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HomeMy WebLinkAboutPCD 2017-0001; DURKIN CAC LOT 24 LLC APPEAL; Planning Commission Determination (PCD)• :_• CC.Ay of APPEAL FORM Development Services Planning DivisionP-27 RECEIVED 1635 Faraday AvenueCarlsbad(760) 602-4610 lliN 0 7 ?Or/www.carlsbadca.gov CITY OF CARLSBAD PLANNING DIVISION Date of Decision you are appealing: May 30, 2017 Subiect of the Appeal: BE SPECIFIC Examples:if the action is a City Planner's Decision,please say so.If a project has multiple applications,(such as a Coastal Development Permit,Planned Unit Development,Minor Conditional Use Permit, etc) please list all of them.If you only want to appeal a part of th wh le action, please state that here. Please see fee schVUI or the currentVe.0 It .. l5ele 77 /17-P4 /1 five—inr hheil/k7 Reason(s) for the Appeal:PLEASE NOTE:The appeal shall specifically state the reason(s) for the appeal.Failure to specify a reason may result in denial of the appeal, and you will be limited to the grounds stated here when presenting your appeal. BE SPECIFIC How did the decision-maker err?What about the decision is inconsistent with local laws, plans, or policy?Please see Carlsbad Municipal Code (CMC)Section 21.54.140(b)f r additional information (attached).PI se attachtcliponal sheets o exhibits if necessary...e.-e--e ri -ir..ffeyff 'I/", fitajt e7 IrDhea • NAME (Print):Durkin CAC Lot 24, LLC MAILING ADDRESS:do Steven A. McKinley, Freeland, McKinley, & McKinley CITY, STATE, ZIP:402 W. Broadway, Ste. 1815, San Diego, Ca. 92101 TELEPHONE:619-297-3170 EMAIL ADDRESS:sam@akfm.com ------ SIGNATURE:.."----------- DATE: June 2017 L11117 P-27 Page 1 of 1 Rev. 05112 PC920 VI— COO I PE1/4120ll— CI240 ATTACHMENT "1"TO APPEAL FROM CITY PLANNER DECISION PERTAINING TO LOT 24 Pursuant to City of Carlsbad Municipal Code 21.54.140, Durkin CAC Lot 24,LLC,"Appellant", appeals the May 30, 2017 denial by the City Planner of its' application for approval of a change In a nonconforming nonresidential use to a more conforming use because there was an error or abuse of discretion on the part of the city planner in that the decision was not supported by the facts presented to the city planner prior to the decision being appealed. A copy of the denial is attached hereto as Exhibit "ATM. On March 7, 2017, Appellant applied to the City Planner for an approval under Municipal Code Section 21.48.070 "E" of a change in an existing legal non-conforming use to a use that is more conforming. Lot 24 has an existing permitted use allowing an office/industrial occupancy of up to 100 people, which use was approved in 2002. This use now conflicts with the current 2010 ALUCP zero occupancy use, which is incorporated into the City's land use regulations via the 2012 amendment to its General Plan. The present use is therefore a legal non-conforming use. Appellant asked for a change to a more conforming use of automotive body and repair with an occupancy load of only 30 people,a reduction in the intensity of the non-conformity of 70% (form 100 people to 30 people).A copy of the application is attached hereto as Exhibit. "B" and incorporated herein by this reference. A copy of supporting materials filed with the application, consisting of a report titled "Fire Safety and Risk Analysis", (hereinafter the "Hazard Report")is attached hereto as Exhibit "C'. A hearing was held on the application on March 21, 2017, and on March 30, 2017, supplemental material in the form of a letter was submitted to the City Planner and City Attorney,a copy of which is attached hereto as Exhibit "D". The City Planner made a material error of fact.He incorrectly assumed that the existing actual occupancy of the 30,000-square foot office/industrial building was only 1 to 2 people, and that the existing use was only warehouse. There was no basis for these assumptions, as the only evidence before the Planner was that the building was approved for office uses and a human occupancy load up to 100 people.In fact, this building is currently devoted to a combination of office and lab uses, and related storage space, with the actual occupancy varying from time to time, but certainly far more than 30 people. The building Is actually improved, configured and furnished to accommodate at least 60 office personnel, and 20 technicians and storage personnel. Accordingly, the current tenant improvements, which have been in place for many years, are designed to and do accommodate at least 80 people. The factual error as to the assumed use is compounded by the planner's erroneous legal conclusion that the current use is conforming under the specific plan, but nonconforming under the ALUCP.This legal conclusion is erroneous because in 2012 the City amended all of its plans to conform to the ALUCP, therefore what is Inconsistent with the ALUCP is equally Inconsistent with any specific plan. This follows I •4 inescapably from the fact the City incorporated the ALUCP into its General Plan, and provided that all uses would be consistent with the ALUCP absent a City override.(See, General Plan, Policy Statements 2- P.37,P.38, pg. 2-44). Moreover, the General Plan provides that it prevails over any inconsistency in the zoning code or map. (See, pg.2-29, General Plan). Incontrovertibly, the specific plan is obsolete to the extent it conflicts with the 2010 ALUCP as incorporated in the General Plan (Gov. Code Sections 65302.3; 65454), and therefore any consistency with an obsolete specific plan Is irrelevant. Lot 24 was originally permitted for office/industrial use with an occupancy load of up to 100 people.(PIP 00-04(A) Carlsbad Airport Centre Lot 24). At the time it was approved In 2002, the property was not designated by the ALUCP as a runway protection zone, and the approved use was not inconsistent, from a safety standpoint, with the ALUCP. The building was constructed in 2004 In accordance with the planned industrial permit and has since been used for its approved use of office/industrial with an occupancy load of up to 100 people. But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway Protection Zone, and it was reclassified as Safety Zone 1, with an allowed occupancy load of "zero". People and buildings are basically prohibited in this zone. It is a matter of safety for people on the ground. (2010 ALUCP, p. 3-28, 29). Accordingly, the current office/industrial use with an allowed occupancy of 100 people is a legal non- conforming use. It was legal and conforming when it began, but it became non-conforming in 2010 with the adoption of the new ALUCP,which prohibits people and buildings in the Runway Protection Zone. Right now, the intensity of the non-conformity is most accurately measured by the number of people allowed, and for which the building is improved and configured, by reason of the legal non-conforming use. That number is 100 people, and that is the number of people at risk of an aviation related accident as things stand today, and as things will stand for the useful life of the building 100 years into the future. The risk of an accident over that period of time cannot be discounted. However, it is legal to use the building now for 100 people because it was permitted for that use in 2002, and that will be the case forever absent an approved change of use to a lower occupancy. Earlier last year, Mr. Durkin made application to the City for a specific plan amendment to accommodate a change in use from office/industrial to auto body and repair. But,as shown above,a specific plan amendment is unneeded because the non-conforming use zoning ordinance authorizes the city planner to approve any change In use, whether authorized by the applicable zone or not, so long as the change results, as is the case here, in a reduction in the degree of non-conformity. The previous application for a specific plan amendment was submitted to the ALUC for a consistency determination. The ALUC staff specifically noted in response that the proposed change in use would reduce the non-conformity. But because it was proposed as an amendment to the specific plan, ALUC staff analyzed it as if the legal non-conforming use provisions of the ALUCP were inapplicable. Once it is clear that it is being treated as a reduction in a non-conformity,as opposed to an amendment to a specific plan, not only does the ALUC objection disappear, ALUC review is not even triggered.(PUC Section 21676 (b) (referral to the ALUC for consistency determination on non-general plan land use actions is not required once City General Plan found to be consistent). Mr. Durkin's proposed change in use to auto body and repair will result in a substantial reduction of life- safety risk to the benefit of everyone, including the City and the Airport.His proposal to change the use to auto body and repair will reduce the allowed number of people from 100 to 30. This reduction in the number of people allowed can only be achieved by this change in use. It results in a 70% reduction in the overall risk to life and safety. From a City planning point of view, this is a golden opportunity to reduce a non-conformity and thereby preserve and protect the public health and welfare. In support of this change, Mr. Durkin commissioned a Fire And Safety Risk Analysis by a well-recognized and highly regarded fire saftey expert, and this report was submitted to the planner. The report conclusively shows that the life-safety risk is reduced by 70% by changing the use to automotive. As more fully discussed and analyzed in the report, automotive use does NOT result in any increase in life- safety risk from factors such as automotive fluids and paints.In the event of an aviation accident the controlling factor exposing people to risk is the flammability of the on-board aviation fuel, and that factor remains the same under both the existing use and the proposed change in use. Accordingly, while other safety variables remain the same, the change in use will reduce the primary risk factor addressed by the ALUCP and with which both the airport and the City are properly concerned, and that is the number of people on the ground. Mr. Durkin asks that the City lower the life safety risk associated with this legal non-conforming use by granting a change in use that will decrease the life safety risk by fully 70%. Such a change in use reduces the degree of non-conformity by the same 70%, since the non-conformity relates to the risk to the safety and lives of the people on the ground. Moreover, such a change in use will serve a vital business need currently unmet within the City limits. The City rightfully can take pride that it is home to a thriving auto dealership community, but that community is in desperate need of this very facility to accommodate the service demands of its clientele. To keep Carlsbad's auto dealership community vibrant and thriving Into the foreseeable future, the City must take care to make available conveniently located land upon which high end auto dealers can provide auto body and repair. Lot 24 presents a unique and strategic opportunity to serve this unmet need. This opportunity cannot be duplicated by rezoning less well located property elsewhere for automotive body and repair, because unlike other properties that may be located near incompatible residential or commercial uses, Lot 24 is located between two properties already devoted by the Hoehn and Baker auto dealerships to automobile uses, being storage of automobile inventory. Sandwiched between these automobile inventory uses, Lot 24 provides an unmatched opportunity to integrate automotive repair and body with existing compatible, adjacent uses. FREEL-1.--NI)MCKINLEY & MCKINLEY--- Steven A.McKinley*ATTORNEYS AT LAW 4760 S.Pecos Rd402 W. Broadway. KarenO. MLICinicy Snitel03 San Diego, Ca. 92101 Las Vegas,NV 89017 Ian W. McKinley Tel. (619) 297-3170 Ryan 0. McKinley Fax (619) 255-2853 *Also admitted in Nevada SENT VIA EMAIL: planning(acarlsbadca.gov; attornevPcarlsbadca.gov June 7, 2017 Mr. Don Neu Planning Director City ofCarlsbad 1635 Faraday Ave. Carlsbad, Ca. 92008 Mr. Ron Kemp Assistant City Attorney City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, Ca. 92008 Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity ofNon-Conformity Dear Mr. Neu; Thank you for your letter ofMay 30, 2017, concerning the application made on March 7, 2017 for approval ofa change ofuse for the above referenced property. We think it is important to correct a factual misstatement appearing in your letter. In this regard, you assumed that the existing actual use of the property is "warehouse" with an actual occupancy • of only "1 -2 people". In fact, this 30,000 square foot building is currently devoted to a combination of office and lab uses, and related storage space,with the actual occupancy varying from time to time, but certainly far more than 30 people. The building is actually improved, configured and furnished to accommodate at least 60 office personnel, and 20 technicians and storage personnel. Accordingly, the current tenant improvements, which have been in place for many years,are designed to and do accommodate at least 80 people. Moreover, your statement that the current use is allowed under the specific plan disregards the fact that the City incorporated the 2010 ALUCP into it's General Plan for the express purpose and with the expressly stated effect of conforming its land use plans and regulations with the ALUCP. The specific plan is obsolete,if not deemed amended by and subordinate to the 2010 (619) 297-3170 •Freeland, McKinley,& McKinley •402 W. Broadway, San Diego, CA 92101 Page 1 of 2 I- ALUCPTutliv's resolutions and representations made totie DCRAA with regard to ALUCP consistency would be incorrect. Whether the present use conforms with a specific plan which has been rendered obsolete (see Gov. Code Section 65302.3; 65454) by it's inconsistency with the amended General Plan and ALUCP would seem to be irrelevant. Finally, the statement that auto repair is not more conforming because ofits hazard classification is not supported, and in fact is shown untrue by the report we submitted. That report compared the hazards associated with the specific existing uses ofthe property and the proposed use of auto body and repair and found that there was no practical difference in terms offire risk or the dangers posed by aviation. We ask that you kindly reconsider. Very Truly Yours, FREELAND MCI MCKINLEY By: Steven . • (619) Z97-3170 •Freeland, McKinley,&McKinley •402 W. Broadway, San Diego, CA 92101 Page 2 of 2 (141.2i -c- IraCity of Carlsbad May 30, 2017 RECEIVED Steven A. McKinley Ih.1 0 7 (MI?Freeland McKinley & McKinley Suite 1815 CITY OF CA -I-SBAD402 West Broadway PLANNING DIVISIONSan Diego, CA 92101 SUBJECT:CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE Dear Mr. McKinley, On behalf of your client, you have asked for the approval of a change of use on Carlsbad Airport Centre Lot 24, owned by Durkin-CAC-Lot24,LLC to an auto body and repair shop. The property is currently permitted for an office/industrial use with an allowed occupancy limit of 100. This became a nonconforming use with the 2010 adoption of an amended Airport Land Use Compatibility Plan (ALUCP),which placed the property in Safety Zone 1 of the Runway Protection Zone.It is our understanding that the property is currently being used as a warehouse with an occupancy of 1-2 people. You have stated that the City Planner has the authority to approve a change in a legal nonconforming nonresidential use to a use that is more conforming under Carlsbad Municipal Code Section 21.48.070(e), which states: E.Change of Use.A nonconforming nonresidential use may be changed to a use that is permitted in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval of the city planner and the issuance of a business license. It is stated that the proposed use will result in a substantial reduction of life-safety risk because occupancy of the building will be reduced from an allowed number of people from 100 to 30, thus making the use more conforming. Reduction of allowable occupancy is not the only way to analyze nonconformity.The current use of the property is allowed under the specific plan.It is nonconforming under the ALCUP.An auto body and repair shop is not allowed under the specific plan.A change would make the use nonconforming in both plans. As noted above, it is our understanding is that the property is currently occupied by 1-2 people, not the 100 allowed by the permit or as analyzed in your argument.It may be that approving an auto repair shop will actually put more people on the property than are on it at this time. Community & Economic Development Planning Division 11635 Faraday Avenue Carlsbad, CA 92008-73141 760-602-4600 1760-602-8560 f1www.carlsbadca.gov CARLSBAD AIRPORT CENTRE LOT 24 REQUEST FOR APPROVAL OF A CHANGE OF USE May 30, 2017 Page 2 The ALUCP points out that an auto repair shop is classified in high hazard group H-4 under the building code.This classification is given to building and structures containing materials that are health hazards, such as corrosives, highly toxic materials and toxic materials.This is not a more conforming use in Safety Zone 1. Under CMC 21.54.140 a decision or determination of the City Planner can be appealed to the Planning Commission if the appeal is filed within 10 calendar days of when the decision becomes final.In this instance the decision becomes final when this letter has been mailed,May 30,2017.The appeal application form and fee is available on the Planning Division webpage or can be obtained at the Planning Division office. Recognizing the limited number of sites in the in the City of Carlsbad designated to permit auto repair the Planning Division has initiated a project that includes a zone code amendment,local coastal program amendment, and amendments to certain specific plans to designate additional areas where auto repair could be permitted. This is a project of importance to the city recognizing the need for sites for auto body and repair facilities. Sincerely, DON NEU, AICP City Planner c:Michael J.Durkin, Durkin Development Co., Suite 1080, 4660 La Jolla Village Drive, San Diego,CA 92122 Glen Van Peski, Community and Economic Development Director Ted Delcamp, Principal Planner Ron Kemp, Assistant City Attorney 0 EX_ •FREEL _ND MCKINLEY &ma ThEY Steven A. McKinley*ATTORNEYS AT LAW 4760 S. Pecos Rd. 402 W. Broadway,Ste.1815Karen G. McKinley Suite 103 San Diego, Ca. 92101 Las Vegas, NV 89017 Ian W. McKinley.Tel. (619) 297-3170 • Ryan 0. McKinley Fax. (619) 255-2853 *Also admitted in Nevada pCLATYj 2 N SENT VIA MESSENGER RECEIVE®NNOUNPJGC7,0/1):„0 March 7, 2017 Mr. Don Neu Planning Director City of Carlsbad Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity of Non-Conformity This is an application for approval, pursuant to Municipal Code Section 21.48.070. "E.", ofa change in a legal non-conforming use to a use that is more conforming. Specifically, it is requested that the current approved use of office/industrial be changed to allow a more conforming use of auto body and repair for the above described property. This request is made under the authority of Section 21.48.070, which authorizes the planner to approve such a change in use when the change will decrease the intensity of the non- conformity. That section reads as follows: "Change of Use.A nonconforming nonresidential use may be changed to a use that is permitted in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval ofthe city planner and the issuance of a business license." As you can see from the foregoing, there are two distinct instances in which the city planner can approve a change in use. The first is where the change is to another use permitted within the zone. The second is where the change is simply to a use which is more conforming. It is this second authorization for change in use that applies in this case. Lot 24 was originally permitted for office/industrial use with an occupancy load of up to 100 people. (PIP 00-04(A) Carlsbad Airport Centre Lot 24). At the time it was approved in 2002, the property was not designated by the ALUCP as a runway protection zone, and the approved use was not inconsistent, from a safety standpoint. with the ALUCP. The building was constructed in 2004 in accordance with the planned industrial permit and has since been used for its approved use of office/industrial with an occupancy load of up to 100 people. But in 2010 the ALUCP was amended to designate Lot 24 as being in the Runway Protection Zone, and it was reclassified as Safety Zone I, with an allowed occupancy load of "zero". People and buildings are basically prohibited in this zone. It is a matter of safety for people on the ground. (2010 ALUCP,p. 3-28, 29). (619) 297-3170 •Freeland, McKinley.& McKinley •402 W. Broadway. San Diego, CA 92101 Page 1 of 3 • - Subsequent to the 2010 ALUCP amendment, the City incorporated it into its General Plan, and provided that all uses would be consistent with the ALUCP absent a City override. (See, General Plan, Policy Statements 2-P.37, P. 38, pg. 2-44). Moreover, the General Plan provides that it prevails over any inconsistency in the zoning code or map. (See, pg.2-29, General Plan). Accordingly, the current office/industrial use with an allowed occupancy of 100 people is a legal non-conforming use.It was legal and conforming when it began, but it became non- conforming in 2010 with the adoption ofthe new ALUCP, which prohibits people and buildings in the Runway Protection Zone. Right now, the intensity ofthe non-conformity is most accurately measured by the number ofpeople allowed by reason ofthe legal non-conforming use.That number is 100 people, and that is the number of people at risk of an aviation related accident as things stand today, and as things will stand for the useful life of the building 100 years into the future. The risk of an accident over that period of time cannot be discounted. However,it is legal to use the building now for 100 people, and that will be the case forever absent an approved change of use to a lower occupancy. Earlier last year, Mr. Durkin made application to the City for a specific plan amendment to accommodate a change in use from office/industrial to auto body and repair. But,as shown above,a specific plan amendment is unneeded because the non-conforming use zoning ordinance authorizes the city planner to approve any change in use, whether authorized by the applicable zone or not,so long as the change results,as is the case here, in a reduction in the degree of non- conformity. The previous application for a specific plan amendment was submitted to the ALUC for a consistency determination. The ALUC staff specifically noted in response that the proposed change in use would reduce the non-conformity. But because it was proposed as an amendment to the specific plan, ALUC staff analyzed it as if the legal non-conforming use proyisions ofthe ALUCP were inapplicable. Once it is clear that it is being treated as a reduction in a non- conformity,as opposed to an amendment to a specific plan, not only does the ALUC objection disappear,ALUC review is not even triggered. (PUC Section 21676 (b) (referral to the ALUC for consistency determination on non-general plan land use actions is not required once City General Plan found to be consistent). Mr. Durkin's proposed change in use to auto body and repair will result in a substantial reduction of life-safety risk to the benefit of everyone, including the City and the Airport. His proposal to change the use to auto body and repair will reduce the allowed number of people from 100 to 30. This reduction in the number ofpeople allowed can only be achieved by this change in use.It results in a 70% reduction in the overall risk to life and safety. From a City planning point of view, this is a golden opportunity to reduce a non-conformity and thereby preserve and protect the public health and welfare. In support of this change, Mr. Durkin has commissioned a Fire And Safety Risk Analysis by a well-recognized and highly regarded fire safety expert, and this report is enclosed with this (619) 297-3170 •Fredand, McKinley, & McKinley •402 W. Broadway, San Diego, CA 92101 Page 2 of 3 •• •J letter. The report conclusively shows that the life-safety risk is reduced by 70% by changing the use to automotive. As more fully discussed and analyzed in the report, automotive use does NOT result in•any increase in life-safety risk from factors such as automotive fluids and paints. In the • event of an aviation accident the controlling factor exposing people to risk is the flammability of the on-board aviation fuel, and that factor remains the same under both the existing use and the proposed change in use. Accordingly, while other safety variables remain the same, the change in use will reduce the primary risk factor addressed by the ALUCP, and with which both the airport and the City are properly concerned. That overriding risk factor is the number of people on the ground. Mr. Durkin asks that the City lower the life safety risk associated with the current legal non- conforming use by granting a change in use that will decrease the life safety risk by fully 70%. Such a change in use reduces the degree of non-conformity by the same 70%, since the non- conformity relates to the risk to the safety of the lives ofthe people on the ground. Moreover, such a change in use will serve a vital business need currently unmet within the City limits. The City rightfully can take pride that it is home to a thriving auto dealership community, but that community is in desperate need of this very facility to accommodate the service demands of its clientele. To keep Carlsbad's auto dealership community vibrant and thriving into the foreseeable future, the City must take care to make available conveniently located land upon which high end auto dealers can meet the ever-increasing demand for auto body and repair services, and this change in use will serve that heretofore unmet need. It is respectfully therefore requested that the city planner approve a change of use that reduces the degree of non-conformity, and allow a fully enclosed auto body and repair use within the existing building envelope, with no resulting change in the exterior building or aesthetics. Very Truly Yours, FREELAND MCI z MC EY By: Steven A. McKinl (619) 297-3170 •Freeland, McKinley, & McKinley •402 W. Broadway, San Diego, CA 92101 Page 3 of 3 •i )( i4 la r FREELY_ .D MCKINLEY & MCK... .LEY Steven A. McKinley*ATTORNEYS AT LAW 4760 S.Pecos Rd. 402 W. Broadway,Ste.1815Karen G. McKinley Suite 103 San Diego, Ca 92101 Las Vegas,NV 89017 Ian W. McKinley Tel. (619) 297-3170 Ryan 0. McKinley Fax. (519) 255-2853 • *Also admitted in Nevada SENT VIA FED EX March 30, 2017 Mr. Don Neu Planning Director RECEIVED City of Carlsbad 1635 Faraday Ave.JUN 0 7 2017 Carlsbad, Ca. 92008 CITY OF CARLSBAD PLANNING DIVISION Mr. Ron Kemp Assistant City Attorney City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, Ca. 92008 Re: Carlsbad Airport Centre Lot 24: Decrease in Intensity of Non-Conformity Dear Mssrs. Kemp and Neu; Thank you for listening to our application last Tuesday for approval of a change to a more conforming use for the above referenced property. As discussed, I would like to supplement our application with a review ofthe controlling legal authorities responsive to the questions raised during our meeting of March 21, 2017.One of those questions pertained to whether the request must be first submitted to the San Diego County Airport Authority for a consistency determination. The answer is that it is neither required nor recommended. The statutory authority for Airport Land Use Commission powers of review is found in the State Aeronautics Act ("SAA"), Chapter 4,Article 3.5, tided "Airport Land Use Commission", Public Utilities Code Sections 21670, et seq. i. Power to Assist Local Agencies: A Power That Does Not Extend To Existing Incompatible Uses. The scope of Airport Land Use Commission authority is defined in Section 21674(a) to include assisting local agencies to ensure compatible land uses "to the extent that the land...is not already devoted to incompatible uses." This provision by itself makes clear that the assistance of an ALUC is not authorized with respect to existing incompatible uses, such as the (619) 297-3170 •Freeland, McKinley, & McKinley •402 W. Broadway. San Diego, CA 92101 Page 1 of 4 office building on Lot 24, and for that reason alone the power to "assist" does not come into play with respect to the existing incompatible use. Moreover, the power to "assist"as referred to in this subsection does not imply or confer any authority either to review a land use action for compatibility, or to find it inconsistent so as to require an override. ii. Power to Review: A Power Limited to Adoption or Amendment of General or Specific Plans, Zoning Ordinances, and Building Regulations. Subdivision (b)ofSection 21674 empowers an ALUC to "review the plans, regulations, and other actions oflocal agencies...pursuant to Section 21676." Accordingly, the scope ofreview depends upon what is allowed under Section 21676. Where there is an adopted ALUCP (as is the case here), Section 21676 specifically limits the power ofreview to the following actions ofthe local agency: •The amendment of general or specific plans, and •The adoption or amendment of a zoning ordinance, and •The adoption or amendment of a building regulation. Accordingly, reading Sections 21674(b) and 21676 together,it is abundantly clear that the ALUC does not have the power to review the planning director's exercise ofthe discretion given him under Zoning Code Section 21.48.070 "E." to approve a more conforming use. Such an exercise of discretion is not one of the above enumerated legislative acts. Our interpretation that the ALUC's power of review is limited to the above enumerated legislative actions was confirmed as correct by the City in its staff report dated Jan. 4, 2012,in which it affirmed the effect of adoption ofResolution GP 10-02 as follows: "...after a local agency's general plan is found by ALUC to be consistent with the Compatibility Plan, the ALUC will no longer have authority to review land use actions (except for legislative actions such as the adoption, approval or amendment ofthe general plan). Therefore, with adoption of GPA 10-02, and subsequent ALUC consistency finding, the authority to review development projects for consistency with the Compatibility Plan,as well as the enforcement of the document's compatibility policies, is transferred to the city (except for legislative actions as noted above)." ..An excerpt from the staff report containing this interpretation is attached for your convenience. Moreover, the fundamental concept that the ALUC is not intended to have review powers over land uses that predated the adoption of the applicable ALUCP is found in the Legislative declaration of purpose for the Airport Land Use Commission: "to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hawirds within areas around public airports to the extent that these areas are not already devoted to incompatible uses." PUC Section 21670 (a). (619) 297-3170 •Freeland, McKinley,& McKinley •402 W. Broadway, San Diego, CA 92101 Page 2 of 4 In summary, the SDCRAA has no power to review the exercise of administrative discretion involved here. The Prior Application for A Specific Plan Amendment: Another issue discussed at our last meeting was the reason given by the SDCRAA for proposing to reject the application for specific plan amendment. This particular pathway to a legal change ofuse was originally suggested by •the City, but because a specific plan amendment is by definition a legislative action over which the ALUC has the power of review, submission to the SDCRAA was required, and in retrospect, an inconsistency finding was a foregone conclusion.A specific plan amendment takes the proposal out of the ALUCP nonconforming, nonresidential-use safe harbor for changes that do not result in an increase in nonresidential intensity (ALUCP, Policy 2.11.2(c)(2)).See, excerpt from SDCRAA Staff Report, 10/20/16, attached; and SDCRAA proposed Resolution, 10/20/16, attached, excerpt as follows: "WHEREAS, the proposed project is located within Safety Zone 1, and, though the use would occur within an existing nonconforming building without increase in existing intensity, the project proposes to change the land use designation of a property to allow a repair garage use which the ALUCP identifies within Safety Zone 1 as incompatible with airport uses;" A key takeaway is the acknowledgement by the SDCRAA that the proposed change does not involve an increase in existing intensity. The problem identified by the SDCRAA is that the proposal involved a change in "the land use designation". In other words, because a legislative act was involved it was bounced out ofthe nonconforming use provisions of the ALUCP found at 2.11.2. If the pending application for an administrative approval by the Planning Director was to be submitted to the SDCRAA for a consistency finding it would set the wrong precedent by suggesting that all administrative planning decisions are subject to SDCRAA consistency determinations. The City should not compromise and surrender its exclusive authority over such decisions as provided under its Zoning Code. The Effect of Overriding An SDCRAA Inconsistency Determination: I believe the other major issue raised was the effect of an inconsistency determination by the SDCRAA, should the matter be submitted for obtaining such a determination.It was acknowledged at the meeting that existing provisions ofthe SAA grant the airport operator immunity from liability in the event of an override. and that the relevant statute says nothing about who might be exposed to liability. There are no cases found on point, but the clear text and intent of the statute is not to shift or create liability but to grant an immunity where an immunity is not otherwise available.Had there been any intent to shift liability to the local agency the Legislature could and would logically have so expressed, but instead the statute is silent in this regard. The logical and best explanation for this silence is that the Legislature knew, and it indeed is presumed to know, that there already existed a whole body of statutory and case law granting immunity to public entities for the exercise of permitting and other land use authority. There was no reason to duplicate such grant, and indeed had the statute included such a grant it would have created confusion given the (619) 297-3170 •Freeland, McKinley, & McKinley •402 %V.Broadway, San Diego, CA 92101 • Page 3 of 4 preexisting immunities. The reason the statute was needed was because airport operators may be private entities, or public entities acting in a proprietary capacity, and as such need immunity. The Legislature concluded such immunity is good policy, because if a local agency, already the • beneficiary of statutory immunities for its land use decisions, makes a land use decision overriding the SDCRAA, and the decision exposes the airport operator to liability,in fairness the operator should have the same immunity as does the local agency. .Another concern raised by Mr. Neu was that the automotive use is inconsistent with the general plan. However, the current use is inconsistent with the general plan because ofthe 2012 amendment incorporating into the general plan the Safety Zone 1 classification for Lot 24 contained in the 2010 ALUCP.It is this inconsistency that makes the current use a legal nonconforming use, thereby invoking the provisions ofthe nonconforming use ordinance allowing approval to a more conforming use. Here, the requested change is to a more conforming use because the reduction in occupancy reduces the intensity ofthe nonconformity. In summary, there is no need in this case to dilute and blur the proper sphere of City authority by submitting what is clearly an administrative decision under the zoning ordinance to the SDCRAA for a review it has no statutory authority to make.If it is determined to do so and an inconsistency determination is made,it will unnecessarily burden the City Council with an override decision it should not be required to make. Very Truly Yours,. FREELAND MCKINLEY & MCKINLEY By: Steven A. McKinley (619) 297-3170 •Freeland, McKinley, & McKinley •4021 .Broadvvay, San Diego, CA 92101 Page 4 of 4