HomeMy WebLinkAbout2020-06-17; Planning Commission; ; ZCA2020-0001/LCPA2020-0005 – DENSITY BONUS AMENDMENTS 2020Item No.
Application complete date: n/a
P.C. AGENDA OF:June 17, 2020 Project Planner: Corey Funk
Project Engineer: n/a
SUBJECT: ZCA2020-0001/LCPA2020-0005 – DENSITY BONUS AMENDMENTS 2020 – Request for a
recommendation to approve a Zone Code Amendment and Local Coastal Program
Amendment to update the city’s density bonus regulations to reflect changes in state
law. The city planner has determined that the amendments are exempt from the
California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section
15061(b)(3) because the amendments do not have the potential to cause a significant
effect on the environment.
I.RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 7373 RECOMMENDING
APPROVAL of Zone Code Amendment ZCA 2020-0001 and Local Coastal Program Amendment LCPA
2020-0005, based on the findings contained therein.
II.PROJECT DESCRIPTION AND BACKGROUND
A.State Density Bonus Law
State density bonus law (Government Code §65915 – 65918, see Attachment 2) allows a
developer to increase density (the number of new, market-rate dwelling units) on a
property above the maximum set under a city’s local land use plan (Carlsbad General Plan).
In addition, qualifying applicants can also receive reductions in required development
standards such as setbacks, height limits and parking requirements when such deviations
are necessary to achieve the density allowed under state law. In exchange for a density
increase (up to a maximum of 35 percent), a certain number of the new dwelling units must
be reserved for very low, low, or moderate-income households, or for other qualifying
housing types such as senior housing, for a period of not less than 55 years.
The requirement for a local density bonus ordinance is stipulated under state density bonus
law, as reflected below:
§65915(a)
“All cities…shall adopt an ordinance that specifies how compliance with this section will be
implemented. Failure to adopt an ordinance shall not relieve a city…from complying with this
section.”
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B.Proposed Ordinance
It is important to note that a jurisdiction may not enact local laws that conflict with state law
or prohibit what the legislature intends to authorize1. The proposed ordinance found in
Exhibit A of Attachment 1 complies with the requirements of state density bonus law and
can be summarized as follows.
•The ordinance amendment is required as part of the city’s Housing Element Program
3.3, which requires that the city promote the use of (current) density bonus allowances
to help facilitate the development of housing for low and very low-income households.
Completing this requirement is important to show program compliance to the
Department of Housing and Community Development (HCD) as the city proceeds with
the 6th Cycle Housing Element.
•The ordinance amendment captures changes made in state density bonus law by
Assembly Bill 1763 since the city’s local ordinance was last amended in 2019.
•Over the past several years, the state legislature has made several modifications to
density bonus law to encourage more affordable housing development. More changes
are expected in the coming years. These state-initiated modifications often require
regular changes/updates to our local code. As such, the proposed ordinance focuses
more on the city’s permit processing requirements for density bonus applications, while
deferring to the state law on density bonus requirements and allowances. This will help
reduce the need to process local code amendments when state law changes in the
future.
•Educational materials have also been prepared to help customers navigate density
bonus law and city processing requirements; specifically, a department information
bulletin (Attachment 3). These materials are provided to the Planning Commission as
informational items, no action is requested. Staff can update the information bulletin as
needed due to future changes to state law. The sections of the bulletin are described
below:
o Density Bonus Information Bulletin
This information bulletin outlines the city’s development and processing
requirements to receive the benefits provided for under the state law in simple
direct terms and includes the following topics: project eligibility; applicant
permitting requirements; explanation on how density bonus is calculated; what
qualifies as concessions, incentives, or waivers; and the findings the city must make
to deny a concession, incentive, or waiver.
o Density Bonus Supplemental Checklist
This supplemental application checklist is new for city applicants and will be
required to be completed for all density bonus applications being processed under
Government Code §65915. This helps staff and the public better understand how
1Cal Const Art XI, Section 7; Northern Cal. Psychiatric Soc’y v. City of Berkeley (1986) 178 CA 3d 90
ZCA 2020-0001/LCPA 2020-0005 – DENSITY BONUS AMENDMENTS 2020
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density bonus law is being applied to the project and why requested standards need
to be waived to ensure that the project follows state law.
o Density Bonus Calculation Chart
This chart provides the specific density bonuses to be awarded, pursuant to
state law, in relation to the affordable housing type in one easy to read location
(bonus awards in the state density bonus law are not centrally located, making it
difficult for customers to follow).
III. ANALYSIS
The proposed amendments to the Zone Code repeal Chapter 21.86 and replace it with the proposed City
Council ordinance provided in Exhibit A of Attachment 1. Assembly Bill 1763, effective January 1, 2020,
amends Section 65915 of the Government Code with changes that are designed to help reduce costs
associated with the development of affordable housing. A summary2 of the three main changes enacted
by Assembly Bill 1763 is shown below:
• Existing density bonus law provides developers up to a 35% increase in project densities, set on
a sliding scale based on the amount of affordable housing provided. For housing projects where
100% of the units are affordable to low and very low income residents, Assembly Bill 1763 more
than doubles the density bonus to 80%. If the project is located within a half mile of a major
transit stop, Assembly Bill 1763 also eliminates all restrictions on density and allows a height
increase of up to three stories or 33 feet.
• Under existing density bonus law, projects qualifying for a density bonus are currently entitled
to up to three incentives and concessions, depending on the amount of affordable units
provided. Assembly Bill 1763 provides a fourth incentive and concession for 100% affordable
projects.
• Existing density bonus law also sets special parking ratio requirements for qualifying
projects. For housing projects that qualify as a special needs or supportive housing
development, Assembly Bill 1763 completely eliminates all local parking requirements.
The proposed amendments are consistent with state density bonus law and fully implement the changes
made by Assembly Bill 1763. The proposed amendments are consistent with the Carlsbad General Plan
and directly implement General Plan Housing Element Program 3.3, which requires the city to ensure
consistency with state density bonus law. The amendment is also consistent with other provisions of
the Zoning Ordinance not being amended. Compliance with the Growth Management Plan is evaluated
on a case by case basis for development projects that request a density bonus.
The proposed amendments affect land within the airport influence area, which covers a large portion of
Carlsbad and includes residential properties; however, the amendment is consistent with the adopted
McClellan-Palomar Airport Land Use Compatibility Plan in that it does not propose any land use or
development standard changes that affect compatibility with the plan's safety, noise, airspace
protection and overflight criteria. The Airport Land Use Commission (San Diego County Regional Airport
Authority) reviewed the amendment and found it to be consistent with the McClellan-Palomar Airport
2 Meyers Nave, January 13, 2020, AB 1763 Allows Affordable Housing to be Built Denser and Taller,
https://www.meyersnave.com/ab-1763-allows-affordable-housing-to-be-built-denser-and-taller/
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Land Use Compatibility Plan. A comment letter was submitted to the Airport Land Use Commission in
regard to the determination of consistency for the proposed amendments, which is included along with
the city response in Attachment 4.
Local Coastal Program Amendment LCPA 2020-0005 is required to ensure consistency with Zone Code
Amendment ZCA 2020-0001. The proposed LCP amendment meets the requirements of, and is in
conformity with, with the policies of Chapter 3 of the Coastal Act and all applicable policies of the
Carlsbad LCP not being amended by this amendment. The amendments do not conflict with any
regulation, land use designations or policies, with which development must comply.
IV. ENVIRONMENTAL REVIEW
The city finds that the proposed amendments to the Zone Code are exempt from environmental review
pursuant to the common sense exemption, Section 15061(b)(3) of the California Environmental Quality
Act (CEQA) Guidelines, since there would be no possibility of a significant effect on the environment.
The ordinance being considered specifies how the city will comply with and implement state density
bonus law, and adoption is required pursuant to Government Code §65915(a). The density bonuses,
incentives, and waivers permitted by the ordinance are required by state law, and this ordinance does
not permit any density bonuses, incentives, or waivers other than those required by state law.
ATTACHMENTS:
1. Planning Commission Resolution No. 7373
a. Exhibit A – City Council Ordinance: Density Bonus
2. State Density Bonus Law (Government Code Sections 65915 – 65918)
3. Information Bulletin on Density Bonus
4. Comment letter
ATTACHMENT 2
GOVERNMENT CODE - GOV TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch. 1536. ) DIVISION 1. PLANNING AND ZONING [65000 - 66301] ( Heading of Division 1 added by Stats. 1974, Ch. 1536. )
CHAPTER 4.3. Density Bonuses and Other Incentives [65915 - 65918] ( Chapter 4.3 added by Stats. 1979, Ch. 1207. )
65915. (a) (1) When an applicant seeks a density bonus for a housing development within,
or for the donation of land for housing within, the jurisdiction of a city, county, or
city and county, that local government shall comply with this section. A city,
county, or city and county shall adopt an ordinance that specifies how compliance
with this section will be implemented. Failure to adopt an ordinance shall not relieve a city, county, or city and county from complying with this section.
(2) A local government shall not condition the submission, review, or approval of an
application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This
subdivision does not prohibit a local government from requiring an applicant to
provide reasonable documentation to establish eligibility for a requested density
bonus, incentives or concessions, as described in subdivision (d), waivers or
reductions of development standards, as described in subdivision (e), and parking
ratios, as described in subdivision (p).
(3) In order to provide for the expeditious processing of a density bonus
application, the local government shall do all of the following: (A) Adopt procedures and timelines for processing a density bonus application.
(B) Provide a list of all documents and information required to be submitted with
the density bonus application in order for the density bonus application to be deemed complete. This list shall be consistent with this chapter.
(C) Notify the applicant for a density bonus whether the application is complete in a
manner consistent with the timelines specified in Section 65943.
(D) (i) If the local government notifies the applicant that the application is deemed
complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters:
(I) The amount of density bonus, calculated pursuant to subdivision (f), for which
the applicant is eligible. (II) If the applicant requests a parking ratio pursuant to subdivision (p), the
parking ratio for which the applicant is eligible.
(III) If the applicant requests incentives or concessions pursuant to subdivision (d)
or waivers or reductions of development standards pursuant to subdivision (e),
whether the applicant has provided adequate information for the local government to make a determination as to those incentives, concessions, or waivers or
reductions of development standards.
(ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The local
government shall adjust the amount of density bonus and parking ratios awarded
pursuant to this section based on any changes to the project during the course of
development.
(b) (1) A city, county, or city and county shall grant one density bonus, the amount
of which shall be as specified in subdivision (f), and, if requested by the applicant
and consistent with the applicable requirements of this section, incentives or
concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in
subdivision (p), when an applicant for a housing development seeks and agrees to
construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the
following:
(A) Ten percent of the total units of a housing development for lower income
households, as defined in Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of
the Civil Code, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of
the Civil Code.
(D) Ten percent of the total dwelling units in a common interest development, as
defined in Section 4100 of the Civil Code, for persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code, provided that
all units in the development are offered to the public for purchase.
(E) Ten percent of the total units of a housing development for transitional foster
youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-
Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described
in this subparagraph shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.
(F) (i) Twenty percent of the total units for lower income students in a student
housing development that meets the following requirements:
(I) All units in the student housing development will be used exclusively for
undergraduate, graduate, or professional students enrolled full time at an
institution of higher education accredited by the Western Association of Schools and
Colleges or the Accrediting Commission for Community and Junior Colleges. In
order to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city
and county that the developer has entered into an operating agreement or master
lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students
from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any
subsequent year, there are not sufficient students enrolled in an institution of higher education to fill all units in the student housing development.
(II) The applicable 20-percent units will be used for lower income students. For
purposes of this clause, “lower income students” means students who have a household income and asset level that does not exceed the level for Cal Grant A or
Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of
Section 69432.7 of the Education Code. The eligibility of a student under this clause
shall be verified by an affidavit, award letter, or letter of eligibility provided by the
institution of higher education that the student is enrolled in, as described in
subclause (I), or by the California Student Aid Commission that the student
receives or is eligible for financial aid, including an institutional grant or fee waiver,
from the college or university, the California Student Aid Commission, or the federal government shall be sufficient to satisfy this subclause.
(III) The rent provided in the applicable units of the development for lower income
students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
(IV) The development will provide priority for the applicable affordable units for
lower income students experiencing homelessness. A homeless service provider, as
defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and
Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this
subclause.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its
pro rata share of associated common area facilities. The units described in this
subparagraph shall be subject to a recorded affordability restriction of 55 years.
(G) One hundred percent of the total units, exclusive of a manager’s unit or units,
are for lower income households, as defined by Section 50079.5 of the Health and
Safety Code, except that up to 20 percent of the total units in the development may
be for moderate-income households, as defined in Section 50053 of the Health and
Safety Code. (2) For purposes of calculating the amount of the density bonus pursuant to
subdivision (f), an applicant who requests a density bonus pursuant to this
subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1).
(3) For the purposes of this section, “total units,” “total dwelling units,” or “total
rental beds” does not include units added by a density bonus awarded pursuant to
this section or any local law granting a greater density bonus.
(c) (1) (A) An applicant shall agree to, and the city, county, or city and county shall
ensure, the continued affordability of all very low and low-income rental units that
qualified the applicant for the award of the density bonus for 55 years or a longer
period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
(B) (i) Except as otherwise provided in clause (ii), rents for the lower income
density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(ii) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), rents for all units in the development, including
both base density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(II) The rent for the remaining units in the development shall be set at an amount
consistent with the maximum rent levels for a housing development that receives
an allocation of state or federal low-income housing tax credits from the California
Tax Credit Allocation Committee.
(2) An applicant shall agree to, and the city, county, or city and county shall ensure
that, the initial occupant of all for-sale units that qualified the applicant for the
award of the density bonus are persons and families of very low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as
that cost is defined in Section 50052.5 of the Health and Safety Code. The local
government shall enforce an equity sharing agreement, unless it is in conflict with the requirements of another public funding source or law. The following apply to the
equity sharing agreement:
(A) Upon resale, the seller of the unit shall retain the value of any improvements,
the downpayment, and the seller’s proportionate share of appreciation. The local
government shall recapture any initial subsidy, as defined in subparagraph (B), and its proportionate share of appreciation, as defined in subparagraph (C), which
amount shall be used within five years for any of the purposes described in
subdivision (e) of Section 33334.2 of the Health and Safety Code that promote home ownership.
(B) For purposes of this subdivision, the local government’s initial subsidy shall be
equal to the fair market value of the home at the time of initial sale minus the
initial sale price to the moderate-income household, plus the amount of any
downpayment assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of the resale shall be
used as the initial market value.
(C) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to
the fair market value of the home at the time of initial sale.
(3) (A) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this section if the housing development is proposed on any
property that includes a parcel or parcels on which rental dwelling units are or, if
the dwelling units have been vacated or demolished in the five-year period
preceding the application, have been subject to a recorded covenant, ordinance, or
law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price control through a public
entity’s valid exercise of its police power; or occupied by lower or very low income
households, unless the proposed housing development replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to
this paragraph, contains affordable units at the percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household.
(B) For the purposes of this paragraph, “replace” shall mean either of the following: (i) If any dwelling units described in subparagraph (A) are occupied on the date of
application, the proposed housing development shall provide at least the same
number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or
lower income category as those households in occupancy. If the income category of
the household in occupancy is not known, it shall be rebuttably presumed that
lower income renter households occupied these units in the same proportion of
lower income renter households to all renter households within the jurisdiction, as
determined by the most recently available data from the United States Department
of Housing and Urban Development’s Comprehensive Housing Affordability Strategy
database. For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide
units of equivalent size to be made available at affordable rent or affordable
housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last
household in occupancy is not known, it shall be rebuttably presumed that lower
income renter households occupied these units in the same proportion of lower
income renter households to all renter households within the jurisdiction, as
determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy
database. All replacement calculations resulting in fractional units shall be rounded
up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55
years. If the proposed development is for-sale units, the units replaced shall be
subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or
demolished within the five-year period preceding the application, the proposed
housing development shall provide at least the same number of units of equivalent
size as existed at the highpoint of those units in the five-year period preceding the
application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as
those persons and families in occupancy at that time, if known. If the incomes of
the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low-income and very low income renter households
occupied these units in the same proportion of low-income and very low income
renter households to all renter households within the jurisdiction, as determined by
the most recently available data from the United States Department of Housing and
Urban Development’s Comprehensive Housing Affordability Strategy database. All
replacement calculations resulting in fractional units shall be rounded up to the next
whole number. If the replacement units will be rental dwelling units, these units
shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to
paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five-year period preceding the
application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families
above lower income, the city, county, or city and county may do either of the following:
(i) Require that the replacement units be made available at affordable rent or
affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a
recorded affordability restriction for at least 55 years. If the proposed development
is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction’s rent or
price control ordinance, provided that each unit described in subparagraph (A) is
replaced. Unless otherwise required by the jurisdiction’s rent or price control
ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being
replaced.
(E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a proposed housing development if the applicant’s application was submitted to, or
processed by, a city, county, or city and county before January 1, 2015.
(d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to
a city, county, or city and county a proposal for the specific incentives or
concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and
county shall grant the concession or incentive requested by the applicant unless the
city, county, or city and county makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost
reductions, consistent with subdivision (k), to provide for affordable housing costs,
as defined in Section 50052.5 of the Health and Safety Code, or for rents for the
targeted units to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in
paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety
or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to
satisfactorily mitigate or avoid the specific, adverse impact without rendering the
development unaffordable to low-income and moderate-income households. (C) The concession or incentive would be contrary to state or federal law.
(2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the
total units for lower income households, at least 5 percent for very low income
households, or at least 10 percent for persons and families of moderate income in a
common interest development.
(B) Two incentives or concessions for projects that include at least 20 percent of
the total units for lower income households, at least 10 percent for very low income households, or at least 20 percent for persons and families of moderate income in a
common interest development.
(C) Three incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 15 percent for very low income
households, or at least 30 percent for persons and families of moderate income in a common interest development.
(D) Four incentives or concessions for projects meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b). If the project is located within one-half mile
of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public
Resources Code, the applicant shall also receive a height increase of up to three additional stories, or 33 feet.
(3) The applicant may initiate judicial proceedings if the city, county, or city and
county refuses to grant a requested density bonus, incentive, or concession. If a
court finds that the refusal to grant a requested density bonus, incentive, or
concession is in violation of this section, the court shall award the plaintiff
reasonable attorney’s fees and costs of suit. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or concession that
has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health, safety, or the physical environment, and for which
there is no feasible method to satisfactorily mitigate or avoid the specific adverse
impact. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that would have an adverse impact
on any real property that is listed in the California Register of Historical Resources.
The city, county, or city and county shall establish procedures for carrying out this
section that shall include legislative body approval of the means of compliance with
this section. (4) The city, county, or city and county shall bear the burden of proof for the denial
of a requested concession or incentive.
(e) (1) In no case may a city, county, or city and county apply any development standard that will have the effect of physically precluding the construction of a
development meeting the criteria of subdivision (b) at the densities or with the
concessions or incentives permitted by this section. Subject to paragraph (3), an
applicant may submit to a city, county, or city and county a proposal for the waiver
or reduction of development standards that will have the effect of physically
precluding the construction of a development meeting the criteria of subdivision (b)
at the densities or with the concessions or incentives permitted under this section,
and may request a meeting with the city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development standards is in
violation of this section, the court shall award the plaintiff reasonable attorney’s
fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards if the waiver or
reduction would have a specific, adverse impact, as defined in paragraph (2) of
subdivision (d) of Section 65589.5, upon health, safety, or the physical
environment, and for which there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to
require a local government to waive or reduce development standards that would
have an adverse impact on any real property that is listed in the California Register
of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development standards pursuant to
this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from any maximum controls on density pursuant to clause (ii) of subparagraph (D) of paragraph (3) of subdivision
(f) shall not be eligible for, and shall not receive, a waiver or reduction of development standards pursuant to this subdivision, other than as expressly
provided in subparagraph (D) of paragraph (2) of subdivision (d) and clause (ii) of
subparagraph (D) of paragraph (3) of subdivision (f). (f) For the purposes of this chapter, “density bonus” means a density increase over
the otherwise maximum allowable gross residential density as of the date of
application by the applicant to the city, county, or city and county, or, if elected by
the applicant, a lesser percentage of density increase, including, but not limited to,
no increase in density. The amount of density increase to which the applicant is
entitled shall vary according to the amount by which the percentage of affordable
housing units exceeds the percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Low-Income Units Percentage Density Bonus 10 20 11 21.5 12 23 13 24.5 14 26 15 27.5 17 30.5 18 32 19 33.5 20 35
(2) For housing developments meeting the criteria of subparagraph (B) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Very Low Income Units Percentage Density Bonus 5 20 6 22.5 7 25 8 27.5 9 30
10 32.5 11 35
(3) (A) For housing developments meeting the criteria of subparagraph (C) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the
number of senior housing units.
(B) For housing developments meeting the criteria of subparagraph (E) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of the type of units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of
paragraph (1) of subdivision (b), the density bonus shall be 35 percent of the student housing units.
(D) For housing developments meeting the criteria of subparagraph (G) of
paragraph (1) of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clause (ii), the density bonus shall be 80 percent
of the number of units for lower income households. (ii) If the housing development is located within one-half mile of a major transit
stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code,
the city, county, or city and county shall not impose any maximum controls on density.
(4) For housing developments meeting the criteria of subparagraph (D) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as follows: Percentage Moderate-Income Units Percentage Density Bonus 10 5 11 6 12 7 13 8 14 9 15 10 16 11 17 12 18 13 19 14 20 15 21 16 22 17
23 18 24 19 25 20 26 21 27 22 28 23 29 24 30 25 31 26 32 27 33 28 34 29 35 30 36 31 37 32 38 33 39 34 40 35
(5) All density calculations resulting in fractional units shall be rounded up to the
next whole number. The granting of a density bonus shall not require, or be
interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision map, parcel map, or other
residential development approval donates land to a city, county, or city and county in accordance with this subdivision, the applicant shall be entitled to a 15-percent
increase above the otherwise maximum allowable residential density for the entire development, as follows: Percentage Very Low Income Percentage Density Bonus 10 15 11 16
12 17 13 18 14 19 15 20 16 21 17 22 18 23 19 24 20 25 21 26 22 27 23 28 24 29 25 30 26 31 27 32 28 33 29 34 30 35
(2) This increase shall be in addition to any increase in density mandated by
subdivision (b), up to a maximum combined mandated density increase of 35
percent if an applicant seeks an increase pursuant to both this subdivision and
subdivision (b). All density calculations resulting in fractional units shall be rounded
up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of a city, county, or city and county to require a
developer to donate land as a condition of development. An applicant shall be
eligible for the increased density bonus described in this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval
of the final subdivision map, parcel map, or residential development application.
(B) The developable acreage and zoning classification of the land being transferred
are sufficient to permit construction of units affordable to very low income
households in an amount not less than 10 percent of the number of residential units of the proposed development.
(C) The transferred land is at least one acre in size or of sufficient size to permit
development of at least 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at
the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is
or will be served by adequate public facilities and infrastructure.
(D) The transferred land shall have all of the permits and approvals, other than
building permits, necessary for the development of the very low income housing
units on the transferred land, not later than the date of approval of the final
subdivision map, parcel map, or residential development application, except that
the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is
not reviewed by the local government before the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs
(1) and (2) of subdivision (c), which shall be recorded on the property at the time
of the transfer.
(F) The land is transferred to the local agency or to a housing developer approved
by the local agency. The local agency may require the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the proposed development
or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low income units shall be identified
not later than the date of approval of the final subdivision map, parcel map, or
residential development application.
(h) (1) When an applicant proposes to construct a housing development that
conforms to the requirements of subdivision (b) and includes a childcare facility that
will be located on the premises of, as part of, or adjacent to, the project, the city,
county, or city and county shall grant either of the following: (A) An additional density bonus that is an amount of square feet of residential
space that is equal to or greater than the amount of square feet in the childcare
facility. (B) An additional concession or incentive that contributes significantly to the
economic feasibility of the construction of the childcare facility.
(2) The city, county, or city and county shall require, as a condition of approving
the housing development, that the following occur:
(A) The childcare facility shall remain in operation for a period of time that is as
long as or longer than the period of time during which the density bonus units are
required to remain affordable pursuant to subdivision (c).
(B) Of the children who attend the childcare facility, the children of very low income households, lower income households, or families of moderate income shall equal a
percentage that is equal to or greater than the percentage of dwelling units that are
required for very low income households, lower income households, or families of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city, county, or city and county shall not be required to provide a density bonus or concession for a
childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities.
(4) “Childcare facility,” as used in this section, means a child daycare facility other
than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and schoolage childcare centers.
(i) “Housing development,” as used in this section, means a development project
for five or more residential units, including mixed-use developments. For the
purposes of this section, “housing development” also includes a subdivision or
common interest development, as defined in Section 4100 of the Civil Code,
approved by a city, county, or city and county and consists of residential units or
unimproved residential lots and either a project to substantially rehabilitate and
convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of
Section 65863.4, where the result of the rehabilitation would be a net increase in
available residential units. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one
development application, but do not have to be based upon individual subdivision
maps or parcels. The density bonus shall be permitted in geographic areas of the
housing development other than the areas where the units for the lower income
households are located. (j) (1) The granting of a concession or incentive shall not require or be interpreted,
in and of itself, to require a general plan amendment, local coastal plan
amendment, zoning change, study, or other discretionary approval. For purposes of this subdivision, “study” does not include reasonable documentation to establish
eligibility for the concession or incentive or to demonstrate that the incentive or
concession meets the definition set forth in subdivision (k). This provision is
declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density bonus
shall not require or be interpreted to require the waiver of a local ordinance or
provisions of a local ordinance unrelated to development standards.
(k) For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code
requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as
provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health
and Safety Code, including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces that would
otherwise be required that results in identifiable and actual cost reductions, to
provide for affordable housing costs, as defined in Section 50052.5 of the Health
and Safety Code, or for rents for the targeted units to be set as specified in
subdivision (c). (2) Approval of mixed-use zoning in conjunction with the housing project if
commercial, office, industrial, or other land uses will reduce the cost of the housing
development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the
area where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable and actual cost reductions
to provide for affordable housing costs, as defined in Section 50052.5 of the Health
and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(l) Subdivision (k) does not limit or require the provision of direct financial
incentives for the housing development, including the provision of publicly owned
land, by the city, county, or city and county, or the waiver of fees or dedication
requirements.
(m) This section does not supersede or in any way alter or lessen the effect or
application of the California Coastal Act of 1976 (Division 20 (commencing with
Section 30000) of the Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to
which the applicant is entitled under this section shall be permitted in a manner
that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code.
(n) If permitted by local ordinance, nothing in this section shall be construed to
prohibit a city, county, or city and county from granting a density bonus greater
than what is described in this section for a development that meets the
requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the
requirements of this section.
(o) For purposes of this section, the following definitions shall apply: (1) “Development standard” includes a site or construction condition, including, but
not limited to, a height limitation, a setback requirement, a floor area ratio, an
onsite open-space requirement, or a parking ratio that applies to a residential
development pursuant to any ordinance, general plan element, specific plan,
charter, or other local condition, law, policy, resolution, or regulation.
(2) “Maximum allowable residential density” means the density allowed under the
zoning ordinance and land use element of the general plan, or, if a range of density
is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. If the density
allowed under the zoning ordinance is inconsistent with the density allowed under
the land use element of the general plan, the general plan density shall prevail. (p) (1) Except as provided in paragraphs (2), (3), and (4), upon the request of the
developer, a city, county, or city and county shall not require a vehicular parking
ratio, inclusive of handicapped and guest parking, of a development meeting the
criteria of subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) Notwithstanding paragraph (1), if a development includes the maximum percentage of low-income or very low income units provided for in paragraphs (1)
and (2) of subdivision (f) and is located within one-half mile of a major transit stop,
as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, then,
upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of handicapped and guest parking, that
exceeds 0.5 spaces per bedroom. For purposes of this subdivision, a development shall have unobstructed access to a major transit stop if a resident is able to access
the major transit stop without encountering natural or constructed impediments.
(3) Notwithstanding paragraph (1), if a development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower
income families, as provided in Section 50052.5 of the Health and Safety Code,
then, upon the request of the developer, a city, county, or city and county shall not
impose a vehicular parking ratio, inclusive of handicapped and guest parking, that
exceeds the following ratios:
(A) If the development is located within one-half mile of a major transit stop, as
defined in subdivision (b) of Section 21155 of the Public Resources Code, and there
is unobstructed access to the major transit stop from the development, the ratio shall not exceed 0.5 spaces per unit.
(B) If the development is a for-rent housing development for individuals who are 62
years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, the ratio shall not exceed 0.5 spaces per unit. The development shall have either
paratransit service or unobstructed access, within one-half mile, to fixed bus route
service that operates at least eight times per day.
(4) Notwithstanding paragraphs (1) and (8), if a development consists solely of
rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, as provided in Section 50052.5 of the Health and Safety
Code, and the development is either a special needs housing development, as
defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code, then,
upon the request of the developer, a city, county, or city and county shall not
impose any minimum vehicular parking requirement. A development that is a
special needs housing development shall have either paratransit service or
unobstructed access, within one-half mile, to fixed bus route service that operates
at least eight times per day.
(5) If the total number of parking spaces required for a development is other than a
whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide onsite parking through
tandem parking or uncovered parking, but not through on street parking.
(6) This subdivision shall apply to a development that meets the requirements of subdivisions (b) and (c), but only at the request of the applicant. An applicant may
request parking incentives or concessions beyond those provided in this subdivision
pursuant to subdivision (d).
(7) This subdivision does not preclude a city, county, or city and county from
reducing or eliminating a parking requirement for development projects of any type
in any location.
(8) Notwithstanding paragraphs (2) and (3), if a city, county, city and county, or an
independent consultant has conducted an areawide or jurisdiction wide parking study in the last seven years, then the city, county, or city and county may impose
a higher vehicular parking ratio not to exceed the ratio described in paragraph (1),
based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access,
walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market-rate and subsidized developments, and
the lower rates of car ownership for low-income and very low income individuals, including seniors and special needs individuals. The city, county, or city and county
shall pay the costs of any new study. The city, county, or city and county shall
make findings, based on a parking study completed in conformity with this paragraph, supporting the need for the higher parking ratio.
(9) A request pursuant to this subdivision shall neither reduce nor increase the
number of incentives or concessions to which the applicant is entitled pursuant to
subdivision (d).
(q) Each component of any density calculation, including base density and bonus
density, resulting in fractional units shall be separately rounded up to the next
whole number. The Legislature finds and declares that this provision is declaratory
of existing law. (r) This chapter shall be interpreted liberally in favor of producing the maximum
number of total housing units.
(Amended (as amended by Stats. 2018, Ch. 937) by Stats. 2019, Ch. 666, Sec. 1. (AB 1763) Effective January 1, 2020.)
65915.5.
(a) When an applicant for approval to convert apartments to a condominium project
agrees to provide at least 33 percent of the total units of the proposed
condominium project to persons and families of low or moderate income as defined in Section 50093 of the Health and Safety Code, or 15 percent of the total units of
the proposed condominium project to lower income households as defined in
Section 50079.5 of the Health and Safety Code, and agrees to pay for the reasonably necessary administrative costs incurred by a city, county, or city and
county pursuant to this section, the city, county, or city and county shall either (1) grant a density bonus or (2) provide other incentives of equivalent financial value.
A city, county, or city and county may place such reasonable conditions on the
granting of a density bonus or other incentives of equivalent financial value as it finds appropriate, including, but not limited to, conditions which assure continued
affordability of units to subsequent purchasers who are persons and families of low
and moderate income or lower income households.
(b) For purposes of this section, “density bonus” means an increase in units of 25
percent over the number of apartments, to be provided within the existing structure
or structures proposed for conversion.
(c) For purposes of this section, “other incentives of equivalent financial value” shall
not be construed to require a city, county, or city and county to provide cash transfer payments or other monetary compensation but may include the reduction
or waiver of requirements which the city, county, or city and county might
otherwise apply as conditions of conversion approval. (d) An applicant for approval to convert apartments to a condominium project may
submit to a city, county, or city and county a preliminary proposal pursuant to this
section prior to the submittal of any formal requests for subdivision map approvals.
The city, county, or city and county shall, within 90 days of receipt of a written
proposal, notify the applicant in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for
carrying out this section, which shall include legislative body approval of the means of compliance with this section.
(e) Nothing in this section shall be construed to require a city, county, or city and
county to approve a proposal to convert apartments to condominiums. (f) An applicant shall be ineligible for a density bonus or other incentives under this
section if the apartments proposed for conversion constitute a housing development
for which a density bonus or other incentives were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any other incentives or
concessions under this section if the condominium project is proposed on any
property that includes a parcel or parcels on which rental dwelling units are or, if
the dwelling units have been vacated or demolished in the five-year period
preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price control through a public
entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed condominium project replaces those units, as
defined in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915,
and either of the following applies:
(1) The proposed condominium project, inclusive of the units replaced pursuant to
subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915, contains affordable units at the percentages set forth in subdivision (a).
(2) Each unit in the development, exclusive of a manager’s unit or units, is
affordable to, and occupied by, either a lower or very low income household. (h) Subdivision (g) does not apply to an applicant seeking a density bonus for a
proposed housing development if their application was submitted to, or processed
by, a city, county, or city and county before January 1, 2015. (Amended by Stats. 2014, Ch. 682, Sec. 2. (AB 2222) Effective January 1, 2015.)
65915.7.
(a) When an applicant for approval of a commercial development has entered into an agreement for partnered housing described in subdivision (c) to contribute
affordable housing through a joint project or two separate projects encompassing
affordable housing, the city, county, or city and county shall grant to the
commercial developer a development bonus as prescribed in subdivision
(b).Housing shall be constructed on the site of the commercial development or on a
site that is all of the following:
(1) Within the boundaries of the local government.
(2) In close proximity to public amenities including schools and employment centers.
(3) Located within one-half mile of a major transit stop, as defined in subdivision
(b) of Section 21155 of the Public Resources Code. (b) The development bonus granted to the commercial developer shall mean
incentives, mutually agreed upon by the developer and the jurisdiction, that may
include, but are not limited to, any of the following:
(1) Up to a 20-percent increase in maximum allowable intensity in the General
Plan.
(2) Up to a 20-percent increase in maximum allowable floor area ratio. (3) Up to a 20-percent increase in maximum height requirements.
(4) Up to a 20-percent reduction in minimum parking requirements.
(5) Use of a limited-use/limited-application elevator for upper floor accessibility. (6) An exception to a zoning ordinance or other land use regulation.
(c) For the purposes of this section, the agreement for partnered housing shall be
between the commercial developer and the housing developer, shall identify how
the commercial developer will contribute affordable housing, and shall be approved
by the city, county, or city and county.
(d) For the purposes of this section, affordable housing may be contributed by the
commercial developer in one of the following manners:
(1) The commercial developer may directly build the units. (2) The commercial developer may donate a portion of the site or property
elsewhere to the affordable housing developer for use as a site for affordable
housing. (3) The commercial developer may make a cash payment to the affordable housing
developer that shall be used towards the costs of constructing the affordable
housing project.
(e) For the purposes of this section, subparagraph (A) of paragraph (3) of
subdivision (c) of Section 65915 shall apply. (f) Nothing in this section shall preclude any additional allowances or incentives
offered to developers by local governments pursuant to law or regulation.
(g) If the developer of the affordable units does not commence with construction of those units in accordance with timelines ascribed by the agreement described in
subdivision (c), the local government may withhold certificates of occupancy for the
commercial development under construction until the developer has completed
construction of the affordable units.
(h) In order to qualify for a development bonus under this section, a commercial
developer shall partner with a housing developer that provides at least 30 percent
of the total units for low-income households or at least 15 percent of the total units
for very low-income households. (i) Nothing in this section shall preclude an affordable housing developer from
seeking a density bonus, concessions or incentives, waivers or reductions of
development standards, or parking ratios under Section 65915. (j) A development bonus pursuant to this section shall not include a reduction or
waiver of the requirements within an ordinance that requires the payment of a fee
by a commercial developer for the promotion or provision of affordable housing.
(k) A city or county shall submit to the Department of Housing and Community
Development, as part of the annual report required by Section 65400, information
describing a commercial development bonus approved pursuant to this section,
including the terms of the agreements between the commercial developer and the
affordable housing developer, and the developers and the local jurisdiction, and the number of affordable units constructed as part of the agreements.
(l) For purposes of this section, “partner” shall mean formation of a partnership,
limited liability company, corporation, or other entity recognized by the state in which the commercial development applicant and the affordable housing developer
are each partners, members, shareholders or other participants, or a contract or agreement between a commercial development applicant and affordable housing
developer for the development of both the commercial and the affordable housing properties.
(m) This section shall remain in effect only until January 1, 2022, and as of that
date is repealed. (Added by Stats. 2016, Ch. 747, Sec. 2. (AB 1934) Effective January 1, 2017. Repealed as of January 1, 2022, by its
own provisions.)
65916.
Where there is a direct financial contribution to a housing development pursuant to
Section 65915 through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, the city, county, or city and county
shall assure continued availability for low- and moderate-income units for 30 years.
When appropriate, the agreement provided for in Section 65915 shall specify the mechanisms and procedures necessary to carry out this section. (Added by Stats. 1979, Ch. 1207.)
65917. In enacting this chapter, it is the intent of the Legislature that the density bonus or
other incentives offered by the city, county, or city and county pursuant to this
chapter shall contribute significantly to the economic feasibility of lower income housing in proposed housing developments. In the absence of an agreement by a
developer in accordance with Section 65915, a locality shall not offer a density
bonus or any other incentive that would undermine the intent of this chapter. (Amended by Stats. 2001, Ch. 115, Sec. 14. Effective January 1, 2002.)
65917.2.
(a) As used in this section, the following terms shall have the following meanings: (1) “Eligible housing development” means a development that satisfies all of the
following criteria:
(A) The development is a multifamily housing development that contains five or
more residential units, exclusive of any other floor area ratio bonus or incentive or
concession awarded pursuant to this chapter. (B) The development is located within one of the following:
(i) An urban infill site that is within a transit priority area.
(ii) One-half mile of a major transit stop. (C) The site of the development is zoned to allow residential use or mixed-use with
a minimum planned density of at least 20 dwelling units per acre and does not
include any land zoned for low density residential use or for exclusive nonresidential
use.
(D) The applicant and the development satisfy the replacement requirements
specified in subdivision (c) of Section 65915.
(E) The development includes at least 20 percent of the units, excluding any
additional units allowed under a floor area ratio bonus or other incentives or
concessions provided pursuant to this chapter, with an affordable housing cost or affordable rent to, and occupied by, persons with a household income equal to or
less than 50 percent of the area median income, as determined pursuant to Section
50093 of the Health and Safety Code, and subject to an affordability restriction for a minimum of 55 years.
(F) The development complies with the height requirements applicable to the
underlying zone. A development shall not be eligible to use a floor area ratio bonus
or other incentives or concessions provided pursuant to this chapter to relieve the
development from a maximum height limitation.
(2) “Floor area ratio” means the ratio of gross building area of the eligible housing
development, excluding structured parking areas, proposed for the project divided
by the net lot area. For purposes of this paragraph, “gross building area” means the sum of all finished areas of all floors of a building included within the outside faces
of its exterior walls.
(3) “Floor area ratio bonus” means an allowance for an eligible housing development to utilize a floor area ratio over the otherwise maximum allowable
density permitted under the applicable zoning ordinance and land use elements of
the general plan of a city or county, calculated pursuant to paragraph (2) of
subdivision (b).
(4) “Major transit stop” has the same meaning as defined in Section 21155 of the Public Resources Code.
(5) “Transit priority area” has the same meaning as defined in Section 21099 of the
Public Resources Code. (b) (1) A city council, including a charter city council or the board of supervisors of
a city and county, or county board of supervisors may establish a procedure by
ordinance to grant a developer of an eligible housing development, upon the
request of the developer, a floor area ratio bonus, calculated as provided in
paragraph (2), in lieu of a density bonus awarded on the basis of dwelling units per
acre.
(2) In calculating the floor area ratio bonus pursuant to this section, the allowable
gross residential floor area in square feet shall be the product of all of the following amounts:
(A) The allowable residential base density in dwelling units per acre.
(B) The site area in square feet, divided by 43,560. (C) 2,250.
(c) The city council or county board of supervisors shall not impose any parking
requirement on an eligible housing development in excess of 0.1 parking spaces per
unit that is affordable to persons and families with a household income equal to or
less than 120 percent of the area median income and 0.5 parking spaces per unit
that is offered at market rate.
(d) A city or county that adopts a floor area ratio bonus ordinance pursuant to this
section shall allow an applicant seeking to develop an eligible residential development to calculate impact fees based on square feet, instead of on a per unit
basis.
(e) In the case of an eligible housing development that is zoned for mixed-use purposes, any floor area ratio requirement under a zoning ordinance or land use
element of the general plan of the city or county applicable to the nonresidential
portion of the eligible housing development shall continue to apply notwithstanding the award of a floor area ratio bonus in accordance with this section.
(f) An applicant for a floor area ratio bonus pursuant to this section may also
submit to the city, county, or city and county a proposal for specific incentives or concessions pursuant to subdivision (d) of Section 65915.
(g) (1) This section shall not be interpreted to do either of the following:
(A) Supersede or preempt any other section within this chapter.
(B) Prohibit a city, county, or city and county from providing a floor area ratio
bonus under terms that are different from those set forth in this section.
(2) The adoption of an ordinance pursuant to this section shall not be interpreted to
relieve a city, county, or city and county from complying with Section 65915.
(Added by Stats. 2018, Ch. 915, Sec. 1. (AB 2372) Effective January 1, 2019.)
65917.5. (a) As used in this section, the following terms shall have the following meanings:
(1) “Child care facility” means a facility installed, operated, and maintained under
this section for the nonresidential care of children as defined under applicable state
licensing requirements for the facility.
(2) “Density bonus” means a floor area ratio bonus over the otherwise maximum allowable density permitted under the applicable zoning ordinance and land use
elements of the general plan of a city, including a charter city, city and county, or
county of: (A) A maximum of five square feet of floor area for each one square foot of floor
area contained in the child care facility for existing structures.
(B) A maximum of 10 square feet of floor area for each one square foot of floor
area contained in the child care facility for new structures.
For purposes of calculating the density bonus under this section, both indoor and outdoor square footage requirements for the child care facility as set forth in
applicable state child care licensing requirements shall be included in the floor area
of the child care facility. (3) “Developer” means the owner or other person, including a lessee, having the
right under the applicable zoning ordinance of a city council, including a charter city
council, city and county board of supervisors, or county board of supervisors to
make an application for development approvals for the development or
redevelopment of a commercial or industrial project.
(4) “Floor area” means as to a commercial or industrial project, the floor area as
calculated under the applicable zoning ordinance of a city council, including a
charter city council, city and county board of supervisors, or county board of supervisors and as to a child care facility, the total area contained within the
exterior walls of the facility and all outdoor areas devoted to the use of the facility
in accordance with applicable state child care licensing requirements. (b) A city council, including a charter city council, city and county board of
supervisors, or county board of supervisors may establish a procedure by ordinance
to grant a developer of a commercial or industrial project, containing at least
50,000 square feet of floor area, a density bonus when that developer has set aside
at least 2,000 square feet of floor area and 3,000 outdoor square feet to be used
for a child care facility. The granting of a bonus shall not preclude a city council, including a charter city council, city and county board of supervisors, or county
board of supervisors from imposing necessary conditions on the project or on the
additional square footage. Projects constructed under this section shall conform to height, setback, lot coverage, architectural review, site plan review, fees, charges,
and other health, safety, and zoning requirements generally applicable to
construction in the zone in which the property is located. A consortium with more
than one developer may be permitted to achieve the threshold amount for the
available density bonus with each developer’s density bonus equal to the
percentage participation of the developer. This facility may be located on the
project site or may be located offsite as agreed upon by the developer and local
agency. If the child care facility is not located on the site of the project, the local agency shall determine whether the location of the child care facility is appropriate
and whether it conforms with the intent of this section. The child care facility shall
be of a size to comply with all state licensing requirements in order to accommodate at least 40 children.
(c) The developer may operate the child care facility itself or may contract with a
licensed child care provider to operate the facility. In all cases, the developer shall
show ongoing coordination with a local child care resource and referral network or
local governmental child care coordinator in order to qualify for the density bonus. (d) If the developer uses space allocated for child care facility purposes, in
accordance with subdivision (b), for purposes other than for a child care facility, an
assessment based on the square footage of the project may be levied and collected by the city council, including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be consistent
with the market value of the space. If the developer fails to have the space
allocated for the child care facility within three years, from the date upon which the
first temporary certificate of occupancy is granted, an assessment based on the
square footage of the project may be levied and collected by the city council,
including a charter city council, city and county board of supervisors, or county
board of supervisors in accordance with procedures to be developed by the legislative body of the city council, including a charter city council, city and county
board of supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space. A penalty levied against a consortium of developers shall be charged to each developer in an amount equal to
the developer’s percentage square feet participation. Funds collected pursuant to
this subdivision shall be deposited by the city council, including a charter city
council, city and county board of supervisors, or county board of supervisors into a
special account to be used for child care services or child care facilities.
(e) Once the child care facility has been established, prior to the closure, change in
use, or reduction in the physical size of, the facility, the city, city council, including
a charter city council, city and county board of supervisors, or county board of supervisors shall be required to make a finding that the need for child care is no
longer present, or is not present to the same degree as it was at the time the
facility was established. (f) The requirements of Chapter 5 (commencing with Section 66000) and of the
amendments made to Sections 53077, 54997, and 54998 by Chapter 1002 of the Statutes of 1987 shall not apply to actions taken in accordance with this section.
(g) This section shall not apply to a voter-approved ordinance adopted by referendum or initiative. (Amended by Stats. 2008, Ch. 179, Sec. 112. Effective January 1, 2009.)
65918.
The provisions of this chapter shall apply to charter cities.
(Added by Stats. 1979, Ch. 1207.) Web link:
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&ti
tle=7.&part=&chapter=4.3.&article=
Community Development Department | 1635 Faraday Ave. | Carlsbad, CA 92008 | www.carlsbadca.gov
State Density Bonus
P-XXThis Information Bulletin outlines the development and
processing requirements to receive the benefits provided for
under the California Density Bonus Law.
BACKGROUND
State Density Bonus Law (Gov. Code §65915 - 65918) allows a
developer to increase density on a property above the
maximum set under a city’s local land use plan (Carlsbad
General Plan). In addition, qualifying applicants can also
receive reductions in required development standards such as
setbacks, height limits, and parking requirements. In exchange
for the increased density, a certain number of the new
dwelling units must be reserved for very low, low, or
moderate-income households, seniors or the other eligible
projects listed below.
PROJECT ELIGIBILITY
Any housing development that proposes five or more units
and incorporates at least one of the requirements below is
eligible for a density bonus.
•5% units restricted to “Very Low Income”
•10% units restricted to “Low Income” or “Moderate
Income”
•10% units restricted for transitional foster youth,
disabled veterans, or homeless
•20% units for “Low Income” student housing
•A senior housing project
•An age-restricted mobile home park
•Projects which include a child care facility
Units must be restricted to their level of affordability for at
least 55 years by recorded document. Eligibility is established
by state law. A city may not enact or impose local laws that
conflict with State law or prohibit what the legislature intends
to authorize.
HOW IS DENSITY BONUS CALCULATED?
The number of additional units allowed under this program is
set on a sliding scale, based on two factors:
•The percentage of units in the project that will be set
aside as affordable; and,
•The household income category of those affordable
units (very low, low, or moderate household income).
State law requires that all density calculations resulting in
ANY fractional units shall be rounded up to the next whole
number. This applies to both base density and density bonus
calculations.
Notwithstanding the above, State law requires that the
percentage of affordable units on the site must exceed the
percentage established in the sliding scale. The city interprets
this requirement to mean that the fractional percentage of
units being reserved as affordable must be rounded down to
the nearest whole number.
Also, while the City of Carlsbad utilizes a “mid-range” density
calculation for determining the allowable number of units on
a property, state law requires that density bonus be
calculated based upon the maximum density allowed under
the zoning ordinance.
THEORETICAL EXAMPLE
A property is 1.003 net acres in size, with a zoning designation
of R-15 (15 dwelling units per acre). This results in a maximum
base density of 15.05 units for this site (1.003 acres multiplied
by 15 units per acre), which rounds up to 16 units.
The applicant proposes that two of the units will be reserved
for low-income households. This results in 12.5% of the 16
units that will be reserved for affordable housing, which
rounds down to 12%.
Based on the sliding scale found in the attached Density
Bonus Table, with 12% of the units reserved as affordable, the
project’s base density can increase by 23%, for a total of 19.68
units, which rounds up to 20 total units.
WHAT ARE CONCESSIONS/INCENTIVES?
In many cases, a development project must be modified
and/or reduced to comply with established objective design
standards and other regulations such as limits/requirements
on building height, setback, parking, and on-site open space requirements.
Concessions and incentives, as defined under State law, allow
a developer to deviate from those design standards and/or
regulations when such regulations potentially make the
project economically infeasible for the developer to build.
Documents Referenced
State Density Bonus Law (§65915 - 65918)
Carlsbad Municipal Code, Density Bonus Ordinance (§21.86)
Density Bonus Application Checklist
Density Bonus Calculation Chart
ATTACHMENT 3
P-XX (State Density Bonus) Revised: DRAFT
The number of concessions/incentives that can be requested
by a developer varies by the amount and type of reserved
affordable units being proposed, as reflected in the chart
below.
Percentages between these ranges are rounded down. For
example, the sample project that reserved 12% of the units
for very low income receives two concessions/incentives.
Income
Category
% of
Reserved Units
Very Low 5% 10% 15% Up to 80%
Low 10% 20% 30% Up to 80%
Moderate 10% 20% 30% Up to 20%
Senior n/a n/a 100% n/a
Max. # of Incentives 1 2 3 4*
*To Qualify for 4 incentives, a project must reserve at least 80% of the units
for lower income households (Very Low, Low, or combination thereof). The remaining 20% may be reserved for Moderate Income Households.
HOW DO YOU DETERMINE ECONOMIC INFEASIBILITY?
As part of the request for a concession/incentive, the
applicant must provide evidence that the design
standard/regulation causes the project to become too
expensive to build. This can be accomplished through a
financial pro-forma or other similar study or analysis.
The study must demonstrate that the requested
concession/incentive results in identifiable, financially
sufficient, and actual cost reductions that contribute
significantly to the economic feasibility of the reserved
affordable units.
WHAT ARE WAIVERS?
Waivers are yet another form of assistance under State law,
separate from concessions and incentives. A waiver is a
reduction in development standards and other regulations
when those requirements potentially make the construction
of the project physically infeasible, if not approved.
Unlike concessions and incentives, there is no limit in the
number of waivers an applicant can request. Furthermore,
while the developer must justify the need for a waiver, pro-
forma (or other similar analysis) is not required.
CAN THE CITY DENY A CONCESSION/INCENTIVE OR
WAIVER?
Yes. Nothing in State law requires a local government to grant
an incentive or waiver that will potentially result in a specific,
adverse impact upon public health, safety or environment.
Issues to be aware of when evaluating potential development
locations include the following (please note: not an
exhaustive list):
• A proposed density bonus project that would be located
within an airport compatibility zone found to be
inconsistent with the compatibility criteria
• A proposed density bonus project that would be located within a FEMA floodway
• A proposed density bonus project that would be located at a Hazardous Waste Site, pursuant to Section 65962.5
of the Government Code
• A proposed density bonus project that would be located
within a High Fire Severity Overlay Zone
Additionally, State Density Bonus Law provides that it shall
not be construed to supersede or in any way alter or lessen
the effect or application of the California Coastal Act of 1976, and further provides that the granting of a density bonus or
an incentive shall not be interpreted, in and of itself, to
require a local coastal plan amendment.
The burden of proof is on the jurisdiction to determine if
there is no feasible method to satisfactory mitigate or avoid
the specific adverse impact. Under the law, the court shall
award the plaintiff attorney's fees and costs should the City
not adequately justify the denial of a concession/incentive or
waiver.
YOUR OPTIONS FOR SERVICE
Formal application(s) for a density bonus project will be
required to submit information requested under the Density
Bonus Supplemental Application Checklist, as required under
CMC§21.86.040. To improve process review, an appointment
is required to walk through project submittal and processing
requirements.
NOTE: Please refer to State Density Bonus Law Government
Code (§65915 et al) for additional details with respect to
conformance/associated regulations.
◊ ◊ ◊ ◊
P-XX Page 1 of 3 Revised: DRAFT
The information listed in this checklist is required to be completed for all residential development applications being
processed under Government Code §65915 – 65918 (State Density Bonus Law). Please prepare the required
materials/information described in this checklist and submit in one document entitled “Supplemental Application –
Density Bonus Program”. Refer to Information Bulletin P-## for additional information.
❏ PROJECT LOCATION
Include the street address and APN(s) of the subject property.
❏
PROPERTY DESCRIPTION
Include information about the property and immediate area such as general location, prior uses on-site,
site characteristics (i.e., slopes, habitat, drainage), neighborhood setting, General Plan designation,
zoning designation, and maximum density allowed by zoning.
❏
PROJECT DESCRIPTION
Describe the proposed project. Please make sure to include the following information.
• Total number of lots/units proposed (maximum density and density bonus units)
• Type of housing proposed and any anticipated construction phasing
• Number, location and income level of the proposed affordable units
• Project access, infrastructure, and any proposed amenities/open space
❏
DENSITY CALCULATIONS
Indicate the number of lots proposed and how many are proposed to be designated as affordable. Include
the following information:
• Show all density calculations
• Income levels of the affordable units
• Number of ‘Concessions/Incentives’ requested
• Number of ‘Waivers’ requested
❏
CONCESSION(S)/INCENTIVE(S), if requested1
Please provide evidence demonstrating that the requested concession/incentive results in identifiable,
financially sufficient, and actual cost reductions that contribute significantly to the economic feasibility of
the reserved affordable units. Please include the following in the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Include discussion of why the findings to deny grant of the proposed concession/incentive are
not supportable for the proposed project:
o Why is the concession/incentive required to provide for affordable housing costs, or for
rents to targeted units to be set as provided under State law?
o Would the grant of the concession/incentive have a specific adverse impact upon public
health and safety or the physical environment or listed historical property? If yes, are there
Community Development
Planning Division
1635 Faraday Avenue
(760) 602-4610
www.carlsbadca.gov
DENSITY BONUS
SUPPLEMENTAL CHECKLIST
P-XX
P-XX Page 1 of 3 Revised: DRAFT
feasible methods to mitigate or avoid such impacts without rendering the development
unaffordable?
❏
WAIVERS(S), if requested2
Please provide evidence demonstrating that the requested Waiver from a required development
standard is necessary in order for development to be physically feasible. Please include the following in
the response.
• Provide specific information on and discussion of each concession/incentive proposed
• Provide specific information on and discussion of each waiver/reduction proposed. Include
discussion of why the findings to deny grant of the proposed waivers/reductions are not
supportable for the proposed project:
o How would application of the development standard proposed to be waived/reduced
physically preclude the construction of the development at the density proposed or with
proposed concessions/incentives?
o Would the waiver or reduction have a specific adverse impact upon public health and safety
or the physical environment or listed historical property? If yes, are there feasible methods
to mitigate or avoid such impacts without rendering the development unaffordable?
1 Cities are required to grant concessions or incentives (referred to as concessions) to a developer that seeks and agrees to include affordable units in their development. One to three concessions are available for each development depending on the percentage of affordable housing that will be included within the development. A concession is one of three things (Section 65915(k)(1, 2 &3)):
• A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed minimum building standards that result in identifiable, financially sufficient and actual costs reductions. Development Standard” includes a site or construction
condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio
that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation. (Section 65915(o)(1)).
• Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if such uses are compatible with the housing project and the existing or planned development in the area.
• Other regulatory concessions proposed by the developer or city that result in identifiable, financially sufficient and actual cost reductions.
The City shall grant the concession unless one or more of the following written findings can be made (Section 65915(d)(1)(A, B & C)):
• The concession is not required in order to provide for affordable housing costs, or for rents for the targeted units.
• The concession would have a “specific adverse impact upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households.”
• The concession would be contrary to state and federal law.
2 In addition to concessions, an applicant may submit a proposal for a waiver or reduction (referred to as waiver) of development standards. (Section 65915(e)(1)). In no case may a city apply any development standard that will have the effect of physically precluding the construction of a development at the density or concessions permitted. The City shall grant the waiver unless one or more of the following written findings can be made (Section 65915(e)(1)):
• The waiver will have a specific adverse impact upon health, safety, or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
• The waiver will have a specific adverse impact on any real property listed in California Register of Historical Resources.
• The waiver would be contrary to state and federal law.
P-XX Page 1 of 3 Revised: DRAFT
DENSITY BONUS TABLE
% of Total Units
Reserved
Affordable
Very Low Income
Density Bonus (1)
Low Income
Density Bonus (2)
Moderate
Income Density
Bonus (3)
Land Donation
Density Bonus (4)
Senior Density
Bonus (5)
5% 20% - - - 20%
6% 22.5% - - - 20%
7% 25% - - - 20%
8% 27.5% - - - 20%
9% 30% - - - 20%
10% 32.5% 20% 5% 15% 20%
11% 35% 21.5% 6% 16% 20%
12% 35% 23% 7% 17% 20%
13% 35% 24.5% 8% 18% 20%
14% 35% 26% 9% 19% 20%
15% 35% 27.5% 10% 20% 20%
16% 35% 29% 11% 21% 20%
17% 35% 30.5% 12% 22% 20%
18% 35% 32% 13% 23% 20%
19% 35% 33.5% 14% 24% 20%
20% 35% 35% 15% 25% 20%
21% 35% 35% 16% 26% 20%
22% 35% 35% 17% 27% 20%
23% 35% 35% 18% 28% 20%
24% 35% 35% 19% 29% 20%
25% 35% 35% 20% 30% 20%
26% 35% 35% 21% 31% 20%
27% 35% 35% 22% 32% 20%
28% 35% 35% 23% 33% 20%
29% 35% 35% 24% 34% 20%
30% 35% 35% 25% 35% 20%
31% 35% 35% 26% 35% 20%
31% 35% 35% 27% 35% 20%
33% 35% 35% 28% 35% 20%
34% 35% 35% 29% 35% 20%
35% 35% 35% 30% 35% 20%
36% 35% 35% 31% 35% 20%
37% 35% 35% 32% 35% 20%
38% 35% 35% 33% 35% 20%
39% 35% 35% 34% 35% 20%
40% 35% 35% 35% 35% 20%
(1) Government Code §65915(f)(2)
(2) Government Code §65915(f)(1)
(3) Government Code §65915(f)(4)
(4) Government Code §65915(g)(1)
(5) Government Code §65915(f)(3); No affordable units are required for senior housing units to receive a density bonus.
ATTACHMENT 4
Comment letter
Attached to this cover sheet is a letter to Airport Land Use Commission of San Diego County dated June
1, 2020 from Citizens for a Friendly Airport requesting a continuance of the determination of
consistency for the proposed amendments, and the city response to the letter dated June 4, 2020.
From: Corey Funk <Corey.Funk@carlsbadca.gov>
Sent: Thursday, June 4, 2020 8:37 AM
To: Redman Ralph <rredman@san.org>
Cc: Don Neu <Don.Neu@carlsbadca.gov>; Jennifer Jesser <Jennifer.Jesser@carlsbadca.gov>; Ronald
Kemp <Ronald.Kemp@carlsbadca.gov>
Subject: Re: Application for ALUC consistency determination - ADU Amendments 2020
To: ALUC for San Diego County
Regarding the letter dated June 1, 2020 from Citizens for a Friendly Airport, which requested a
continuance of the ALUC Determination of Consistency for Carlsbad’s proposed Density Bonus
Amendments, the city would like to submit the following comments for the ALUC’s consideration:
California Government Code Section 65915(a) requires city’s and counties to adopt density bonus
regulations in compliance with state law:
§65915(a)
“All cities…shall adopt an ordinance that specifies how compliance with this section will be
implemented. Failure to adopt an ordinance shall not relieve a city…from complying with this
section.”
Assembly Bill 1763 amending Government Code 65915 was signed into law in 2019 and became
effective on Jan. 1, 2020. Carlsbad’s density bonus regulations need to be amended to be consistent
with the changes made by Assembly Bill 1763. Carlsbad’s proposed Density Bonus Amendments would
bring the city’s density bonus regulations into compliance with state law.
No physical development is proposed by Carlsbad’s proposed Density Bonus Amendment, which is solely
comprised of amendments to Chapter 21.86 of Carlsbad’s Zoning Ordinance.
Future development proposals that include a density bonus would be evaluated on a case by case basis
and subject to review and compliance with the McClellan-Palomar Airport ALUCP, as required by
Carlsbad General Plan Policy 2-P.37.
The city concurs with the determination of consistency made by Ralph Redman, Manager of Airport
Planning on May 20, 2020 for Carlsbad’s proposed Density Bonus Amendments.
Sincerely,
Corey Funk, AICP
Associate Planner
Planning Division
Community Development Department
City of Carlsbad
June 4, 2020
ALUC Meeting
ITEM 2 -
COMMUNICATION
RECEIVED FROM
THE PUBLIC
1
June 1, 2020
Citizens for a Friendly Airport
7040 Avenida Encinitas, Suite 104-467
Carlsbad, CA 92011
San Diego Regional Airport Authority Mailing Address
Airport Land Use Commission SDCRAA
SDCRAA Administration Building P.O. Box 82776
3225 No. Harbor Drive San Diego, CA 92138-2776
San Diego, California 92101
c/o and Requested Distribution to Addressees Prior to Thursday June 4, 2020 meeting by Tony R.
Russell, CRM, MMC. [clerk@san.org and SDCRAA General Phone: 619 400-2400]
Director | Board Services/Authority Clerk
Members: C. April Boiling (Chairperson), Catherine Blakespear, Greg Cox, Mark Kersey, Robert T.
Lloyd, Paul McNamara, Paul Robinson, Johanna S. Schiavoni, Mark B. West and Ex-Officio Board
Members: Gustavo Dallarda, Col. Charles B. Dockery, Gayle Miller AND President/CEO Kimberly J.
Becker
SDRAA Legal Counsel: Amy Gonzalez. [Amy.Gonzalez@san.org]
VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org])
State of California City of Carlsbad
Department of Transportation 1200 Carlsbad Village Dr.
Division of Aeronautics Carlsbad, CA 92008
P.O. Box 942873 FOR: City Council, City Manager, City Attorney
Sacramento, CA 94273-0001 c/o Carlsbad City Clerk
[General Info Phone: 916 654-2852] Clerk@carlsbadca.gov
Attn: Amy Choi [CT Org Chart hard to read]
c/o Cal Trans Director [See May 2020 CT org chart]
2
Re: (1) Request for Continuance of ALUC Proposed Consistency Determination Scheduled for
June 4, 2020 as ALUC Agenda Item 2 Re: Consistency of Carlsbad Zoning Density with
2010/2011 Palomar Airport Land Use Compatibility Plan; and
(2) Request for ALUC Expedited Processing of an Update to 2010/2011 McClellan-Palomar
Airport Land Use Compatibility Plan as a Result of County 2018 – 2038 Palomar Airport
Master Plan and PUC and State Aeronautics Manual Requirements
Ladies and Gentlemen:
On Friday May 29, 2020, Citizens for a Friendly Airport (C4FA) received SDCRAA ALUC notice of the
ALUC’s intent to act on ALUC Agenda Item 2 on June 4, 2020.
By ALUC Agenda Item 2, Carlsbad requests that the ALUC find that the Carlsbad zoning changes related
to Carlsbad high density development are consistent with the development and operation of McClellan-
Airport, a County of San Diego owned and operated airport. C4FA clearly disagrees with Carlsbad.
The Airport, though within Carlsbad, is surrounded by developable land in the cities of Carlsbad, Vista,
and unincorporated areas of the County of San Diego.
C4FA requests a continuance m until ALUC staff has prepared a report to the ALUC members analyzing
the points below and until ALUC has given the public more time to review this matter.
Alternatively, if the ALUC proceeds with this item, we request that the ALUC deny a finding of
consistency. The ALUC would not have enough data to determine whether the ALUC is complying with
(1) the California Public Utilities Code (PUC) and (2) the State of California Aeronautics Manual, which
State law requires ALUCs to follow, and (3) an UPDATED Palomar Airport LUCP.
Because Covid ALUC hearing restrictions make communicating orally with the ALUC and Carlsbad difficult,
we request that this letter be read into the record at the ALUC June 4, 2020 meeting and all related meetings of
the Carlsbad City Council. Only in this way, can we be assured that (1) our concerns have been recognized by
ALUC members and (2) that members of the public who are able to watch a broadcast of the ALUC meeting
are apprised of the specific C4FA concerns. Because this C4FA letter is from a group of citizens, we request
the ALUC allow more than the ALUC-allotted 3 minutes to read the letter into the record.
The 2010/2011 McClellan-Palomar Airport LUCP is out of date for four reasons.
1. The ALUC Failed to Update the Palomar Airport LUCP by 2016 and Failed to Conform to the
State Aeronautics Manual. As C4FA pointed out in great detail in its September 2018 twenty-
nine page letter to the ALUC, the Palomar Airport 2010/2011 LUCP was out of date long before
County adopted its October, 2018 new Palomar Airport Master Plan (PMP) to convert Palomar
Airport from an FAA rated B-II airport to an FAA D-III airport. For purposes of the
Administrative Record, we incorporate the C4FA September 2018 letter by reference.
According to the California Department of Aeronautics Manual, LUCPs should be updated every
5 years. Palomar Airport was due for an update in 2016 – especially since it appears that the
SDCRAA ALUC 2011 update was made shortly after the ALUC assumed responsibility under
State law from SANDAG. In other words, the newly created Authority and ALUC had little
experience in preparing LUCPs at that time. Consequently, it overlooked various issues as
C4FA pointed out in its 2018 letter.
3
2. The ALUC Failed to Review the County 2018 Palomar Airport Master Plan (PMP) Prior to the
Time the County Board of Supervisors Acted on its 2020 PMP and Related PMP EIR.
The county and the SDRAA ALUC are denying the public a reasonable opportunity to comment
on the consistency of proposed zoning changes by cities around Palomar Airport with a
CURRENT Palomar Airport LUCP. Just a few facts supporting that conclusion include the
following:
§ The ALUC is not a Neutral Arbiter of Consistency Issues. In 2010, the ALUC’s
“parent,” the full SDCRAA adopted a Regional Strategic Airport Plan (RASP).
The RASP lists many ways in which county airports, including specifically
Palomar Airport, can expand. While we recognize that the SDCRAA is in the
business of promoting airports, the SDCRAA has a PUC statutory duty to act
impartially. Having adopted a RASP promoting airport expansions, the
SDCRAA should not be undertaking ALUC actions that give the public only the
barest notice related to an out-of-date Palomar Airport LUCP.
§ The ALUC Failure to Review the County 2018 PMP Prior to Board of
Supervisor PMP Action Denied County and the Public 1/8 of the Information
that County’s PMP Promised to Provide the Public. When circulated, the
County’s PMP and PMP EIR expressly promised the public and reviewing
public agencies that County would analyze 8 distinct issues.
One specifically listed issue was the impact of the Palomar Airport D-III
conversion and construction of $100,000,000 plus of Palomar Airport runway
extensions and runway relocation improvements on the noise and safety of
surrounding communities.
The PUC expressly delegates to ALUCs the duty to prepare Land Use
Compatibility Plans so that private and public owners near an airport know if
development of their lands will be restricted by noise and safety zones.
Because the ALUC failed to timely act, the County PMP and PMP EIR provide
no specific information as to how County Palomar Airport expansion affects
development of land parcels outside the airport that will be restricted.1
§ We understand that the PUC and/or State Aeronautics Manual require an airport
owner and operator to submit proposed airport changes to the ALUC prior to the
time the owner/operator adopts its plan. That requirement suggests that the Cal
Trans Division of Aeronautics expected airport owners and operators to receive
1 County and Carlsbad often say Palomar Airport improvements will again be reviewed in the future and hence the
2018 County PMP does not by itself impact safety and the environment. That argument fails for two reasons.
First, no one will ever know whether the Supervisors would have adopted the 2018 PMP in the format proposed –
which governs Palomar Airport development for 20 years – if the noise and safety impacts on surrounding
property owners were known. Those impacts could only be known if the ALUC had timely acted to update the
Palomar Airport LUCP. Secondly, the County and Carlsbad argument that the 2028 PMP does not trigger impacts
until Palomar Airport physically expands conflicts with an ongoing County and Carlsbad argument. They say that
the county cannot limit the size and speed of aircraft using Palomar Airport. Since at least 1990 County has been
attracting FAA-rated C and D larger, faster, more fuel-laden airport to Palomar. The Palomar Airport runway does
not meet FAA Design Manual requirements for such aircraft. Hence, the existing ALUC LUCP is out of date.
4
ALUC input before adopting proposed plans. However, county submitted its
2018 PMP to the ALUC only about two weeks before county’s Board of
Supervisor PMP adoption. We are not aware of any substantive comments that
the ALUC has provided to county regarding an updated LUCP as of May 2020.
3. The ALUC has Failed to Timely Update the ALUC 2010/2011 Palomar Airport LUCP. Almost
two years have passed since C4FA’s September 2018 letter to the ALUC noting Palomar Airport
LUCP deficiencies and since the Board of Supervisor’s October 2018 adoption of its 20-year
Palomar Airport Master Plan. And, we understand that the county’s proposed 2018 PMP was
available to ALUC staff in draft in 2017. Having ignored 3 years of lead time, the ALUC cannot
claim in good faith that it is maintaining a CURRENT LUCP that fairly apprises property owners
near Palomar Airport of the noise and safety ALUC zone restrictions on their property. In the
meantime, many property sales could be occurring substantially affecting buyers and sellers.
The City of Carlsbad, the County of San Diego, and the ALUC are well aware of the problems
that lack of ALUC transparency has caused to private property owners surrounding Palomar
Airport. We understand that several land parcels just west of Palomar Airport resulted in several
proceedings and lawsuits against Carlsbad, the County, and the ALUC from 2014 to 2020.
In a lawsuit concerning 5817 Dryden Place, Carlsbad, CA, the plaintiffs alleged that as a result of
the ALUC restrictions, which essentially converted the property from first class office space to a
warehouse with very limited occupancy, their property had been unfairly taken and/or restricted.
We understand that County bought the Dryden Place property for approximately $6,000,000 to
resolve this most recent lawsuit.
IF the ALUC had given proper notices to property owners around Palomar Airport when the
property was first restricted, the City of Carlsbad, the County, and the ALUC would have avoided
hundreds of hours of effort, hundreds of thousands of dollars in attorney fees, and likely a County
purchase price substantially below the $6,000,000.
4. Lastly, the ALUC Fails to Provide Adequate Notice to Property Owners Surrounding Airports
Who May be Impacted by ALUC Property Noise, Safety, and Occupancy Restrictions. Federal
and State Constitutional Due Process Requires More than a Brown Act Blanket Notice of ALUC
Agenda Items given to the community generally. The ongoing ALUC inadequate processes have
caused prejudice to private property owners surrounding Palomar Airport as noted in the
Dryden Place example above.
For the above reasons, C4FA requests the ALUC continue its consistency review until ALUC staff may
prepare a staff report for ALUC members as outlined in this letter or deny the finding of consistency as
noted initially in this letter. Please especially note that a June 4, 2020 ALUC consistency determination
would automatically fail to comply with county’s current Palomar Airport Master Plan, which the county
adopted in 2018 and for which the ALUC has failed to designate noise and safety zones.
Thank you for your review and consideration of this letter.
C4FA by Hope Nelson. [Signing authority for HN given to Ray Bender]
ATTACHMENT: C4FA September 19, 2018 letter noted in text above.
Cc: Cory Briggs, Attorney for C4FA in pending actions with Carlsbad and County.
2020 5 SDCRAA ALUC Palomar Consistency Letter Final Final Final
1
September 19, 2018
Citizens for a Friendly Airport 7040 Avenida Encinitas, Suite 104-467 Carlsbad, CA 90211
San Diego Regional Airport Authority Airport Land Use Commission SDCRAA Administration Building 3225 No. Harbor Drive San Diego, California 92101
Members: C. April Boiling, Greg Cox, Jim Desmond, Mark Kersey, Robert T. Lloyd, Paul Robinson, Johanna S. Schiavoni, Michael Schumacher, Mark B. West and Ex-Officio Board Members: Tim Gubbins, Jacqueline Wong-Hernandez, , Col. Jason Woodworth President/CEO Kimberly J. Becker SDRAA Legal Counsel: Amy Gonzalez VIA: Attn: Ms. Diane Casey (Assistant to CEO Kimberly J. Becker [DCasey@san.org]) [Note: Email name and address we were given when
calling SDRAA today Wednesday, September 19.) Re: ALUC Processing of Update to 2010/2011 McClellan-Palomar Airport Land Use Compatibility Plan As a Result of County 2018 – 2038 Palomar Master Plan
2
Ladies & Gentlemen: We understand that the County of San Diego Board of Supervisors will likely approve its twenty-year McClellan-Palomar Airport
Master Plan and certify its Programmatic EIR on October 10, 2018. We also understand that the SD ALUC will be updating the 2010/2011 MP Land Use Compatibility Plan to comply with state requirements.1 The C4fa-detailed-comments follow in the table below. Please assure that these comments are considered by ALUC staff and the ALUC members when preparing the update.
But a few new comments are appropriate in light of county comments in the last week. When preparing its MP LUCP update, the ALUC needs to look at the actual Palomar Master Plan (PMP) projects county proposes – as opposed to the labels that county is trying to give its PMP in its last minute effort to overcome public comments on its PMP and
Draft PEIR. Here is why.
• Palomar Critical Design Aircraft. County’s PMP concedes that more than 500 annual C and D operations have occurred at Palomar annually over the last 15 years. In fact, the number exceeds 10,000 annually in most years. The FAA requires the
Airport Reference Code (ARC) to conform to the actual critical design aircraft. Yet county’s recent papers suggests it may
“maintain” Palomar as a B-II airport.
• Runway Safety Area. County has said in its PMP that it will ultimately place an EMAS [350-foot Engineered Materials Arresting System] at each runway end. However, county’s PMP says it won’t install the east end EMAS for at least 13 years.
These facts make it apparent why county may want to continue to say Palomar is a B-II airport when the proper FAA critical aircraft design ARC designation is C. An FAA C designation requires 1000-foot runway safety areas (RSAs) at each end of the Palomar paved runway. Or an FAA-approved EMAS. Count’s clear desire – even with an initial 200-foot runway extension – is to operate without an east end EMAS. As a result an aircraft taking off toward the east and overshooting the runway travels into the Palomar Unit 3 19 acre runway east end landfill, which has a methane gas collection system beginning
about 4 feet below the sandy surface.
• PMP Wingspan Separation. Quite clearly what county is trying to claim is that it is maintaining a B-II airport to sooth public objections but build projects to meet FAA ARC D requirements. The best example of this is county’s plan to increase the
1 The CalTrans State Aeronautics Handbook, which State law requires the ALUC to follow, recommends an update at least every 5 years. So the MP LUCP update was due several years ago, especially in light of the very substantial development of the vacant land around Palomar Airport and within 2 miles of it.
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distance between the Palomar taxiway centerline and runway centerline so that larger C and D aircraft with wider wingspans can concurrently operate.
• Runway Width. The FAA requirement for runway width of a B airport is 75 feet to 100 feet. Yet county now has a 150-foot runway and will relocate the runway with a similar width. Thank you for considering the C4fa comments. Please confirm your receipt of this email and the distribution of the comments to Raymond Bender at benderbocan@aol.com and 760 752-1716. We also request (1) actual notice of all meetings at which the ALUC will consider the MP LUCP Update and (ii) copies of all materials that ALUC provides ALUC members at least two
weeks before the meeting at which the ALUC considers an MP LUCP update so that C4fa members have a fair opportunity to review the issues. That process will allow better C4fa input at the upcoming ALUC meeting considering the MP LUCP Update. We also request that the ALUC determine and provide actual notice to the property owners surrounding Palomar Airport that may be impacted by Updated ALUC MP LUCP noise and safety maps. As mentioned in the table below, we understand that some owners whose property was impacted by the 2010/2011 ALUC MP LUCP Update did not timely receive actual noise and were substantially adversely affected. PLEASE ESPECIALLY NOTE THAT THE BELOW TABLE CONTAINS SEVERAL SCREEN SHOTS WHICH MAY TAKE A MINUTE TO APPEAR ON THE COMPUTER SCREEN. PLEASE ASSURE THE SCREEN SHOTS ARE PRESENT BEFORE REPRODUCING COPIES FOR THE INTENDED RECIPIENTS.
Comments of Citizens for A Friendly Airport (C4FA.org) on ALUC Update of 2010/2011 McClellan-Palomar Land Use Compatibility Plan as a Result of County’s New Twenty Year Palomar Master Plan
Preliminary Comments:
• C4fa. Citizens for a Friendly Airport is a citizens group, whose members have provided comments to County and Carlsbad on (i) the March 2018 County PMP Programmatic EIR (PEIR); and (ii) the June 2018 County re circulated portions of the PEIR.2 C4fa maintains a website at C4fa to inform the public about the impacts of county’s proposed Palomar Master Plan
projects.
2 After receiving comments from the city of Carlsbad’s nationally recognized aviation law firm (Kaplan, Kirsch, and Rockwell) and the public, county in June 2018 requested further PEIR comments on biological, greenhouse gas (GHG), energy consumption, and Runway Protection Zone (RPZ) issues. By August 6, 2018 Carlsbad and the public again commented noting major deficiencies in the county PEIR assumptions, facts, methodologies, and analyses.
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• C4fa McClellan- Palomar Land Use Compatibility Plan [LUCP] Concerns. o Based on reviewing the process previously followed by the SDRAA ALUC, Carlsbad residents are concerned that
the ALUC process does not sufficiently analyze or inform the public of ALUC restrictions on lands near the airport.
o For instance, at a Carlsbad Council meeting earlier this year, two businessmen appeared before the Council and noted (i) ALUC restrictions have caused them to lose more than $1 million, essentially converting a first class office building, to use for limited storage and (ii) they became aware of ALUC LUCP restrictions incidentally, not by ALUC actual notice. o The ALUC should assure that new ALUC restrictions resulting from the county 2018 PMP and/or Airport Layout
Plan (ALP) are properly adopted with actual notice to the property owners who may be impacted so they can timely provide their input to the ALUC.
• C4fa Public Input. C4fa members have appeared before the Carlsbad City Council five times since February 2018 to
provide the council information related to county’s PMP and PEIR and also attended PMP workshops. County operates MP
pursuant to Carlsbad CUP 172, which county says in its current PMP and PEIR, that county need not comply with.
• Savecarlsbad.com For the last two years, one C4fa member (Graham Thorley) has maintained the website www.savecarlsbad.com to inform the public of Palomar-related issues.
• Carlsbadpatch.com & San Diego Free Press Palomar Info. For the last four years, one C4fa member (Ray Bender) has posted more than 200 articles on Carlsbadpatch.com related to Palomar developments and had seven articles published in
the San Diego Free Press related to Palomar issues.
• The 3 PMP Projects. The county 2018 PMP proposes three basic Palomar Airport expansion projects: o D-III Conversion: Converting Palomar from an FAA-rated B-II airport to a D-III airport to handle a higher
percentage of corporate jets and passengers by regularly scheduled air carriers. County forecasts a future passenger level of 304,000 to 575,000 depending on marketing success. In December 2016, Supervisor Horn stated it was
5
time for Palomar to replace the GA aircraft with the larger, faster commercial aircraft. Attachment A to these
comments provides a transcript of Mr. Horn’s comments, which advise small aircraft to move to other airports.3
o 200-foot Runway Extension & West End EMAS & East End RSA (Near Term).
o Runway Relocation north about 100 feet, and a total either 800-foot extension or 900-foot extension from 4900 feet to 5700 or 5800 feet, and EMAS at both west and east ends (Longer Term). County’s PMP and PEIR
conceal the 900-foot extension (rather than 800-foot extension) in the following way.
At the December 15, 2016 BOS meeting, four of the five BOS members accepted the SD consultant Kimley-Horn recommendation for an uop to 800-foot extension. Supervisor Horn did not he pressed the consultant to come up with an extra 100-feet.
On the surface, the 2018 PMP projects refer to an up to 800-foot extension. However, Kimley-Horn as
directed by Supervisor Horn suggested a massive west runway end retaining wall costing about $12 million in order to create additional land.
County in the past, without any fanfare or notice to the SDCRAA ALUC increased the Palomar runway from 4700-feet to the current 4900-feet.
In other words, quite clearly what the BOS intends to do is approve an unneeded west end $12 million retaining wall so that county at some time in the future with a CEQA negative declaration can add 100
feet to its then 800 cumulative extension.
CONCLUSION: The ALUC needs to pin the county down or simply analyze a 900-foot runway extension rather than an 800-foot runway extension.
o D-III Conclusion:
o Although county in the last week has suggested it might label Palomar as a B-II airport, its PMP makes clear that it is undertaking improvements for a D-III airport. The PMP improvements documenting that include D-III sized runway lengths and widths; installing 350-foot EMASs [eventually) in lieu of 1,000 foot RSAs to meet D-III FAA RSA requirements; building a $12 million runway west end massive retaining wall, which is not needed for an 800-foot runway extension but is needed for a 900-foot runway extension; and installing
$8.6 million of navigational aids. As noted initially above, judge county not by its labels but by the actual improvements it intends and passenger levels it forecasts, which determine the size of the ALUC-designated noise and safety areas.
3 As the SDCRAA recognized when it prepared its 2010 Regional Airport Strategic Plan (RASP), the SDCRAA can divert aircraft from Lindbergh Field by changing rate structures that discourage Lindbergh Field use and encourage aircraft to Palomar. This is just one example of how increased FAA-rated C and D aircraft using Palomar will displace the smaller general aviation aircraft.
6
• Specific McClellan-Palomar Land Use Compatibility Plan Issues. C4fa members have reviewed the 2010/2011 McClellan-Palomar LUCP. Based on that review, we request that ALUC staff discuss the below issues in its report and recommendation to the ALUC members when considering how to update the 2010/2011 MP LUCP.
• Table Part A below discusses specific ALUC compatibility issues that the county PMP project elements raise. Table Part B below indicates why various sections in the ALUC 2010/2011 MP LUCP require updating.
PART
LUCP Issues raised by the County 2018 PMP Project Elements
Preliminary Note:
The SDCRAA ALUC airport Land Use Compatibility Plan (LUCP) process follows the guidance set forth in the CalTrans Division of Aeronautics “California Land Use Planning Handbook.” In § 2.4.2 entitled ALUCP Amendments at page 2-9, the Handbook states: “A comprehensive review and update is recommended at least every five years. The ALUC last updated the McClellan-Palomar LUCP in 2010/2011, about 7 years ago.
As noted below, in the last 12 months alone, Carlsbad has authorized construction projects within 3 miles of the airport totaling more than 1,000,000 square feet. Accordingly the ALUC should be starting a “comprehensive” MP LUCP review even before county submits its proposed $110,000,000 Twenty-Year Palomar Master Plan project expansion.
Also, note that when the ALUC last updated the MP LUCP, the ALUC used the Cal Trans 2002 Handbook edition. [See § 1.2 at page
1-4 of 2010/2011 MP LUCP.] In short, a new ALUC analysis redefining airport-related noise and safety zones needs to take into account (i) considerable Carlsbad development near the airport, (ii) the latest requirements of the 2011 Cal Trans Handbook, and (iii) county’s desire to both extend its runway 800-feet over a methane emitting landfill and to relocate the runway and convert Palomar from an FAA-rated B-II airport to
an FAA-rated D-III airport.
# Issue Old v. New and/or Requested ALUC Analysis & Points to be Considered
7
Clarifications
1 Runway Size Phase 1: 4900-feet to 5100
[EXISTING Runway location]
• Advise how the 5 existing noise areas and 5 existing safety areas will change
• Points to consider include:
o Post 2010 Carlsbad Development. Carlsbad has permitted many hotels and developments just south of Palomar Airport Road (PAR) within 2 miles of MP since the 2011 LUCP;
o D.R. Horton Runway Approach Development. As these comments are written, D.R. Horton is building many new townhouses directly within the Palomar east approach path;
o 20-Fold Forecasted Increase in Passenger Traffic. County forecasts air carrier annual passenger increases from less than 15,000 today to between 304,000 and 575,000 in its twenty-year plan4. o Displacement of GA Aircraft and Upward Swing in FAA-Rated C and D Aircraft. Supervisor Horn at a Board of Supervisor meeting set a goal of displacing
general aviation aircraft in favor of commercial aircraft. [See our Table Attachment A, Horn 12/15/16 Transcript.]
When FAA-rated A and B aircraft crash, they carry comparatively few people and comparatively little fuel. When FAA-rated C and D aircraft crash, they typically carry far more people and fuel and crash at faster speeds. The table below provides a rough listing of fuel and passenger loads. In the last four years, Palomar has handled
few air carriers and very light passenger loads. Most B and C aircraft operations
were corporate with the aircraft carrying 2 to 8 people. As the table shows, as aircraft size, speed, and fuel carriage increases, the aircraft in a crash is a bigger bomb capable of causing great damage. The many manufactured housing units about 2 miles east of the Palomar Airport runway would easily be destroyed by a large
4 As the current MP LUCP notes (See C-5 of Appendix C) ALUC-designated safety zones take into account harm to aircraft occupants as well as safety on the
ground.
8
aircraft crashing into the mobile home park.
REQUEST: When calculating its new MP LUCP safety areas, the ALUC should include its own Risk Safety Table showing how converting Palomar from a B-II airport to a D-III airport or D-III airport and changing the aircraft mix will increase safety concerns. How will the size of the impact areas and dispersion areas change with D-III aircraft v. A or B aircraft?
Comparative Risks: A v. B v. C v. D Aircraft
Size Max Take Off
Weight
Max Approach Speed (knots)
Max
People at
Risk on Aircraft
Max Fuel
Load
(lbs.) and (gal)
A 2,750 pounds 91 2 432 (72 gal) B ? 121 30
C ? 141 60 ?
D 91,000
pounds
166 110 41,300
(6,883 gal)
2 Runway
Size
Phase 2: 100-
foot North
Relocation and
Rebuild: 4900-feet to 5700 feet5
• Advise how the 5 noise and 5 safety areas will change again when county both shifts its
runway north and extends the runway 800 feet in total.
• Points to Consider – in addition to those in Item 1 above – discuss the issues below. o Added Threats to ECR Traffic. With the existing 4900-foot runway, landing
aircraft touch down about 1200 feet from ECR. With a 5700-foot runway, landing aircraft will touch town about 400 feet from ECT. At an approach speed of 166
5 We are aware that the 2010/2011 MP LUCP refers to the ALUC analyzing runways in the range of 4,000 to 6,000 feet in length. However that analysis
involved a B-II airport serving 90% small GA aircraft with comparatively few passengers. As noted in the table above, a Palomar Airport handling
predominantly B, C, and D aircraft and hundreds of thousands more passengers raises entirely different safety considerations.
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knots, the aircraft travels about 280 feet per second. So an 800-foot extended runway
will place 100,000 pound landing aircraft about 1.5 seconds from ECR traffic. It appears that landing aircraft would be about 100 feet above ECR car and truck rooftops. When updating the MP LUCP, please provide the accurate data to replace our estimated data and assess the increased risk.
o Added Threats to Areas North of Relocated Runway & Taxiway. Relocating the runway north removes north Palomar Airport aircraft parking. That movement combined with faster, larger aircraft increases the chance of an errant aircraft sliding into private property north of the runway. Assess this risk.
o Changes in Risks Resulting from EMAS Installs. Palomar now has no Engineered Material Arresting Systems (EMASs). County plans to install two EMASs, one at each relocated runway end (with the east end EMAS delayed about 15 years.) EMASs are meant to control rolling aircraft (at the end of takeoff or end of landing)
traveling no more than about 70 knots). However, an EMAS install requires the
county to designate a “buffer” area between the interior EMAS and runway-landing threshold. In short, the landing runway threshold will be displaced to assure landing aircraft touching down at 121 to 166 knots do not enter the EMAS closest to landing. Accordingly, the threshold displacement alters the approach RPZ area. In the updated MP LUCP, distinguish the approach and departure RPZs and explain how
county PMP project changes affect their designation.
• REQUEST: In the updated MP LUCP, address the issues discussed above.
3 County-Desig-
nated
RPZ Areas
County’s June 21, 2018 Re-
circulated PEIR
RPZ Areas
• County’s June 21, 2018 Re-circulated PEIR parts includes redrawn RPZs for various
Palomar Airport alternatives. For the many reasons set forth in our August 2018 comments,
to the county PEIR re-circulation, the county-depicted RPZs are incomplete and often misdrawn. See the Bender comment Items 31 – 43 at pages 51 – 75 of the Comments on the County Re-circulated PEIR portions. We mailed hard copies of our comments to the ALUC during the week of August 6. The ALUC also has our binder comments from March 2018,
which describe in detail why county’s PMP and PEIR fail to comply with Government Code Planning and Zoning requirements, which we understand the ALUC needs to review to find that the County General Plan is consistent with the ALUC Updated 2018 MP LUCP.
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• Rather than repeat all of our PMP PEIR RPZ comments, we incorporate them by reference. In sum:
o County is incorrect when it suggests that future RPZ areas will be smaller than
current RPZ areas. The increased airport mix of faster, larger aircraft will enlarge the areas. If the ALUC disagrees, please explain in your updated MP LUCP. o In preparing the RPZ areas, county has failed to properly account for EMAS installations and EMAS/runway buffer areas. o County has failed to provide drawings actually showing the property owners
impacted by new RPZs.
• REQUEST: In the updated MP LUCP, address the issues above.
4 Passen-ger Load
and
Larger
Aircraft
Increase from 15,000 to as
much as 575,000
• The ALUC 2010/2011 MP LUCP refers to a then existing 15,000 annual Palomar passengers with projected passengers of 35,000.6
• County’s 2018 PMP forecasts a low passenger range by 2036 of 304,0007 (county’s PAL 1) annual passengers and a high of 575,000 (county’s PAL 2).8
• REQUEST: The ALUC Updated 2018 MP LUCP needs to assess the increased passenger risk resulting from:
o Up to 15 to 20 times as many passengers being handled; and o Passengers using 100 seat aircraft rather than 30 to 50 seat aircraft, which
means crashes will occur with substantially more fuel aboard and likely at faster speeds.
PART B
Comments on Sections in the ALUC 2010/2011 MP LUCP Requiring Updating
6 See MP LUCP, Table IV-2 at page 4-13. 7 See 2018 PMP, Table 3.17 at page 3-33. 8 See 2018 PMP, page 4-2 and county based this number on an earlier ALUC RASP.
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Comments on ALUC 2010/2011 MP LUCP Chapter 1 entitled Introduction
1 § 1.1,
Overview p. 1-1
• Compati-
bility v. Consistency
• PUC References
• ALUC Terminology: Compatibility v. Consistency. Throughout the LUCP, the ALUC
uses the terms “compatibility” and “consistency.” ALUC does not well define the difference between the terms. Clarification would be helpful. o We understand “compatibility” to focus on whether local community land use
policies around Palomar are compatible with the standards established in the Cal
Trans, Division of Aeronautics, Land Use Planning Handbook and the standards that ALUC establishes. o In contrast, we understand the term “consistency” to focus on whether (i) local community-adopted General Plans are “consistent” with the ALUC-established
airport compatibility standards or (ii) inconsistent because a local entity has qualified its acceptance. .
o We especially focus on this issue as a result of a C4fa member conversation with ALUC staff last year. In that conversation, the staff member was especially sensitive to the use of these two different terms. We wish to be accurate. Precise guidance
would be helpful.
• REQUEST: If our understanding of the meaning of the two terms is incorrect, please clarify the correct use of these terms in the ALUC updated MP LUCP. If our understanding is correct, revise the MP LUCP to more clearly make the distinction. Consider supplementing the ALUC MP LUCP definitions, which occur later in § 2.2.
• MP LUCP Statutory References. The MP LUCP Appendix A reproduces various laws. It would be helpful if the MP LUCP crossed referenced Appendix A when citing the law.
§ 1.1.2 Statutory
Require-ments p. 1-2 et
• ALUC – FAA
Jurisdictional Issue
• At p. 1-3, the MP LUCP notes that the “ALUC has no jurisdiction over federal lands.” Due to the 2018 county PMP projects proposed, interesting issues arise as to how the foregoing
limitation impacts ALUC noise and safety areas for the following reasons:
o FAA Leased Lands. The ALUC needs to clarify what “federal lands” means. The
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seq
• Public Notice Issues
Related to
ALUC Adoption of MP LUCP
FAA does not own the MP northeast parcel at El Camino Real (ECR) and Palomar
Airport Road (PAR). However, the 2018 county PMP lists among the projects that will be carried out the installation of $8.6 million dollars of navigational improvements that will be necessary on the northeast parcel as a result of county extending its runway 800 feet eastward. County leases various land areas on the
northeast parcel to the FAA. Question: Are lands leased to the FAA within ALUC
jurisdiction? Are lands leased to the FAA within the city of Carlsbad land use
jurisdiction? o RPZs. If lands leased to the FAA are not within ALUC jurisdiction, how does that conclusion impact, if at all, the designation of RPZ zones and other safety zones that
the ALUC designates in its updated MP LUCP? We understand that in the past, the ALUC – when determining the five safety zones around Palomar – has included the northeast parcel as the Runway Protection Zone (RPZ)
• REQUEST: In the updated MP LUCP, explain: o Whether the ALUC does or does not have jurisdiction over lands that the county leases to the FAA for navigational aids and provide the FAA correspondence confirming the ALUC’s conclusion. o Whether and how such leased land impacts the ALUC designation of MP LUCP
noise and safety zones.
• ALUC NOTICES TO PROPERTY OWNERS.9 MP LUCP § 1.1.2 discusses laws applicable to the ALUC creating an MP LUCP but says nothing about what notices the land
owners affected by ALUC designation of noise and safety zones are entitled to. The
importance of this issue is shown by recalling recent history. o Adversely Affected Landowners. We understand that several months ago several businessmen owning land within MP LUCP land-restricted areas appeared before the
Carlsbad city council. They noted that ALUC restrictions had greatly restricted the
9 The C4fa comments are general in nature. No attempt is made to analyze legal issues. We note though that the ALUC restricting land uses around Palomar
without first giving actual notice to known property owners in a relatively restricted area seems to raise federal and state due process issues similar to those
arising in condemnation and inverse condemnation actions.
13
value of their office facility, perhaps by as much as $ 1 million. They indicated they
had never been given actual notice of the restrictions. The Carlsbad Council refused to grant a variance for use of the property. o Due Process Standard. We have no idea what the ALUC position is on this issue.
Perhaps it is (i) the ALUC has no obligation to give actual notice to affected property
owners or (ii) constructive notice by publication in newspapers is adequate. C4fa has no notice of what the legal standard is. And that is precisely the point. The ALUC is undertaking regulation without fully informing those regulated what their rights are. If the ALUC is constructively taking property by regulation, property owners should be given actual notice so they can appear at the ALUC meeting at which their
property interests may be adversely affected.
• REQUEST: In §1.1.2 of the updated MP LUCP, explain what notices the ALUC will give to property owners affected by its proposed noise and safety zone designations. If the ALUC position is that no actual notices are required, explain why not. Also state
the newspapers that the ALUC does use when it publishes notices of its actions. Comments on ALUC 2010/2011 MP LUCP Chapter 2 entitled Airport Land Use Commission Policies
2 § 2.2.14
CNEL p. 2-3
• Berkeley Keep Jets Over the Bay,
111 Cal.Rptr.2d 598 SNEL
• The MP LUCP states in § 2.2.14 that CNEL is the land use metric adopted by the State of California for land use planning. State law includes both legislative and court made law. In
Berkeley Keep Jets Over the Bay, the court concluded that airport planning also required analysis of Single Noise Events (SNELs). The MP LUCP definitions in § 2.2 do not address
this issue.
• REQUEST: In its updated MP LUCP, explain how the ALUC will consider the SNEL analysis issue in its analysis now that the court has required it. In that discussion, explain how SNELs affect student learning. See for instance the August 2018 report entitled “Assessing Aircraft Noise Conditions Affecting Student Learning – Case Studies” by Arup and Partners and Cornell University and Queen Mary University. We reproduce the cover page from the report below to aid you in finding it.
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§ 2.4 Airport Impact Types,
p. 2-10
and §3.6 Over-flights at pp. 3-55 et seq
• Overflights
Recall also that the ALUC has identified its responsibility to assess the impacts of aircraft Over flights. [ See MP LUCP p. 2-11; MP LUCP §2.4.2(d)]. In MP LUCP § 3.6, the ALUC does discuss overflight policies. However, the ALUC in essence simply says that if you are a property buyer and get notice that an airport is nearby, the ALUC has satisfied its obligation because the State dictates such notice.
But telling property owners that the airport may affect their homes is entirely different from forewarning them that their children’s education may be impacted – as the noted report documents.
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• Overflights. Various MP LUCP sections, including § 2.4.1 and § 3.6, refer to aircraft overflights as one of the four ALUC concerns. In a nutshell, the ALUC says it can do little if anything about such flights. Perhaps the ALUC could improve its analysis. For instance general aviation over flights dump lead from leaded aviation fuel on houses below.10
o Overflights trigger both noise and safety concerns. Neither the FAA, nor county,
nor ALUC describe what over flights are proper and which are not.
o We suspect that few if any ALUC Board members could explain when overflights violate the law by being too low as related to the distance of aircraft taking off and arriving at Palomar. We did not see anything in the MP LUCP, which explains this.
• REQUEST: In the ALUC MP LUCP, state (i) when aircraft arriving at and leaving Palomar Airport are deemed to be too low and hence raise safety concerns, (ii) the written source of the info that the ALUC is using, and (iii) the official complaint procedure with contact info that concerned members of the community may use when such situations occur.
From the perspective of C4fa, the ALUC shirks its duty if its response is: Talk to the FAA or Talk to the County. We understand that the answer to the foregoing question needs to relate the aircraft altitude to its distance from Palomar and perhaps to the type of aircraft (FAA-rated A, B, C, or D).
10 Because the use of leaded aviation fuel is so bad, we understand that the present FAA target to eliminate the sale of leaded aviation fuel is December 2018. However, private GA pilots tell us that leaded additives are readily available and when the sale of leaded aviation fuel is eliminated, they will simply use the additives – rather than buying a new engine or retrofitting their old engines at substantial cost.
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§2.4 and
§ 2.6.1 and § 2.8 and § 2.9 and §
2.12
Consistency of
Vista General Plan with ALUC Compatibility Plan
Also, provide an answer in terms of meaningful street locations. An answer along the lines of: Aircraft departing Palomar must be at least x feet above mean sea level when
more than y miles from the airport does not tell the reader where the x mile limit is. The ALUC can accomplish that by including in its updated MP ALUC Thomas Guide Atlas maps with appropriate radii from the airport shown.
• The ALUC 2010/2011 MP LUCP Exhibit III-2 [“Compatibility Policy Map Safety] shows the ALUC Safety Zone 4 stopping just shy of the Vista Municipal boundary. If the Palomar runway is extended 800-feet to the east, it appears based on the Exhibit III-2 scale that
property owners within the city of Vista will be impacted. The colored LUCP Exhibit III-2 provides better information but a reproduced black and white Exhibit III-2 is reproduced below.
17
2.4 and § 2.6.1 and
§ 2.8 and
§ 2.9 and § 2.12
Consistency of
County General Plan with ALUC Compatibility Plan
• Based on the county 2018 Palomar Master Plan, it appears the ALUC needs to resolve an issue it has not previously recognized. o Note from the MP LUCP Exhibit III-2 above that the county airport has an irregular
parcel outlined in blue (in the original drawing) in a north-south orientation.
o This irregular parcel crosses the Runway Protection zone and safety zones 2, 3 and 4.
o That parcel is on the Northeast corner of El Camino Real (ECR) and Palomar Airport Road (PAR). o In theory, county operates Palomar Airport pursuant to Carlsbad Conditional Use Permit (CUP) 172. However –
The Carlsbad CUP 172 boundaries [as shown in a CUP attachment] do not extend across El Camino Real to the Northeast airport parcel.
Moreover, County in its 2018 PMP and in related statements has said that it is not bound to comply with Carlsbad planning or zoning because county is a
superior governmental entity.
o Although county has adopted a General Plan as required by the Government Code,
the GP on its face states that it applies to the unincorporated areas of the county. o Accordingly, if county wants to build any structures within the irregular parcel outlined in blue noted above – which county owns – there is neither a Carlsbad General Plan nor a County General Plan.
o Conclusion: Until either (i) county says any structures it wishes to place within the irregular blue shaped area are subject to Carlsbad Planning and Zoning or (ii) county amends its General Plan in accordance with Government Code requirements to apply county planning and zoning to the affected area, it would be impossible for the
ALUC to make the statutorily required finding of consistency with the ALUC’s
updated MP LUCP.
o Note: The same issue applies at Gillespie Field and should be addressed in the Gillespie LUCP.
• REQUEST: In the Updated MP LUCP, advise (i) how the county PMP projects will impact Vista residents and (ii) what actual notices the ALUC will give to Vista property owners impacted by the county Palomar Runway extension.
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• REQUEST: In the Updated MP LUCP, advise how the ALUC will address the issue of county placing structures in the irregularly shaped blue area noted above when structures in this area exist in a “No Man’s Land” currently not regulated by Carlsbad (because the county denies the Carlsbad jurisdiction) and not regulated by the county because the county plan applies to unincorporated areas of the county and the relevant area is with the boundaries of the city of Carlsbad.
Comments on ALUC 2010/2011 MP LUCP Chapter 3 entitled McClellan-Palomar Airport Policies and Maps
3 § 3.2
§ 3.2.1
§ 3.2.2
Compatibility
Zone
Designation
• These sections seem inconsistent for these reasons:
o § 3.2.1 suggests that the 2010/2011 MP LUCP is based on the FAA approved 2008 ALP, which refers to an ultimate ARC of C-II. o § 3.2.2 in contrast refers to ALUC-designated safety zones based on “general
aviation” aircraft [as opposed to commercial sized aircraft].
o The risk to people on the ground in safety zones and the size of the crash debris field increase dramatically as aircraft increase in weight, fuel carried, and speed. o Similarly, the risk to people in a crashing aircraft increase dramatically depending on whether an FAA-rated 90,000 pound aircraft carrying 6,000 pounds of fuel, and traveling faster carries 5 corporate passengers or 100 commercial air carrier
passengers.
o In short, did the ALUC 2010/2011 safety zones analysis base its zone designations on the 10,000+ larger aircraft then using Palomar [despite the inaccurate designation of the critical design aircraft as the Falcon] or only on the “general aviation” aircraft
that the 2010/2011 MP LUCP refers to? Where is the supporting proof and
calculations of the crash debris fields to support the ALUC conclusion?
• REQUEST: In the Updated MP LUCP (i) address the issues noted above and (ii) rather than referring to “general aviation” aircraft, provide a table showing the heaviest, most
fuel laden, and fastest aircraft used to determine the crash safety areas and debris fields. Also in a technical Appendix provide the assumptions, methodology, and
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computer model used to determine the noise and safety zones so that a consultant
retained by the public may review them.
§ 3.2.2 Runway Length and Orientation • REQUEST: Because county plans to relocate its runway northward, and hence change the orientation of the runway, which the ALUC analyze in 2010/2011, in the Updated MP LUCP, show how the safety areas change. Presumably, that analysis means increasing the restrictions on some property owners and reducing the restrictions on others. Likely, such changes will have a material financial impact on such owners.
Accordingly, in the Updated MP LUCP, provide maps and lists of property owners impacted to assure that such property owners received proper procedural due process of the intended changes.
§ 3.3 Noise Compatibility Policies for
McClellan-Palomar Airport
• The ALUC noise analysis applies CNEL principles only. In Berkeley Keep Jets Over the Bay, 111 Cal.Rptr.2d 598, the California courts imposed an additional noise analysis
requirement to account for numbers of Single Noise Event Levels (SNEL).
• REQUEST: In the Updated MP LUCP also provide a SNEL analysis especially as it relates to Carlsbad schools near the airport. As noted in Item 2 at page 14 above a 2018 study of the impact of noise on schools shows that student learning can be
substantially disrupted by aircraft noise. If the ALUC does not provide an SNEL analysis, explain why so that the issues are properly framed for court review.
Comments on ALUC 2010/2011 MP LUCP Chapter 4 entitled Background Data: McClellan-Palomar Airport and Environs
4 Table IV-2 at p. 4-13 and 4-14
Enplanements
• Note that the 2010/2011 MP LUCP assumed 15,000 to 35,000 annual enplanements whereas the 2018 PMP forecasts 304,000 to 575,000 annual enplanements.
• In other words prior Palomar operations endangered about 30 persons per aircraft and forecasts about 100 persons per aircraft being endangered.
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Metroplex Flight Path Changes
Helicopter flight path changes resulting from
new hospitals and schools.
• In addition the increased passenger load means higher numbers of larger, faster, more fuel-laden aircraft flying, which changes the size and shape of the crash debris zone.
• Note also that the FAA’s implementation of NextGen [which fans out flight paths over a
broader area as reflected by noise suits against the FAA from communities now suffering
noises in neighborhoods not formerly in issue] changes the Flight Track usage at Table IV-2 on page 4-14, which the ALUC relied on to prepare its 2010/2011.
• Also, Table IV-2 at page 4-15 relied for its analysis on the location of certain hospital and
schools. We understand that in the last 8 years, more schools and hospitals have been built and presumably will be addressed in the Updated MP LUCP since crash locations for helicopters ferrying patients will change.
Table IV-3 at p. 4-23 and 4-24
Improvements near runway
County General
Plan Consistency
• Table IV-3 is seriously out of date. In the last 4 years alone, Carlsbad has approved major commercial (many hotels) and residential units within 2 miles of an extended Palomar runway. The new ViaSat HQ campus alone is nearly 1,000,000 square feet.
• The ALUC information in Table IV-3 at p. 4.24 related to the County General Plan confuses us.
o Palomar Airport as well as much of the impact noise and safety areas are within the
city of Carlsbad.
o In its 2018 PMP, the county says that – as a superior governmental entity – county is not bound by Carlsbad Planning and Zoning. o We also understand that the County General Plan expressly says that it applies only to unincorporated areas. Any county Palomar Airport owned areas within Carlsbad
[such as the entire airport Palomar parcel on the northeast corner of Palomar Airport Road and El Camino Real] is within the city of Carlsbad. o It appears therefore that county uses county land in a “NO MAN’s” land not covered by the Carlsbad General Plan and not covered by the County General Plan or the GP
policies..
o Accordingly, it appears that the last half of Table IV-3 on p. 4.24 is incorrect. Please update and explain what changes will be made and why. Please assure that the
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§4.3.2 at p. 4-33
Compatibility Data: Safety
ALUC is basing its revision on what the San Diego Board of Supervisors has actually
adopted in writing, as opposed to merely San Diego staff opinions.
• This section reliefs on various flight paths for its designation of safety zones. As noted above, the FAA introduction of Metroplex changes the prior data – as will relocation and
extension of the runway from 4900 feet to 5700 feet.
• REQUEST: Address the issues noted above in the ALUC Updated MP LUCP.
Comments on ALUC 2010/2011 MP LUCP Appendix C entitled Airport Land Use Compatibility Concepts
1. ALUC 2010/2011 Safety Analysis
See Appendix C [Airport Land Use Compatibility Concepts]
• At page C-6, the ALUC notes that the State Aeronautics Division Handbook requires analysis of commercial and general aviation airport safety contours. o The ALUC then presents Exhibits C-1 and C-2, which
respectively depict accident safety distribution contours for
arriving and departing general aviation aircraft.11 o The ALUC did not provide similar exhibits depicting accident safety distribution contours for commercial arriving and departing aircraft.
o As suggested above, we would expect commercial aircraft crash debris fields to be significantly different in shape and size due to their size, much greater fuel capacity, and speed.
• REQUEST: In the updated MP LUCP, add the commercial debris fields so safety impacts can be assessed of Palomar transitioning from a B-II airport to a D-III airport. When showing the fields superimpose them over actual properties owned so that such owners have proper notice as to how their properties may be restricted.
11 We assume the Exhibit term “accident distribution contour” is a euphemism for the distribution of aircraft debris during a midair safety event [loss of aircraft parts] or crash into the ground.
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• At page C-6, the ALUC also notes that ALUC-designated safety zones have a “spatial” and “time” element. When the ALUC prepared its 2010/2011 MP LUCP, the FAA had not yet implemented its Next Generation [NextGen] Satellite Aircraft guidance system.12 In 2010 (see
p. C-7), the ALUC assumed aircraft approaches extended 2000 feet on
either side of the runway centerline. NexGen changes this assumption. o Under the FAA pre-NextGen FAA Control Tower procedures, aircraft tended to have more uniform, repetitive flight paths. o In contrast, under NextGen, which Palomar is in the process of
implementing, flight paths will “fan out” into broader departure and arrival patterns. Accordingly, it is foreseeable that the ALUC safety zones will broaden. How this occurs is no doubt a difficult analytic problem, possibly requiring ALUC to retain aviation
experts.
o We simply note that a properly updated ALUC MP LUCP will address this issue.
• REQUEST: In the updated ALUC MP LUCP explain what criteria the ALUC uses to assess the number of feet that aircraft will approach and depart from the Palomar runway under NextGen instead of the currently used 2000-foot ALUC assumption.
• At page C-14, in Table C-1 entitled “Safety Zone Aircraft Accident Risk
Characteristics,” the ALUC evaluates various aircraft maneuver risks. It did not evaluate risks associated with Engineered Material Arresting Systems (EMAS) because Palomar in 2010/2011 did not have any EMASs.
o The county 2018 PMP proposes installation of EMAS systems in phases. As noted above, an EMAS is designed to handle aircraft
12 In the San Diego region, the FAA has referred to NexGen as its Metroplex Plan, possibly due to the substantial community opposition and lawsuits that NexGen has generated.
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overshooting a runway at about 70 miles per hour.
o An EMAS at the approach end of a landing aircraft is NOT designed for the approaching aircraft use. FAA-rated C and D aircraft can approach at up to 141 knots. Hence, approaching
aircraft must avoid the approach end EMAS at all costs.
o In addition, an aircraft taking off easterly from Palomar [the Santa Anna Wind scenario] today has 1000 feet of actual sandy area outside the runway in which to stop. If the runway is extended 800 feet and an east end EMAS installed, any aircraft overshooting the runway and EMAS will endanger
heavy traffic on El Camino Real, which adjoins the airport.
o An EMAS designed for 70 knot aircraft will not stop an aircraft on takeoff traveling 100 knots. This scenario can occur whenever an aircraft has a mechanical defect or
physically incapacitated pilot.
• REQUEST: Accordingly, in the ALUC updated MP LUCP explain how a Palomar installation of EMAS systems both improves and reduces safety and changes the ALUC-safety-designated zones under various assumptions. If the runway is extended 800-feet and an East end EMAS is added, the threat to traffic on El Camino Real (perhaps 100 feet from the EMAS end) seems significantly higher for aircraft entering the EMAS at above the 70 knot design speed – as where the aircraft encounters a mechanical failure.
• At page C- 15, the 2010/2011 MP LUCP discusses the “consequences variable.” Specifically, how large is the “swath size,” area over which accident debris is spread and hence the property and people on the
ground at risk in a crash. The existing LUCP refers to a swath size of about a football field for general aviation aircraft. However, the existing LUCP provides no data for commercial aircraft. o Since county plans to convert Palomar from an FAA-rated B-II
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airport to a D-III airport, the number of heavy, fast moving
aircraft carrying 2,000 to 6,000 pounds of aviation fuel will increase substantially. o The consequences variable also takes into account the
contamination that aircraft crashes may cause. On October 15,
2013, county’s consultant SCS Engineers provided the county a report discussing the highly toxic materials that aircraft today routinely carry. Please obtain a copy of the full report from the county to review all consequence hazards. We attach the first page of the report at the end of this table. We also quote several
report sentences listing the (i) pathogenic materials, (ii) radioactive materials, (iii) highly flammable materials, (iv) corrosive materials, and (v) cryogenic liquids turning to harmful gases that aircraft routinely carry.
• REQUEST: In the updated MP LUCP, describe the swath size for various commercial aircraft that will use Palomar in the future. Break out the swath size by size, speed, and expected fuel loads on larger aircraft.
• REQUEST: In the updated MP LUCP, describe how the swatch size enlarges when aircraft liquids turn to dangerous gases. In other words, crashing aircraft parts endanger only property and persons within the debris field. But the winds blow chorine and other gases
over a wider area. Address this issue in your updated MP LUCP.13
• At page C-16, the old MP LUCP notes that safety area designation depends in part on density and intensity requirements. In the last 7 years, Carlsbad developers have added substantial high density facilities along Palomar Airport Road including multiple hotels. Currently, a major
13 Many private and governmental Risk Management Plans [such as those involving property with large tank farms storing hydrocarbon and/or chemical
products] provide such analysis.
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Bressi Ranch addition of commercial and residential is underway.
Similarly, D.R. Horton is building townhouses and condominiums about 2 miles east of Palomar.
• On August 20, 2018, the FAA released its revised AC No. 150/5200-38
entitled “Protocol for the Conduct and Review of Wildlife Hazard Site
Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans.”14 As the AC notes, an important factor in assessing aircraft safety is the likelihood of bird strikes. The AC requires an assessment of how development around the airport can change bird habitat. In the last
12 months, it appears that developments within 3 miles of the airport are removing more than 1 million square feet of existing bird habitat. These developments include the (i) new ViaSat HQ building on El Camino Real just south of Palomar; (ii) multiple hotels just southeast of Palomar
Airport Road; and (iii) the very large Bressi Ranch addition of
commercial and residences southeast of PAR.
• In the updated MP LUCP, identify the increased Carlsbad density and intensity within 3 miles of the airport and how such development affects the ALUC-designated safety zones.
• At page C-18, the 2010/2011 LUCP notes: “Runway Proximity: In general, the areas of highest risk are closest to the runway ends … .”
o As noted above, aircraft now landing or taking off from Palomar touch down at least 1100 feet from the adjacent El Camino Real, a major arterial gridlocked at peak hours. o Extending the runway eastward by 800 feet, will reduce this
distance to 300 feet or a 2 second distance for a C or D aircraft approaching at about 150 knots.
o The ALUC has not in the past identified any land use restrictions
14 The FAA so-called “Advisory Circulars” (ACs) establish the protocol that airports receiving FAA grant funds must follow. The county has previously
received in excess of $30 million in FAA grant funds.
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that can protect vehicles on roads adjacent to airports.
• REQUEST: In the Updated MP LUCP (i) identify the increased risks to traffic on ECR from a county 800-foot runway extension and (ii) identify measures by which this risk could be reduced.
• At page C-20, the 2010/2011 MP LUCP notes: “Among other hazards to flight, bird strikes represent the most widespread concern. “ The ALUC then references FAA open landfill requirements. However, it appears
that the ALUC 2010-2011 LUCP made no effort to evaluate (i) the number of bird strikes affecting aircraft using Palomar or (ii) the amount of birds in the area. In the past, bird strikes presented mainly risks to a few corporate flyers and air carrier passengers. However, county’s new 20-year plan proposes to serve 304,000 to 575,000 air carrier passengers.
• In the Updated MP LUCP (i) identify the level of concern that bird strikes may cause at Palomar [Note: The MP website available to pilots notes substantial birds in the spring.]; (ii) identify the extent to which birds displaced by construction of more than 1,000,000 feet of empty land within 3 miles of the airport may be diverted to the MP northeast corner of ECR and PAR; and (iii) restrictions that might reduce the bird population in conformance with applicable laws.
Comments on ALUC 2010/2011 MP LUCP App D, Methods for Determining Concentrations of People
1 Property
Restrictions
Appendix D • By imposing its restrictions, the ALUC has the power to reduce the value of
property by more than 50%. Accordingly, the manner of calculating restrictions should be clear. Appendix D does not do that.
• Appendix D has several tables providing information but gives no examples
of real life situations to explain how the ALUC applies the data. Laypersons owning property in a possibly impacted safety area are left to guess how the ALUC makes its calculations.
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• REQUEST: In the Updated MP LUCP, provide at least 10 examples of how the restrictions on commercial and industrial property and on governmental property such as schools is calculated. When providing the calculations, state the assumptions the ALUC is making, the specific data source relied on, and show the calculations.
• REQUEST: It appears that relocation of the runway may reduce restrictions on a few properties. Identify these properties [recognizing that reduced restrictions are contingent on the runway actually being relocated] so that the ALUC has inversely condemned property by restrictions no longer applicable. Show the revised safety area borders precisely so that properties benefiting from a runway relocation may be properly identified.
Comments on ALUC 2010/2011 MP LUCP Appendix D entitled General Plan Consistency Checklist
1 Consistency • Request: As noted above, verify the impacted property that is and is not within the County General Plan, which appears to apply only to unincorporated areas of the county.
• Request: If impacted properties are owned by the county but within the city of Carlsbad, verify that the county will comply with the ALUC restrictions since county has said it need not abide by Carlsbad planning and zoning.
Attachment A
Transcript of Supervisor Bill Horn December 15, 2016 Board of Supervisor
Statement Documenting Conversion of Palomar to Airport for Larger Commercial Aircraft in Place of
General Aviation Recreational Aircraft
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Attachment B to Bender September, 2018 Comments on ALUC Update to
2010/2011 McClellan-Palomar Master Plan
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County Consultant SCS Engineers Report Entitled Evaluation of Possible Environmental Impacts of An Aircraft Crash
Into the Landfill Cover at Palomar Airport Landfill Bender Comment: We provide the title page and relevant SCS report excerpts. The title page follows the excerpts for technical computer insert reasons. We are of course aware that the ALUC focuses on land outside Palomar Airport. We provide the report because it well describes the environmental risks of a large fuel laden aircraft crashing anywhere. Hence, it is relevant to the ALUC’s
designation of Safety Zones outside the Airport.
Identification of Palomar Aircraft Crash Hazards
Spillage of flammable liquids such as Jet fuel: “These fuels are highly combustible, burn at extremely high temperatures, can be corrosive to aircraft equipment and are highly toxic to human beings … Ignition of the jet fuel or
other flammable material, upon impact, could also be highly probable.” [p. 3]
Burning of solids. “Post-crash fires can result in burning of … aircraft batteries and electrical equipment, engines, tires, wheels, pathogenic substances, radioactive materials, and metals such as aluminum and fiber-reinforced polymer composites of the aircraft fuselage and wings. … If the crash occurs during the dry season, grass fire could ignite and
spread to other areas of the site and create secondary environmental issues such as smoke (air quality issues), as well as
possible offsite wildfires and or burn, smoke and or structural damage to other onsite or offsite property.” P. 3]
Spillage of cryogenic liquid. “Cryogenic liquids … are used as cooling agents to reduce engine temperatures … . These liquids are … on the Hazardous Materials Information System. Hence, even low quantities of cryogenic liquids
can expand into large volumes of gases … . If not stored in containers with adequate pressure-relief devices, enormous
pressures can build up within the containers. The impact from an aircraft rash can cause a sudden rapid increase in the internal pressure of the container. Results can range from damage to surrounding equipment, structures, explosions, called ‘boiling liquid expanding vapor explosion,’ to asphyxiation hazards.” [p. 4]
Pressurized liquid and/or vapor release. “Aircraft utilize a variety [of] hydraulic and pneumatic accumulators, which
contain pressurized air or fluids that assist in the operation of equipment … . [R]upture can] lead to sudden discharge
of large amounts of pressurized fluids, resulting in destruction of property, and possibly injury to persons in proximity to the rupture.“ [p. 4]
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Pipe rupture. “Impact from an aircraft crash may result in extensive damage to nearby above/below-grade utility lines.
Damage or rupture of a buried water, gas or storm drain line, could contaminate nearby soils and water bodies. Emission release from pipes could severely compromise the air quality and even cause explosions, depending on the contents of the carrier pipes. Impact to piping associated with the GCCS [methane gas collection and control system]
may damage the system and cause a release of LFG to the atmosphere. If the LFG concentration is within flammable
ranges and an ignition soured is present, explosions or fires may occur. …” [p. 4]
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1635 Faraday Avenue
Carlsbad, CA 92008
www.carlsbadca.gov
760-602-4645 | corey.funk@carlsbadca.gov