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HomeMy WebLinkAbout2019-05-07; City Council; ; City of Carlsbad v. County of San Diego Lawsuit - Settlement Agreement~ CITY COUNC IL ~ Staff Report Meeting Date: To: From: Staff Contact: May 7, 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: City of Carlsbad v. County of San Diego Lawsuit -Settlement Agreement Recommended Action Receive a report on a Settlement Agreement approved in closed session in connection with the lawsuit titled City of Carlsbad vs. County of San Diego. Adopt a resolution re-approving the Settlement Agreement and rescinding Resolution No. 2018-182, a resolution of intention to initiate a zoning amendment to restrict airport uses, in order to cure an alleged Brown Act violation (See attached Exhibit 1). Discuss additional airport related items and provide any additional council direction. Executive Summary McClellan-Palomar Airport opened in 1959 in what at the time was an unincorporated part of San Diego County. Through a series of annexations, the City of Carlsbad's borders expanded to the south and east to eventually include Palomar Airport, although land in and around the airport has remained under the county's ownership. Over the years, the City of Carlsbad has attempted to exert control over the effects that airport operations have on the surrounding community while hosting this regional asset. Some members ofthe community have also expressed continuing concern about the potential expansion of the airport, wanting to avert a "John Wayne Airport" in Carlsbad. Over the years the City has attempted to influence and condition growth of the airport in a variety of ways, including through annexation, issuance of a Conditional Use Permit (known as CUP 172) governing development on the site, and the City Council adoption of a citizen initiative requiring a public vote before the City Council approves a zone change, general plan amendment or other legislative action allowing for an expansion of the airport. Discussions about airport impacts and the legal and jurisdictional authorities intensified in recent years as the county developed a new airport master plan. On Oct. 10, 2018, the County of San Diego Board of Supervisors certified its Environmental Impact Report and approved a Master Plan. The Master Plan's approval did not require any legislative or other action by the Carlsbad City Council. May 7, 2019 Item #6 Page 1 of 74 To help ensure that community concerns about the airport master plan were adequately addressed, the City Council directed staff to file a legal challenge to the EIR and to enhance the city's ability to influence negative effects .of airport operations on the community. On March 27, 2019, the City Council approved in closed session, and announced in open session, an agreement settling the lawsuit and establishing a cooperative agreement with the county. This agreement provides a framework for the two agencies to work together to address community concerns while preserving each agency's legal rights and jurisdictional roles. At the March 27 meeting, the City Council also approved a motion to place an item concerning airport-related issues on the agenda of a future City Council meeting. This informational item explains the terms of the Settlement Agreement (Agreement) with San Diego County and summarizes other airport related issues, including the voter initiative and city permitting history and authority. Background When the County of San Diego initiated its McClellan-Palomar Airport Master Plan update process, Carlsbad and other stakeholders quickly became engaged in try'ing to obtain information, provide feedback, and exert influence over future development of the Airport. Shortly thereafter, the City of Carlsbad retained the law firm of Kaplan Kirsch Rockwell (KKR) to represent the City on airport issues with the County. KKR made an initial presentation to the City Council in an open session on February 20, 2018. The presentation addressed general jurisdictional, sovereignty and control issues associated with airports; the City-issued CUP 172, originally adopted in 1980; and Carlsbad Municipal Code section 21.53.015, an ordinance regarding a right to vote on airport expansion proposed by citizen initiative and adopted outright by the City Council in 1980. (A copy of KKR's presentation is attached as Exhibit 2.) On January 18, 2018, the County released its draft Master Plan and accompanying Draft Environmental Impact Report (DEIR). On March 13, 2018, after an open session presentation by staff and KKR, the City Council unanimously approved a comment letter on the DEIR to be sent to the County. In response to all comments received, the County made changes to its Master Plan and DEIR and on June 21, 2018 recirculated the revised portions of the DEIR. On July 31, 2018, after a presentation by staff and KKR, the City Council unanimously approved a second comment letter on the recirculated DEIR. In addition to City Council meetings, on June 19, 2018, staff held a public community meeting for KKR to present information about airport-related issues and to hear and respond to specific resident concerns about the Airport. Specific concerns expressed at the workshop included noise, flight paths, expansion, pollution pertaining to existing operations, and concerns that problems would worsen if the projects identified in the Master Plan were built. On September 11, 2018, also in open session, the City Council unanimously approved recommendations identifying specific actions desired by the City to improve the working relationship between the County and City. (The staff report from that City Council meeting, identifying these actions, is attached as Exhibit 3.) Staff was directed to initiate dialog with 2 May 7, 2019 Item #6 Page 2 of 74 County staff. Staff met and spoke with County staff on several occasions in the next two months but was unable to reach resolution. During its October 10, 2018 meeting, the County Board of Supervisors certified the final programmatic EIR and approved the updated Master Plan for the Airport. On January 9, 2019, the County adopted an ordinance amending the authorization for the Palomar Airport Advisory Committee (PAAC) to include representation from the City and other neighboring cities. On October 16, 2018, at staff's recommendation, the City Council unanimously adopted a resolution declaring the intention to initiate a zoning; ordinance amendment to allow airport and airport-supporting uses with approval of a Conditional Use Permit only within the current McClellan-Palomar Airport property boundaries, and to prohibit such uses in all other zones and on all other properties within the City. (See staff report and attached resolution as Exhibit 4). The County opposed the City's decision to initiate rezoning, asserting immunity from the City's zoning laws. (The County's objection letter is attached as Exhibit 5) Meanwhile, City and County staff continued to meet in furtherance of the City Council's September 11, 2018 direction. On October 23, 2018, the City Council met in closed session to discuss initiation of litigation. The City Council reconvened in open session and announced that the City Council had voted 3-2 (Hall and Packard opposed) to initiate litigation under the California Environmental Quality Act (CEQA) challenging the County's certification of its final program EIR. On December 6, 2018, the City filed a CEQA lawsuit. CEQA requires the parties to hold a mandatory settlement conference within 45 days after the filing of a lawsuit. City and County staff met and spoke several times in confidential settlement negotiations which ultimately were successful in identifying the terms of a proposed settlement agreement. On March 27, 2019, the City Council met in closed session to discuss the pending litigation. The City Council reconvened in open session to announce that the City Council voted 4-1 (C. Schumacher opposed) to approve a Settlement Agreement with the County (See attached Exhibit 1-Attachment A). Discussion The Settlement Agreement provides a framework for addressing the City's concerns regarding airport operations and requires the County to consider the City's concerns before making decisions regarding future airport activities that could affect Carlsbad residents. Although the Settlement Agreement provides that the City will dismiss its CEQA lawsuit in exchange for benefits contained in the Agreement, the City retains the right to challenge the County's approval of the future activities authorized in the Airport Master Plan. The Settlement Agreement does not purport to resolve all issues between the parties that may arise during implementation of the master plan. Instead, it provides a framework compelling the County to work with the City to address local concerns. Some members of the public have interpreted the Settlement Agreement as an act to facilitate airport expansion. The agreement 3 May 7, 2019 Item #6 Page 3 of 74 does not facilitate expansion of the airport or impact the laws related to future expansion of the airport. In addition, it is important to note that CEQA is a procedural statute only; it is intended to ensure that decision makers have information about the environmental impacts of their · decisions before taking action. CEQA is not likely to stop the County from implementing its Master Plan. Were a court to decide in the City's favor on the CEQA lawsuit, the probable result would have been that the court would have instructed the County to redo one or more sections of its program EIR and potentially could include additional mitigation measures if applicable. Also, note the County adoption of a program level EIR still means subsequent projects will be subject to project level CEQA\NEPA analysis and mitigation as appropriate. What the Agreement Does: The Agreement resolves all issues between the City and County related solely to the County's certification ofthe program EIR and adoption of the Master Plan. As a result, the City dismissed its CEQA lawsuit. The Agreement includes the following commitments and requirements: 1. It commits the County to mitigation identified in its responses to comments provided on September 26, 2018, as well as the mitigation reflected in the enforceable Mitigation, Monitoring, and Reporting Program (MMRP). That mitigation includes installation of additional noise monitors, coordinating with the City on project elements that may involve modification to slopes surrounding the airport, engineering design plans for the retaining wall and landscaping, traffic mitigation measures, and construction noise mitigation measures. (Exhibit 6.) 2. It commits the County to quarterly meetings with City staff to discuss airport-related issues and requires the County to provide the City advance notice and input on County decisions concerning airport development. The County is not bound by the City's input but if the City's feedback is not followed, the County must provide a reasoned explanation for not doing so. 3. It allows the City to nominate a PAAC representative. If the County does not appoint the City's nomination, the representative appointed still must be from the City. 4. It requires the County to take City requirements, such as the City's Landscape Manual and Hillside Development Regulations, into consideration. 5. It commits the County to continue its practice of voluntary compliance with CUP 172 while recognizing that California law grants the County immunity from local land use control. 4 May 7, 2019 Item #6 Page 4 of 74 6. It ~ommits the City to dismiss the pending CEQA lawsuit and to abandon its action to initiate a zoning change or a similar ordinance purporting to restrict acquisitions of property for airspace protection or Airport safety zones. What the Agreement Does Not Do: The Agreement does not resolve all issues between the County and the City. The Agreement addresses only issues that arose in connection with the adoption of the Master Plan and certification of the program EIR. The City retains all rights to challenge, dispute, and litigate over implementation of any individual projects identified in the Master Plan Update. The Agreement does not authorize or facilitate any expansion of the airport nor does it impact the City's rights and authority under Public Utilities Code (PUC) 21661.6. This means that if the County desires to acquire land to expand the airport, state law says that it may only do so if the City approves a County-submitted plan. The City retains all rights under state law to disapprove a submitted plan. The Agreement does not commit the City to accept the County's definitions or interpretations of Public Utilities Code Section 21661. The Agreement does not address or affect Carlsbad Municipal Code section 21.53.015 (the provision concerning submission of certain legislative actions for voter approval) in any way. The Agreement does not prevent City Council members from meeting with residents or other parties about airport issues; it only prevents the City from providing assistance to litigants · against the County. The Agreement did not amend or change existing City zoning and does not affect CUP 172, its scope or its validity. The County agrees to continue its voluntary compliance with CUP 172. The Agreement does not provide the Airport with any type of designation, such as the designation of a "reliever" airport. Such designations are made by the FAA for air traffic and related technical purposes. The Agreement does not waive any Climate Action Plan mitigation that would otherwise apply to projects implementing the Master Plan. The Agreement does not prevent the City from exercising its role in reviewing specific Master Plan projects as they are proposed by the County. Municipal Code Section 21.53.015 ("Voter Initiative") The Voter Initiative requires a public vote before the City Council approves "any zone change, general plan amendment or any other legislative enactment necessary to authorize expansion of any airport in the city .... " The Agreement does not affect the applicability of the Voter Initiative. For the Voter Initiative to be triggered, two elements must be met: 1) expansion of the airport; and 2) a zone change, general plan amendment or other legislative action allowing for such expansion. If the County seeks to expand the airport but a public vote is not triggered because both of these elements are not met, the City may still act to oppose such expansion. 5 May 7, 2019 Item #6 Page 5 of 74 Independent of the Voter Initiative, any County action which calls for purchasing property for expansion of the airport requires City Council review and approval pursuant to PUC 21661.6. The City Council's authority under PUC 21661.6 is authority that has been delegated to the City by the State Legislature. It is not, technically the exercise of a city-based legislative or land use powers which means that it is not subject to the Voter Initiative. Neither the Voter Initiative nor the Public Utilities Code affects the authority of the City Council to hold an advisory vote before it takes any action concerning airport expansion. CUP 172 CUP 172, issued in 1980 and amended in 2004, is a City zoning permit that authorizes certain types of development at the Airport subject to conditions in the permit. The County's compliance with CUP 172 is voluntary because California state law grants cities and counties immunity from each other's building and zoning ordinances (see California Government Code§ 53090 et seq.). Numerous cases hold counties are exempt from local zoning: County of Los Angeles v. City of Los Angeles (1963) 212 Cal.App.2d 160; Akins v. County of Sonoma {1967) 67 Cal.2d 185; Zack v. Marin Emergency Radio Authority {2004) 118 Cal.App.4th 617. The County has voluntarily abided by the terms of CUP 172 for the past 39 years. The Agreement commits the County to continuing this practice while also acknowledging that state law provides the County with immunity from City zoning. Bame v. City of Del Mar {2001) 86 Cal.App.4th 1346. Under the Agreement, the County also will seek to require its airport tenants and contractors to comply with the CUP to the extent it does not conflict with federal regulations. Brown Act Challenge The City has received a request to cure an alleged Brown Act violation from attorney Cory Briggs dated April 23, 2019 (Attached as Exhibit 8). The Brown Act allows for curative action in 30 days from the date of the request. Without conceding Mr. Briggs' arguments, staff recommends that, in an abundance of caution, the City Council adopt the attached resolution to re-vote to approve the Settlement Agreement and formally rescind resolution number 2018- 182, a resolution of intention to initiate a zoning ordinance amendment. Fiscal Analysis No city funding is being requested. Next Steps Supervisor Jim Desmond is currently in the process of interviewing the City Council's recommended representative to the Palomar Airport Advisory Committee, with the appointment tentatively scheduled on May 21. City staff will also initiate quarterly meetings in accordance with the Settlement Agreement. 6 May 7, 2019 Item #6 Page 6 of 74 Environmental Evaluation (CEQA) This item 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 and Outreach This item was noticed in accordance with the Ralph M. Brown Act (California Government Code Section 54950 et seq.), published and distributed at least 72 hours prior to the meeting date and time. Exhibits 1. City Council Resolution 2. KKR presentation dated February 20, 2018 3. September 11, 2018 City Council Staff Report 4. October 16, 2018 City Council Staff Report and Resolution 5. Letter from County to City re: City's plans to rezone the area surrounding the Airport, dated October 16, 2018 6. County's responses to comments, provided September 26, 2018 7. April 23, 2019 letter from Cory Briggs 7 May 7, 2019 Item #6 Page 7 of 74 RESOLUTION NO. 2019-060 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT AND RESCINDING RESOLUTION 2018-182 Exhibit 1 WHEREAS, on March 27, 2019, the City Council met in closed session to discuss an action titled City of Carlsbad vs. County of San Diego and approved a settlement agreement resolving issues between the City of Carlsbad and the County of San Diego related to the approval of a master plan and certification of a program environmental impact report; and WHEREAS, on April 24, 2019, attorney Cory Briggs requested that the city cure an alleged Brown Act violation related to approval of the settlement agreement. While the city does not concede a Brown Act violation occurred, in an abundance of caution it has agreed to re-notice and revote on the approval of the Settlement Agreement; and WHEREAS, the Settlement Agreement committed the city to abandoning its intention to initiate a zoning change on land surrounding the airport boundaries NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the settlement agreement (attached hereto as Attachment A} approved in closed session on March 27, 2019 is hereby re-approved, thus curing the allegation of a Brown Act violation. 3. That Resolution No. 2018-182, a resolution of intention to initiate a zoning change (attached hereto as Attachment B) is hereby rescinded, thereby terminating all action in furtherance of said resolution. May 7, 2019 Item #6 Page 8 of 74 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 7th day of May 2019, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Hamilton. NAYS: Schumacher. ABSENT: None. Clerk May 7, 2019 Item #6 Page 9 of 74 MUTUAL COOPERATION AND SETTLEMENT AGREEMENT This Mutual Cooperation and Settlement Agreement ("Agreement") is made by · and between the City of Carlsbad ("City"), and the County of San Diego ("County") (the City and the County shall be referred to collectively as the "Parties"), with respect to the following facts and issues: WHEREAS, the County owns and operates the McClellan-Palomar Airport ("Airport"), located in the City of Carlsbad, California. WHEREAS, .on October 10, 2018, the County Board of Supervisors approved the McClellan-Palomar Airport Master Plan Update ("Airport Master Plan") and certified the adequacy of the Final Program Environmental Impact Report for the Airport Master Plan ("EIR"). WHEREAS, the County and City entered into an Agreement to Toll Statute of Limitations to toll the time period in which the City could bring.a lawsuit to challenge the County's approval of the EIR until December 9, .. 2018 . . WHEREAS, on December 6, 2018, the City filed a lawsuit in San Diego Superior Court, Case No. 37-2018-00061565-CU-MC-CTL ("Action") challenging.the adequacy of the EIR under CEQA. WHEREAS, the City and County believe it is in their mutual interest to settle the current litigation with a concrete commitment to cooperate and coordinate on matters concerning the Airport, within the limits on their respective legal powers. Any agreement would be subject to the dismissal with prejudice of the City's litigation over CEQA compliance for the Airport Master Plan and agreement not to support any other litigation related to the approval of the Airport Master Plan. THEREFORE, to avoid the substantial expense and inconvenience of litigation, and in consideration of the promises and agreements hereinafter set forth; IT IS HEREBY AGREED, by and between the Parties as follows: 1. Palomar Airport Advisory Committee. On January 9,2019, the County amended Section 731 of the San Diego County Administrative Code to read as follows: The [Palomar Airport Advisory Committee (Committee)] shall consist of nine members. The nine members shall be nominated by the Supervisor from the Fifth Supervisorial.District and appointed by the Board of Supervisors. Of these nine members, one each must reside in the cities of Carlsbad, Vista, San Marcos and Oceanside . and these cities may each identify one resident from their city as a 1 Attachment A May 7, 2019 Item #6 Page 10 of 74 candidate for the Fifth Supervisorial District to consider for nomination to the Board of Supervisors. If any city fails to identify a resident as a candidate for consideration or the candidate is determined by the Fifth Supervisorial District to be unacceptable, the Fifth Supervisorial District may nominate a member of its own choice from the city. Five members shall be from the general public who reside within the Fifth Supervisorial District. No member shall be nominated or appointed who is a member of the governing body or planning commission or an employee of the County of San Diego, City of Carlsbad, City of Vista, City of San Marcos, or City of Oceanside. If a member of the Palomar Airport Advisory Committee becomes a ~ember of the governing body or planning commission or an employee of the County of San Diego, City of Carlsbad, City of Vista, City of San Marcos, or City of Oceanside during their term of office, they shall be removed from the Committee and their position shall be declared vacant. No more than three members of the committee shall be financially interested in any business having a leasehold interest in Palomar Airport. The City agrees that this amendment to Section 731 of the San Diego· County Administrative Code satisfies its concerns regarding representation on the Committee. 2. Staff Meetings. The Parties will convene regular quarterly meetings between the Carlsbad City Manager (and/or a designated senior City representative) and the County's Director of Public Works (and/or a designated senior County representative) to discuss Airport-related matters of mutual interest. Other cities affected by the Airport will be invited to join in such meetings. The meetings shall take place on dates and times and at a location mutually agreeable to the Parties. In the event litigation is commenced between the Parties or a Party and a participating city over matters that are within the scope of the staff meetings, the meetings will_ not address any issues that are the subject of the dispute until the dispute is fully and finally resolved or, in the case of a dispute with a city, the city ceases attending while the dispute is ongoing. 3. County Immunities. The Parties agree that the County has immunities from City building and zoning ordinances and requirements pursuant to Government Code § 53090, et seq. The Parties further agree that the County's immunities may also apply to projects by airport lessees and contractors. Any agreement by the County to coordinate with the City or to voluntarily comply with CUP-172 shall not be construed as a waiver of any such immunities. The County will continue to voluntarily comply with CUP-172 and seek to require its airport tenants and contractors to comply with-CUP-172 (to the extent that such compliance does not violate federal obligations, regulations or laws), but reserves the right to assert immunities on its behalf and on behalf of its tenants and 2 May 7, 2019 Item #6 Page 11 of 74 contractors to the extent provided by applicable law. 4. Regulatory Prohibitions. Notwithstanding any provision of this Agreement to the contrary, the County will not be required to expend any funds or take any actions that are prohibited or disapproved by the Federal Aviation Administration ("FAA") or any other regulatory agency or by any local, State or federal law, regulation or requirement applicable to the County as an airport sponsor or in some other capacity. The County will not be required by this Agreement, either directly or indirectly, to take any action that would constitute (i) a violation of any assurances or other obligations contained in or made a part of any federal or State grant or other agreement, or (ii) constitute a waiver of the County's immunities, police power or other authority. 5. Airport Master Plan Cooperation Efforts. Subject to Paragraph 4 above, the Parties will cooperate on the following items: a. In the EIR, the County agreed to implement certain design features, mitigation measures, and other measures for the Airport Master Plan. The County agrees to implement all commitments set forth in the EIR, including those contained in Responses to Comments, and-all mitigation contained in the EIR mitigation monitoring program. b. As part of the project-specific elements in the future, the City will be given an opportunity to (i) provide review and input on project elements that may involve modification to slopes on County property surrounding the Airport, and (ii) provide input for improving the landscape conditions of the existing slopes on County property surrounding the Airport. Ultimate approval of any modifications to slopes or landscaping of slopes on County property surrounding the Airport is retained by the County. c. The City will be given an opportunity to review and comment on engineering design plans for any retaining wall and landscaping that may be required if future general aviation parking is constructed as depicted in Master Plan Update Exhibit 5.10, once engineering design plans for a retaining wall and any landscaping are available. Ultimate approval and implementation of the plans is retained by the County. d. As a means of coordinating airport development with the City, the County will voluntarily submit or cause to be submitted projects for development of the Airport to the City for review and comment and will continue requiring its tenants and contractors to submit applications for building permits. As used in this section, the term development shall not include the 3 May 7, 2019 Item #6 Page 12 of 74 operation, maintenance, pennitting, leasing, licensing, or alteration of existing facilities where such work results in no or negligible expansion of the facilities. e. While reserving the Comity's immunities as set forth in Section 3 of this Agreement, the Comity will continue to coordinate with the City in an effort to ensure City requirements, including the City's Landscape Manual and Hillside Development Regulations, are taken into consideration. f. Once project-specific activities are proposed that would warrant construction noise mitigation measures, the Comity will coordinate with the City to consider City requirements and comments as the County deems applicable. g. The Comity will continue to work with, and educate, pilots on how best to minimize aircraft noise impacts. This includes continuing to maintain its expanded Volmitary Noise Abatement Procedures (VNAP) education and outreach with flight schools and pilot groups and airport tenants throughout the region. The County will continue to work with other local airports such as Gillespie Field and Montgomery Field to share the Airport's VNAP with pilots and to encourage pilots to be courteous visitors to the Airport. The County also will continue working with.its aviation businesses to ensure their pilot briefing rooms are stocked with the latest VNAP publications. Existing VNAP signage has been improved at both ends of the runway to encourage and remind pilots to follow the VNAP. h. The Comity will install two additional noise monitors, one to the north of the runway and one to the west of the runway. The Comity may, in its sole discretion, remove and/or relocate the monitors, but will notify the City before doing so. The County will use data from the noise monitors to review noise concerns and share details with the public about specific noise events. Upon request, the County will discuss the monitoring results at the quarterly staff-level meetings, subject to the City's agreement to keep such monitoring results confidential. 1. Throughout this section, any references to review, comment, coordination with, or notification to, the City ( collectively "feedback") shall mean that the County or its tenants, as applicable, shall provide the City with at least 30 days to provide its feedback, but the Comity or its tenants, as applicable, may proceed after 30 days have expired. Such notice shall not be required to address a situation or condition that presents an immediate threat to life 4 May 7, 2019 Item #6 Page 13 of 74 or property. If the City provides substantive feedback during the 30-day period, the County or its tenants, as applicable, shall in good faith endeavor to address the City's feedback before proceeding and, if it chooses to proceed notwithstanding City feedback, it shall provide the City with a reasoned explanation of its decision before proceeding. Failure to proceed in the manner contemplated by this Section shall not itself be grounds for the invalidation of any approval given by the County for a project. 6. Property Purchases. Should the County contemplate purchase of additional property for the Airport, such a plan will first be discussed at the staff-level meetings in advance of any public process with the goal of reaching mutual agreement on process to avoid future disagreements or_ litigation. The City will not adopt the zoning ordinance amendment that it published for public review on January 18, 2019, or any similar · ordinance that purports to create an airport boundary line or restrict the acquisition of interests in property for airspace protection or Airport safety zones. The City and County agree that the definition of "airport" and the scope of Public Utilities Code § 21661.6 is not addressed in this Agreement and no actions (or agreement not to act) under this Agreement shall be used by either party as evidence of either Party's concurrence with a particular interpretation of that Code section. 7. Sovereignty. The Parties respect each other's sovereignty, especially as it affects their respective authority with regard to the Airport and the Airport environs. The City recognizes the County's authority within the boundary of the Airport and the County re_cognizes the City's authority outside the boundary of the Airport. Both parties will endeavor to take actions that reflect mutual respect and to avoid disputes over their respective authority where possible. To that end and subject to and without waiving its immunities, the County will continue its business practice of adhering to the intent of CUP 172 and endeavoring to take actions to implement the Master Plan in a manner consistent with the CUP. 8. Dismissal of the Action. The City agrees to cooperate in order to dismiss the Action with prejudice in its entirety, by taking all necessary steps to secure such dismissal including, but not limited to, authorizing its counsel to first execute a request for dismissal with prejudice of the Action applicable to all claims and all individuals, with prejudice, to be filed with and executed by the court. 9. Release of All Claims. The City unconditionally, irrevocably and absolutely releases and discharges the County, all of the County's departments and offices, its Board of Supervisors, its attorneys, its current and former officers, employees, directors, and agents, and its successors and assigns, from all losses, liabilities, claims, 5 May 7, 2019 Item #6 Page 14 of 74 charges, demands and causes of action, known or unknown, suspected or unsuspected, arising out of the events and/or occurrences alleged in the Action. 10. No Assistance to Other Litigants: The Parties and the Parties' attorneys, officers, agents, employees and contractors, to the extent working on behalf of a party, shall not assist, aid or encourage any litigation related to the County's approval of the Airport Master Plan and EIR. Compliance with applicable law, such as responding to a valid Public Records Act request, would not violate this requirement. 11. No Admiss~ons. By entering into this Agreement, the County makes no admi~sion that it has engaged in any unlawful or tortious conduct. It is understood that the settlement is not an admission of liability, but is in compromise of disputed claims which remain untested; that there has been no final adjudication of the issues of law or fact herein; and that the Parties intend merely to avoid further litigation and expense by entering into this Agreement. 12. No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties, and it is not intended to create, nor shall be construed to create any rights or to benefit any other persons, or to be enforceable by any other person in any forum. 13. Dispute Resolution and Termination. In the event of a dispute arising out of or related to this Agreement, the Parties will attempt to resolve such dispute by mutual cooperation. Specifically, if a Party believes that the other Party has breached any provision in this Agreement, the Party asserting such breach ("Claimant") shall give the other Party ("Respondent") written notice of any such breach ("Initial Notice"). In the Initial Notice, the Claimant shall specify a date no later than 15 days after the date of the Initial Notice for the Parties to meet to try and resolve the dispute. If the Respondent objects to the meeting date set forth in the Initial Notice, the Parties will coordinate to select a mutually-agreeable date that is no later than 30 days after the date·ofthe Initial Notice. If the Parties are unable to resolve the dispute within 60 days of the date of the written notice, either Party may terminate this Agreement by giving a written notice entitled ''Notice of Termination" to the other Party. 14. Term. The initial term of this Agreement shall be for twenty (20) years from the Effective Date, unless terminated by a Party pursuant to Paragraph 13 above. 15. Notice. Any notice required or pennitted to be delivered by any provision of this Agreement shall be in writing and shall be deemed to have been duly delivered (i) upon personal delivery, (ii) upon delivery by a reputable overnight courier service, or (iii) 6 May 7, 2019 Item #6 Page 15 of 74 five (5) days after delivered by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: 1. To County: The Director of the Department of Public Worlcs 5510 Overland Ave., Suite 410 San Diego, CA 92123 With a copy to Office of County Counsel 1600 Pacific Highway, Room 355 San Diego, CA 92101 11. To City: Scott Chadwic~ City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 With a copy to Celia A.'Brewer, City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 The Parties may, from time to time, change the person or address to which notices are provided by giving notice to the other Party in accordance with this Section. 16. Severability. Should it be detennined by a court that any term of this Agreement is unenforceable, that term shall be deemed to be deleted. However, the validity and enforceability of the remaining tenns shall not be affected by the deletion of the unenforceable term. 17. Applicable Law. The validity, inteipretation and performance of this Agreement shall be construed according to the laws of the State of California. 18. Effective Date. This Agreement is effective when all of the parties have signed this Agreement. .. 19. Attorneys' Fees and Costs. The Parties to this Agreement agree that they will bear their own attorneys' fees, costs and all other expenses in connection with the Action and all claims released herein. 7 May 7, 2019 Item #6 Page 16 of 74 l ._-,, ,,_, I --; , .;~'t• '1 ._?• ;fl May 7, 2019Item #6 Page 21 of 74 May 7, 2019Item #6 Page 22 of 74 May 7, 2019Item #6 Page 24 of 74 May 7, 2019Item #6 Page 33 of 74 May 7, 2019Item #6 Page 34 of 74 May 7, 2019Item #6 Page 35 of 74 May 7, 2019Item #6 Page 37 of 74 May 7, 2019Item #6 Page 39 of 74 ' • I t;._~• . I ~-~ l.li\t . ':.If . . lilll . May 7, 2019Item #6 Page 40 of 74 -.~. ' . ~ . . . -.. , ,• -·-. -· _. .... ~ ·-. ' _,_ \ · · -: · -~ , ) . , , :.. · . '. I· illl · -~~ ':':: ). --... :::-----· :. ;_ ·. '.:"~ · . ';. · · ~ . -. ... . ·. . ~:'t ~~: · _ --·:: ~· = / ::·~~ •. i,_<:~ ~--. , ;. , ---~-. ·-~ ~:;!~ SI ~~ ~ ~2 ~~~i ; ~~ :~:~ .. i, ->~-~ ~.--~~ ~-~~ ~-~: ~~:~~-:~~\~ ~~/ ~~I: SI -~ ~. :. · ~: ~-,. · .:{ :-; · _;/:~ ~ . . _ May 7, 2019Item #6 Page 42 of 74 May 7, 2019Item #6 Page 44 of 74 May 7, 2019Item #6 Page 45 of 74 " : . . . I ' . ' . . -. . , ' .. , . -· I ' " . . , . ' ·-· . ..-· . , , . . . I Iii/II , ,. , , : ... · ... _,·, : . ·.-c,, . :-. , . . . . . ::··.-.::, -<:.·> ---: : .. -. rs . -:. ~-~-~.--.. --::.--_-,;'.-<?-.-"-J:S ·-:>,;:,·-__ :,::.-:-_ ... · ~~-.. ::-.. _; ,:-;_• May 7, 2019Item #6 Page 46 of 74 May 7, 2019Item #6 Page 48 of 74 May 7, 2019Item #6 Page 50 of 74 May 7, 2019Item #6 Page 54 of 74 May 7, 2019Item #6 Page 56 of 74 -, ,_' _,, •• ~-,~'.\·, < ~-,-~,1·.t _-:,._ ... ]·, _ _,!,•_..... --u, .-:• •¼I.__.; .... , .. :,-· ' ' ' ~ ;.~ ';_-.; ·t; ~-1 k-1 ~-i L ii t; .t ;~ ~? J i ~;: :/ '.{~ ~~:.1;~ .,c·✓_-:·-._'. ~;; d ~; \ i [; ~i: i -~~--~--:~ ,-_ ·'. : _---May 7, 2019Item #6 Page 57 of 74 May 7, 2019Item #6 Page 59 of 74 May 7, 2019Item #6 Page 60 of 74 lt should be noted that t he City of Carlsbad has long been host to the county1s regional airport facility. Over time1 communtcation between the county and city regarding ai rport operations has been inconsistent .. In anticipation of increased airport traffic and the county's master planning effort, it has be;come apparent that our city eiod our residents need better comrn:unlcation and information regarding the county's airport operations. Ciurrent practices do not appear to adequately fill that need and do not provide appropriate ac{;ountabUity to the r,esident:s or the city. Based on staff's initial outreach to the countv1 staff believes; a variety of strategies are available to both parties to• remedy this. Preliim'inary discussions with county staff, and the tommunity input received during a public me,eting he'ld on June 191 2018J have informed th~ following list of potential· action items, whTch are presented for City Council di:;cussion. Staff is, seeking; Coundl dire-ction to work with the County of San Diego to address specific actions to improve the working relatlonship between the county and city; and to address community concerns regarding Mc<:teHan-Paloma.r Airport. Kaplan Kirsch Rockwell will provide a detailed overview of each ofthe 1potentiaJ, action items presented be·low .. McCleUan-'Palomar A,irport Pot,e·ntia 1. Actio;n Items The dty would work with the county to identify p,otentlal actkm items that demonstrate aijency ,coo,peration .and set forth our respective commitments and obligations to address community concerns regarding the ,operation and future development of McCl,ellan-PatomarAirport. Staff would seek to address the following 'issues: A. Airport Governance & Declsion~making a. Create a Joint Powers Agency for the dty and couoty to operate the airport Jointly, or share responsibifity for airport operations and future devel'opmenti or b Create an Airport CommisSion, w1th .representatives appointed by the city1 to review and make recommendations on all significant expenditures and airport projects to the County Board of Supervisors; or c. Amend the Pal,omar Airport Advisory Commlttee to include repr,esentatives appointed by the city. B. lmpad Mitigation a. Land Use i. County to secure dty .approvals for new land uses or development on airport property. li. County to work with the city for orderly acquisition of property within runway protection .zones and follow requirements of the California Public Utilities Code. September 11, 2018 Item #5 Page 2 of 4 May 7, 2019 Item #6 Page 62 of 74 b. Noise i. County to fully and aggresstve ly enforce existing noise rules. ii. County to strengthen VNAP pr.ocedures., iii. county to prohibit aircraft op.erations greater than the Design Group of th.e existing Atrport except with prior permission required (PPR). Adapt a PPR rule which limits oversi:ze aircraft to 500 operations per Cijleod:ar year. iv. County to comply with city's llmits on construction hours. v. County to allow dtyto review and comment on construction noise mitigation plan.s. c. Trans p,ortati on 1. In addition to Transportation and Traffic Mitigation Measures provided in Draft PEIR, County to implement the following additional mitigation measures re,quested in dtyis Draft PEIR comment letter. De·· 1-, -asit -/em 010 e ~base d TDM. ·p.la:n a, _ ve op -· ... e _ p . y r .. _ .. • _ . , b. Contributefair~share payment towards constructing Palomar Airport Road/Camino Vida IR·oble lnters;ecUoo improvements to mitigate project1s cumulative impads. d, Biological Resoun:!es i. Courityto impl,ement mitigation measures identified in Draft PEIR; as modified by .City's comments on recirculated Bic,logkal Reso~rces s.ection. e. GHG i. County to hnpl!!!ment mitigation measures to red~te greenhouse .gas ,emissions, which tan be derive.d from the county of San Di,ego Climate Actl'on Plan; City of Carfsbad Climate Action Plan, SANOAG's San Diego Forward regional plan Final EIR, and sugges.tions induded in the Airport Master Plan EIR Climate Change Technical 'Report, including e-tectric-powered Grou.nd p.ower Units and Ground Support Equipment. f., Aesthetic and Visual Resources i. Gounty to work wlth dty to design and instaH landscape improvements along •Palomar Airpo.rt R,oad and withln runway protectio,n zones (ons and off- airport} to blend with nearby hmd 1,i:ses, ii, County to implement landscaping measures addressed in clty's comments on Draft PEIR, including: September 11, 2018 a. install appropriate 1landscap1ng1 including trees, larger scr,een shrubs and native seed mix on slop,ed and flat areas al'ong Palomar Airport Road and El Camino Real. Item #5 Page 3 of 4 May 7, 2019 Item #6 Page 63 of 74 b. ,Install plantal;lte walls. ff wan heights exceed six feet. c, Install ,suitabl'e irrigation system to allow new plantings and seed to establish and thrtve. d. Countyto allow the dty to review, comment on, and approve the lands,caping and screening of future reta1ning wall(s). g. Hazards i. County to comply with a,11 applic~ble state and local laws and regujatioos related to construction, on landfiHs. C. Information and Transparency a. County to tn.stalJ improved .noise monitorlog and flight tracking system to provide r,eala.time c:iccess to data through a user,.acc;essible web int erface; i. County to c_oordinate with City in design and procurement ofsystem. b. County to '.institute a reg;ulaf 1nonthly report on noise. c. County to work with the City to design an enhanced public: information anct disdosure program to keep, the·public informed ona continual basis about Airport 'impacts and the status of Airport dev,elopment ptans, 1. County to comrr•it to c:q.ordiriating with the city regarding planned majo,r construction activities, so that resldents and businesses can be informed of such activities In a tlmely manner. F_iscatA.nalv.sls No dty funding is being requested. NextSteos Staff will meet with the County ,of San Diego to discuss the potential action items identified above (among others that might arl'se during discussi:ons, or as directed bythe City Ci:n.rncU), to address community ,concerns regard:lng the operation and futuredevelopment of McClellan~ Palomar Airport. Environmenta'I Evaluation (CEQA) This item does not quallfy as a "project0 under the California Environmental Quality Act {CEQA} per State CEQA Guidelines Section 1.5378, as it does not result in a direct or reason.abty for.esee.able indir.ect physlca,I change in the environment. Public Notification This 1rtem WEI.S noticed in accordanpe with the Ra:lph M. Brown Act (California Government Code Section 54950 et seq.}, published and distributed at [east 72 hours prio,rto the meeting d'ate and time. September 11, 2018 Item #5 Page 4 of 4 May 7, 2019 Item #6 Page 64 of 74 Page 2 _ October 16, 2018 We recognize there are concerns by some members of the community about the Airport and the position the City is in to address community concerns. We will continue to work to address areas of concern that are within our purview. As it relates to such facets as aircraft noise, we recently installed two additional noise monitors in the vicinity and will continue to address noise concerns through our Voluntary Noise Abatement Program (VNAP). If the City has additional thoughts on how to enhance the VNAP, we are open to input. Additionally, if the City would like to have discussions with the Federal Aviation Administration, we are happy to facilitate those conversations. The Airport is used by a number of north county residents and businesses and it is forecasted that by 2030, the Airport will support over 4,600 jobs in the area. At the County of San Diego October 10, 2018 meeting, the Carlsbad Chamber of Commerce, San Diego Regional Economic Development Corporation, San Marcos Chamber of Commerce, Vista Chamber of Commerce and Oceanside Chamber of Commerce spoke in support of the Master Plan. In addition, California Pacific Airlines (CPA) President and CEO, Paul Hook, informed the Board that CPA has sold more than one thousand airline tickets for trips to and from the Airport, beginning in November. Such testimony highlighted the positive impact the Airport has on the region. We look forward to continuing a cooperative working relationship with you that will benefit the City, the Airport and the community we all serve. Sincerely, s~~? SARAH E. AGHASSI Deputy Chief Administrative Officer cc: Office of the City Clerk May 7, 2019 Item #6 Page 71 of 74 Pursuant to section S(a) of the Settlement Agreement, the County committed to implement the following measures that were referred to in its responses to the City's comments on the Master Plan Update EIR but not included in the MMRP: a. As part of the project-specific elements in the future, the County will coordinate with the City to provide review and input on project elements that may involve modification to slopes surrounding the Airport. (Responses L3-22, L3 -53.) The County will coordinate with the City to identify and implement solutions for improving the landscape conditions of the existing slopes surrounding the Airport. (Responses L3-50, L3-52.) b. The County will coordinate with the City to allow review and comment on engineering design plans for the retaining wall and landscaping. (Responses L3- 25, L3-47) c. The County will ensure City requirements, including the City's Landscape Manual and Hillside Development Regulations, are taken into consideration. (Response L3-45.) It is the County's intent to follow the City's design guidelines for the corridor while balancing the requirements for the airport and the inactive landfill. (Responses L3-25, L3-53, L3-54.) d. When doing so would not violate the FAA Grant Assurances, the County will voluntarily seek approvals from the City and require its tenants and contracts to seek approvals from the City as a means or coordinating Airport development with City land use. (Responses L3-37, L3-90.) The County will review and consider local land use policies whenever possible consistent with the County's obligations to the federal government as a grant recipient (Responses L3-38, L3- 113.) e. The County will contfnue to voluntarily comply with CUP 172 and will seek to require its airport contractors and tenants to comply with CUP 172, but reserves its right to assert its immunities provided by law. (Responses L3-37, L3-113.) f. Once project-specific activities are proposed that would warrant construction noise mitigation measures, the County will coordinate with the City to consider City requirements and comments as deemed applicable. (Response L3-78.) g. Once project-specific activities are proposed that would warrant traffic mitigation measures, the County will coordinate with the City to consider City requirements and comments as deemed applicable. (Response L3-81.) 1 Exhibit 6 May 7, 2019 Item #6 Page 72 of 74 h. The County will continue to work with, and educate, pilots on how best to minimize aircraft noise impacts. Improvements include expanding VNAP education and outreach with flight schools and pilot groups and airport tenants throughout the region. The County also will continue working with its aviation businesses to ensure their pilot briefing rooms are always stocked with the latest VNAP publications, and existing VNAP sign age will be improved at both ends of the runway to encourage and remind pilots to follow the VNAP. (Master Response 3 -VNAP Procedures.) i. The County will install two additional noise monitors, one to the north of the runway and one to the west of the runway. The County will use data from the noise monitors to assist in the investigation of noise complaints, and will, upon request, discuss the monitoring results at the staff-level meetings, subject to appropriate understandings on confidentiality. (Master Response 3 -VNAP Procedures.) 2 May 7, 2019 Item #6 Page 73 of 74 THOMAS E. MONTGOMERY COUNTY COUNSEL May 3, 2019 Carlsbad City Council ;:~ <!tnuntu of ~an ~iegn OFFICE OF COUNTY COUNSEL 1600 PACIFIC HIGHWAY, ROOM 355, SAN DIEGO, CA 92101 (619) 531-4860 Fax (619) 531-6005 1200 Carlsbad Village Drive Carlsbad, CA 92008 council@carlsbadca.gov All Receive -Agenda Item# lo For the Information of the: _ ~IT1 COUNCIL Date ~CAL CC ✓ CM ✓COO ✓ DCM {3) -2::(' JOSHUA M. HEINLEIN SENI.OR DEPUTY Direct Dial: (619) 531-5850 E-Mail: joshua.heinlein@sdcounty.ca.gov RE: Mutual Cooperation and Settlement Agreement by and between the City of Carlsbad and the County of San Diego executed on or about March 28, 2019; · Letter from Cory Briggs dated April 23, 2019 Dear City of Carlsbad: On March 28, 2019, the City and the County entered into a Mutual Cooperation and Settlement Agreement ("Agreement") regarding the City's lawsuit challenging the Final Program Environmental Impact Report ("EIR") for the McClellan-Palomar Airport Master Plan Update ("Master Plan"). On April 23, 2019, Cory Briggs, on behalf of Citizens for a Friendly Airport, sent you a letter claiming a violation of the Brown Act as . follows: "Through the Settlement Agreement, the City took actions that can only take place in an open session, including but not limited to modifying CUP-172, withdrawing a zoning-ordinance amendment, and agreeing not to exercise land-use authority." Mr. Briggs' claims do not have merit. First, the Agreement does not modify CUP-· 172. Rather, it states that the County will continue to voluntarily comply with CUP-172. Second, as acknowledged by the Agreement, the County has immunities from City building and zoning ordinances that currently exist or which may be subsequently adopted to regulate the use of the existing airport .. Gov. Code§§ 53090,.et seq. While the City retains land use authority regarding siting decisions for new airports, this has no bearing on anything contemplated by the Master Plan. The County's Master Plan ensures that all work will take place within the existing airport footprint. The only property acquisition contemplated by the Master Plan is for Runway Protection Zone (RPZ), and then only to the extent necessary to comply with FAA safety requirements. -2-May 3, 2019 Federal courts have repeatedly held that local regulations which attempt to prevent work, including the relocation and extension of runways and taxiways within existing airport boundaries, are preempted by federal law. Tweed-New Haven Airport Auth. v. Town of East Haven, 582 F. Supp. 2d 261 (2008). Federal courts have also held that local regulations related to airport safety, particularly when necessary to meet FAA safety standards, are preempted by" federal law. Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338 (9th Cir, 1992). The airfield changes and RPZ acquisition contemplated by the Master Plan fit within the scope of the.Se preemption cases and the immunities provided to the County from City ordinances by State law. Thus, the City could not "withdraw a zoning ordinance" or "agree not to exercise land-use authority" in the Agreement because the City, given the scope of the Master · Plan, did not have any land-use authority over the County to begin with. It was from this vantage point that the language in the Settlement Agreement was developed, including the language in paragraph 6 related to the enactment of City zoning ordinances. The purpose of the language in paragraph 6 was not to restrict the City's ability to exercise its land use authority. Instead, it is meant to acknowledge that any action by the City to restrict the airfield changes and RPZ acquisition contemplated by the Master Plan would be preempted by feder~l law and ineffective to overcome the County's immunities. Very truly yours, THOMAS E. MONTGOMERY, County Counsel By ;J /_ IA u ~M. HEJNLE[N, Senior Deputy Morgen Fry Subject: FW: Resolution No. 2018-182 Importance: High Begin forwarded message: From:"_, _______ _ Date: May 5, 2019 at 5:41:07 PM PDT To: Jason.Haber@carlsbadca.gov, manager@carlsbadca.gov Subject: Resolution No. 2018-18:i DEPARTMENTAL AND CITY MANAGER REPORTS: /\II Receive -Agenda Item# (o For the Information of the: · -~IT1Y COUNCIL Date~CA ✓cc ✓ CM L COO _!'.'.'.'.: DCM -(3) ✓ 6. CITY OF CARLSBAD V. COUNTY OF SAN DIEGO LAWSUIT-SETTLEMENT AGREEMENT-Receive a report on a Settlement Agreement approved in closed session in connection with the lawsuit titled City of Carlsbad v. County of San Diego; and, Adopt a Resolution re-approving the Settlement Agreement and rescinding Resolution No. 2018-i82, ' a resolution of intention to initiate a zoning amendment to restrict airport uses. (Staff contact: Jason Haber, City Manager Department) City Manager's Recommendation: Receive the report and adopt the Resolution. To: Jason Haber, City Manager Department when I VOTE'd for my city council member in District One -I expected that council member to ask her constituents what they want (not for h~r to vote for what she wants)! I found out that there was a CLOSED session?? Public NOT Welcome?? Resid~nts of Carlsbad NOT Welcome! now the City Council is going to re-affirm and adopt a resolution that was discussed behind CLOSED DOORS!!!!!!!!!!!!!!!!!!!!!!!!!!!! why would our City Manager -Scott Chadwick -agree to this ??????????????????????? with great disappointment .. Alice Reysb_ergen Registered Voter Carlsbad Property Owner since 1992 1 Morgen Fry Subject: FW: Palomar Airport Issue at Tuesday Carlsbad CC mtg From: "Pat Bleha" <---~--- Date: May 5, 2019 at 9:17:56 PM PDT To: <keith.blackburn@carlsbadca.gov> Subject: Palomar Airport Issue at Tuesday Carlsbad CC mtg Hello Councilman Blackburn; All Receive -Agenda Item # Je. For the Information of the: CITY COUNCIL Date'5/1,,/1~cALCC ✓ CMLcoo ✓ DCM -(3) ✓ What possible concessions did you get that would make you vote (in secret no less!) for Palomar Airport, as I understand it, to have no noise curfews, no flight path restrictions and big jets and commercial aircraft! (ie. a receiver airport to offload air traffic from SD International Airport) and a huge enlargement ?????? Do come to your senses: when you have to vote on this again in public on Tuesday. Vote NO for keeping Carlsbad a lovely place for people to live, to protect our investments in property, and for the health of all our citizens. Airplane fumes do not help air quality. I know that from living in Des Plaines IL in the 1960s and seeing the area change from farmland to an ever growing O"Hare Airport and its attendant traffic, endless shopping centers, and tract developments. I am not however holding my breath~ Councilman Blackbum, based on your previous actions which almost unfailingly help developers and speculators. Instead of worrying about their lawsuits, worry about the grassroots and environmental lawsuits which are sure to follow. Patricia Bleha resident and property owner, Carlsbad CA since 1976 ------Carlsbad CA 92009 1 Morgen Fry Subject: FW: Last Chance to do the right thing From: Graham Thorley ( Sent: Tuesday, May 07, 2019 11:41 AM tJI Keceive Agenda Item U .k._ For the Information of the: CITY COUNCLL 0dazl2"' E,r, 1G oo V To: Matthew Hall <Matt.Hall@carlsbadca.gov>; Priya Bhat-Patel <P riya.Bhat-Patel@CarlsbadCA.gov>; Keith Blackburn <Keith.Blackburn@carlsbadca.gov>; Attorney <attorney@CarlsbadCA.gov>; Scott Chadwick <Scott.Chadwick@carlsbadca .gov>; Cori Schumacher <Cori.Schumacher@CarlsbadCA.gov>; Barbara Hamilton <Barba ra .Hamilton@CarlsbadCA.gov>; City Clerk <Clerk@carlsbadca.gov> Subject: Last Chance to do the right thing TO Carlsbad City Council, Tonight you will have one more chance for a "do over. Hopefully, you will uphold you responsibility and protect your 112,000 or so residents from the unbelievable constant loud aircraft noise and increased GHG pollution the airport expansion will create. If that happens Carlsbad will join communities all over the country who have now protesting the constant aircraft noise in their communities. To see just a little of the damage your YES vote will cause to the quality of life for not just Carlsbad, but also to the residents of Bonsall, Encinitas, Escondido, Oceanside, San Marcos, Solana Beach, Valley Center and Vista. The sad truth is if McClellan-Palomar expands our quality of life will change forever, just like the residents of LA, Orange County and so many other neighborhood ALL over the country and property values and TAX REVENUES will decrease. Do the right thing and vote NO to prevent this from happening in Carlsbad www.youtube.com/watch?v=2NBSvj8g90g&feature=youtu.be&fbclid=IwAR0Ao- ytE7CYXIGaa9fUdrXo6awEQuaoNr51z4nUzB4A6E lr854l82eQUM&app=desktop https:ilwww.uproarla.org: UproarLA is a unified coalition of LA residents, parents and environmentalists committ... Thank you, Graham R. Thorley 1 Morgen Fry Subject: FW: Airport Settlement Agreement From: Vickey Syage Sent: Tuesday, May 7, 2019 1:47 PM J\11 Receive -Agenda Item # ~ For the Information of the: ~QIINQI Dates(CA~CC~ CM~ COO~ DCM (3) ~ To: Council Internet Email <CityCouncil@carlsbadca.gov>; City Clerk <Clerk@carlsbadca.gov>; Celia Brewer <Celia.Brewer@carlsbadca.gov>; Scott Chadwick <Scott.Chadwick@carlsbadca.gov> Subject: Airport Settlement Agreement Dear Mayor, City Council, City Attorney, and City Manager, Thank you for reopening the Airport Agreement conversation. We can do better. We must do better. The 8-page document is ALL we have to go on. Any discussions, expectations, implied or verbal promises don't count. All we have are words as they are written on those 8 pages. And those words as written today give all the benefits to the County. It appears the City just rolled over. Upon speaking with several Council members, "good faith" is put into the County. But the County, by their own actions over the past years, haven't earned that good faith. Trust must be earned. And County certainly hasn't earned it. It's not personal and it's not just with the City. The County treats nearly every entity they deal with this way. It's an integral part of their culture. They act like it's the Kingdom of San Diego County, rather than a local government entity elected in a democratic process. Let's start with the voters. In 2016, the voters defeated Measure B, the Lilac Hills development. 62% of the voters countywide said "NO" to Lilac Hills. That's a resounding defeat. In 2017, the County tried to pull a fast one and push through a near identical development using a General Plan amendment. Fortunately, the residents of Valley Center stopped it. The voters said No. The Kingdom of San Diego County didn't like answer, and essentially told the voters to go fly a kite. Then there's the Federal government -the EPA to be specific. Palomar Airport is the ONLY airport in CA to have failed its lead testing EVERY SINGLE YEAR since 2013. Have they done anything in the past 7 years to fix the lead issue at the airport? Nope. What they did do was try to "game" the EPA test system by moving where the samples were taken. It didn't work. They got busted. But the message from the Kingdom of San Diego County was clear -"Go fly a kite, EPA." And our agreement doesn't address lead. Then there's the judicial branch -The County has been sued and lost 3 times, plus 2 appeals over their Climate Action Plan, which was part of the City's CEQA lawsuit, and not at all addressed in this settlement either. The County will be starting their 3rd appeal -their 6th trial on the same dismal Climate Action Plan -bad data+ bad methodologies= bad outcomes. The County has spent over 1.2M of OUR taxpayer dollars ignoring all the Court orders. "Go fly a kite, judicial branch," says the Kingdom of San Diego County You are all smart people up on that dais. With this history, why would the County all of a sudden start being reasonable and respectful to the requests of the City of Carlsbad or its residents? If they magically change, great. It shouldn't be a problem to spell everything out. Take a stand. Each of you tell us where you stand on the Airport Expansion. Bring back KKR's zoning recommendations. We spent good taxpayer money on that. Define the County's zoning immunities as within the airport boundaries as those boundaries are defined TODAY. Remove 3rd party zoning immunities. And if the County needs to buy land to expand the airport, we the citizens must have our vote. 1 Please tear up this agreement and Start Over. And this time leave nothing unwritten. Respectfully, Vickey Syage 2 Morgen Fry Subject: FW: Carlsbad Palomar Airport Settlement Agreement From: Jan Bandich Sent: Monday, May 6, 2019 9:44 PM All Receive -Agenda Item# Ja._ For the Information of the: CITY COUNCIL · pate5 ltliq £8 ✓ cc i1 CM~ c;oo ✓ DCM {3) ✓ To: Council Internet Email <CityCouncil@carlsbadca.gov>; Jason Haber <Jason.Haber@carlsbadca.gov>; Scott Chadwick <Scott.Chadwick@carlsbadca.gov> Cc: City Clerk <Clerk@carlsbadca.gov> Subject: Carlsbad Palomar Airport Settlement Agreement Knowing what an important topic of discussion the Palomar Airport Master Plan was during the recent elections, I was most surprised and depressed by the Couhcil's action on the Settlement Agreement. I thought Proposition A demonstrated that Carlsbad residents understand that, ·in a charter City, the people matter and have a voice, the issue of transparency arose over and over again, and, in the issue of the Palomar Airport Master Plan, I heard many times in Council sessions that the people of Carlsbad had the right to vote on issues that dealt with changes to the Airport. It does seem that the Brown Act was not observed and that decisions were made behind closed doors with no public discussion or opportunity for the public to express their opinions -this hints at a benevolent tyrannical approach to governing -the old "don't worry about it, we know best" attitude to which citizens of Carlsbad will always react. Government is supposed to be about for the people, and by the people, not by a select few who "know" what is best. The Palomar Master Plan and all its ramifications for current and future citizens of Carlsbad is a serious topic which needs to be dealt with in an open and questioning approach, the County Supervisors and Airport facilities are not motivated by what's in the best interest of Carlsbad citizens, that is the job of our City Council, who disappointedly compromised and folded at the first opportunity, weakening their position for future negotiations. The ultimate insult, after being called out on this decision, is to now bring it to the agenda again, discuss it publicly, and still plan to stand behind the action, that's kind of like a double whammy. Council's actions were criticized, they recognized the criticism, and appeared to be ready to open the discussion with the public, but, in actuality, just plan to restate the case and support their original action, a "do-over," probably advised by the City Attorney, to protect their transgression. It's very disappointing, but good to know we will have 2 more chances in 2020 to get it right. Elections seem to be the only way that voices can be heard. Janis Bandich Carlsbad Resident and Registered Voter May you always have: Love to share, Friends who care, and Health to spare. 1 Jason Haber, Assistant to the City Manager May 7, 2019 McClellan-Palomar Airport City of Carlsbad vs. County of San Diego Settlement Agreement City Council Action –March 27, 2019 –Closed session vote to approve Mutual Cooperation & Settlement Agreement •CEQA litigation brought by City of Carlsbad to challenge adequacy of County Airport Master Plan EIR –Directed staff to place an item to discuss airport- related issues on a future City Council meeting agenda Recommended Action •Receive report on Settlement Agreement approved March 27, 2019 •Adopt a resolution: •Re-approving the Settlement Agreement, and •Rescinding Resolution No. 2018-182 (adopted Oct. 16, 2018) –Stating intention to initiate a zoning amendment to restrict airport uses •Discuss airport-related issues •Provide direction to staff Background •January 2018 –County releases Draft Airport Master Plan & DEIR •March 2018 –City Council approves comment letter •June 2018 –Carlsbad community meeting •June 2018 –County recirculates sections of DEIR •July 2018 –City Council approves 2nd comment letter Background •September 2018 –City Council approves Action Plan •October 2018 –County certifies EIR & approves Master Plan •October 2018 –City Council resolution: intent to initiate zoning amendment •October 2018 –City Council closed session vote to initiate CEQA litigation challenging County certification of EIR Background •December 2018 –City files CEQA lawsuit •January 2019 –City/County mandatory Settlement Conference •March 2019 –City Council closed session vote to approve Settlement Agreement •March 2019 –City Council direction to place an item concerning airport-related issues on a future City Council meeting agenda Understanding the Settlement Agreement Peter J. Kirsch May 7, 2019 Context: Limits of City and County Authority 1.Neither City nor County can control aircraft noise or flight patterns. 2.County must accommodate all aircraft that desire to, and can safely, use the airport. 3.The City cannot control zoning within the boundary of the airport. 4.The County cannot buy land to expand the airport without City approval. 5.CEQA litigation could slow, but not halt, the master plan. Context: government powers CARLSBADSAN DIEGO COUNTY FAA Limits of tonight’s discussion •Why a closed session? •Attorney client privilege limits open session discussion tonight •Cannot provide legal advice in open session Context for Settlement Agreement •Master Plan •EIR •City comments •Lawsuit over CEQA compliance •Settlement of CEQA lawsuit Settlement Agreement •City nominates Airport Advisory Committee member •Regular quarterly staff meetings •Voluntary compliance with CUP 172 Settlement Agreement -continued •Cooperation in implementation of Master Plan –All required mitigation –All mitigation promised in response to comments –City review/comment on retaining wall design/landscaping –City review/comment on all new airport projects (at least 30 days) –Coordination with City Landscape Manual and Hillside Regulations Settlement Agreement -continued•Cooperation in implementation of Master Plan - continued –Construction noise mitigation as needed –Enhanced VNAP outreach –Two new noise monitors; share results with City –No airport property purchases without advance notice to City –No zoning that creates airport boundary line or ordinance that limits property acquisition Settlement Agreement -continued •Respect for each others’ sovereignty –County authority within airport boundary –City authority outside airport boundary •Agree to disagree on meaning of PUC § 21661.6 •Term of 20 years Recommended Action •Receive report on Settlement Agreement •Adopt a resolution: •Re-approving the Settlement Agreement, and •Rescinding Resolution No. 2018-182 •Discuss airport-related issues •Provide direction to staff