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Home My WebLink About2019-02-07; Proposed Consistency Determination on Feb. 7, 2019 ALUC Agenda; Chadwick, ScottTothemembersofthe: CllYCOUNCIL Ath~CA...:L.cc_/ Date""" 4 CM-:;/_ coo_ C uncil Memorandum February 7, 2019 To: Honorable Mayor From: City Manager Seo {city of Carlsbad Re: Proposed Consistency Determination on Feb. 7, 2019 ALUC Agenda On January 11, 2019, staff received the attached letter from the San Diego County Regional Airport Authority indicating that Airport Land Use Commission (ALUC) staff had determined that the city's proposed Zoning Ordinance Amendment Defining Airports and Zones Where Airports Are Allowed in the City of Carlsbad was consistent with the McClellan-Palomar Airport - Airport Land Use Compatibility Plan (ALUCP). Late yesterday evening, the City received the attached County letter from the San Diego Regional Airport Authority. The letter opposes Carlsbad's rezoning efforts and the ALUC s consistency determination, which was docketed to be re.ported to the ALUC today, February 7. City staff attended today's meeting where the commission continued its consideration of this item until Monday, February 25. Upon the City Attorney's return next week, a more thorough discussion on this matter will occur. Attachments: 1. Consistency Determination letter from SDCRAA/ ALUC, dated Jan. 11, 2019 · 2. Letter from County of San Diego Office of County Counsel, dated Feb. 6, 2019 cc: City Attorney Celia Brewer Chief Operations Officer Elaine Lu key Assistant City Manager Gary Barberio City Manager's Office City Hall 1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 760-434-2820 t Memo ID #2019010 January 11, 2019 Mr. Scott Donnell City of San Diego 1010 Second Avenue, Suite 1200 San Diego, California 92101 Re: Airport Land Use Commission Consistency Determination -Zoning Ordinance Amendment Defining Airports and Zones Where Airports Are Allowed, City of Carlsbad Dear Mr. Donnell: As the Airport Land Use Commission (ALUC) for San Diego County, the San Diego County Regional Airport Authority acknowledges receipt of an application for a determination of consistency for the project described above. The area covered by this project lies within the Airport Influence Area {AJA) for the McClellan-Palomar Airport -Airport Land Use Compatibrlity Plan {ALUCP). ALUC staff has reviewed your appHcation and accompanying materials and has determined that it meets our requirements for completeness. In accordance with ALUC Policy 830 and applicable provisions of the State Aeronautics Act {Cal. Pub. Util. Code §21670-21679.5), ALUC staff has determined that the proposed project is consistent with the ALUCP based upon the facts and findings summarized below: (1) The project proposes an amendment to the zoning ordinance for the Oty of Carlsbad defining airports and zones where airports are allowed without any actual development. (2) The·proposed project does not involve any actual development and thus does not impact any noise exposure contours. (3) The proposed project does not involve any actual development and thus does n·ot impact any airspace protection surfaces. (4) The proposed project does not involve any actual development and thus does not impact any safety zones. (SJ The proposed project does not involve any actual development and thus does not impact any overflight notification requirements. (6) Therefore, the proposed project is compatible with the adopted McClellan-Palomar Airport ALUCP. PO Box82776 San Diego, CA 92138-2776 www.san.org/aluc I AIRPORT LAND USE COMMISSION (7) This determination of consistency is not a "project" as defined by the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code §21065. This determination will be reported to the ALUC at its public meeting on February 7, 2019. Please contact Garret Hollarn at (619) 400-2788 if you have any questions regarding this letter. Yours truly, Ralph Redman Manager, Airport Planning cc: Amy Gonzalez, SDCRAA General Counsel Brendan Reed, SDCRAA, Director Planning & Environmental Affairs AIRPORT LAND USE COMMISSION THOMAS E. MONTGOMERY C0ill.'1Y COUNSB. February 6, 2019 OFFICE OF COUNTY COUNSEL 1600 PAClFIC HIGHWAY, ROOM 355, SAN DIEGO, CA S2101 (619) 531-4860 Fax (619) 531-6005 San Diego Regional Airport Authority Airport Land Use Commission 3225 N. Harbor Dr. San Diego, California 92101 Re: Proposed Consistency Determination on February 7, 2019 Agenda Dear Commissioners: THOMAS L. BOSWORTH Sr. Deputy County Counsel Direct Dial: (619) 531-4729 E-Mail! '1homas.b0sworth@sdcDUnly.ca.go.l/ On January 18, 2018, the City of Carlsbad (City) provided public notice of a proposed change to the City's Zoning Code to prolnoit the County of -San Diego (County) from acquiring !lllY additional property within the City for airport purposes. This includes the acquisition of property interests in land for airport rig!:rts-of-way and runway safety areas and zones such as _ Runway Protection Zones (RPZ). These restrictions are inconsistent with applicable law and the Airport Land Use Compatibility Plan (ALUCP) approved by your Commission for McClellan- Palomar Airport (Airport), We request that your Commission find the proposed zoning amendment inconsistent with the ALUCP in accordance with Public Utilities Code§ 21676. Your Commission is charged with protecting" ... public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption ofland use measures ihat minimize the public's exposure to excessive noise and safety hazards within areas around public airports .... " (Pub. Util. Code § 21670( a)(2).) In order to achieve this objective, your Commission adopted the ALUCP for the Airport To reduce the public's exposure to excessive noise and safety hazards, the ALUCP establishes zones around the Airport In Safety Zone 1, which includes RPZ, the "ALUCP policy is to encourage airport owner acquisition of these pr-operty interests [i.e., fee title or easements] in all of Safety Zone 1 with funding assistance from the FAA" (ALUCP, Sec. 3.4.12, p. 3-41.) TheALUCP goes on to state that; "[a]s a condition for approval of ... [certain] projects ... the owner of the property involved shall be required to dedicate an avigation easement to the entity owning the airport" .-(ALUCP, Sec. 2.11.5, p. 2-28.) . . -2-February 6, 2019 The acquisition of property interests around the Airport for right-of-way and RPZ is encouraged and in some instances rwurred by the ALUCP to ensure land use compatibility. The City's zoning amendment specifically prohibits the acquisition of property interests for these purposes. The zoning amendment does this by defining airport broadly to include "any area of land or water which is used or, intended for use, for the take-off of aircraft. .. [including] safety areas and zones ... " and then permitting an airport " ... only within the boundary of the McClellan-Palomar Airport as depicted on the zoning map of the city." The City's zoning map limits the Airport to the existing aviation use-areas and supporting parking lots. All ALUCP safety zones, including all RPZ, are outside the Airport boundary shown on the City's zoning map. The proposed zoning amendment is clearly inconsistent with the ALUCP. A finding of.inconsistency is not dependent on there being "actual development'' as stated in the Report of Determinations of Consistency provided.to the Commission. Public • Utilities Code section 21676 requires the consistency dBt,,nninatfon to be made "[p]rior to ... the adoption or approval of a zoning ordinance or building regulation ..• " not when a project application is received. If a public agency fails to revise its general plan or zoning ordinances to bring them into conformance with an ALUCP, the Commission may at that point require the local agency to submit all:' ... subsequent actions, regulations, and permits to the commission for review ..•. " (Pub. Util. Code § 21676.5.) The Commission does not and should not wait for a project applicant to request a building or similar development permit from the City to issue a finding that the zoning ordinance amendment is inconsistent with the ALUCP. The County also has significant concerns with the enforceability of the zoning o:i:dinance amendment The County is innnune from the City's zoning ordinances pursuant to Government Code section 53090, et seq. and does not need a use permitto operate the Airport The proposed definition of "airport" in the amendment to include the acquisition of airport safety areas and zones for purposes <l.f applying Public.Utilities Code section 21661.6 is contrary to-State law. (See, Pub. Util. Code§§ 21013 &21664.5.) To the extent the acquisition of property interests is required by the federal governme:tit for things like safety zones, it is likely preempted by fegeral law. (Burbank-Glendale-Pasadena Airport Authority v. City of Los Ange_les (9tll Cir., 1992) 979 F. 2d 1338.) The County has communicated its concerns about the unenforceability of this zoning ordinance amendment to the City in meetings and correspondence. The City has elected to proceed with a zoning ordinance amendment that is illegal, unenforceal5le, and mconslsrenrw.itntlie filtrCP:-Jn accordance witnPuolk Urtl1ties-eoo~-----~ section 2167 6 and the Commission's mandate to minimize th.e public's exposure to excessive noise and safety hazards within areas around public airports, the County requests that the Commission find the proposed ordinance amendment inconsistent with the ALUCP. Should the -3-February 6, 2019 Commission feel uncomfortable making this finding at this point in time, the County requests that the matter be continued to allow the County to better coordinate with Commission staff. TLB/tlm · 18-01883 :-' Very truly yours, TIIOMAS E. MONTGO11ERY, County Counsel By -r~u=•, L. 0c)<JcJv!{ Thomas L. Bosworth, Senior Deputy