HomeMy WebLinkAbout2019-06-11; City Council; ; City Council Interpretation of Conditional Use Permit 172 to Operate the Existing Palomar Airport Facility and Carlsbad Municipal Code Section 21.53.015 - Voter Authoriza19.CITY COUNCIL INTERPRETATION OF CONDITIONAL USE PERMIT 172 TO
OPERATE THE EXISTING PALOMAR AIRPORT FACILITY AND CARLSBAD
MUNICIPAL CODE SECTION 21.53.015 -VOTER AUTHORIZATION REQUIRED
FOR AIRPORT EXPANSION
THIS ITEM WAS
CONTINUED TO A DATE
UNCERTAIN
(SEE MINUTES FOR
DETAILS)
June 11, 2019 Item #19 Page 2 of 34
CMC 21 .53.015 was proposed by initiative petition in 1980 and was adopted by a vote of the
City Council without submission to the voters and it shall not be repealed or amended except
by a vote of the people. In the citizens proposing and the City adopting CMC 21.53.015, the
citizens mandated that the City take no legislative action to allow for the expansion of
McClellan-Palomar Airport unless approved by the voters. This item will provide an opportunity
for the City Council to discuss whether the county's actions regarding McClellan-Palomar
Airport require a city action that could trigger the public vote requirements of CMC 21.53.015.
Fiscal Analysis
This item has no fiscal impact.
Next Steps
A City Council interpretation of CUP-172 could inform a future City Counci l det~rmination as to
whether the county is operating McClellan-Palomar Airport in compliance with CUP-172. As
such, the City Council could direct staff to place a public hearing on a future City Council agenda
to consider the revocation or amendment of CUP-172, pursuant to CMC 21.42.120.
A City Council interpretation of CMC 21.53.015 could lead to a future City Council determination
as to whether voter authorization is required to authorize a City Council action necessary to
authorize expansion of McClellan-Palomar Airport. As such, the City Council could direct staff to
place an item on a future City Council agenda to address the requirements of CMC 21.53.015.
Environmental Evaluation (CEQA)
Engaging in a discussion and providing direction to staff does not qualify as a "project" under
the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15378, as it
does not result in a direct or reasonably foreseeable indirect physical change in the
environment.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to scheduled meeting date.
Exhibits
1. Carlsbad Planning Commission Resolution No. 1699, Approving a Conditional Use Permit
(CUP-172) to Operate the Existing Palomar Airport Facility on Property Generally Located on
the Northwest Corner of Palomar Airport Road and El Camino Real
2. Carlsbad Planning Commission Resolution No. 5776, Approving a Conditional Use Permit
Amendment (CUP-172(B)) to Allow the Use of Three Existing Parcels for Airport Parking
Areas on Property Generally Located on the North Side of Owens Avenue, Between Camino
Vida Roble and Yarrow Drive
3. CMC Section 21.53.015 -Voter authorization required for airport expansion
4. February 20, 2018, City of Carlsbad City Council Staff Report
5. February 20, 2018, Kaplan Kirsch Rockwell Presentation Slides 16 through 34 of 41
6. August 5, 1980, City of Carlsbad City Council Meeting Minutes
7. May 3, 1993, Letter from City Attorney, Ronald Ball
June 11, 2019 Item #19 Page 3 of 34
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City
Exhibit 1
PLANNING COMMISSION RESOLUTION NO. 1699
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY _OF CARLSBAD, CALIFORNIA, APPROVING A CON-
DITIONAL USE PERMIT TO OPERATE THE EXISTING
PALOMAR AIRPORT FACILITY ON PROPERTY GENERALLY
LOCATED ON THE NORTHWEST CORNER OF PALOMAR AIR
PORT ROAD AND EL CAMINO REAL.
APPLICANT: COUNTY OF SAN DIEGO -DEPARTMENT
OF -TRANSPORTATION
. CASE' NQ:· CUP-172
WHEREAS, verified application has been filed with the
of Carlsbad and referred to the Planning Commission; and
WHEREAS, said verified application constitutes a request
as provided by Title 21 of the Carlsbad Municipal Code; and
WHEREAS, pursuant to the provisions of the Municipal Code,
the Planning Commission did, on the 24th day of September,
1980, hold a duly noticed to consider said application on
property described as:
That portion of Palomar Airport lying within Lot "G" of
Rancho Agua Hedionda, in the City of Carlsbad, in the
County of San Diego, State of California, according to
Map thereof No. 823, filed in the Office of the County
Recorder' of said County.
WHEREAS, at said public hearing, upon hearing and
considering all testimony and arguments, if any, of all persons
desiring .to be heard, said Commission considered all factors
;r;elating to CUP-172.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission of the City of Carlsbad as follows:
Al That the foregoing recitations are true and correct.
B) That based on the evidence presented at the public hearing,
the Commission recorranends APPROVAL of CUP-172, based on the
following findings and subject to the following conditions:
re RESOL #1699
June 11, 2019 Item #19 Page 4 of 34
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-
Findings:
1)
2)
3)
41
That the requested use is compatible with existing uses or
to uses specifically permitted in the zone in which the
proposed use is to be located.
That the site for the intended use is adequate in size
and shape to accommodate the use.
That all of the yards, setbacks, walls, fences, landscaping,
and other features necessary to adjust the requested use to
existing or permitted future uses in the neighborhood will
be provided and maintained.
That the street system serving the proposed use is adequate
to properly handle all traffic generated by the proposed use.
Condi;ti'ons
1)
2)
3)
4)
5)
6)
Approval is granted for CUP-172 as shown on Exhibit "A",
dated January 14, 1980 and Table 1 dated September 24,
1980, incorporated by reference and on file in the Planning
Depar·tment. Development shall occur substantially as
shown unless otherwise noted in these conditions.
This project is approved upon the express condition that
building pe·nnits· will not be issued for development of
the subject property unless the City Engineer determines
that sewer facilities are available at the time of appli-
cation for such sewer permits and will continue to be
available until time of occupancy.
Any signs proposed for this development shall be designed
iri conformance with the City's Sign Ordinance and shall
;require ;rev.iew and approval by the Planning Department
prior to installation of such signs.
Trash receptacle areas shall be enclosed by a 6 foot high
· masonry wall with gates pursuant to city standards. Loca-
tion of said receptacles shail be approved by the Planning
Department.
All roof appurtenances, including air conditioners, shall
be archi'tec'.turally integrated and shielded from view from
adjacent properties· and streets to the satisfaction of the
l?la.nning Department and Building Department.
Approval of this request shall not excuse compliance with
all sections of the Zoning Ordinance and all other appli-
cable city ordinances in effect at time of building permit
issuance.
PC RESOL #1699
-2-
June 11, 2019 Item #19 Page 6 of 34
• TABLE 1
September 24, 1980
I.. The £allowing uses are permitted by this Conditional
Use Permit without the need for additional discretion-
ary review:
a. Structures and Facilities
Airport structures and facilities that are necessary to
the ·operation of the airport and to the· control of air
traffic · in relation· thereto,. include, but are not·
necessarily limited to, the follo~ing:
(ll Taxiway_s and parking aprons, including lighting_.
(2} Aircraft hangars, tie-down areas and maintenance
buildings.
(.3) A.ir traffic control towers apd facilities.
(.4) Navigational aid equipment and structures.
(5) Airport administration buildings, which may also
include airport passenger terminal facilities.
(.6). 1\irport passenger terminal buildings and airtels,
and facilities which may include ~s uses inci-
dental thereto, consumer service establishments,·
incl udi.ng automobile rentals, retail shops norm-
a.lly operated for the convenience of the users of
terminal fa•cilities.
C7) Heliports.
(8) Aviation fuel farms.
(9.)_ Automobile parki!lg · lots and structures.
(10) Buildings for housing operations and equipment
necessary to the ma{ntenance, security and safety
of the airpo~t.
b. Commercial hctivities
Commercial c1vic1tion activities as follows.:
(1) Aviation flight and ground schools, including
pilot and student equipment sales.
(2) Aircraft sales, including radio and na~igational .
equipment, parts, supplies and accessory equip-
ment.
June 11, 2019 Item #19 Page 7 of 34
--(3) Aircraft hangar and tiE:-down rentals.
(4) Aircraft leasing, rental and charter.
(5) Airframe, engine, radio, navigational and acces-
sory equipment repair, maintenance and modifica-
tion.
(6) Aircraft ground support equipment repair, main-
tenance and modification.
(7) Aircraft cleaning services.
(8) Aircraft painting.
(9) ~viation fuel facilities.
(10) Aircraft atid engine mechanic schools.
(11) Airlines, scheduled and non-scheduled.·
(12) Air taxi and air ambulance services.
{13) Air freight terminals and trans-shipment facilities.
(14) Aerial crop dusting and spraying enterprises.
(15) Aerial fire fighting.
{16) Aerial photography and surveying.
(17) Parachute riggins sales and s~rvice.
II. The following uses are allowed if the Planning Com-
mission determines that they are consistent with
·the airport facility: ·
a. Incidental eating and drinking establishments
b. Incidental commercial, professional office and/or
industrial uses not specifically mention in Sec-
tion I a and b provided that s~ch uses are permitted
in and are consistent with· the intent of the M Z-:me.
III. The following uses are .allowed if the Planning Director
· determines they are consistent with and related to the
airport facility:
. DJ]: jt
a. Signs~ Identification, directional and safety
signs.
b. A single-family dwelling occupied exclusively by a
caretaker or superintendent of such use and his
family .
June 11, 2019 Item #19 Page 8 of 34
June 11, 2019 Item #19 Page 9 of 34
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Exhibit 2
PLANNING COMMISSION RESOLUTION NO. 5776
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A
CONDITIONAL USE PERMIT AMENDMENT TO ALLOW
THE USE OF THREE EXISTING PARCELS FOR AIRPORT
PARKING AREAS ON PROPERTY GENERALLY LOCATED
ON THE NORTH SIDE OF OWENS AVENUE, BETWEEN
CAMINO VIDA ROBLE AND YARROW DRIVE IN LOCAL
FACILITIES MANAGEMENT ZONE 5.
CASE NAME: AIRPORT PARKING AREAS
CASE NO.: CUP 172{B)
WHEREAS, County of San Diego, "Developer/Owner," has filed a verified
application with the City of Carlsbad regarding property described as
Lots 29 through 31 of Carlsbad Tract No. CT 81-46 (Unit No.
2), according to Map No. 11288, filed in the Office of the
County Recorder of San Diego County on July 16, 1985, in the
City o_f Carlsbad, County of San Diego, State of California
("the Property"); and
WHEREAS, said verified application constitutes a request for a Conditional Use
Permit Amendment as shown on Exhibit "A" dated November 3, 2004, on file in the Planning
Department AIRPORT PARKING AREAS -CUP 172(B), as provided by the conditions of
approval of CUP 172 and Chapter 21.42 of the Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did, on the 3rd day of November 2004,
hold a duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all factors
relating to the CUP amendment; and
WHEREAS, on September 24, 1980, the Planning Commission approved CUP
172, as described and conditioned in Planning Commission Resolution No. 1699.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission of the City of Carlsbad as follows:
June 11, 2019 Item #19 Page 10 of 34
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A)
B)
That the foregoing recitations are true and correct.
That based on the evidence presented at the public hearing, the Commission
APPROVES AIRPORT PARKING AREAS -CUP 172(B) based on the
following findings and subject to the following conditions:
Findings:
1.
2.
3.
4.
5.
That the requested use is necessary or desirable for the development of the community, is
essentially in harmony with the various elements and objectives of the General Plan, and
is not detrimental to existing uses specifically permitted in the zone in which the
proposed use is located, in that the proposed parking area is necessary to maintain
current operations at the airport and the Land Use Element calls for the
encouragement of the continued operation of the airport as a general aviation
airport; parking is permitted as a primary and accessory use within the industrial
park; and the parking area would generate less traffic than industrial and
commercial development on the property.
That the site for the intended use is adequate in size and shape to accommodate the use, in
that the proposed parking area and associated features can fit within the existing
site.
That all the yards, setbacks, walls, fences, landscaping, and other features necessary to
adjust the requested use to existing or permitted future uses in the neighborhood will be
provided and maintained, in that the perimeter landscaping will remain and lighting
for pedestrian travel and safety would be provided.
That the street system serving the proposed use is adequate to properly handle all traffic
generated by the proposed use, in that the traffic generated by the proposed parking
areas is less than the traffic volumes anticipated by the Zone 5 Local Facilities
Management Plan for the subject properties, which range from 1,400 to 2,800 ADT.
The Planning Commission finds that the project, as conditioned herein, is in
conformance with the Elements of the City's General Plan and Specific Plan 181 based
on the facts set forth in the staff report dated November 3, 2004 including, but not
limited to the following:
The Land Use Element calls for the City to encourage the continued operation of the
airport as a general aviation airport and the proposed parking area is necessary to
accommodate the modifications required at the airport to comply with FAA, TSA
and CalTrans standards;
The proposed ·parking area will contain adequate vehicular circulation and lighting
for pedestrian safety;
The proposed parking area will not create any obstructions to the flight path and all
illumination will be directed downward to avoid conflicts with aircraft operations;
PC RESO NO. 5776 -2-
June 11, 2019 Item #19 Page 11 of 34
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6.
7.
8.
The existing methane extraction and elimination system is accommodated in the
parking lot design and will continue to operate.
The project is consistent with the Comprehensive Land Use Plan (CLUP) for the
McClellan-Palomar Airport, dated April 1994, in that the proposed parking area is not
located within the Flight Activity Zone or Runway Protection Zone. The project is
compatible with the projected noise levels of the CLUP; and, based on the noise/land use
compatibility matrix of the CLUP, the proposed land use is compatible with the airport, in
that the proposed parking area is located outside of the 60 dBA CNEL.
That the Planning Director has detennined that the project belongs to a class of projects
that the State Secretary for Resources has found do not have a significant impact on the
environment, and it is therefore categorically exempt from the requirement for the
preparation of environmental documents pursuant to Section 15311 of the State CEQA
Guidelines. In making this detennination, the Planning Director has found that the
exceptions listed in Section 15300.2 of the State CEQA Guidelines do not apply to this
project.
The Planning Commission has reviewed each of the exactions imposed on the Developer
contained in this resolution, and hereby finds, in this case, that the exactions are imposed
to mitigate impacts caused by or reasonably related to the project, and the extent and the
degree of the exaction is in rough proportionality to the impact caused by the project.
Conditions:
Note: Unless otherwise specified herein, all conditions shall be satisfied prior to grading or
building permit, whichever occurs first.
1.
2.
3.
If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their tenns, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building pennits; deny, revoke or further condition all certificates of occupancy
issued under the authority of approvals herein granted; institute and prosecute litigation to
compel their compliance with said conditions or seek damages for their violation. No
vested rights are gained by Developer or a successor in interest by the City's approval of
this Conditional Use Permit Amendment.
Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Conditional Use Permit Amendment documents, as necessary
to make them internally consistent and in conformity with the final action on the project.
Development shall occur substantially as shown on the approved Exhibits. Any proposed
development different from this approval, shall require an amendment to this approval.
Developer shall comply with all applicable provisions of federal, state, and local laws and
regulations in effect at the time of building permit issuance.
PC RESO NO. 5776 -3-
June 11, 2019 Item #19 Page 12 of 34
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4.
5.
6.
7.
8.
9.
10.
If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are
challenged, this approval shall be suspended as provided in Government Code Section
66020. If any such condition is determined to 'be invalid this approval shall be invalid
unless the City Council determines that the project without the condition complies with
all requirements of law.
Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold
harmless the City of Carlsbad, its Council members, officers, employees, agents, and
representatives, from and against any and all liabilities,•losses, damages, demands, claims
and costs, including court costs and attorney's fees incurred by the City arising, directly
or indirectly, from (a) City's approval and issuance of this Conditional Use Permit
Amendment, (b) City's approval or issuance of any permit or action, whether
discretionary or non-discretionary, in connection with the use contemplated herein, and
(c) Developer/Operator's installation and operation of the facility permitted hereby,
including without limitation, any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions. This obligation
survives until all legal proceedings have been concluded and continues even if the City's
approval is not validated.
Developer shall submit to Planning Department a reproducible 24" x 36" mylar copy of
the site plan of the entire airport property, including the proposed parking area,
reflecting the conditions approved by the final decision making body. No further
grading or building permits within the area covered by CUP 172 shall be issued
until this site plan is submitted to the Planning Department.
This project shall comply with all conditions and mitigation measures which are required
as part of the Zone 5 Local Facilities Management Plan and any amendments made to that
Plan prior to the issuance of building permits
This Conditional Use Permit shall be reviewed by the Planning Director on a yearly basis
to determine if all conditions of this permit have been met and that the use does not have
a substantial negative effect on surrounding properties or the public health and welfare. If
the Planning Director determines that the use has such substantial negative effects, the
Planning Director shall recommend that the Planning Commission, after providing the
permittee the opportunity to be heard, add additional conditions to reduce or eliminate the
substantial negative effects.
This Conditional Use Permit may be revoked at any time after a public hearing, if it is
found. that the use has a substantial detrimental effect on surrounding land uses and the
public's health and welfare, or the conditions imposed herein have not been met.
This project shall comply with all conditions required as part of the approved Conditional
Use Permit (CUP 172) as contained in Planning Commission Resolution No. 1699.
11. This approval is granted subject to the approval of PIP 04-07 by the Planning Director
and is subject to all conditions contained in the approval letter for that other approvals
incorporated herein by reference.
PC RESO NO. 5776 -4-
June 11, 2019 Item #19 Page 13 of 34
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13.
14.
15.
Prior to the issuance of the building or grading permit, whichever occurs first,
Developer shall submit to the City a Notice of Restriction to be filed in the office of the
County Recorder, subject to the satisfaction of the Planning Director, notifying all
interested parties and successors in interest that the City of Carlsbad has issued a
Conditional Use Permit Amendment and Planned Industrial Permit by Resolution
No. 5776 on the property. Said Notice of Restriction shall note the property description,
location of the file containing complete project details and all conditions of approval as
well as any conditions or restrictions specified for inclusion in the Notice of Restriction.
The Planning Director has the authority to execute and record an amendment to the notice
which modifies or terminates said notice upon a showing of good cause by the Developer
or successor in interest.
No outdoor storage of materials shall occur onsite unless required by the Fire Chief.
When so required, the Developer shall submit and obtain approval of the Fire Chief and
the Planning Director of an Outdoor Storage Plan, and thereafter comply with the
approved plan.
Developer shall submit and obtain Planning Director approval of an exterior lighting plan
including parking areas. All lighting shall be designed to reflect downward and avoid any
impacts on adjacent homes or property;
This Conditional Use Permit Amendment is approved subject to the condition that
the parking is the only use permitted on Lots 29 -31. No other uses listed in Table
1, dated September 24, 1980 and attached to Planning Commission Resolution No.
1699, are allowed ..
NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PC RESO NO. 5776 -5-
June 11, 2019 Item #19 Page 15 of 34
5/28/2019
Carlsbad Municipal Code
PreltiOUS
Title 21 ZONING
ChaRter 21.53 USES GENERALLY
21.53.015 Voter authorization required for airport expansion.
Main ~earch frint
21.53.015 Voter authorization re uired for airport ex ansion.
Exhibit 3
No Frames
(a) The city council shall not approve any zone change, general plan amendment or any other legislative enactment
necessary to authorize expansion of any airport in the city nor shall the city commence any action or spend any
funds preparatory to or in anticipation of such approvals without having been first authorized to do so by a majority
vote of the qualified electors of the city voting at an election for such purposes.
(b) This section was proposed by initiative petition and adopted by the vote of the city council without submission
to the voters and it shall not be repealed or amended except by a vote of the people. (Ord. 9804 § 5, 1986; Ord. 9558
§ l , 1980)
View the mobile version.
www.qcode.us/codes/carlsbad/ . 1/1
June 11, 2019 Item #19 Page 16 of 34
~ CITY COUNCIL
~ Staff Report
Meeting Date:
To:
From:
Staff Contact:
February 20, 2018
Mayor and City Council
Kevin Crawford, City Manager
Celia Brewer, City Attorney
7 60-434-2891
Exhibit 4 .
CA Review 1./2..._
Subject: Presentations on the County of San Diego's Proposed Master Plan Update
and Draft Environmental Impact Report for McClellan-Palomar Airport
Recommended Action
View County of San Diego presentation rel$arding its proposed master plan update for
McClellan-Palomar Airport and the accompanying draft environmental impact report. Receive
presentation from the law firm of Kaplan Kirsch Rockwell regarding the City of Carlsbad's
authority related to the County's proposed master plan.
Executive Summary
McClellan-Palomar Airport is a general ayiation airport owned and operated by the County of
San Diego ("County") and located within the municipal boundaries of the City" of Carlsbad. The
County has prepared an update to its 1997 Airport Master Plan and an accompanying draft
program environmental impact report as required by ~he California Environmental Quality Act
("CEQA").
The draft master plan includes three main changes to the existing airport. One is adding safety
features at each end of the runway to slow down planes and help prevent them from going off
the end of the runway in an emergency. The second is shifting the runway to the north to
increase the separation distance between the runway and the taxiway. The third is to extend
the runway to the east end of the property, near the corner of El Camino Real and Palomar
Airport Road. The draft master plan also contemplates certain improvements to airport
facilities.
The county does not currently have funding allocated to make the improvements in the plan.
The draft master plan divides the proposed projects into three phases: near term (0-7 years),
intermediate term (8-12 years) and long-term (13-20 years.)
Discussion
The record reflects that the City of Carlsbad has long sought greater control over the airport.
The airport was founded in 1957 and opened in 1959 on land which was then part of the
unincorporated area of San Diego County. In 1973, the City Council directed staff to prepare an
annexation study for the airport property that was within the city's sphere of influence.
June 11, 2019 Item #19 Page 17 of 34
In 1975, the County prepared an airport master plan that outlined the long-term development
plans for the airport, which included the extension of the existing runway and acquisition of
land outside of the airport boundary for an additional runway, airport operations buildings and
taxiways. The extension of the existing runway and the acquisition of additional land outside of
the airport for an additional runway were never implemented.
Annexation proceedings were completed and in December, 1978, and the City of Carlsbad
finally annexed the existing airport site into the City of Carlsbad. In 1980, the citizens of
Carlsbad circulated an initiative requiring a vote prior to any City Council legislative action
necessary to expand the airport, discussed further below, and in 1984, the City Council adopted
Resolution No. 7558, requesting a Joint Powers Agreement to limit the level of operations and
prevent the expansion of "airport facilities such as the addition of a second runway, extension
of the existing runway or upgrading of airport facilities." The City Council later voted to
approve a proposed draft agreement and submit that agreement to the County for its approval
(see Resolution 8249). There is no record of a County response or of an executed agreement.
Federal Control of Airports
Airports in the United States are regulated by the Federal Aviation Administration (FAA). The
principles of federal preemption provide that federal law supersedes state and local law in
many instances. What this means for the McClellan-Palomar Airport is that the State of
California and the City of Carlsbad have limited authority to regulate how the Airport operates,
what it builds and how it grows. In their presentation, Kaplan Kirsch attorneys will explain the
principles of federal preemption.
Citizen lnitiative/CMC 21.53.015
In 1980, as a result of a proposed citizen initiative, the City Council directly adopted an
ordinance that prevents the City Council from approving a zone change, general plan
amendment or any other legislative action necessary to authorize airport expansion without a
public vote. The language proposed by the citizen initiative was codified as follows:
Carlsbad Municipal Code section 21.53.015:
Voter authorization required for airport expansion.
(a) The city council shall not approve any zone change, general plan amendment or any
other legislative enactment necessary to authorize expansion of any airport in the
city nor shall the city commence any action or spend any funds preparatory to or in
anticipation of such approvals without having been first authorized to do so by a
majority vote of the qualified electors of the city voting at an election for such
purposes.
(b) This section was proposed by initiative petition and adopted by the vote of the city
council without submission to the voters and it shall not be repealed or amended
except by a vote of the people.
Prior to adoption of the ordinance, Mayor Ron Packard asked then City Attorney Vince Biondo
about the effects, if any, of adoption of the ordinance on the approved Master Plan of the
Airport. The minutes reflect the following response:
June 11, 2019 Item #19 Page 28 of 34
To:
All Receive· Agenda Item#~
For the Information of the:
,J~l~OUNCIL
Date +Llif1 CA ✓ CC ·✓
Carlsbad City Council Members & City Attorney CM~ coo ✓ DCM (3} V
Via: Carlsbad City Clerk
From: Ray & Ellen Bender [2019 RB Comments CCC june 11 Agenda 19 CUP 172 Interpretation final]
Council Tuesday June 11, 2019 Meeting Agenda Item 19 Re:
19 CITY COUNC_IL INTERPRETATION OF CONDITIONAL USE PERMIT 172 TO OPERATE
THE EXISTING PALOMAR AIRPORT FACILITY AND CARLSBAD MUNICIPAL CODE
. SECTION 21.53.015-VOTER AUTHORIZATION REQUIRED FOR AIRPORT
EXPANSION -Date: · Friday, June 7, 2019
Date: Friday, June 7, 2019 ---Emailed to Carlsbad at 7:30 A.M.
Background:
Carlsbad staff has provided you
• A copy of the 1979/1980 Carlsbad Council Resolution 1699 adopting Carlsbad
Conditiona.1 Use Permit 172 including Table 1;
• A copy of Carlsbad Municipal Code § 21.53.015 providing that Carlsbad voters
must first approve Palomar Airport expansions when the Carlsbad council takes a
legislative action related to the expansion; and
• Several quotes and/or memos from the 1980 Carlsbad City Attorney commenting
on those laws.
This letter adds key information that Carlsbad staff did not provide you.·
CUP 172 Interpretations
• CUP 172 does not define the term "expansion" but courts use the
ordinary dictionary definition. Dictionaries define "expansion" as
including a change in volume or capacity or territory. Moreover Public
Utilities Code § 21664.5, part of the State Aeronautics Act, expressly says
that runway extensions are airport expansions. ·
• Carlsbad MC§ 21.04,140.1 concurs with the dictionary definition. Under
this section enlarging a runway is enlarging an improvement and hence is
an expansion.
• The 1979 opinion of the Carlsbad City Attorney as to the meaning of "expansion"
is irrelevant for several reasons:
o The City Attorney opinions state only conclusions. No analysis is
provided. Unsupported conclusions have no merit. For instance, the City
Attorney did not address the State Public Utilities Code section saying
that runway extensions ar~ expansions.
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o Moreover, the 1980 Council members approving CUP 172 may or may
not have shared his opinions; We have no idea ..
o CUP 172 and MC§ 21.53.015 were processed concurrently as a result of
1979/1980-community opposition to the county bringing more air traffic
. to Carlsbad. It was the community, not the City Attorney that presented
the expansion concept to the voters.
o Moreover, the CUP 172 premises occupy only the west side of El Camino
Real and not the airport property on the east side of El Camino Real. In
its 2018 PMP EIR, the county ultimately had to concede that the Palomar
runway extension would in fact require the county to make available to
the FAA property east of ECR [outside the CUP 172 premises] to extend
the Palomar navigational lighting and aides. So as a factual matter -
even if the term "expansion" had a narrow meaning despite the
authorities above -the county projects in fact require the use of land
outside the CUP 172 borders that county must make available to the FAA.
o Finally, CUP 172 Condition 7 says that county must obtain Carlsbad
Planning Commission approval for items not covered by CUP 172 Table 1.
As we pointed out to the Council in February/March 2018 during the KKR
Palomar analysis, the county draft CUP 172 Table 1 (submitted prior to
the Carlsbad CUP 172 adoption) included runway changes as a Table 1
allowed improvement. But when Carlsbad adopted CUP 172 Table 1,
Carlsbad deleted the runway reference -clearly indicating that county
needed Carlsbad approval for runway changes. As CUP 172, Condition 8,
expressly notes: Approval of ariy uses not specifically listed in Table 1
and/or expansion of the airport facility shall require an amendment to the
Conditional Use Permit.
Note .also that the City Attorney's 1980 "expansion" response on the spur of the
moment in an open meeting to the Carlsbad Council was likely based on his familiarity
with the 1975 Carlsbad Palomar Airport Development Guidelines, which distinguished
between "on-site" and other improvements. However, those Guidelines differ in
several material ways from the CUP 172 language.
Finally, note that the City Attorney 1979/1980 oral response uses the term "expansion"
in two different sentences in two different ways, which itself shows confusion resulting
from his inability to timely research an answer to a last-minute council question in a
public meeting. [See February 20, 2018 Kevin Crawford, City Manager, Staff Report to
Mayor and City Council, page 3 top.]
MC§ 21.53.015 Interpretation: Legislative Act: The Airport
Parking Lot Relocation Precedent
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o CUP 172 does not use the term Legislative Act. MC§ 21.53.015 [the
initiative-driven code section Carlsbad ultimately adopted before voters
voted] does use the term.
o As an initial matter, note that the Carlsbad City Attorney by his May 3,
1993 letter to the County Airports Manager (included in the June 2019
Carlsbad staff report) and copied to the Carlsbad Mayor and City Council
said two things. First, county's purchase .of three lots to relocate airport
parking was a clear acquisition of land outside the airport and hence an
indisputable Palomar expansion. Second, county's acquisition would
"require redesignation in Carlsbad's General Plans and rezoning in its
zoning ordinance both of which are legislative actions. Therefore, the
property acquisition for structures and facilities related to the airport
would require a vote of the people. ,,
o Ye~, oddly, when the parking lot matter went to the Carlsbad Planning
Commission in 2005/2006 pursuant to CUP 172, Carlsbad conceded that
an expansion was occurring but also said no legislative action was
needed because Carlsbad had already adopted a specific plan for the
general area in which the parking lots were located.
■ In other words, it appears that Carlsbad and county came up
with a clever scheme to avoid a vote of the people. First, take all
needed General Plan and zoning actions as to the lots being
acquired before the county moved its Palomar parking lots.
■ Then -years later -take the acquisition to the Planning
Commission after all general plan and zoning actions have been
taken.
o The foregoing acts do not speak well of the Carlsbad council
transparency and its willingness to allow its residents to vote on
Palomar Airport expansion.
MC§ 21.53.015 Interpretation: Legislative Act: As Applied to
County 2018 PMP and Program EIR: The ALUC LUCP & Carlsbad
General Plan Amendment
Just read again your May 3, 1993 City Attorney parking lot opinion, which Carlsbad staff
submitted to you as part of your June 11, 2019 Agenda packet. It says that county
Palomar Ai _rport actions that impact the Carlsbad General Plan or zoning of property
outside the airport are legislative actions.
For the last twenty years, the Carlsbad Council on multiple occasions has had to revise
its General Plan when the Airport Land Use Commission (ALUC) of the San Diego County
Regional Airport Authority (SDCRAA) updated the Palomar Land Use Compatibility Plan
(LUCP). Recall that State law requires the ALUC to define the noise and safety zones on
land parcels surrounding Palomar Airport that will be impacted by airport operations.
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When the Board of Supervisors adopted the 2018 PMP, it said it would be guided by 8
factors including the impact of the selected alternative on land OUTSIDE the airport. For
this reason, the BOS has already sent the PMP to the ALUC so that the ALUC can update ·
the Palomar LUCP.
The ALUC Update will again require the Carlsbad council to update its General Plan -an
action resulting solely from the county's adoption of its 2018 PMP. Accordingly, there is
no doubt that county's action is causing a Carlsbad legislative action. And MC§
21.53.015 requires a vote of Carlsbad residents before the council may act.
MC§ 21.53.015 Interpretation: Legislative Act: As Applied to
County 2018 PMP and Program EIR: Carlsbad General Plan
Consistency Determination Related to On-Palomar Activity
State law requires cities and counties to adopt General Plans covering lands within their
jurisdiction and covering their own properties. Carlsbad adopted its 2015 General Plan.
County also adopted a General Plan, but applies it to the unincorporated areas of the
county. Palomar is NOT in an unincorporated county area but rather within the city of
· Carlsbad -as a result of the annexation into the city that county expressly requested in
exchange for Carlsbad airport services including fire services.
In its 2018 PMP and PEIR, county says that it will continue to comply with Carlsbad laws
including CUP 172 and MC§ 21.53.015. For the reasons above, Carlsbad must make a
consistency determination as to whether the ON-AIRPORT PMP projects comply with
the Carlsbad General Plan Airport policies. We incorporate by reference here the
material we have today separately provided the council for the June 11, 2019 Agenda
Item 18. That material shows that the county-selected D-111 Alternative does not comply
with Carlsbad General Plan policies.
For the foregoing reasons, the Carlsbad Council review of the consistency of the county
ON-AIRPORT projects with the Carlsbad General Plan constitutes a legislative action
independently of the council's review of the OFF-AIRPORT Palomar impacts. And MC§
21.53.015 requires a vote of Carlsbad residents before the council may act..
-MC § 21.53.015 Interpretation: Legislative Act: As Applied to
County 2018 PMP and Program EIR: Carlsbad Council Review of
Planning Commission CUP 172 Actions
As Carlsbad staffs June 11 , 2019 Staff Report notes, the Carlsbad Council has final
authority over Palomar related actions including the actions of the Carlsbad Planning
Commission. For the reasons noted above, the county's 2018 PMP projects_:._ especially
its relocation and extension of the Palomar runway-expand the airport.
4
Moreover, EVEN IF there were no expansion, CUP 172 Condition 8 requires
Carlsbad Planning Commission review because runway alt'erations are NOT
preapproved CUP 172 Table 1 projects. In 1980, the Carlsbad council expressly
removed "runway changes" as allowed preapproved projects even though county's
draft Table 1 had expressly requested preapproval of runway changes.
County has conceded that its runway extension requires county to rnake available to the
FAA land east of El Camino Real so the FAA may install several million dollars of
Palomar navigational aids including lighting. That land is outside the CUP 172 area
described in the CUP 172 parcel that the council approved in 1980.
Consequently, if the Planning Com.mission and council approved a PMP D-III
alternative, it could only do so by modifying the CUP 172 premises. Such modification
constitutes a legislative act since the Planning .Com.mission has no jurisdiction to act
, outside the current CUP 1 72 boundaries.
Hence, for this third reason -independent of the two reasons mentioned above -the
county 2018 PMP action requires a legislative action of the Carlsbad Council. And MC
§ 21.53.015 requires a vote of Carlsbad residents before the council may act.
2019 RB Comments CCC june 11 Agenda 19 CUP 172 Interpretation final
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