Airport Planning Laws Are Up For Repeal

California’s Seminal Airport Land Use Compatibility Planning Laws Are Up For Repeal

[An excerpt from Aviation Noise Report: Volume 24 Number 7.]

Buried deep in California’s draft budget trailer bill is a proposal that would facilitate the elimination of essentially all of California’s airport land use commissions, with a few exceptions provided for Los Angeles and San Diego counties and counties with inter-county airports.[i] More specifically, the trailer bill articulates the un-adopted and draft “intent of the Legislature … to relieve local entities of the duty to perform the reimbursable activities … included in the following state-mandated local programs: … (r) Airport Land Use Commission/Plans.”[ii] In order to effectuate this intent, the trailer bill proposes to repeal a number of provisions in California’s State Aeronautics Act, as that Act pertains to airport land use compatibility planning.[iii]

The proposal appears to be an effort to appease local governments with funding shortfalls. However, there are substantial risks. Historically speaking, airport land use commissions have served as independent public bodies with a primary and singular mission: plan for land use development in a manner that is compatible with airport operations and protects the public health, safety and welfare. The trailer bill provides for the elimination of airport land use commissions in California without providing a substitute process to ensure that local land use agencies take airport land use compatibility issues into consideration. As a result, airport encroachment, as well as the safeguarding of the general welfare of inhabitants within the vicinity of airports and the public in general, may become very real and serious problems for California airports and members of the public.

Until now, California law has recognized and affirmed the benefits of having an independent body – an airport land use commission – in nearly every county with at least one public use airport to address airport land use compatibility for both civilian and military airports. These commissions develop technical expertise in a very discrete area (i.e., land use planning in the vicinity of airports in a manner that accounts for noise, safety, airspace protection, and overflight concerns), and do not delve into the economic advantages of allowing development (e.g., increased tax revenues). This allows the commissions to honor their discrete mission to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and adopting land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas around airports, to the extent that these areas are not already devoted to incompatible uses.

Local land use agencies (e.g., cities and counties), on the other hand, are authorized to balance a number of competing interests, including the “bottom line,” when deciding whether to authorize development. As a result, it inherently is more difficult for local land use agencies to adequately protect airports from encroachment and to minimize the public’s exposure to excessive noise and safety hazards. Further, without the expertise and perspective of airport land use commissions, incompatible uses, such as schools, hospitals and low-income housing, may become more prevalent in areas subject to high noise levels and safety concerns.

While the enabling legislation for airport land use commissions is proposed for repeal because compatibility planning efforts “should be determined by local government priorities,”[iv] this basis for repeal ignores that there are many other public and private entities with vested interests in airport land use compatibility planning. For example, among the most notable public entities are the Federal Aviation Administration and California Department of Transportation, Division of Aeronautics.[v] Both agencies strive to ensure that public funds awarded through federal and state grant programs and invested in public use airports are not undermined by land use compatibility concerns.[vi] And, California’s airport land use compatibility planning laws are of particular importance to these two agencies as neither agency has jurisdiction over local land use development, which falls within the police powers of cities and counties.[vii]

Another federal agency with a strong interest in successful compatible land use planning is the U.S. Department of Defense. Although the various branches of the military adopt air installation compatible use zone (AICUZ) studies that address land use compatibility in areas around military airfields, those studies only are advisory in nature and need not be implemented by local land use agencies. State law, however, currently requires the compatibility plans adopted by airport land use commissions to be consistent with AICUZ studies,[viii] providing the military with a much needed layer of protection at the local level.  

Others with strong interests in effective land use compatibility planning include airport owners/operators, pilots, members of the flying public, and the residents and occupants of areas adjacent to airports. And, from a more indirect perspective, California is viewed by many as a pioneer in the realm of airport land use compatibility planning. Since the enactment of California’s airport land use compatibility planning laws almost 50 years ago, other states, such as Washington and Nevada, have ventured into the compatibility planning realm. If California’s enabling legislation ultimately is repealed without providing for airport land use compatibility planning in some other manner, the result may be a nationwide chilling effect on compatibility planning efforts in the airport context. In short, local governments (e.g., cities and counties) are not the only stakeholders.

While the necessary compatibility planning may occur in the absence of airport land use commissions, as presently drafted, the trailer bill would repeal most commissions’ enabling legislation without providing for a substitute process to ensure that local land use agencies take airport land use compatibility issues into consideration. It is this wholesale vacuum – the elimination of commissions and the failure to provide a substitute process – that is particularly concerning. Ken Brody, a Senior Airport Planner at Mead & Hunt, opined: “From my perspective, the biggest issue with the draft trailer bill is not that it would eliminate airport land use commissions, but that it would also eliminate the mandate for local airport land use compatibility planning. Despite the reduced amount of development in the last several years, the need to address the relationship between airports and future land use development remains. Good community planning dictates that this be done.”

Oddly, as mentioned above, the draft trailer bill carves out exceptions from the general repeal for San Diego and Los Angeles counties, and counties with an inter-county airport. As a result, the trailer bill would result in a patchwork of land use compatibility planning for airports throughout the State. Some areas, such as San Diego and Los Angeles counties, would continue to benefit from compatibility planning and maintain a safe environment around their airports. Other counties would not receive those same benefits. There is no articulated basis in the trailer bill for creating this distinction, and no rational basis – at least one that is based on protecting the public health, safety and welfare, and airport operations – comes to mind.

In closing, the draft trailer bill’s proposal flew under the radar for a number of weeks following its initial release in early February. However, the trailer bill is now being reviewed by the California Department of Transportation, Division of Aeronautics, the California State Association of Counties, and a number of other constituent groups. Although California’s 2012-2013 budget is far from adopted, the trailer bill presents an issue of serious concern that warrants close monitoring by all interested parties. Future editions of the Airport Noise Report will provide updates on this

See the California Department of Finance’s trailer bill for “Corrections and General Government” at http://www.dof.ca.gov/budgeting/trailer_bill_language/corrections_and_general_government/documents/%5B301%5D%20Repeal%20Make%20Permissive%20Specified%20Mandates.pdf. The language has not been formally introduced into a measure as of this edition’s publication.<

See also Overview of the 2012-13 Budget Bill, Senate Committee on Budget and Fiscal Review (February 2012), Appendix viii [identifying among the Governor’s list of mandates proposed for repeal: “The mandate requires counties with an airport to establish an airport land use commission or designate alternative procedures to accomplish airport land use planning. This mandate will be repealed because this should be determined by local government priorities.”].

Trailer Bill, supra n. i, p. 3.

[iii] Trailer Bill, supra n. i, pp. 145-162; see also Cal. Pub. Util. Code, §§21670-21679.5.

[iv] Overview of the 2012-13 Budget Bill, supra, n. i.

[v] The Division of Aeronautics publishes guidance, known as the California Airport Land Use Planning Handbook, to assist airport land use commissions and local land use agencies in complying with California’s airport land use compatibility planning laws. The most recent edition of the Handbook was published in October 2011, and is available at http://www.dot.ca.gov/hq/planning/aeronaut/documents/AirportLandUsePlanningHandbook.pdf.

[vi] See Assurance 21 at http://www.faa.gov/airports/aip/grant_assurances/media/airport_sponsor_assurances.pdf. Airport sponsors must agree to comply with this assurance, and others, prior to the award of federal funds by the Federal Aviation Administration under the Airport Improvement Program.  

 [vii] Counties and cities are granted plenary land use authority by the California Constitution, art. XI, §7, and several statutes, including the local planning law (Cal. Gov. Code, §§65100-65763), zoning law (Cal. Gov. Code, §§65800-65912), and the Subdivision Map Act (Cal. Gov. Code, §§66410-66499.37).[viii] Cal. Pub. Util. Code, §21675(b). 

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