2012 SWAAAE Monterey Conference: Land Use Planning Legal Updates

1. 2012 SWAAAE Monterey Conference: Land Use Planning Legal Updates Presented By: Lori Ballance Gatzke Dillon & Ballance LLP

2. Content Introduction Chapter 1: ALUCs Chapter 2: ALUCPS Chapter 3: Building an ALUCP Chapter 4: Developing Compatibility Policies Chapter 5: Responsibilities of Local Agencies Chapter 6: ALUC Review of Local Actions Appendices 2011 California Airport Land Use Planning Handbook

3. Notable Handbook Aspects • Caltrans made a conscientious effort, when updating the Handbook, to be more deliberate with the verbiage: • “Shall”: Statutory requirement to be followed • “May” Statutorily permitted, but not required • “Should” or “Could”: Best practice recommendation

4. Notable Handbook Aspects The Handbook provides: “guidance for meeting the baseline safety and compatibility requirements; however ALUCs may choose to be more restrictive than the State’s guidance when their local conditions warrant doing so.” (Page viii.)

5. Notable Handbook Aspects • ALUC Formation Choices • ALUC (PUC §21670(b)) • Self-Declared Exemption (PUC §21670(b)) • Designated Body (PUC §21670.1(a)) • Designated Agency (PUC §21670.1(c)) • Statutory Exceptions (i.e., Kern, Santa Cruz, Los Angeles, and San Diego counties) • Intercounty ALUCs (PUC §21670.4(c))

6. Notable Handbook Aspects • Airspace protection isn’t just about the Part 77 surfaces anymore! Rather, all of the following may need to be considered by ALUCs: • Wildlife Hazards • Sanitary Landfills and Sewer Systems • Stormwater Management Facilities • Wetlands • Agricultural Areas • Parks, Landscaping Golf Courses, Natural Resources, and Natural Areas • Visual, Electronic, and Thermal Hazards • Energy Projects

7. Notable Handbook Aspects Appendix J (Checklist for Commissioners) • When preparing ALUCPs, ALUCs “[m]ay” consider political, economic, [and] other non-compatibility-related ramifications of criteria and policies. However, ALUCs need not independently undertake cost-benefit analyses.” (Page J-2.) • When implementing ALUCPs, ALUCs cannot consider non-compatibility-related ramifications. (Page J-3.)

8. Adjust Generic Safety Zones Because Of: Runway Length Type of Aircraft Zone 1: Correspond to RPZ Multiple Runways Airport Area Topography Runways Used Predominantly in One Direction Instrument Approach Procedures Other Special Flight Procedures/Limitations Runway Use by Special-Purpose Aircraft Small Aircraft Using Long Runways Displaced Landing Thresholds Notable Handbook Aspects

9. Notable Handbook Aspects • Adjustment of generic safety zones may be more theoretical than actual … • Caltrans recently advised the San Diego County ALUC that the safety zones may not be modified for purposes of application to San Diego International Airport

10. Powell v. County of Humboldt • Petition/Complaint filed in January 2011 • Inverse condemnation allegations • County’s refusal to issue a permit until owners provide an easement is a taking • Government Code §66001 allegations • County cannot show that there is a “reasonable relationship” between the easement and the impact of the residence

11. Powell v. County of Humboldt • Property located near Arcata-Eureka Airport in Compatibility Zone C • Zone C encompasses properties underneath the outer boundary of the Common Traffic Pattern Zone • The compatibility policies require overflight easement dedication for residential uses in Zone C

12. Powell v. County of Humboldt • County filed a motion for summary judgment in January 2012 that will be heard by the Court in April 2012 • Failure to exhaust administrative remedies • Ripeness • Statute of limitations • Laches • Failure to name proper party • Improper remedy • No unconstitutional taking • No fee imposed

13. City of Grass Valley et al. v. Nevada County ALUC et al. • Petition filed in October 2011 • Challenges ALUCP adoption on two grounds: • Improper notice to impacted property owners • Handbook “directs” ALUCs to use same notice procedures applicable to general plans • Inadequate CEQA compliance – EIR (not ND) required

14. Precautions To Take While Nevada County Litigation Is Pending • Use ALUC’s webpage to convey relevant information • Identify status of planning efforts and contact person for additional information • Issue public notices/flyers regarding planning efforts, either via U.S. Mail or e-mail • Notify local land use jurisdictions of planning efforts, and ask those jurisdictions to notify their constituents of ALUC activity

15. Precautions To Take While Nevada County Litigation Is Pending • Publish notice of public hearings, stakeholder working group meetings, etc. in local newspaper(s) • Make draft ALUCPs available for review and comment concurrent with any public review required for CEQA documentation • Strictly and conservatively adhere to CEQA’s notification requirements