MINUTES ALAMEDA COUNTY AIRPORT LAND USE COMMISSION Wednesday, July 18, 2012 The meeting was called to order by Commissioner Max Morris at 3:00 p.m. 1. ROLL CALL Commissioners Present: Commissioners Excused: Guests: Max Morris Leander Hauri, Chair John McCarthy John Marchand Christian Cebrian Olden Henson Howard Beckman Deborah Ale Flint Andy Wilson Doug McNeeley Steve Riley Paul Spence David Rizk Don Kahler Staff Present: Elizabeth McElligott Cindy Horvath, ALUC staff William Fleishhacker, County Counsel Maria Elena Marquez 2. APPROVAL OF MINUTES November 16, 2011 Commissioner Morris moved to approve the November 16 th, 2011 Minutes and Commissioner Marchand seconded. Motion carried unanimously. 3. OPEN FORUM - Open Forum is provided for any member of the public wishing to speak on any item not listed on the agenda. Each speaker is limited to three minutes. John McCarthy raised the issue again about the impacts of rising Bay area sea water levels on the airports, loss of airport resources and displacement of general and commercial aviation. LETTER TO ALAMEDA COUNTY BOARD OF SUPERVISORS Commission Chair Leander Hauri will request approval of letter to the BOS requesting that the two Commission seats they appoint be filled as soon as possible. Action Item. Staff reported that Commissioner Hauri recommended that this letter be brought before the Commission for review and approval. If approved today, he will sign and send to the Board of Supervisors. The two Board appointed seats have been vacant for an extended period of time and this letter requests that they be filled as soon as possible. Commissioner Henson referred to the staff report draft letter regarding last appointment by District 3 and District 1 and asked if they not necessarily have to come from those districts. Staff
Page 2 clarified that this is a countywide appointment, however the airports are in particular districts and supervisors from those districts typically appoint them. He suggested a follow up with a personal phone call to the office of Supervisor Miley. Commissioner Morris moved to send the letter signed by Commissioner Hauri. Commissioner Henson seconded the motion. 4. FINAL DRAFTS OF ALUCPS AND INTIAL STUDIES/NEGATIVE DECLARATIONS FOR THE HAYWARD AND LIVERMORE AIRPORTS Staff will report on final recommended policies for the Plans, and request the commission certify the Initial Studies and adopt the Final ALUCPS for HWD and LVK. Action Item. The Chair asked staff to give an update on the staff report. Staff started by saying that she received, yesterday, two comment letters from the City of Pleasanton and the City of Livermore, copies of which have been placed at each Commissioner s seat. Staff has also placed a proposed response to each of the letters concerns. Thus, staff will be presenting a brief overview of these latest two letters and proposed responses to them, as well as the staff report that is in the packets. Staff reported there are a number of sections that the cities are recommending changes to, many having to do with correct references to other sections in the Plans, and labeling of maps and tables. These changes will be incorporated in appropriate places. Staff reported that language was added a few months ago based on an earlier request and comments by the City of Pleasanton in a few policy areas. Staff is recommending slight policy language change in the areas of biological resources, and Special Districts to further clarify these policies. In response to the more technical issues, the consultant has completed a last-minute investigation into the latest concerns presented yesterday. The primary concerns for the City of Pleasanton are the safety zones and how they are measured. Staff reported that as recently as the last few weeks, she has provided the City of Pleasanton extensive information on how the Safety Zones are measured and determined. Upon reexamination last night, the consultant discovered that there is one Safety Zone, Safety Zone 2, that has been measured incorrectly. Commissioner Henson asked staff in terms of the calculations and incorrect measurements and her final analysis if there is any potential impact to long term planning by the City of Pleasanton. Commissioner Ale Flint asked staff what would be the impact to a number of residential properties now incorporated. Staff said that in terms of future development, Chapter 4 shows the current general plan land use and zoning designations. The incorrect measurement of Safety Zone 2 is 200 feet less than what it should be, based on the Caltrans Handbook guidance; it captures a little bit more land but those future land uses are planned to be what they are now, which is consistent with our policies for those safety zones. If we were to change the Safety Zones 2, 4, and 6, based on that additional 200 feet, it would serve no additional safety purpose; the areas in question are still adequately addressed by the current Safety Zones as they are now drawn. Staff recommends that the Safety zone configurations remain as is in the current version of the Draft Plans.
Page 3 Commissioner Henson asked staff about any potential conflict with their long term plans, 200 feet seems minor but it can be significant when talking about land use planning. He wants to make sure that the City of Pleasanton interests in this process were addressed. Staff said yes, the City s concerns have been fully addressed. She reported that back in 2007 the ALUCP process was stopped due to concerns that were raised at the time regarding Staples Ranch and the Stoneridge Drive Specific Plan future expected land uses being proposed. County and city staff have collaborated extensively since then on this and other issues. Staff then proceeded to summarize the staff report in the packet. She confirmed that many of the issues in the staff report have been addressed in the past. The City of Hayward requested to extend the comment period from 30 to 60 days, that was granted by this Commission in November 2011. Two public hearings were held in January 2012 on the DRAFT ALUCPs for both LVK and HWD, one in East County at the County Public Works facility and one in Hayward at this Public Hearing Room. In spite of several thousand pieces of mailings for each public hearing, only a handful of residents and members of the public attended the meetings. Their concerns were regarding future land uses and how people s property would be affected. Staff explained the potential impacts for individual homeowners, and invited further discussion after the meeting, but no members of the public have contacted us again. We received 12 comments letters from a number of cities, development corporations, Caltrans division of Aeronautics, and attorneys for the developers. The last several months County Counsel and attorneys for the developers have been very engaged in the fine-tuning language some of the most important issues, for example the definition of what constitutes an Existing Land Use. Another issue from the City of Livermore staff was questioning our existing policy in the December plan regarding how the Commission will review uses that are determined to be Conditional. The concern was that legally we couldn t require projects that we determine to be conditional to come back to the Commission for review. Counsel confirmed this fact, and staff reported that the language regarding commission review of a Conditional land use project was changed to reflect this. Commissioner Henson referred to page 6 of the staff report addressing both Hayward and Livermore issues, Policy 2.7.5.7. He asked for staff clarification on the parcel split by the safety zones boundaries, specifically, the transfer of more restrictive to less restrictive portion potion of property. Staff said that the difference before, using Southland Mall as example, is that there are current non-conforming uses on a parcel that is bisected Safety Zone 2, which is more restrictive, and Safety Zone 6, which is less restrictive. The former policy was that the more stringent criteria applies to the entire parcel. This has been changed, based on requests from Hayward and Livermore staff, to recognize the realities of large size of land parcels in East County, and situations like the Marie Callendar site in West County. It is less restrictive in this current Draft. William Fleishhacker, County Counsel, further clarified this policy change and when the more restrictive safety zone requirements would apply. Commissioner Henson mentioned the
Page 4 Southland Mall example and the point of contention there, and asked what would occur for that site under this new draft policy. Mr. Fleishhacker said that the issue with Southland Mall is the change affects the actual building, not the parcel. David Rizk, Development Services Director for the City of Hayward, indicated that the easiest way to describe it is before the regulations were based on a parcel configuration and even if a corner of a parcel was in a more restrictive zone, that entire parcel will be considered in a more restrictive zone it is more than a building location approach. Public testimony was called for. David Rizk, Development Services Director for the City of Hayward, said that basically he still has a major concern which he had expressed before and that is the limitation and expansion of non-conforming uses. Basically, his comments related to page 2-21 of the Draft Plan, Sub- Section B-2. He also referred to page 2-20 2.7.5.7 Special conditions, (a) Infill, regarding the current language. Commissioner Morris asked staff where the Commission stands on that issue. Staff reported that extensive revisions have been done in collaboration with City of Hayward staff over the last year on this particular policy based on these concerns, and that she was not made aware until now that this was still an issue. Staff asserts there is no confusion and that the policy is clear. David Rizk said that it is not a matter of confusion it is a matter of whether there is consistency. It seems to him that the provisions would allow infill development that is no more intense than surrounding similar uses. That doesn t seem to be consistent. Staff said that she would argue that a non-conforming use is a non-conforming use. Caltrans guidance has been followed, the issue of a non-conforming use has been reviewed extensively, and we conclude that the policy in the Draft is the correct compatibility policy. Commissioner Morris said that the Commission will ask staff to review those situations between inconsistence usage and the language and if there is inconsistence then we can make those changes. Mr. Fleishhacker clarified that in the infill policy, and infill project is not granted as a right, it is considered to be allowed if certain conditions are met. The section on Special Conditions allows a use to be considered that is similarly consistent with what is allowed as infill. Commissioner Morris said that the Commission feels that is being consistent with our references to these issues and that staff has covered that issue. The discussion continued among Mr. Rizk, Commissioner Henson and staff regarding infill development for non-conforming uses policy language. Staff referred to page 2-22, Special Conditions section which has the most inclusive language in the plan. This entire section is about
Page 5 the burden on the cities to demonstrate that these special conditions apply. Commissioner Henson said that the language is not as consistent with the infill language. Commissioner Morris said that if the Commission simply agrees to have staff to review that and if there is gross inconsistency there, make those corrections. He said that the Commission is not going to change the plan at this time. Staff indicated that she would be comfortable with the Commission directing her to keep or strike specific language, as suggested by County Counsel. Commissioner Morris said that he personally is uncomfortable with the Commission revising staff work at this level. We have been doing this for a long time, we certainly had a lot of meetings and a lot of opportunities and a lot of time for people to make changes so it s time to go forward with this. Steve Riley, Principal Planner for the City of Livermore, stated that he supports the plan with small changes that they sent over. There were few small inconsistencies and he doesn t believe any of these changes are large in scope or change policy in any way. Commissioner Morris said that the Commission delayed this meeting and the approval of these drafts for one month, which ended up being two months, and he was very curious as to why the Commission is getting requests for more changes today at this meeting. Mr. Riley said that they have to adopt it into their general plan, and the particulars and the details of this document are very important because they do apply to their future land uses. They wanted to make sure that the document works for the city as they apply the ALUCP policies in the future. Commissioner Morris asked staff to brief the Commission on this issue. Staff reiterated that they have spent months on many of these exact same points, most recently between the and this is where we ended up. Staff stated she was frankly shocked to get this from the City of Livermore late yesterday. She was not sure if any of these recommendations really add value beyond what has been done in months. Ms. Fleishhacker said that to his knowledge the cross-references are correct. Commissioner Morris asked if it would be reasonable for the Commission to suggest staff make changes to this plan that are simply the cross references. If so, the Commission has the authority to ask staff to make those changes. Andy Wilson, Director at Large for California Pilots Association from Hayward, indicated that it has been a lot of work put into the California Handbook, supported and developed by attorneys, planners and Caltrans aeronautic staff. He said we have to honor what the safety zones are, and basically it is a risk analysis of landing and taking off from airports. The Commission needs to hold with the work that has been put into this plan and stay with that. For clarification, Caltrans just issued a new handbook and asked staff if those changes were included or if there will be another review after these documents has been approved.
Page 6 Staff said no and that that issue was raised last year as the plan was being finalized and a lot of ALUC s raised the issue. The answer from Caltrans was no, in fact we based the entirety of the plan on the 2002 Handbook, since that is the one we started with. Howard Beckman, from San Lorenzo, stated that he was confused because he has attended the Commission meetings for a dozen years, his interest in airport planning rises from the fact that the public is effectively shut out across the nation and locally. The ALUC is one of those rare opportunities where the public has a role in developing public policy. Those of us who have attended those workshops and meetings have not been given the documents that you see before you, contrary to the Brown Act. The Brown Act requires that all documents that you are seeing we also get to see. Mr. Beckman stated that if you adopt the plan today you do so unfairly and you do so at risk of litigation. Staff indicated that copies have always been available to Mr. Beckman since we sent out the notice on July 6, 2012. It is our practice that people have always had access to these documents in the office and also can request a CD. Mr. Beckman didn t contact her asking for documents. She reminded everyone that up until the plan is adopted, comments can be taken. Commissioner Morris told Mr. Beckman that he is sorry that he didn t show up at these public hearings because these documents were available and we also have the documents on CD. Christian Cebrian, from San Francisco, who represents the Paragon Outlets and the CrossWinds Church and landowners in the El Charro Specific Plan area, stated that the ALUC staff, County Counsel and City of Livermore staff had done a great job in recognizing the long term effects of planning and achieving the objectives of the Aeronautics Act. He commented on the 200-foot shift in Safety Zone 2. His understanding is that it doesn t implicate the outcome of the plan in anyway, but if it is true if the safety goals of the Aeronautics Act are addressed with the current size of the zone, we might just avoid confusion by shifting those zones in the planning process. He believes that the handbook gives you that flexibility. Public testimony was closed. Commissioner Henson indicated that the Commission needs to make a determination at this meeting and as it is agendized for both City of Hayward and City of Livermore, he asked for a separate vote for those two. Staff proposed a roll call vote on the proposal to adopt the Livermore ALUCP with the technical changes as recommended during this meeting. Commissioner Morris said that as proposed the Commission will do the plans separately and will do a roll call vote for each. Commissioner Marchand made a motion that the Commission adopts the final ALUCP for the City of Livermore with technical changes for both plans. Commissioner Henson seconded.
Page 7 Commissioners Henson, Marchand, McNeely, Ale Flint and Morris voted aye, none opposed and the motion carried unanimously. Commissioner Morris asked if it would make sense to make a slight amendment to include any technical changes that came up today. Commissioner McNeely made a motion to adopt the final ALUCP for the City of Hayward. Commissioner Marchand seconded. Commissioner Henson stated that there are still some outstanding concerns that need to be addressed regarding language on page 2-21. Commissioner Morris indicated that he is very reluctant to change any of the staff s wording at this time and he would like to move forward with the vote. Staff proposed the Commission adopt the ALUCP for the City of Hayward as it is written with technical changes as needed. The roll call vote is as follows: Commissioners Henson and McNeely opposed, Commissioners Marchand, Ale Flint and Morris, in support. Staff said that 4 votes are needed to adopt the HWD ALUCP. Commissioners Morris asked if the commissioners were aware that the cities may, after the Commission makes this motion to adopt this plan, overrule the plan or accept parts of the plan. Commissioner Morris said that he will be happy to re-open the discussion with the commissioners. Commissioner Henson referred to page 2-21 that is more than just technical. He said that he understands that the cities have the authority to take a vote and perhaps override it. Discussion ensued among commissioners and staff on the City of Hayward plan s language on page 2-21. Mr. Fleishhacker suggested the inclusion of a phrase later in this same section be added at the end of two sentences that would address the consistency issue for non-conforming uses on page 2-21. Commissioner Morris said he was concerned with the word clarity and asked to clarify 1, 2 or 3 of those issues and just clarifying without changing the content. Staff said the more accurate thing to do is directing staff to include that specific language in the last sentence in number 3, as described by County Counsel, into numbers 1 and 2 because that is what we were referring to. Commissioner Morris asked if the Commission can formalize that recommendation at this time. Staff said that the language change that would occur would be on page 2-21 # 2 Non-Residential Uses. Those are the changes that you would adopt into the plan and direct staff to make those changes. Commissioner Marchand moved that the Commission accepts the ALUCP for the City of Hayward with changes he just read into the record. Commissioner Ale Flint seconded. Staff took a roll call vote, and the results are: Commissioners Henson, Marchand, McNeely, Ale Flint and Morris all voted aye, none opposed. Motion carries unanimously.
Page 8 Commissioner Marchand moved to insert similar language to be included in the ALUCP for the City of Livermore. Commissioner McNeely seconded. Staff said that in the recommendation that we also incorporate proposed language additions into the Livermore ALUCP that was just approved for the City of Hayward ALUCP. Commissioners Henson, Marchand, McNeely, Ale Flint and Morris all voted aye, none opposed. Motion carries unanimously. 5. ALUC COMMISSIONER AND STAFF FORUM Opportunity for members of the Commission and staff to share information or items of interest to the Commission and the Public. Commissioner Henson said that he is no longer part of the city government in Hayward but wanted to thank the Oakland Airport Director for the ARF vehicle on the Hayward Airport, it allows us to respond to fires much more quickly. Also, he would like to get a commitment from this body in light of what has happened to the Brown Act. He asked County Counsel to adhere to the Brown Act in spite of what has occurred at the state level. Commissioner McNeely wished Commissioner Hauri well recovering from his back injury. 6. ADJOURNMENT - Commissioner Morris made a motion to adjourn at 4:57 p.m. in honor of Woody Pereira.