HomeMy WebLinkAbout2019-05-07; City Council; Resolution 2019-060RESOLUTION 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(attached hereto as Attachment B) is hereby rescinded, thereby terminating all action in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.
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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
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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
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Attachment A
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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
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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
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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
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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,
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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)
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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.
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