701, 120 L- Ed. 2d 541 (1992)"
PRACTICE -TIPS: * `
L' Always check the terms of any grants the city, may have received from the FAA "or the state for airport
' improvements. The grants often require lire airport operator to continue certain,airpon operations long after the
work is done. 'Each grim( condition may vary. ,egg Airport Compliance Requirements FAA Order 5190.64.
2. Many municipal airports were.converted military airfields. Most of the title documents contain
reversionary clauses that cause title to retum to, the federal govemment if the property isnot used for airport
purposes. '
League of Caltrornia Cities �. t' ' ' _ The California Municipal law lhndbnok
1994 Edition
t
Secllon IV - Public Property, t'ublk Works and.Publlc U111111es IV -81
kis..-Code e§§ 21000_.--�- -=�-- _ —
-_.
4. Even if the city knows its small municipal airport cannot support two FBOs, the city's regtr/ations must
allow access to the competing FDO to try and to jail.
h. OTHER HANDBOOK REFERENCES
For related material, please see the following sections to this handbook:
(1) V.B.4.c: Police Power, land Use, Regional Planning Issues, Airport
Plan hri g;
(2) V.F.: Police Power, First Amendment;
(3) VI.F.: Environmental Quality, Hazardous Waste and Contaminated
Property Laws; and
(4) V11.A.6.: Finance, Revenue, Fees, Charges and Rates.
l eagae or Callromin Clues The California Municipal LAW IhnAbodh
19}1 Edition