Posted by: Patricia Salkin | October 4, 2008

Denial of Conditional Use Permit Renewal for Airport is not Preempted by nor Contrary to State Aeronautics Act

Sunset Sky Airport has operated at some level since 1934. It was permitted by a 1962 zoning ordinance and became a conditional use in 1968. The current owner acquired the airport and obtained a two-year conditional use permit (CUP) in 1971, when it was primarily used for agricultural flights. The following year, the owner obtained a permit under the State Aeronautics Act (SAA), PUB. UTIL .CODE, § 21001. In 1988, the airport land use commission formed for the area, pursuant to the SAA, and established a land use compatibility plan for the area around the airport. In 1989, the county declined to issue a certificate of nonconforming use because of expansion of the use. The appeals court affirmed.

After operating without a CUP since 1973, the owner obtained a five-year CUP in 1999. The CUP included a condition requiring the operator to inform all airplane owners intending to install or improve hangars of the terms and expiration date of the permit. In 2004, the county refused to renew the CUP, stating that the airport was no longer compatible with the area, hindered acquisition of a site for a school, and had been given an adequate phase-out period. The trial court upheld the denial. The appeals court held that the denial was not preempted by or in conflict with the SAA, but that it violated the California Environmental Quality Act (CEQA), PUB. RES. CODE § 21000.

 

First noting the limited nature of the preemption claim, because there is no county ordinance alleged to be in conflict with the statute, the court stated that the SAA specifies that it does not limit the power to regulate airports by zoning. The airport was not able to identify a specific SAA provision “contrary to” denial of its CUP renewal. The county may not have unfettered discretion, but the SAA purpose to encourage private flying is not enough to indicate that the law prevents a county from denying a CUP renewal, even if denial will result in closure of a privately owned airport.

The county was, however, required by CEQA to prepare an environmental impact report. CEQA requires analysis of “projects” that may have environmental impacts. A “project” is “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . directly undertaken by any public agency.” The county’s plan to enforce its zoning code, by ensuring that the airport closes and pilots transfer to other airports, are part of “the whole of [the] action” of the CUP denial, and the whole of the action has the potential for physical change in the environment.

 

 

 

Sunset Skyranch Pilots Ass’n v. County of Sacramento, 2008 WL 2600978 (Cal. App. 4th , 7/2/2008).

 

 

 

 

 

 

The opinion can be accessed at: http://california.lp.findlaw.com/viewer.html#http://caselaw.findlaw.com/data2/californiastatecases/C055224.PDF

 

This abstract is from Planning and Environmental Law.  For more information visit: http://www.planning.org/pel

 

See the Real Estate and Construction Law Blog for more details: http://www.realestateandconstructionlawblog.com/land-use-and-entitlements-denial-of-a-conditional-use-permit-for-airport-requires-initial-study-under-ceqa-because-airport-closure-may-affect-environment.html


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: