Airport Red Herring Intimidation

Sept-Oct 2004 Newsletter

California?s airport land use commissioners are being intimidated and hampered in their work by developers? ?Red Herring.? An airport land use commission has a duty to formulate plans for land uses that are compatible with airports. A comprehensive land use plan describes the types of compatible uses within an airport influence area.

Safety and noise are the two main concerns for assuring that surrounding land uses are compatible. The Caltrans Aeronautics? Airport Land Use Planning Handbook?sometimes referred to as the ?planners? bible?- is the guiding publication. Incompatible land uses include such things as residential housing, shopping malls, high rise buildings and tall towers. Rezoning and other changes within an airport influence area may also be subject to review by a land use commission.

Whenever a project developer learns that an airport land use commission will find the proposed project incompatible with an airport, the developer will likely try to change the commission?s decision. This frequently takes the form of a threat to ?sue you for taking my property.?

Like most persons who are threatened by a lawsuit, airport commissioners become very apprehensive at such a threat. Not being familiar with the process, they may be of the impression that as individual defendants they will be sued for money damages. They need not worry. Here is why. If a developer should file suit against a commission and its members, the suit would not be for a money or personal judgment against the commission or its members.

Instead, the developer would ask a court to order the commission to set aside its decision. Many airport land use commissioners are non-paid volunteers. Why should they be subjected to such misleading abuse when doing their job?

Although the county supervisors of the county in which a particular commission sits has a duty to provide legal support, rarely is a commission provided legal counsel during public meetings. This absence of legal advice sets the stage for intimidation by a developer?s representative who invokes a red herring threat to ?sue you.? Commissioners should ignore this threat and stick to their decision.