HomeMy WebLinkAbout08-19-2014 ph4 peck (with attachment)Kremke, Kate
om: Mejia, Anthony
nt: Friday, August 15, 2014 1:51 PM
To: Goodwin, Heather; Kremke, Kate
Subject: FW: Follow Up Letter on Resolution of Intent to Overrule AUG 15 2014
Attachments: Avila Ltr to Council on Overrule 8 -15 -2014 Reduced.pdf
Agenda Correspondence for PH4 on 08/15/14
Anthony J. Mejia, MMC I City Clerk
(:1CV' 01, SAII 11118 051ti[)0
cy)o Palm Street
San Luis Obispo, CA 93401
VE l 1805-781-7102
From: Marx, Jan
Sent: Friday, August 15, 2014 1:49 PM
To: Mejia, Anthony
Subject: FW: Follow Up Letter on Resolution of Intent to Overrule
Please post this message as agenda correspondence.
Thanks
Jan
AGENDA
CORRESPONDENCE
Date "Y -1 'item# P-=
. rom: Stephen Peck [mailto:Steve (cbPeckPlanning.com]
Sent: Friday, August 15, 2014 12:08 PM
To: Marx, Jan; Christianson, Carlyn; Smith, Kathy; Carpenter, Dan; Ashbaugh, John
Cc: Codron, Michael
Subject: Follow Up Letter on Resolution of Intent to Overrule
Councilmembers:
Attached is a revised letter in support for the City Council to proceed with the LUCE as is and overrule the ALUC's
inconsistency finding. The previous one had a few missing articles and typos, but contains all of the essential findings
and points. Please discard the previous one and use this one in its place. I apologize for the error.
No one in the community, nor the staff or council, have taken this potential action lightly. The staff has done an
extraordinary job of trying to forge a consensus and find common ground with the ALUC. They have also done an
extraordinary job of investigating what are the genuine noise and safety issues that need special attention. The City
Council now has accurate information on which to base appropriate regulations and land use controls.
Our comments are in two sets: 1) arguments and issues concerning the inadvisability of using the ALUP for regulatory
decision making; and, 2) arguments in support of using the LUCE and the proposed AOZ to address the legitimate noise
and safety issues associated with the airport. We believe that even if the City and ALUC came up with identical zones, it
would not be advisable or possible to rely on their document for valid and legally defensible decision making.
`'le city's documents, or the other hand, meet the tests normally associated with adequate substantive and procedural
e process, and the requirement for a nexus between the need for the regulation and the regulations themselves. We
believe these findings augment and amplify the findings in the resolution, and perhaps add some "color" to them.
I look forward to the opportunity to present our recommendations in person on Tuesday night.
Stephen J. Peck.
Stephen J. Peck, AICP
Peck Planning and Development
Planning + Development + Economics
Steve@ PeckPlanning.com
(559)731 -5778
Peck Planning and Development, LLC
Planning + Development + Economics
Stephen Peck, ADCP
President
August 15, 2014
City Council Members
City of San Luis Obispo
99O Palm Street
San Luis Obispo, CA934O1-3Z49
Re: Resolution of Intent to Overrule ALUC Inconsistency Determination
Counc|lnlnrnbe's:
On behalf on the Avila Ranch, LLC,the developers of the Avila Ranch project, |am
pleased to provide this letter of support for the Council's consideration of the initial steps to
consider an overrule of the San Luis Obispo County Land Use Commission's (ALUC) finding of
non-conformity with its Airport Land Use Plan /ALUP\. That action is a regrettable, but una'
vnidab|e'cDMduskontothe[itvsatternptstov/orkvviththoALU[to craft a long-overdue
amendment to the ALUPthat is responsive to the changes made in the 2006 Airport Master
Plan (AMP), and brings some "sCieMCe" to its policies.
The ALUP regulations have evolved over time a3a negative response tm City growth ini-
tiatives forcommpoctdeve|nprnentw/ithinhsUrbanResprveLine(URL). Only as the city has at-
tempted to make maximum utilization of its land in south and southwest San Luis Obispo have
the deficiencies in the ALUP been closely scrutinized and revealed. The LUCE's policies and ob-
jectives that have been forged over the last three years as a result of extensive public outreach
and involvement are now at odds with the ALUP'spolicies, The choices involved are not theo-
retical or esoteric, The LUC[ alternative will make best use of the city's resources, use infra-
structure wisely, result in more revenue for the city, and result in the preservation of open
space and agricultural land outside of the URL. This conflict is probably analogous to the choice
between the construction of six-lane arterial when a well-designed 'complete" city street
with atvoo1ane road will do just aawell.
Tobe clear, the guiding force for both the City and the ALU[is the State Aeronautics Act
(SAA), Any ALUP, City override or City safety and noise compatibility policies must be crafted to
achieve the objectives of the SAX Thatstatute requires that the County ALUC prepare aland
use compatibility plan to minimize the public's exposure to excessive noise and safety hazards
within areas around public airports. The City ofSLO has thatsanne duty and there iynoincon-
sistenCyin the purpose of what the 4LU[ and the City are supposed todo. To that end, ithe City
has met extensively with the ALUCtoprepare and concur o0 objective data, projections aDd
verifiable airport operations assumptions. The City has also provided extensive technical and
policy comments, including accurate GIS mapping, FAA-required noise model expertise and
other related services, The City also retained a qualified professional airport land use compati-
bility consultant to prepare an Airport Land Use Compatibility Report. While the city has en-
deavored to construct an accurate data base of actual noise and safety issues, prepared B thor-
ough analysis of the expansion needs and functions at the airport, and reviewed the 30-year
accident and noise complaint history associated with the airport, the ALUC has persisted with
unsubstantiated "findings", inaccurate base maps, maps that are inconsistent with the AMP'
and safety and noise zones and policies that have Ao relationship to the presence of actual "ex-
cessive noise and safety hazards" as prescribed by the 3AA.
In the end, the City must implement and take responsibility for the regulations and poli-
cies th8titindudesituZon)ngOrdinanceaMdGane,o|P|an. |n the past, the ALUP'sregulations
have been passed on to the city as a fete' accompli'without much justification forthe burdens
imposed on properties, and the limitations imposed onthe community's development options
and objectives. It was always taken for granted that the ALUPs policies, even if somewhat
flawed, had at least some basis in science and fact. As it turns out, they are not. Bycornpa[|'
son,theLU[Ehasgonetgextenxive lengths to not take airport safety and noise compatibility
planning for granted and has developed regulations (some of them MORE restrictive than the
ALUP's) that bear clear and reasonable relationship to actual, documented airport hazards
and operations.
VVe recommend that the City adopt the resolution of intent to overrule the ALUP incon-
sistency find|ngrnadebvtheALU[. While |tis clear from a plain reading of the LUCE and the
ALUP that the two are )nConsistent,that only means that the city needs to choose which one of
those meets the objectives of the SAA, and meets all of the other requirements of a valid plan
and valid regulations. VVe believe that the case has been made that LUCE and proposed Airport
Overlay Zone //\OZ\ do, and that the ALUP does not.
This recommendation is made on the basis of our own research and the research of the
City that establishes the following basis Of and necessity for the overrule. The first finding Of
necessity for the override is based on the flaws, inconsistencies and unreliability of the ALUP in
demonstrating that its policies, safety zones and noise zones implement and achieve the objec-
tives ofthoSAA|nunydennons1nab|eVvay. |t should be noted that the ALUP documents and
processes are inadequate and inconsistent from a professional planning standpoint, to the
point of rendering the plan un'W»eabie by the City for airport noise and safety planning. Some
of these deficiencies are noted below.
3LD City Overrule Resolution Comments Page 2of9
1. Inaccurate Base Ma . The ALUP's base maps have no material accuracy and are in-
consistent w/\ththeAJrportK4aSteFP|an'S@ctUa|rupvvayCentedines. Since the zones
require precise dimensional accuracy relative to actual aircraft operations and the
airfield, this means that itis not possible to determine what properties should be
and are covered hv the ALUP. |n the case Cf Avila Ranch, the ALUP base map shows
Avila Ranch's northern boundary as almost 4O0 feet toofar north, and its eastern
boundary as 150 feet too far east than it is in the real world. This places the property
in incorrect safety zones; conversely, there are properties on the other side of the
runways that are in |csa restrictive safety zones than they should be, un-necessarily
exposing them tohazards, Rectified orthOphotos, accurate G|S base maps and other
accurate sources of information are easy and cheap toobtain, Finally, the proposed
safety and noise zones have no dimensional accuracy relative tothe un'adupted
"dimensional documents' and are misplotted on the skewed base maps.
Z. Unadopted Policies and Standards. The "po|icieo" and standards driving the ALUP's
zones have never been adopted. There have been nnany versions pfa"dimensional
document" that has been discussed but one has never been adopted a's part of the
plan, There have been three un'adopted versions of this dimensional document.
The most recent one was manufactured in January ZO12 in response to the LUCE,
Avila Ranch project a0dthereaurrectionofthe3anLuisRanchprogect. |n and of it-
self itconStitutes a major policy amendment 10 the ALUP. |t compounds errors al-
ready r08deandpr0vid9Saddit\VRa|s8fgtyZoDeChteriathat8renotyetadOpted.
This dimensional document has been treated asifitis policy, when |tisnot.
], Relationship of ALUP Zones to Actual Hazards, A necessary pre-requisite of any air-
port-related regulation is that it "bear some reasonable relation to the minimization
of noise and safety hazards caused by the operation of public use a|rports within the
jurisdiction of that connnn|ss\uo" according to an applicable court cnse. Valid plan-
ning documents and regulations must "connect the dots" in arriving at their final
recommendations to bridge the analytic gap between the necessity for the regula-
tion and how the regulation addresses it. The larger ALUP safety zones have never
been demonstrated to be needed to address the location of accidents near the air-
port, and virtually all of the noise complaints occur in the county areas south and
southeast of the airport.
4. Flawed Operational Data in the ALUP. Despite the statutory responsibility to do so,
and the despite the continued encouragement by the City to do so, the ALUP was
never amended after the adoption of the AMP. Operational forecasts used for noise
SLO City Overrule Resolution Comments
Page 3 of 9
analysis are inconsistent with the FAA's Terminal Area Forecast, and the Z00GAMP,
The ALUC~sinsixte0Ce on using operational data that |S many times FAA's ZO40 Ter-
minal A(ea Forecast is not reasonable, nor prudent. Farther, the existing ALUP ig-
nores the actual pattern of air traffic activity and approved approach and departure
routes. For example Runway 7'Z5 does not have an approved approach course
other than Runway 29, but zones are proposed for that phantom ap-
proach/departureMeVerLhe|esg.
S. A keystone of the ALUP's regulatory framework is the
commingling ofnoise impacts (which can mostly be mitigated) with safety impacts.
To that end the /\LUC has used the noise contours from a noise study for which
there is no data, methodology or actual report. These contours are superimposed on
a map with noaccuracy. |tis reported that this noise study was based onZOO,O0O-
3OO,0OOannual runway operations (three times the FAA's forecast), a noisier fleet,
and noise metrics that are inconsistent with city and county standards, |n2O0Gthe
County Board of Supervisors adopted a Final EIR that included a noise study that was
based on AMP operational assumptions, field noise measurements, and the most re-
cent FAA approved integrated noise model and protocols. Nevertheless the ALUC
has continued to use the undocumented, outdated 2001 noise projections.
G. Inconsistent Application and Protections for Properties. The ALUP contains a pro-
cess and criteria for exceptions to the A0P noise and safety standards, The A0C'9
exception policy permits the exception only if it is limited to a particular property,
and the same decision cannot be extended to other, adjacent, similarly situated
prope/ties. This, by definition is "spot zoning". AG Opinion 03'805 has established
that anALUC may riot exempt specific plans O[ development projects otherthan
those specifically authorized hv the SAA. Further, the AUJP has special standards for
the Margarita Area Specific Plan that are not enjoyed bvdnMUarly9\tuatedproper'
7. "Findings". TheALU['s "findings" in its
July 16, 2014 inconsistency determination are for the most part, unsupported and
unsubstantiated oonciVsorystatements. |n some cases they were incorrect iOtheir
"findings' and the findings did not relate to the actual application before them. For
example, the Safety Zone Comparison table in the ALUC staff report states that the
City's intent is to allow residential uses in AOZ3'5, vvheD' in fact, Table 1Oofthe Air-
port Overlay Zone ordinance provided to the ALUC clearly prohibits new residential
development in those overlay zones. Further, the findings state that the LU[Ewould
SLD City Overrule Resolution Comments Page 4 oy0
allow greater density ofdevelopment in the airport planning area than permitted by
the ALUP, This iSa statistical determination that they are not capable Ofmaking
with the inaccuracy of their maps. In fact, |n some cases like Avila Ranch, the LU[E
will permit less residential development around the airport than the ALUP; in that
case, direct application Of the ALUP density standards for the S-2,8-1'8 and S-1'C
vVOV|d permit more than 3,25O residents or 7,500 workers, compared to the 1,750
residents and lOO workers permitted by the LUCE. |f the S'2^S'1-band S'l-cALUP
zones were accurately plotted for the Avila Ranch property, this difference would be
even more dramatic,
8. an� Standards. The ALUPisapolicy docu-
ment in much the same way as an element of the General Plan. Since itiSexpected
to be functionally integrated into the Cby'sdeve|opnoent regulations and policy
framework, it must meet the same standards of adequacy; otherwise, the City's
General Plan and Zoning Ordinance may be found to be internally inconsistent and
flawed. Section 6S3O0.Sof the Government Code requires that a diagram or map bc
an accurate graphic expression of the policies, And where a°rnap,iu required, osis
the case for an/\LUP, it must be accurate and reliable. The City cannot integrate a
set of regulations that it knows to be flawed or inconsistent, that it knows will make
its own development regulations inconsistent and flawed, and that it cannot con-
sistently JdPn|DisLer. |t has G duty to correct errors that |t knows exist and may not
rely on flawed facts or processes.
The ALUPb also internally inconsistent and self-contrad|ctory. Page 25of the ALUP,
after several pages of reasoned arguments for the proposed safety and noise zones
states that "in the event 0f any conflict between these verbal [sic] descriptions and
the depiction of Aviation Safety Areas in Figure 3, the depictions shown in Figure 3
shall take precedence," This one-sentence, "precedence" policy essentially nullifies
the ALUP's policies, is not permitted by State Law, and relies on a map with no accu-
racy vvithzoneS that are not correlated to data and runway orientation and dimen-
sions. As required bV Section 6S3D0.5, cited above, i1is the policies that drive the
map, not vice versa. Even if the ALUC were to argue that itis not held to this ata0d-
ard, the City is by its inclusion 'in the LUCE.
9. Excessive Regulation and Takings. The city is vested with land use planning police
power in the City of San Luis Obispo. Courts have given the local |egiSlativebodies
broad latitude, where warranted and justified to adopt land use regulations that it
SLO City Overrule Resolution Comments Page Sof9
deems appropriate and justified, However, limits have been placed on that power
when regulation has gone too far and such regulation is recognized as a "taking."
Regulatory entities must show an "essential nexus" that relates the need for the
regulation and regulation itself. The regulating entity—the City—must go through a
process in the formulation of the regulation to "connect the dots" so that the regu-
lation is not perceived to be so arbitrary or irrational that \t violates substantive and
procedural due process requirements. Certainly, the ALU[ has not "made 'its case"
nor "connected the dots" to assure the city and public that its regulations are justi-
fied and appropriate to protect the public's interests,
These and other matters raised in the staff report render the ALUP as an unreliable tool
to enable the City to makes its own determination that it is in conformance with the SAA, and
that it has met its substantive and procedural obligations for the development of adequate air-
port area land use regulations,
Conversely, the City has done its homework and clearly demonstrated the nexus be-
tween docu/nentedpubUcsafmh/andnoisecornpatibi|ityiusueu,thebauisfor|t»re0u|ations,
and the conformity nfits policies and regulations with the SAA. The LUCE policies and the pro-
posed AOZ fulfill the objectives ofthe SAAas clearly demonstrated in Exhibit A of the resolution
of intent. We observe that while the City's regulations are well thought out and relate todoc-
umented noise and safety issues, its burden is not to prove that its regulations are better and
sounder than those in the ALUP (which they are), but only that they comply with the SAA. To
amplify those findings, we offer the following:
l, Conformity with the Handbook. State statutes and numerous other planning docu-
ments reference the State Handbook as the "bible" for airport compatibility determina-
tions. For example, Section 2l096ufCEC}A requires that " . the Airport Land Use Plan-
ning Hondbookpub|i5hedbytheDivisionofAerunaUticSoftheDeportnnmntOfTr8nsp0F
tatiOn,inconnp|iJncevvithSect\On21G74.5VfthePub}icUtili1ies[odeendothe[docU-
rnent$, shall be utilized as@ technical resource tD assist in the preparation ofthe envi-
ronmental impact report as the report relates to airport-related safety hazards and
noise problems," Section 2167O.1of the SAA itself provides that the ALUPbe based oO
"...on 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 Plan-
ning HandboOk,pub||shedbythedivision[Ca|tranuOiv|s|oDofAero0oubcs],8ndanyap-
p|icab|efederal aviation regulations, including, but not limited to Part 77(commencing
with Section 77'1\ofTitle l4of the Code of Federal Regu|mti0ns.° Obviously, state law
recognizes that regulations that are consistent with Handbook will further the objectives
of the SAA. The Airport Land Use Compatibility Report concluded that there are nOlocal
—MEN MMEN
SLO City Overrule Resolution Comments Page 6 of 9
conditions that warrant deviation from the Handbook zones and demonstrated that
there isno accident data that would suggest otherwise,
2. Substantial Evidence and Essential Nexus. The City retained a qualified professional air-
port land use compatibility consultant to prepare an Airport Land Use Compatibility Re-
port. The report contained ao analysis Ofthe accident history associated with airport
operations, analyzed the assumptions related to the County AMP EIR Noise Study, the
assumptions in the ALUP2UU1 noise study, and other sources. |t concluded that the
noise study for the AMP that was adopted by the County Board of Supervisors in the Fi-
nal E|Rfo[theAMPVva6the best available information, and the only noise analysis that
was based on the AMP, and which was prepared according to current scientific p[Oto'
on|s, as required the 5AA. Usage of that study and those contours ensure that the noise
results are accurate and reliable.
3. Distribution of Residential Uses. The City's AOZs provide equal nr greater regulation
than the ALUPin areas subject to demonstrated airport safety hazards. For example
AOZs 3 through 5 prohibit new residential growth whereas the ALUP provides for new
lower density residential uses in the equivalent zones or affected land area. The City's
proposed regulations also specify densities and intensities that are lower in some areas
than the ALUP's published densities. In the case of Avila Ranch, the LUCE will permit few
total persons around the airport than would be permitted by the ALUP; 'in that case, di-
rect appUcati0nnfth2ALUPdensitystmndardsforthe S-2, S-1-13 and S-1-C (which are in-
accurately applied to it because of mapping inaccuracies) would permit more than 3,250
residents o,7,5OOworkers, compared tothe 1,750 residents and 100 workers permitted
by the LUCE.
4. Adequacy of Noise Standard. The noise standard proposed 6v the ALUPia neither ap-
propriate nor consistent with other locally adopted standards. SAA requires that/\LUP*
address the occurrence nf"excexSive" noise and safety hazards. FAA Part 15D and Title
Zl, Section 5Ol2,of the California Code of Regulations (CCR), set 65d8(A)as the maxi-
mum permitted CNEL for determining airport noise compatibility, SLO City, SLUCounty
and the Handbook have established 6OclB(A)35an acceptable limit for urban areas like
San Luis Obispo. The City's usage of the 6Dd8(A) metric is therefore conservative, pru-
dent and consistent and will prevent the intrusion of excessive noise. /|t is noteworthy
that documented noise complaints and issues do not occur within the city portion of the
4LUP. Virtually all ofthe noise complaints occur in the county area soWthand southeast
Of the airport, and the AMP 6Od8/A\ contours occur only in the county, The city's
adoption of the AOZ and the application of the 60 dB (A) metric will not impact the
SLO City Overrule Resolution Comments Page 7of0
ALUC's application of a different noise standard to these areas.)
5. Growth }n airport operations may increase the dis-
tribution ofaCddcDtSaOdincreaSenoise|evels@roundthe ai[po[t. The argument may
bc made that shorter term projections vviUMotantiCipateiM0pactsth8t[nayoccurVvera
longer time frame, certainly within the projected lifetime of the airport, The adopted
AMP and the associated noise study are based uOaO operational forecast of approxi-
mately 14O,0OOannua|operadoOS. 0y contrast, the FAA's Terminal Area Forecast for
the next 25 years shows annual growth in airport operations of less than one-quarter of
One percent to84,GOO in 2040. This level of assumed operations provides 65% contin-
gency tactorUatheoperadnnopr jectedhVtheFAAto2O40. That is, the operations
could almost double and the estimated noise contours would not change substantially
from those shown in the AMP EIR.
6, Need for Future Expansion, The extension nf the main runway b adequate to meet the
needs of regional jets planned for the airport. No future extension Vr expansion \s con-
sidered nccessarytoincFeasepassenger6en/ice. The zones established by the City also
preserve the option toextend Runway 7-25. This runway ks not considered necessary
for continued operations at the airport since there has been little documented conges-
tion onthennainrunvvay, Nevertheless, the AOZ are based on the full implementation
of the AMP and the extension of 7-25 by 500 feet as planned.
The City Council has been presented with two alternatives for consideration in response
to the A1U(�s unsubstantiated finding ofinconsistency- 1\ direct staff to modify the LU[Eso
that it is consistent with the ALUP, or, 2) proceed with the LUCE and overrule action along with
the adoption of the special zoning ordinance provisions that ensure compliance with the SAA.
Adoption of first alternative would ignore the substantial participation by the public in the de-
velopment OftheLUCE, un-necessarily force development outside of the current URL, substan-
tially 'increase the cost of infrastruCtUre to the community, reduce the cohesiveness of the
community, and create regulations that have no Substantive basis or essential public purpose.
Further, based on the inadequacies of the ALUP enumerated above, and nn inadequacies enu'
rnerated in the staff report and Airport Compatibility Study, usage of the ALUP as the basis for
any city regulation i3 inappropriate. Approval ofthe resolution pf intent to overrule, along with
the new AOZ and rigorous LUCE policies related to airport safety and noise compatibility, will
ensure that the public is not exposed to excessive noise or safety risks, norjeopardize the rea-
sonable growth and expansion of the SLQ Regional Airport.
_- --_--_ --—' -
SLD City Overrule Resolution Comments Page Duf0
Sincerely,
Stephen J. Peck, AICP
Project Manager, Avila Ranch
xc: Economic Vitality Corporation for San Luis Obispo County
San Luis Obispo Chamber of Commerce
SLO City Overrule Resolution Comments Page 9 of 9