ATTACHMENT 5
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“Provide a safe and reliable transportation network that serves all people and respects the environment”
DIVISION OF AERONAUTICS
P.O. BOX 94274, MS–40 | SACRAMENTO, CA 9427 4–0001
(916) 879-6596 | FAX (916) 653-9531 TTY 711
www.dot.ca.gov
J
une 7, 2022
M
r. Scott Drapkin
Assistant Director, Development Services
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
D
ear Mr. Drapkin:
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hank you for including the California Department of Transportation ( Caltrans), Division of Aeronautics (Division) in the overrule process for the above- referenced project. California Public Utilities Code (PUC) Section 21676 (http:www.leginfo.ca.gov/calaw.html), requires Caltrans to review the specific findings a local government intends to use when proposing to overrule an Airport Land Use Commission (ALUC). Specifically, the findings are examined to determine whether they are consistent with the purposes of the statutes as set forth in the State Aeronautics Act (SAA) per PUC Se ction 21670 et seq.
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ection 21670(a) outlines five separate purposes for the legislation as follows:
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…to provide for the orderly development of each public use airport in this state…”
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…to provide for the orderly development of…the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards…”
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…to provide for the orderly development of…the area surrounding these airports so as…to prevent the creation of new noise and safety problems. ” • “
…to protect the public health, safety, and welfare by ensuring the orderly expansion of airports…”
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…to protect the public health, safety, and welfare by…the adoption of land use measures that minimize the public’s exposure to excessive noise and safety -4-
Mr. Scott Drapkin
June 7, 2022
“Provide a safe and reliable transportation network that serves all people and respects the environment” hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.”
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ditionally, the SAA identifies the California Airport Land Use Planning Handbook (Handbook) to provide guidance for conducti ng airport land use compatibility planning as required by PUC Sections 21670 -21579.5
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imply stated, the findings must show evidence that the city is minimizing the public’s exposure to excessive noise and safety hazards within areas around public airports .
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he proposed project, the City of Costa Mesa 2021 -2029 6th Cycle Housing Element was reviewed by the Orange County ALUC (OCALUC) to determine whether the action is consistent with the Airport Environs Land Use Plan (AELUP). The ALUC staff report specifically described four AELUP consistency review areas for the Housing Element update: 1) Aircraft Noise Impacts, 2) Aircraft Height Restrictions, 3) Flight Tracks and Safety Zones, and 4) Heliports. The Orange County ALUC staff recommended a rule for incon sistency pursuant to AELUP Sections 2.1.3, 2.1.4 and PUC Section 21674.
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ur review of the materials provided indicates the prime issue of inconsistency lies in the City’s blueprint for future potential actions that are needed to meet the City’s Regional Housing Needs Analysis allocation and comply with State Housing Element law. In accordance with Housing Element law, the City will process General Plan, Zoning Code and Specific Plan amendments, which would be subject to ALUC review. The City contends the Housing Element update does not in and of itself include any changes to local land use standards, including height restrictions, location, or number of housing units.
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he City asserts specific findings to justify this overrule.
Finding No.
1: “…the City’s candidate housing sites are appropriately located outside of airport noise contours of concern and further the City's General Plan Noise Element addresses potential applicable residential noise impacts in General Plan Noise Element Policies N- 1.1, N-1.5, N-1.6, N-2.4 and N-2.6.” H
owever, this finding is not consistent with planning regulations in the Government Code, to wit:
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Mr. Scott Drapkin
June 7, 2022
“Provide a safe and reliable transportation network that serves all people and respects the environment” Government Code 65583
(a) An assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs. The assessment and inventory shall include all of the following:
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2) A local government may disapprove a housing development described in paragraph (1) if it makes written findings supported by substantial evidence on the record that both of the following conditions exist:
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A) The housing development project would have a specific, adverse impact upon the public health or safety unless t he project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, ident ified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.
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B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.
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3) The applicant or any interested person may bring an action to enforce this subdivision. If a court finds that the local agency disapproved a project or conditioned its approval in violation of this subdivision, the court shall issue an order or judgment compelling compliance within 60 days. The court shall retain jurisdiction to ensure that its order or judgment is carried out. If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders to ensure that the purposes and policies of this subdivision are fulfilled.
In any such action, the city, county, or city and county shall bear the burden of proof.
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overnment Code 65302
(3) The noise contours shall be used as a guide for establishing a pattern of land uses in the land use element that minimizes the exposure of community residents to excessive noise.
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h) (1) An environmental justice element, or related goals, policies, and objectives integrated in other elements, that identifies disadvantaged communities within the area covered by the general plan of the city, county, or city and county, if the city, county, or city and county has a disadvantaged community. The environmental -6-
Mr. Scott Drapkin
June 7, 2022
“Provide a safe and reliable transportation network that serves all people and respects the environment” justice element, or related environmental justice goals, policies, and objectives integrated in other elements, shall do all of the following:
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A) Identify objectives and policies to reduce the unique or compounded health risks in disadvantaged communities by means that include, but are not limited to, the reduction of pollution exposure, including the improvement of air quality, and the promotion of publ ic facilities, food access, safe and sanitary homes, and physical activity.
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n addition, SB 1000, chaptered in 2016, requires local governments to identify environmental justice communities (called “disadvantaged communities”) in their jurisdictions and a ddress environmental justice in their general plans. This new law has several purposes, including to facilitate transparency and public engagement in local governments’ planning and decision- making processes, reduce harmful pollutants and the associated health risks in environmental justice communities, and promote equitable access to health- inducing benefits, such as healthy food options, housing, public facilities, and recreation.
Finding No.
2: “…the City’s Housing Element update does not grant any entitlements, change any land use standards or authorize any development beyond what is allowed under the City’s current General Plan and Zoning Code…” T
he City believes that the proposed recommendation to submit future permits is premature based on Public Utilities Code Section 21676.5(a), which states:
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f the commission finds that a local agency has not revised its general plan or specific plan or overruled the commission by a two -thirds vote of its governing body after making specific findings that the proposed action is consistent with the purposes of this article as stated in Section 21670, the commission may require that the local agency submit all subsequent actions, regulations, and permits to the commission for review until its general plan or specific plan is revised or the specific findings are made .”
As the Housing Element is a mandatory part of the General Plan and requires an amendment to the General Plan, it falls under the same review requirements for determining consistency.
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alifornia courts have supported the ALUC review of General Plans in Watsonville Pilots Assoc. v. City of Watsonville (April 12, 2010) 183 Cal.App.4th 1059. The City must conform to the State Aeronautics Act (SAA, Public Utilities Code Section 21670 et seq.) in its approach to planning areas adjoining the airport. -7-
Mr. Scott Drapkin
June 7, 2022
“Provide a safe and reliable transportation network that serves all people and respects the environment” The SAA is intended to protect public safety by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards in areas around public airports. According to the Court, the Handbook is a guide for counties with an ALUC; must be relied upon relative to height, use, safety, and density criteria by alternative procedure counties; and in the case of Watsonville, the city must adopt in its General Plan noise and safety criteria that are consistent with the criteria in the Handbook. The Court opined that “we can see nothing in the statutory language that indicates that the Legislature intended to grant discretion to an affected city ... to decide which of the Handbook’s criteria should be incorporated into such a city’s general plan. ” As a result, Watsonville’s 2030 General Plan, which conflicted with the Handbook’s restrictions on land uses near airports, was therefore invalid.
The Division has reviewed the proposed findings provided by the City and has determined the findings are insufficient to warrant this proposed overrule.
Specifically, the findings are not consistent with the purposes of the statutes set forth in the California Public Utilities Code (PUC) section 21670. These findings do not provide substantial evidence that the proposed Project will meet the requirements of PUC statutes set forth in PUC section 21670. These findings do not provide substantial evidence that the proposed Project will meet the requirements of PUC, section 21670(a) (1) and (2).
Based on the information provided by both the City and the OCALUC, the Division does not agree with the City’s findings.
The Division strongly recommends not approving this overrule due to significant safety risks and potential noise incompatibility. Please note the PUC reference below, which mandates that local agencies shall be guided by the height, use, noise, safety, and density criteria as established in the Handbook:
California Public Utilities Code, section 21674.7 (b):
It is the intent of the Legislature to discourage inc ompatible land uses near existing airports. Therefore, prior to granting permits for the renovation or remodeling of an existing building, structure, or facility, and before the construction of a new building, it is the intent of the Legislature that local agencies shall be guided by the height, use, noise, safety, and density criteria that are compatible with airport operations, as established by this article, and referred to as the Airport Land Use Planning Handbook, published by the Division.
It must be understood that protecting people and property on the ground from the potential consequences of near -airport aircraft accidents is a fundamental land use -8-
Mr. Scott Drapkin
June 7, 2022
“Provide a safe and reliable transportation network that serves all people and respects the environment” compatibility-planning objective. While the chance of an aircraft injuring someone on the ground is historically quite low, an aircraft accident is a high consequence event. To protect people and property on the ground from the risks of near -airport aircraft accidents, some form of restrictions on land use is essential.
The John Wayne Airport is a vital part of the air transportation system and is an economic asset with its 350,000 operations and 10.7 million commercial passengers in 2019. The airport will continue to increase commercial and air cargo service at John Wayne Airport, and we commend the efforts of the Orange County Airport Land Use Commission in making careful and reasoned decisions in attempting to ensure compatible land uses in the vicinity of the Airport.
Although the need for compatible and safe land uses near airports in California is both a local and State issue, airport staff, airport land use commission and airport land use compatibility plans are key to protecting an airport and the people residing, working and recreating in the vicinity of an airport. Consideration given to the issue of compatible land uses within an airport’s environs should help to relieve future conflicts between airports and their neighbors.
As a reminder, pursuant to PUC 21676, et seq., the local agency governing body shall include comments from the OCALUC and the Division in the final record of any final decision to overrule the commission.
Please note: The Division comments are to be inclu ded in the public record of any decision to overrule the OCALUC.
These comments reflect the areas of concern to the Caltrans’s Division of Aeronautics. We appreciate the opportunity to review and comment on this project.
If you have questions, please do not hesitate to contact us at (916) 654 -5203.
Sincerely,
Jeffrey L. Spencer
Associate Transportation Planner
Division of Aeronautics
Office of Planning
c: Lea Choum, Executive Officer, Orange County Airport Land Use Commission Matt Friedman, Chief, Office of Aviation Planning, Division of Aeronautics -9-
City Responses to Comments
Airport Land Use Commission (ALUC) May 10, 2022 Comments ALUC Comment for purpose Finding No. 1 (direct quote from ALUC letter provided below):
City response to ALUC comment to purpose Finding No. 1:
The ALUC comments responded to the City that the ALUC “inconsistency finding was not based on noise standards.” However, the ALUC comments further indicated that they appreciate that the City’s Noise Element addresses potential airport noise impacts and requires an interior noise standard of 45 dBA CNEL to be enforced for any new residential project. Therefore, the Housing Element is consistent with the “purpose” outlined in PUC Section 21670.
ALUC comment for purpose Finding No. 2 (direct quote from letter provided below):
(continued)
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City response to ALUC comment to purpose Finding No. 2:
The ALUC comment letter indicates that in regard to PUC Finding No. 2, their “
inconsistency finding was based on the safety hazards created by changing the land use from commercial/mixed use to residential high rise building in close proximity to John Wayne Airport. The ALUC finding of inconsistency specifically pertains to proposed housing sites located within the North Costa Mesa Specific Plan area. As indicated by the ALUC comment, t he PUC Purpose Finding No. 2 clearly references “the protection of public health, safety and welfare”; however, this finding in complete context also specifies “to minimize the public’s exposure to excessive noise and safety hazards around public airports to the extent that these areas are not already devoted to incompatible uses” [emphasis added]. As indicated in the “City Council adopted Justification for purpose Finding No 2”, the area of the housing sites that the ALUC determined wer e “incompatible” are located in the North Costa Mesa Specific Plan area which is approved (“devoted”) for a hotel/residential development project of 304 feet. At the time this project was approved, the City processed an ALUC overrule with findings based on the Federal Aviation Administration (FAA) determination that the proposed building height of 304 feet “would not adversely affect air safety” and the FAA subsequently issued a “no hazard determination.” Additionally, this area is currently developed with the “Plaza Tower” and “Center Tower” buildings which both exceed 20 stories. Since this area, as determined by the ALUC, is already “devoted” with similar “incompatible uses”, purpose Finding No. 2 is not applicable to the subject housing sites pursuant to the PUC provisions . Therefore, the proposed justification to overrule the ALUC determination for purpose Findings No. 2 is appropriate, and the Housing Element is consistent with the “purpose” outlined in PUC Section 21670.
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Caltrans Division of Aeronautics June 7, 2022 Comments
Caltrans comment for purpose Finding No. 1 (direct quote from letter provided below):
(continued)
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City response to Caltrans comment to purpose Finding No. 1:
In regard to Finding No. 1, the Caltrans Division of Aeronautics ( Caltrans) responded that the City’s findings are “not consistent with the planning regulations in the Government Code.” Specifically, the Caltran s’ comments reference the California Land Use provisions relating to “Housing Elements” (Section 65583) and the “Authority for the Scope of General Plans” (Section 65302). However, neither of these provisions are specified for compliance in the PUC provisions relating to the “overrule” process, and therefore are not applicable. Finding No. 1 is specifically related to “noise” and , as confirmed by the ALUC , the City’s Noise Element addresses potential airport noise impacts and requires an interior noise standard of 45 dBA CNEL to be enforced for any new residential project.
Therefore, the Housing Element is consistent with the “purpose” outlined in PUC Section 21670.
Caltrans comment for purpose Finding No. 2 (direct quote from letter provided below):
(continued)
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City Response to Caltrans comment to Finding No. 2:
In regard to Finding No. 2, the Division responded that the purpose of the Division’s review of the City’s ALUC Determination overrule findings is to “determine whether they are consistent with the purpose of the statutes as set forth in the State Aeronautics Act (SAA) per PUC Section 21670.” The Division comments, similar to the above ALUCs comments, cites the PUC provision related to safety and noise hazards around public airports. As previously indicated, the area of the housing sites that the ALUC determined were “incompatible” in regard to safety are located in the North Costa Mesa Specific Plan area which is entitled for a hotel/residential development project of 304 feet. At the time of approval of this project , the City processed an ALUC overrule with findings based on the Federal Aviation Administration (FAA) determination that the proposed building height of 304 feet “would not adversely affect air safety” and the FAA subsequently issued a “no hazard determination.” Additionally, this area is currently developed with the Plaza Tower and Center Tower which exceed 20 stories. Since this area, as determined by the ALUC, is already “devoted” with similar “incompatible uses”, Finding No. 2 is not applicable to the subject housing sites. Therefore, the proposed justification to overrule the ALUC determination for purpose Findings No. 2 is appropriate, and the Housing Element is consistent with the “purpose” outlined in PUC Section 21670.
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