Cities Retain Zoning Authority Within Airport Land Use Plan

November 14, 2017 | Bulletin No. 127418.1

In Dryden Oaks, LLC et al., v. San Diego County Regional Airport Authority et al., a California court of appeal held that adoption of an Airport Land Use Commission's ("ALUC") Compatibility Plan ("ALUCP") by a local agency does not constitute a "disguised taking".

Facts

The State Aeronautics Act (§§21001 et seq.) requires each county in which an airport is located to establish a seven-member ALUC. The ALUC is an advisory group that works to "assist local agencies in ensuring compatible land uses in the vicinity of" airports. (§21674(a), see §21670). The Aeronautics Act specifies that the San Diego County ("County") ALUC "shall be responsible for the preparation, adoption, and amendment of an airport land use compatibility plan for each airport" in the county; however, the ALUC may be overruled by local agencies. (§21670.3(a), §21676).

In 2001, Michael Durkin ("Durkin") – through his two LLCs, Dryden Oaks and Durkin-CAC Lot 24 – purchased two lots (Lots 24 and 25) next to the McClellan Palomar Airport ("Airport") in the City of Carlsbad, California ("City"). Although the San Diego County Regional Airport Authority ("Authority"), the County's ALUC, determined that Durkin's development plan for the lot was not compatible with the Airport, the City approved the necessary permits for Lot 24 in June 2002.

It was not until October 2006 that Durkin submitted an application for Lot 25 to the City for a planned industrial permit. In February 2007, the Authority again provided notice to the City that Lot 25's development plan was not consistent with the compatibility plan. But the City, again, chose to override the Authority's determination and issued Durkin the relevant permits for Lot 25. However, the City did note that the California Department of Transportation had determined that Lot 25 was located within the Runway Protection Zone pursuant to the Federal Aviation Administration, which made it a "very high risk" because of its proximity to the end of the runway. 

Although the City eventually issued Durkin a three-year extension of the permit for Lot 25 to 2012, Durkin did not pursue development of the property until after the permit expired. During this time, the Authority had adopted the ALUCP, which included Lot 25 in Safety Zone 1, the plan's most restrictive area. This time when Durkin submitted an application to restart the process for Lot 25's development in 2013, the City informed Durkin that the use was not permissible per the ALUCP.

In February 2014, Durkin filed a complaint against the Authority and the County, alleging that the Authority's adoption of the ALUCP amounted to a "disguised taking".

The trial court granted summary judgment in favor of the Authority and the County and Durkin appealed.

Court's Decision

The Court of Appeal ("Court") affirmed the trial court's rulings. First, the Court ruled that the Authority did not have the ability to make the final land use determination at issue because the City had the right to overrule the Authority's ALUCP. Although Durkin attempted to cite previous case law (Muzzy Ranch) to demonstrate that the Authority's ALUCP was a final determination, the Court drew a distinction between a required CEQA review because a plan may impact the environment as opposed to a takings claim, which requires finality to adjudicate. (see Muzzy Ranch Co. v. Solano County Airport Land Use Com (2007) 41 Cal.4th 372 [court determined that although further governmental decisions needed to be made, it did not prevent the development plan from qualifying as a project requiring CEQA review]).

The Court also determined that Durkin had no claim for a "disguised taking" claim because the ALUCP was not a physical invasion of Durkin's property and did not deny him of economic benefit.

What This Means for Public Agencies

This case is a good reminder for cities that they have ultimate decision making authority on land use matters and can overrule airport compatibility plans. 

If you have any questions about this legal development, please contact the following from our office, or the attorney with whom you normally consult. 

Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597

Stephanie Pham
spham@kmtg.com | 916.321.4375