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