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HomeMy WebLinkAbout2019-06-11; City Council; ; March 2020 Primary Election Ballot: Advisory Question Regarding the McClellan-Palomar Airport Master Plan Update and Final Environmental Impact Report20.MARCH 2020 PRIMARY ELECTION BALLOT: ADVISORY QUESTION REGARDING THE MCCLELLAN-PALOMAR AIRPORT MASTER PLAN UPDATE AND FINAL ENVIRONMENTAL IMPACT REPORT THIS ITEM WAS CONTINUED TO A DATE UNCERTAIN (SEE MINUTES FOR DETAILS) ~ CITY COUNCIL ~ Staff Report Meeting Date: To: From: Staff Contact: June 11, 2019 Mayor and City Council Scott Chadwick, City Manager Jason Haber, Assistant to the City Manager jason.haber@carlsbadca.gov or 760-434-2958 CA Review ~ Subject: March 2020 Primary Election Ballot: Advisory Question Regarding the McClellan-Palomar Airport Master Plan Update and Final Environmental Impact Report Recommended Action Discuss placing an advisory question regarding the McClellan-Palomar Airport Master Plan Update and Final Environmental Impact Report, in total, on the March 2020 primary election ballot, and provide direction to staff. Executive Summary On May 7, 2019, the City Council directed staff to place the subject item on a future City Council agenda for discussion within one month, time allowing. Discussion An advisory question is a type of ballot measure in which citizens vote on a non-binding question. Should the City Council decide to place an advisory question on the ballot, it will be important to articulate with specificity, what the public will be asked to weigh in on. Upon clearly defining the City Council's intent, it is recommended that staff be directed to return to the City Council with a recommended approach and draft ballot language to effectuate that intent. City staff contacted the San Diego County Registrar of Voters to obtain the following information regarding a potential City of Carlsbad request to consolidate and place an advisory question on the March 2020 primary election ballot: 1. Estimated Cost: $45,000 to $60,000 (for a four-page measure with arguments and rebuttals) 2. Deadline to adopt a resolution calling the election and requesting consolidation with the county: December 6, 2019 3. Deadline to submit arguments and rebuttals: To be determined June 11, 2019 Item #20 Page 1 of 2 Fiscal Analysis While this item has no fiscal impact to the city, should the City Council decide to place an advisory question oh the March 2020 primary election ballot, the San Diego County Registrar of Voters has estimated the cost to the city to be between $45,000 and $60,000. Next Steps As directed by City Council. 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 None. June 11, 2019 Item #20 Page 2 of 2 All Receive -Agenda Item#~ I -For the Information of the: COUNCIL To: Carlsbad City Council Members & City Attorney Da c vi cc✓ CM ~ DCM (3) ~ Via: Carlsbad City Clerk [REQUEST Immediate Distribution] From: Ray & Ellen Bender [ 2019 RB Comments CCC june 11 Agenda 20 MC 21 53 015 vote final] Council Tuesday June 11, 2019 Meeting Agenda Item 18 Date:Friday, June 7, 2019, 10:45 A.M. Email Re: 20. MARCH 2020 PRIMARY ELECTION BALLOT: ADVISORY QUESTION REGARDING THE MCCLELLAN-PALOMAR AIRPORT MASTER PLAN UPDATE AND FINAL ENVIRONMENTAL IMPACT REPORT-Discuss placing an advisory question regarding the McClellan-Palomar Airport Master Plan Update and Final Environmental Impact Report, in total, on the March 2020 primary election ballot, and provide direction to staff. (Staff contact: Jason Haber, City Manager Department) As to Agenda Item 20 on the June 11, 2019 Carlsbad Council Agenda, the Carlsbad council needs to decide: • If the March 2020 election ballot should allow Carlsbad residents to express their opinion as to whether McClellan-Palomar Airport (Palomar) should expand; and • If so, whether the ballot measure should describe the vote as advisory; and • How the ballot measure should read. A. The Need for a Carlsbad Vote on Palomar Airport Expansion Carlsb~d Community Core Values To quote from the Carlsbad website: "The City of Carlsbad engaged the community in a process called Envision Carlsbad, an intensive two-year process to identify the community's hopes and aspirations for the future of their city. _This vision, finalized in 2010, focuses on the following core values: • Small town feel, beach community character and connectedness • Open space and the natural environment • Access to recreation and active, healthy lifestyles • The local economy, business diversity and tourism • Walking, biking, public transportation and connectivity • Sustainability • History, the arts and cultural resources • High quality education and community services ~ Neighborhood revitalization, community design, and livability" 1 Moreover, the Carlsbad City Charter -the "bible" governing the city -says: ARTICLE 3. LOCAL LIMITS OF GROWTH CONTROL Section 300. LocalLimits of Growth Control. The citizens of Carlsbad recognize and declare that managing and limiting growth and ensuring that necessary public facilities are provided to the citizens of the City of Carlsbad are quintessential elements of local control and therefore are municipal affairs. The adoption of this Charter recognizes and reaffirms the principles of the growth management program established by the citizens as Proposition E in 1986 and affirms the principle that this program, that implements a municipal affair shall be superior to and take precedence over any conflicting general laws of the State of California. The intent oft/tis Charter is to allow the City Council and the voters to exercise the maximum degree of control over land use matters within the City of Carlsbad. (Emphasis added.) Since 1996, intentionally or unintentionally, the Carlsbad mayor has without input from Carlsbad voters co-operated with the county to expand Palomar, as explained below. The result has been that more and more Carlsbad has become a city providing work and benefits mainly to people residing outside Carlsbad rather than to Carlsbad residents. Carlsbad residents are left with the noise, pollution (leaded aviation fuel deposits over Carlsbad schools), and traffic congestion. In short, the core Carlsbad values that Carlsbad residents chose in 2010 are being compromised. Carlsbad Growth and CUP 172 and MC § 21.53.015 Today, California has a population of40,000,000-more than 10% of the entire U.S. population. There is no end in sight. Carlsbad has a population of about 118,000 residents plus tens of thousands of workers and shoppers and tourists fron;i outside the city who enter daily -causing noise, pollution, and traffic congestion on city streets. In the 1970s, the Carlsbad City Council•said it was unalterably opposed to Palomar Airport expanding. For instance as early as Carlsbad Council Resolution 1692 adopted in 1970, the Carlsbad Council said: 2 6. That t~e City council of the City of car-isbad does . . hereby state it1 s unalter~ble oppoJiiiorl ~~ ~he expan- sion of Palomar Airport in any way to acc_ommo-date: medium and lo~g range transports or o~he~aircraft of similar si.ze and noise production cap-abilities; 7. That the world can no long·er a-fford to igno're eco1ogical ethics. The ethical system under which we oper.ated in the past was possibly adequate for arr ·uhcrowded world. It is not adequate for a world that is already critical .. ly overcrowded ... a world in which .ft is increas.in9ly diff~cult for ~ny ·one to ignore at ~11, wfthout seriou,sly affectil,'19 the well betng of count1es-s human bei.ng.s; Further, a thorough eco1ogioa1-re.yi.ew was lniSsi ng '' ill th~ preliminary ai-r.ppr.t st'.udy report. . cl .• In fact, we understand that the mayor in the late 1970s personally solicited votes to support the citizen initiative that lead to the adoption of Carlsbad Municipal Code § 21.53.015. That code section requires the Council to seek a Carlsbad vote when the airport expands resulting in a change of zone, the Carlsbad General Plan, or other legislative action. We incorporate here by reference the material that we today June 7, 2019 provided the Carlsbad Council· as to Agenda Item 19 dealing with the interpretation of Carlsbad Conditional Use Permit 172 (which governs Palomar development) and MC § 21.53.015. As noted in the materials we provided as to Agenda Item 19, extending the Palomar runway is an airport under both the Carlsbad Municipal Code and under the State Aeronautics Act. As well as under common sense. When county says it wants to handle more and more larger, faster aircraft and increase Palomar passenger traffic from less than 25,000 passengers per year to more than 500,000 passengers per year, the airport capacity and volume have increased and the airport has expanded. Moreover, CUP 172 3 Condition 8 does NOT require an expansion to trigger the CUP requirement. A county Palomar improvement NOT in Table 1 triggers the CUP review also. See our discussion as to Ag~nda Item 19. Mayor Hall's & Chamber of Commerce Past Efforts Facilitating Palomar Expansion Since 1996, Mayor Hall and the Carlsbad Chamber of Commerce have consistently supported airport expansion. Actions taken without voter input included: (i) Not requiring.the county to come to the Carlsbad Planning Commission in violation of CUP 1 72 when county lengthened the runway from about 4600 feet to 4900 feet; (ii) Not objecting to the county conversion of Palomar Airport from a "General Aviation Basic Transport" Airport (the CUP 172, Condition 8 and 11 requirement) to an FAA Part 139 Airport to serve large air carriers; (iii) Allowing the county to withdraw its 1997 Palomar Master Plan from Carlsbad council review after county had promised in writing for several months that it would submit that" PMP to the council for review; (iv) Not requiring the county to bring its 2018 PMP, including county's plan to relocate the Palomar runway and extend it by 800 feet, to the Carlsbad Planning Commission for review, as required by CUP 172; and (v) Not requiring a vote of Carlsbad residents pursuant to MC § 21.53.015 when Carlsbad bifurcated a legislative action (specific plan for the parking lots that county relocated its airport parking lots to) from the county later acquisition of the lots. · For the above reasons, Carlsbad residents need to tell the Carlsbad council and the county whether they do or do not support Palomar expansion. Maybe Palomar should increase its flights and passengers and grow Carlsbad to a city of200,000 serving mainly transitory workers and visitors. If Carlsbad voters want that, so be it. But if Carlsbad voters believe in the 2010 Carlsbad Community values, they should have the right to say so. Just one person on the city council determining the quality of life of 100,000 to 200,000 Carlsbad voters is simply wrong and inconsistent with Carlsbad Charter § 3 00 noted above. The extent of the Mayor's powers is shown by the Carlsbad staff report that the council received on Agenda Items 18, 19, and 20. Regardless of whether one supports or opposes Palomar Airport expansion, the level of analysis that Carlsbad staff has provided council members is simply shameful. All the factors we have shared with council members today are directly relevant to the actions council members are considering. Staff or individual council members may disagree with various points but the points need to be discussed. 4 We know that Carlsbad staff is sharp enough to raise all the points we have raised with you. But staff has been "cowed" into not providing a helpful staff report. Why. Staff well remembers what happened in 2012/2013 when staff commented on the then Palomar tenant California Pacific Airlines FAA NEPA study being circulated. At that time staff sent a letter to the FAA commenting on the CUP 172 implications of the proposed new air carrier California Pacific Airlines operating at Palomar. With what result? The Mayor was not happy. After the letter was sent and he became aware of it, it appears that he convened several Carlsbad council closed sessions. Actions discussed and taken in the closed sessions were not reported. Yet shortly after the closed sessions, the then Carlsbad City Manager withdrew the staff letter commenting on the California Pacific Airlines NEPA study. In fact, the new City Manager letter made an assertion that does not seem to be supported by the FAA website. The new City Manager letter claimed1 that the CUP 172 concept of "General Aviation Basic Transport" in CUP 172 Conditions 8 and/or 11 was an out of date concept. Yet as we have pointed out several times in the last 2 years to Carlsbad staff and the council, the FAA National Plan of Integrated Airports System (NPIAS) current 5-year report continues to use the terms General Aviation and Basic Transport in its Appendices. In short, if you are a Carlsbad staff member, why rock the boat and provide a meaningful staff report when your boss has made it clear what he does and. does not want to hear? Recall also that the city of Carlsbad in the last 10 years has had a multiple City Managers. Can the Mayor's message be any clearer? Do what I want or leave. B. The "Advisory" Vote Non-Issue At some point, a court may have to decide whether a vote of Carlsbad residents on Palomar Airport Expansion is or is not a mandatory vote and how a vote affects county Palomar Airport development and FAA funding of such development. But that is not an issue that needs to be decided for a March 2020 ballot. Carlsbad Charter Section 300, quoted above, makes clear that the council is obligated to give its residents maximum input into how lands within Carlsbad are developed. Hence, Charter Section 300 requires a vote regardiess of how Carlsbad MC§ 21.53.015 is interpreted. 1 Note: Our extensive comments on Carlsbad Agenda Items 18, 19, and 20 had to be prepared within a few hours of Carlsbad's release of its June 11, 2019 Agenda yesterday, Thursday, June 6 so that they could be provided to council members and the city attorney today Friday, June 7, 2019 and be reviewed over the week end before the council Tuesday June 11 meeting. Our comments in this letter are· based on memory as time did not permit reviewing the City Manager letter referred to. Carlsbad staff and council members should review the letter to verify the accuracy of the facts we provide from memory. 5 Hence, Carlsbad council meetings and the ballot language can simply reflect that the Carlsbad Council wants to know how Carlsbad residents feel about Palomar expanding. There is no need to refer to the vote as advisory or mandatory. C. The March 2020 Ballot Language Related to Palomar Expansion As the June 11, 2019 Carlsbad Staff Report for Agenda Ite:p:i 20 notes, the council need not decide at the June 11, 2019 meeting how a Palomar Airport Expansion Ballot Measure should read. Rather, the language should be carefully crafted with Community input and WITHOUT countyinput. We simply note at this point that Ballot Measure Language has been the subject of substantial controversy over the years. The community will not tolerate Ballot Measure language that is one-sided or too complex for voters to understand. Thank you for your review and consideration of this input. 2019 RB Comments CCC june 11 Agenda 20 MC 21 53 r015 vote final 6 To: Carlsbad City Council Members & City Attorney Via: Carlsbad City Clerk From: Ray & Ellen Bender [ 2019 RB Comments CCC june 11 Agenda 19 CUP 172 Interpretation final] Re: Council Tuesday June 11 , 2019 Meeting Agenda Item 19 19 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 -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 Conditional Use Permit 172 includingTable 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 Carfsbad 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 are expansions. 1 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 dbtain 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 any 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 2 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 Yet, 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 gener~I 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 Airport 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 "'.'fill be impacted by airport operations. 3 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-AmPORT 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 staff's 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 alterations 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 make 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 Commission and council approved a PMP D-111 alternative, it could only do so by modifying the CUP 172 premises. Such modification constitutes a legislative act since the Planning Commission has no jurisdiction to act outside the current CUP 172 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 Carls bad residents before the council may act. 2019 RB Comments CCC june 11 Agenda 19 CUP 172 Interpretation final 5