AN INVESTIGATIVE STUDY OF
THE CALIFORNIA EXPERIENCE IN
AIRPORT NOISE REGULATION
by
Harrison C. Dunning
Final Report to the U.S. Environmental Protection Agency
DAVIS PROGRAM IN LAW AND THE ENVIRONMENT
University of California, Davis
June 12, 1975
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12 1 G
AN INVESTIGATIVE STUDY OF
THE CALIFORNIA EXPERIENCE IN AIRPORT NOISE REGULATION
by
Harrison C. Dunning
Professor of Law, University of California at Davis
and
Director, Davis Program in Law and the Environment
Final Report to the U.S. Environmental Protection Agency
(Prepared Pursuant to EPA Contract Number 68-01-2645)
EPA Project Officers
Elizabeth Cuadra (June 1974 - August 1974)
Henry Thomas (January 1975 - June 1975)
June 12, 1975
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PREFACE
This document constitutes the final report to the U.S. Environmental
Protection Agency pursuant to EPA contract number 68-01-2645 signed June 12,
1974. It is, as was anticipated in the request for proposals for the
contract, an independent, "outsider" investigation and appraisal by individuals
with no prior involvement in the California experience in airport noise
regulation.
The work performed was conceived and carried out primarily as a field
study under the auspices of the Davis Program in Law and the Environment.
In order to assess the way in which the California system for airport noise
regulation has been implemented, seven airports were selected for special
study. Between June 12, 1974, and June 24, 1974, a team of seven law students
from the University of California at Davis was assembled. For the following
ten weeks, under the direction of the author, this team interviewed hundreds
of officials and private citizens and reviewed files in scores of public
offices in order to develop the factual basis necessary to evaluate the
impact of the state regulatory system. In many instances this information
has been updated to early 1975.
The yeoman's service of the students who constituted the field research
team is gratefully acknowledged. The team consisted of Douglas Dodds (San
Francisco International Airport), Christopher Dworin (San Jose Municipal
Airport), William Hitchcock (Orange County Airport), Gregory O'Leary (San
Diego's Lindbergh Field), Elizabeth Ratner (Metropolitan Oakland International
Airport), Victor Ryerson (Sacramento Metropolitan Airport) and William
Waterhouse (Ontario International Airport). In addition to field research,
excellent editorial advice on the text of the final report was provided
by William Hitchcock, Gregory O'Leary and William Waterhouse.
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The author also gratefully acknowledges the generous assistance of
the hundreds of people who provided both facts and ideas in the course of
being interviewed. Of particular assistance at the state government level
were Richard G. Dyer of the Division of Aeronautics in the Department of
Transportation, Edward J. Connor, Jr. of the Legal Division in the Department
of Transportation, and Larry C. King and Nicholas C. Yost of the Environment
Unit in the Department of Justice. Excellent support was provided in the
formulation and field stages of the study by Elizabeth Cuadra of the U.S.
Environmental Protection Agency. Secretarial services were provided with
unfailing good spirits by Linda Cannell and Shellee Husman, who often worked
under considerable time pressure. Any errors of fact or of interpretation
are, of course, the responsibility solely of the author.
ii
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TABLE OF CONTENTS
Page
Preface i
Introduction 2
Part I: The California Airport Noise Standards 3
A. Introduction 3
B. The Noise Standards 6
1. The "Community Noise Equivalent Level" (CNEL) 6
2. "Single Event Noise Exposure Level" (SENEL) Limits 10
C. Determination of Airports with a "Noise Problem" 12
D. Initiation of Noise Monitoring 14
1. The Procrastinators 16
a. San Francisco International Airport 16
b. San Diego's Lindbergh Field 22
c. Ontario International Airport 25
2. Limited Monitoring: Metropolitan Oakland
International Airport 32
3. The Effective Use of Monitoring for Abatement
and Educational Purposes 35
a. Orange County Airport 35
I./ Single Events: The Admonishment Campaign 35
2./ CNEL 41
b. San Jose Municipal Airport 43
E. Aviation Measures to Abate Noise 44
1. San Francisco International Airport 45
2. San Jose Municipal Airport 46
3. Orange County Airport 47
F. Variances and Airport Noise Abatement Planning 49
iii
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Page
Part II: Airport Land Use Commissions 54
A. Introduction
B. Formation and Membership 57
Co Funding Problems 59
D. Jurisdictional Questions 59
lo ALUC Powers Related to Airport Noise Impact 59
2. Establishment of Planning Boundaries 61
3. Jurisdiction over Airports 62
Eo The Land Use Plans 63
F. The Decision-Making Process 67
1. Agenda Setting — Systems for Referrals 67
2. Orange County Case Study 69
3. ALUC Conditions on Approved Development 72
4. Local Government Overrides: The Harbor Bay
Isle Controversy 74
a0 Background 75
b. Recent Public Agency Actions 77
Part III: Noise Elements in General Plans 87
Part IV: Findings, Criteria and Recommendations " 89
A. Findings Regarding the California Airport
Noise Control System 89
B. Criteria for a Desirable Airport Noise Control System 96
C. Recommendations for an Airport Noise Control
System with Federal Involvement 97
iv
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"We envision the [California airport noise] regula-
tions promulgated as a commendable progressive state-sponsored
effort toward the future safety and protection of its citizenry
from the ever increasing aircraft produced noise nuisances.
We deem it most worthy of advisory consideration to the EPA
which is now engaged in promulgating its advice to FAA pursuant
to the Noise Control Act of 1972." East, J. for the three-
judge federal court in Air Transport Association v. Crotti,
389 F. Supp. 58, 62 (N.D. Cal. 1975).
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INTRODUCTION
Environmental protection placed low on the American list of public
priorities until well into the 1960s. In 1967, for example, a detailed
study of the problems of "governing nature" noted that the task of
"saving . . . nature from man for man's own sake in the future" had
hardly begun.1 But by the end of the decade there had been a sharp
2
change in national mood. Popular books like The Population Bomb added
to the growing unease many individuals felt over the future consequences
of continued rapid population growth, intensified natural resource
exploitation and an exploding technology that some viewed as newly
uncontrollable by the society at large. This unease was vividly demonstrated
when nearly twenty million people participated in "Earth Day" on April
3
22, 1970. And the new national mood was sufficient to prompt a conservative
President to state in the 1970 State of the Union message:
The great question of the seventies is, shall we surrender
to our surroundings, or shall we make our peace with
nature and begin to make reparations for the damage we
have done to our air, to our land, and to our water?
Both in the U.S. Congress and in state legislatures the new priority
of environmental protection brought forth new legislation. At the
federal level the National Environmental Policy Act of 19695 was passed
and the Environmental Protection Agency was formed.6 Later the Congress
enacted the Noise Control Act of 1972,7 pursuant to which the EPA
must submit to the Federal Aviation Administration
proposed regulations to provide such control and abatement of
aircraft noise and sonic boom ... as EPA determines is nec-
essary to protect the public health and welfare.8
Among the states California acted with particular vigor in response
to the widespread public concern for environmental protection. Legisla-
tion modeled upon the National Environmental Policy Act was enacted
in 19709 and, two years later, it was given a very broad reading by the
2
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Supreme Court of California. The standards for planning by local
governments were rewritten to reflect environmental concerns. Parti-
cular attention was paid to the protection of "silence" as a natural
12
resource of the state, and to the massive assault on silence presented
by airports with frequent jet air carrier service. Legislation was
adopted which required the state's Division of Aeronautics (then,
"Department" of Aeronautics) to develop airport Noise Standards.
Airport land use commissions which previously had existed only on
paper were brought to life and airport noise was made a major part
of the commissions1 planning responsibility. And "noise elements"
were added to the list of mandatory "elements" or subjects which local
governmental planning bodies are required to include in their general
plans.
By 1971 through these standards, commissions and the noise element
requirement California had on paper a fairly comprehensive system
for dealing with airport noise problems. This report attempts, on
the basis of field information gathered primarily from the State Division
18
of Aeronautics and from seven large California airports, to describe
and analyze the implementation of this system during the early 1970s.
On the basis of this description and analysis, findings are made and
recommendations are submitted for consideration by the EPA.
PART I; THE CALIFORNIA AIRPORT NOISE STANDARDS
A. Introduction
Although the California airport Noise Standards were developed
administratively, they have a statutory foundation. An enactment
of September 6, 1969, directed the Division of Aeronautics to
. . . adopt noise standards governing the operation of aircraft
and aircraft engines for airports operating under a valid permit
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issued by the department [division] to an extent not prohibited
by federal law. The standards shall be based upon the level
of noise acceptable to a reasonable person residing in the
vicinity of the airport.19
It was to be the function of the county where the airport was
20
located to enforce the adopted Noise Standards, and their violation
by an aircraft was to be deemed a misdemeanor punishable by a fine
of $1,000.21 A limitation was added that the Noise Standards were
to be inadmissible as evidence in any eminent domain action or any
action for injury, damaging, or taking by reason of the operation
22
of aircraft.
The new statute gave remarkably little guidance to the Division
23
of Aeronautics and to the advisory committee which was created to
assist in preparation of the Noise Standards. Only two guidelines
were included in the legislation:
(a) Statewide uniformity in standards of acceptable airport
noise need not be required, and the maximum amount of
local control and enforcement shall be permitted (and)
(b) Due consideration shall be given to the economic and
technological feasibility of complying with the stan-
dards promulgated . . . ^
Plainly the California legislature expected that promulgation
and implementation of the new airport Noise Standards would be swift.
The Division of Aeronautics was to report back to the legislature
25
by December 31, 1970, and the regulations were to go into effect
26
December 1, 1971. Implementation thus originally was expected to
begin about two years after the initial legislative enactment. In
the nearly six years since that enactment, however, implementation
has proceeded at a snail's pace. Indeed, major airports in California
today operate in undisturbed non-compliance with the major provisions
of the Noise Standards. No effective sanction has been brought to
bear to force compliance with state law. Three principal factors
seem to explain this situation:
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1) The Noise Standards require complex and expensive noise
monitoring systems at noise problem airports, and — by an unjustifiable
administrative gloss — the standards have been interpreted to require
the development of airport noise abatement plans only after these monitoring
systems have been installed by the airport and approved by the state, steps
which usually have involved very long delays;
2) Opponents of effective state regulation of airport noise
obtained a statutory delay of the effective date of the major portions
of the Noise Standards and then, on the eve of the "final" effective
date, they filed a lawsuit which has forestalled many actions which
might otherwise have been taken to enforce the Noise Standards; and
3) The state Division of Aeronautics, confronted by the inevitable
inertia of airlines, pilots, and numerous county officials and airport
managers, has taken a generally passive attitude with regard to its
responsibilities under state law.
Despite this poor overall record, there are occasional bright
spots on the California airport noise regulation scene. One airport,
the Orange County Airport near the City of Newport Beach, has implemented
a successful noise monitoring program and has begun to use monitoring
data to change patterns of behavior in a way that seems to have improved
the noise environment of the airport. Several other airports now have
noise monitoring systems which may lead to successful regulatory activity
in the near future. And there is some hope that, if either the legal
challenge to California's regulatory system is disposed of in a manner
preserving a significant state role or the federal government gives to
the states power to deal effectively with airport noise problems, the
state government may adopt a more aggressive enforcement posture.
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In order to support these general conclusions, Part I of this
report will proceed with an analysis of the major provisions of the
California Noise Standards; a summary of the current noise monitoring
programs at the seven airports selected for special study; and discussion
of noise abatement measures at these airports which are linked to noise
monitoring or, more generally, to the methodologies for noise abatement
contemplated by the Noise Standards.
B^ The Noise Standards
The California Noise Standards were prepared by a noise standards
advisory committee which had the technical assistance of a well-known
27
acoustical consulting firm, and they were promulgated by the state
9 Q
Division of Aeronautics on November 28, 1970. They include over
twenty two pages of text, which together with six pages of figures
provide a scheme rich in both technical sophistication and regulatory
detail. Although they are "designed to cause the airport proprietor,
aircraft operator, local governments, pilots and the department [Division
29
of Aeronautics] to work cooperatively to diminish noise," they establish
a procedure which is mandatory for all airports required to operate
under a permit issued by the Division of Aeronautics.
1. The "Community Noise Equivalent Level" (CNEL)
A premise of the regulatory philosophy adopted by the Noise
Standards is that to deal effectively with airport noise quantification
is necessary. That is, the statutory reference to "the level of noise
acceptable to a reasonable person residing in the vicinity of the airport"
31
must be given a numerical value. Further, this numerical value
must be one which can be used to prepare a noise impact boundary (or
"contour") surrounding an individual airport. The numerical value
adopted is a "community noise equivalent level" (CNEL) of 65 decibels,
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a level deemed appropriate for reasonable persons residing in urban
residential areas "where houses are of typical California construction
32
and may have windows partially open." The CNEL is calculated as
an average daytime noise level during a twenty four hour day, "adjusted
to an equivalent level to account for the lower tolerance of people
33
to noise during evening and night time periods." That is, evening
noise is weighted more heavily than daytime noise and night time noise
is weighted still more heavily. From this average, an annual CNEL
O /
is calculated, which in turn is used to prepare an airport's noise
35
impact boundary. For those airports which have been determined
to have a "noise problem," the regulations have detailed provisions
requiring the establishment and validation of the noise impact boundaries
and requiring monitoring to measure noise levels at these boundaries.
Establishment of a CNEL of 65 decibels as the level of noise
acceptable to a reasonable person residing in the vicinity of an airport
is based on relationships between noise in the airport environment
38
and speech, sleep and community reaction. The Noise Standards,
however, utilize this level immediately only for new airports and
39
for vacated military airports being converted to civilian use. For
existing civilian airports the original design of the Noise Standards
was to utilize the less protective CNEL of 70 decibels until December
40
31, 1985, and 65 decibels thereafter. In what appears to have been
41
a last-minute revision, however, the large civilian airports of
the state were provided with far less demanding levels. For these
airports, defined as airports with four engine turbojet or turbofan
air carrier aircraft operations and at least 25,000 annual air carrier
/ O
operations (takeoffs plus landings), the criterion CNEL is as follows:
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Date CNEL in decibels
to 12-31-75 80
1-1-76 to 12-31-80 75
1-1-81 to 12-31-85 70
1-1-86 and thereafter 65
Use of these varying CNELs to prepare an airport's noise impact
boundary is only a beginning step in the regulatory process of the
Noise Standards. The regulations provide a list of land uses, such
as agricultural use, deemed to be compatible with a high level of
airport noise and thus permitted within an airport's noise impact
43
boundary. All other uses are deemed incompatible and are designated
as the airport's "noise impact area," to be measured in square statute
44
miles. Existence of a noise impact area for an airport is crucial,
for in a key provision the Noise Standards declare that "[n]o airport
proprietor shall operate his airport with .a noise impact area of other
than zero unless said operator has a variance..." (Emphasis added.)
Thus whatever the CNEL level used to define a noise impact boundary,
where that boundary encloses incompatible land uses the Noise Standards
place upon the airport proprietor the burden of obtaining from the
state a variance. Without this variance, continued operation of the
airport is prohibited. And it is in the variance process that the
true regulatory pay-off of the Noise Standards is found, for the process
requires airport proprietors to do the site specific, time-phased
planning which will contribute to improvement in the airport's noise
situation. Every variance application must state when compliance
with the Noise Standards is expected - that is, in variance applications
triggered by the existence of incompatibility between an airport's
noise and land uses in the surrounding area, when the noise impact
area will be zero - and further it must set forth an incremental schedule
46
of noise impact area reductions for the intervening time.
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Reduced to essentials, the main thrust of the California Noise
Standards is found in three crucial steps:
1) Determination by the county of a noise problem at the airport;
2) Installation by the airport proprietor of a noise monitoring
system to establish and maintain the noise impact boundary; and
3) Development of a site specific abatement plan approved by
the state as part of the variance process.
The Noise Standards do not treat these three steps as successive.
Clearly the determination of a noise problem comes first, but just
as clearly monitoring to establish the noise impact boundary and development
of an abatement plan are meant to proceed together. Section 5070(b) of
the regulations is clear on this important point:
Each proprietor of an airport that has a noise problem,
upon receipt of notification from the county, shall initiate
noise monitoring within the shortest feasible time not to
exceed 6 months in accordance with this subchapter of these
regulations and concurrently shall make application to the
department [Division of Aeronautics] for a temporary variance
in accordance with Article 13. (Emphasis added.)^'
Concurrence in the initiation of monitoring and the application
for a variance makes excellent sense, since each is a complex process
with quite separate and distinct objectives. Monitoring is necessarily
intended primarily to provide a data base which allows one to define
an airport's noise impact boundary and to gauge the progress being
made in the on-going noise abatement program. Initiation of an effective
noise abatement program can take place before this data is collected,
although undoubtedly it will be refined as the data from monitoring
become available. Significantly, Section 5070(b) quoted in full
above makes the determination that a noise problem exists the trigger
for the variance requirement. "Each proprietor of an airport that
has a noise problem ... shall make application ... for a temporary
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variance." The section is not limited to those airports with an established
and validated noise impact boundary, nor to those airports whose noise
48
impact boundary encloses a noise impact area of incompatible uses.
The existence of a noise impact area greater than zero is relevant in
determining the consequence of operating without a variance, however,
for only in this circumstance is continued operation prohibited. By
implication it appears less stringent sanctions are to be imposed where
no variance has been obtained by airports which have a noise problem,
but which currently have a noise impact area of zero.
2. "Single Event Noise Exposure Level" (SENEL) Limits
The California Noise Standards as promulgated in 1970 and as
they became effective in 1971 and 1972 contained a "single event"
regulatory system separate and distinct from the CNEL system described
above. Airports which had been determined to have a noise problem were
49
required to establish single event noise exposure level (SENEL) limits,
such as the limit for a single aircraft in a landing or takeoff operation,
and to monitor compliance with these limits. The Noise Standards
stipulated maximum SENEL limits for particular aircraft classes, and they
further provided that an airport could not select a SENEL limit in excess
of the maximum specified for the noisiest aircraft class then using the
52
airport on a recurrent basis. The intent was to allow existing patterns
of service by noisy aircraft, but to prevent any introduction of still
noisier aircraft at any airport. Aircraft operators in violation of
e Q
a SENEL limit were subject to a criminal penalty.
Monitoring systems established at California airports pursuant to
the requirements of the Noise Standards have provided for the collection
of single event datas and in some cases such data has been used as the
basis for the informal sanctioning of violators. Criminal penalties have
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never been sought, however, for from the beginning there has been
doubt as to the legality of the SENEL limits. In an action for
declaratory and injunctive relief on the ground that the Noise Standards
are entirely invalid under the supremacy clause and the commerce clause,
as implemented by controlling federal legislation and regulations, a
three-judge federal district court held on February 10, 1975, that
the SENEL provisions and regulations of noise levels which occur
when an aircraft is in direct flight, and for the levying of criminal
fines for violation, are a per se unlawful exercise of police power
into the exclusive federal domain of control over aircraft flights
and operation, and air space management and utilization in inter-
state and foreign commerce. ->4
In view of this federal preemption of certain aspects of airspace
management, the court granted partial summary judgment to the plaintiffs
in the form of a declaration that "each of the SENEL regulations,
and particularly those levying criminal fines, [is] void and unenforceable..."
Although the court did not comment as to whether it considers the
collection of single event data to be a "SENEL regulation" for the
purpose of its declaration, it did comment generally on airport noise
monitoring as follows:
The monitoring provisions in the California airport
noise abatement scheme are innocuous to aircraft
traffic. The monitoring of noise levels at and near
airports is a passive function involving ground noise
measuring machines and recording sound volume data
which in no wise intrude upon or affect flight
operation and air space management in commerce.
It therefore appears that California airports are free to continue
to collect single event data, to analyze the contribution single events
make to the CNEL, and to call upon aircraft operators to improve their
single event performance record so as to aid in the improvement of the CNEL.
Sanctions for a poor single event performance record, however, will have
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to be rooted in the airport's proprietary power rather than the police
power of the state.
C. Determination of Airports with a^ "Noise Problem"
The prerequisite to both airport noise monitoring and the variance
process in California is a determination that a particular airport
has a "noise problem." This term is left undefined by the Noise Standards.
The standards do, however, suggest its dimensions by directing counties
to do the following in making the determination:
1) Investigate the possible existence of a noise impact area
greater than zero based on a CNEL of 70 decibels, and determine whether
or not people actually reside inside the noise impact boundary;
2) Review other information that it may deem relevant, including
but not limited to complaint history and legal actions brought about
by aircraft noise; and
3) Coordinate with, and give due consideration to the recommendations
58
of, the county airport land use commission ...
In recognition of the statutory mandate to allow the maximum amount
59
of local control and enforcement, the Noise Standards provide that the
determination of a noise problem is to be made by the county wherein an
airport is situated. Initially, counties were required to complete these
determinations within "the shortest feasible time" after the effective
date of the regulations, which in no event was to exceed six months.
Further, provision was made for an appeal to the state Division of
Aeronautics by any affected or interested person or any government agency
disagreeing with the county's findings regarding the existence of a noise
ft *y
problem. In the event of an appeal, the division makes it own investigations
and determination of the validity of the county's findings. This leads
to production of a written record and a determination by the state, which
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is subject to a hearing under the Administrative Procedure Act if
so demanded. An appeal has occurred thus far in only one
64
case.
Although the regulations are not explicit as to future determinations
of a noise problem, the provisions suggest an open-endedness which should
allow for additional determinations that an airport has a noise
problem. Those matters which were to be investigated initially
are subject to change—for example, the CNEL contour of 70 decibels
may expand to encompass residences—and with changed conditions the
need for a determination of a noise problem, and consequently for noise
monitoring and a variance, may arise.
To date eleven California airports have been determined to have
a "noise problem," a number considerably greater than was contemplated
by those who drafted the Noise Standards. Of the seven airports
surveyed as part of this study, all but Sacramento Metropolitan
Airport were so designated. In most cases, the determination was made
with a minimum of investigation. In fact, to make such a determination
regarding these airports was simply to state the obvious. Generally,
the determination was made by resolution of the county Board of
Supervisors, usually without any special study having been carried out.
An exception is San Diego, where the determination that Lindbergh Field
has a noise problem was made on the basis of a special report prepared
by a consulting firm.
California's use of a flexible and open-ended "noise problem"
determination process is significant more for what it omits than for
what it provides. Obviously some means must be used to decide where
the action will be. California has hundreds of airports, many of them
serving air carriers. Only a fraction of these need or could possibly
undertake noise monitoring and a concomitant noise abatement program.
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The noise standards eschew elaborate requirements or criteria which
must be adhered to before the substance of regulation can begin.
The fact some airports are characterized as "noise problem" airports
and are consequently subject to very different requirements from
other airports constitutes a classification, but no extensive
classification process is set up. For situations of genuine uncertainty
the appeal process is available, but an appeal on one airport does
not hold up the regulatory process for other airports as to which
there can be no uncertainty.
One may usefully contrast a system in which the initial step is
formal classification of all airports. If all such classification must
be completed before the second step takes place, there is enormous
potential for delay. Even if regulatory personnel believe they must
complete classification before moving on, there will be unneeded delay.
The substance of regulation—directing changes in behavior intended to
improve the airport noise environment—will be put off while the form
of regulation goes forward. Although in California delay in compliance
has been widespread, none of it is attributable to the noise problem
determination process.
D. Initiation of Noise Monitoring
The California Noise Standards contemplated that each airport
determined to have a noise problem would initiate noise monitoring
by the end of 1971 at the latest. Following a period of legisla-
tive oversight, however, the legislature early in 1971 amended the
authorizing legislation to provide as follows:
1) Monitoring to be begun by December 1, 1971; but
2) The Division of Aeronautics could, until December 1, 1972,
grant an extension of time "where an airport operator shows to the
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satisfaction of the department [division] that noise monitoring equip-
68
ment is not available."
Since in 1971 only Orange County Airport had plans for a noise monitor-
ing system, other airports with designated noise problems quite naturally
took the opportunity to apply for a time extension. The Division of
Aeronautics was in every case willing to comply. No application for a
time extension was denied. Applicants were granted time extensions
without any written "showing" that noise monitoring equipment was
not available—ordinarily applicants merely stated their request for
more time. And in some cases the Division of Aeronautics granted
more time than an applicant sought. As justification for what might
appear a very lax pattern with regard to the initiation of the
mandated noise monitoring program, the division took the position
that major airports required more time to plan for and to install
complex and expensive noise monitoring systems than the airports anticipated.
In evaluating this position, one should keep in mind that the prospect
of required noise monitoring had in fact been in view for major airports
in the state ever since late 1970,when the Noise Standards were first
promulgated.
An additional point with regard to the monitoring "time extensions"
deserves particular emphasis. The initial California Noise Standards
set out both a schedule of implementation and a procedure for obtaining
variances. It also provided for the possibility of a public hearing
in connection with the approval of an application for a variance.
Thus, other affected governmental agencies or interested citizens would
be given an opportunity to present views contrary to those of the applicant.
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When the legislature subsequently dealt with the particular problem
of deadlines for monitoring, however, it apparently quite deliberately
created a new device in order to avoid the public hearing requirement.
One can understand a judgment that full-dress and possibly protracted
public hearings pursuant to the Administrative Procedure Act for
each airport unable to get a monitoring system functioning within
a short time would not be in the public interest. Unfortunately, by
insertion of the "time extension" provision, the legislature allowed
the pendulum to swing from a full public hearing to complete privacy.
Time extensions were extended on request, with no notice whatsoever
being afforded to interested third parties. Even the counties'—entities
charged with enforcement of the Noise Standards, including the monitor-
ing provisions—were not informed by the Division of Aeronautics that a
time extension had been requested or granted. Despite a forceful
request from the County of San Diego that it be permitted to comment
on all requests to extend the time for initiation of monitoring at
Lindbergh Field, the procedures of the Division of Aeronautics remained
unchanged.
1. The Procrastinators
The nature of the delay in initiation of required noise monitoring
at California airports can be illustrated by an examination of specific
patterns at three of the airports selected for special study: San Francisco
International Airport and San Diego's Lindbergh Field where there has
been "delay but progress;" and Ontario International Airport, where
there has been "delay, but zero progress."
a- San Francisco International Airport
San Francisco International Airport proclaimed adherence to
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the goals of effective noise monitoring from the beginning. On
January 24, 1972, for example, the Deputy Director of Airports for
the City and County of San Francisco assured the state Division of
Aeronautics that the airport would "do its utmost to comply" with
the new regulations. A month later, when the Director of Airports
formally applied for a time extension, he estimated that a contracted
noise monitoring study would be completed by July 3, 1972, and a
completed noise monitoring system would be operating by the end of
March 1973. A time extension until March 31, 1973, was granted,
although the state characterized the time requested as "optimistically
short." By the fall of 1972 the airport management evidently agreed,
for on November 21, 1972, a request for a time extension until
72
September 1, 1973, was submitted. This time the state agency, aware
perhaps that its authority to grant time extensions was about to
expire, made its own "more reasonable estimate" of the time necessary
73
and granted a time extension to February 1, 1974.
Even the second firm deadline, however, could not be met by the
airport. Nearly four months after the second deadline had passed,
the airport applied for a variance for the completion of its noise
monitoring system. After two and a half years of work on the problem,
the airport by then had only progressed to the point of "nearing
completion" of technical evaluation on bids received on its noise
74
monitoring system. The variance application was for a third extension
of time, this one to April 1, 1975. This was granted on June 12, 1974.
Efforts to discover the reasons for this extraordinary delay in
the initiation of noise monitoring at San Francisco International
Airport point to several factors. For public consumption the airport
17
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management has stressed that the time constraints of the California
noise regulations are "unrealistic" given the complexity of establishing
noise monitoring at a major airport. The Division of Aeronautics,
which made a series of findings in support of its grant of-the variance,
seemed to agree by stating as its principal finding that an additional
270 days was appropriate due to the "technological problems" in the
design, construction, testing, and installation of the required system.
No note whatsoever was taken of the previous long delays which had
occurred, although one finding stated without supporting documentation
that the airport proprietor "is taking . . . bona fide measures to the
best of his ability to comply with the requirements of the Noise Regu-
lations."78
In fact, considerably more seems to have been involved than simply
technological problems pertaining to rapid purchase and installation
of a noise monitoring system at San Francisco International Airport.
One major factor apparently was a decision to go slow while noise monitor-
ing was initiated at Los Angeles International Airport (LAX). Since
LAX is California's busiest airport, in terms of air carrier traffic,
and since it has undoubtedly occupied center stage in the California
airport noise drama, management of the San Francisco International
Airport quite understandably watched noise monitoring developments
there very carefully. The delay at San Francisco perhaps reflected
a hope that LAX would develop a good system which San Francisco could
later adopt. While such a policy may have merit, it clearly was
n°t the policy adopted by the state statute directing compliance by
a long-passed deadline (December 1, 1971) and allowing delay only
upon a showing that noise monitoring equipment is not available. The
availability of equipment during that period is demonstrated by the
18
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fact Orange County Airport then had a functioning system and two other
California airports—San Jose Municipal Airport, and San Diego International
Airport--were moving ahead with the initiation of comprehensive airport
noise monitoring.
In addition to a desire to go slow while LAX took the lead among
large airports with regard to noise monitoring, the San Francisco
International airport's management felt itself constrained by broader
fiscal and political considerations. In applying for the 1974
variance, the Deputy Director of the airport offered as one reason for
earlier delays "restrictions on funding contingent upon final acceptance
of San Francisco International Airport's expansion program Environmental
79
Impact Report by the San Francisco Board of Supervisors." This suggests
that airport management sought to delay the initiation of noise
monitoring and the consequent acquisition and promulgation of noise
data until they were assured that their expansion plans would be
approved.
Throughout this period of non-compliance with the spirit—and at
times the letter—of state law on airport noise monitoring, management
personnel at the San Francisco International Airport were less than
completely candid with interested members of the public and with other
governmental agencies which have responsibilities for abatement of the
airport noise problem. The most striking example of this behavior occurred
in connection with the grant of the variance which for the third time
extended the deadline for compliance with the noise monitoring require-
ment. The second of the two "time extensions" previously granted by
the Division of Aeronautics expired in February 1974, and a third could
not be granted because the division's authority to grant a time extension
80
expired at the end of 1972. For a period the airport seems to have
19
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contemplated leaving the matter in limbo-i.e., continuing to operate
as usual without noise monitoring, without a tine extension and without
a variance. Airport personnel have indicated that this route—one
which could aptly be termed "the Ontario syndrome/' as will be developed
below—was initially condoned by officials of the state Division of
Aeronautics. Subsequently, however, representatives of citizens'
groups in San Francisco inquired as to the status of the airport's
noise monitoring program. The Division of Aeronautics thereupon
indicated to the airport that application should be made for a variance.
During the same time period, inquiry was also made by the Regional
Planning Committee of San Mateo County. This committee is the designated
Airport Land Use Committee for the county in which the San Francisco
International Airport is located, and as such it has significant
responsibilities for land use control around the airport. Since the
land use control scheme is intimately linked to the noise impact
boundaries which noise monitoring systems validate, the E.egional
Planning Committee had more than a passing interest in progress on
monitoring.
In response to the committee's inquiry, the Deputy Director of
Airports for San Francisco sent a three page letter reviewing in
considerable detail the "past progress" and "present status" of noise
monitoring at the airport, including a review of the two time extensions
o-i
which had been granted. What this letter did not disclose—and what
appears an appalling lack of candor in the circumstances—is that on the
very day that letter was written the Deputy Director was applying to
the Division of Aeronautics for a variance to allow a third delay on
on
noise monitoring. This omission is particularly serious because the
letter to the P>.egional Planning Commission quite obviously was pre-
sented as a comprehensive review of the subject matter.
20
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Lack of candor by airport management on this point would be a
minor matter, but for its important functional consequence. Under
the California Noise Standards variance applications, unlike applica-
tions for a "time extension", are subject to public hearing on the
Q O
motion of any "affected or interested" person. This would seem to
include both the citizens in San Francisco who have engaged in
agitation over airport noise and the San Mateo Regional Planning
Committee.
But an affected or interested person cannot move for a public
hearing on a variance application without knowledge that such an
application has been made. By failing to disclose the application to
the Regional Planning Committee, airport management succeeded in
avoiding the possibility of a public hearing at which they would have had
to justify their long delay on noise monitoring and the public interest
in the extension of still more time. No citizen or other local public
agency would have the knowledge necessary to move for a public hearing,
and the airport's intimate relationship with the Division of Aeronautics
was enough to ensure that the division would not make such a motion. In
view of the facts that 1) this was the first variance ever granted under
the Noise Standards, 2) the San Francisco International Airport had been
given two time extensions previously, and 3) by operating for four
months in violation of divisional regulations the airport had subjected
its state operating permit to possible revocation, one might have
expected that on principle the division would have moved for a public
hearing. Such expectation, however, runs directly counter to the
passive attitude that the Division of Aeronautics has consistently
taken toward compliance with its airport noise regulations.
21
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b. San Diego's Lindbergh Field
In late 1971 when the noise monitoring provisions of the Noise
Standards became effective, the County of San Diego and the San Diego
Unified Port District (the proprietor of Lindbergh Field) were in an
excellent position to move rapidly toward implementation. The Port
District already had under contract a consultant charged with preparation
of an aircraft noise monitoring plan for Lindbergh Field, and early in
1972 the County of San Diego retained a different consultant to prepare
a noise impact assessment for all airports within the county. The
county's consultant had in preparation for the Comprehensive Planning
Organization of San Diego County technical reports for a San Diego Plan for
Air Transportation (SAMPAT) , so that it already had in hand much of the
needed data. In fact, the noise impact assessment was completed in
little more than a month after approval of the contract. It therefore
appeared in the spring of 1972 that in the near future Lindbergh Field
would have a noise monitoring system, and the County of San Diego would
be receiving data from that system and would be making its quarterly
reports to the state. Two and a half years were to elapse, however,
before these requirements of the Noise Standards would be satisfied.
Five factors seem to have been at work in bringing the long delay on
noise monitoring at Lindbergh Field. First, as at most of the other
noise problem airports in the state, those with management responsibilities
at the Port District displayed less than total enthusiasm for their new
responsibilities. Airport noise monitoring represented an expenditure
of time and funds, there was the usual fear that any noise data collected
would ultimately be used against the Port District in private litigation
seeking damages, and during the early 1970s the Port District and the
22
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Board of Supervisors were engaged in a running battle as the Board
of Supervisors vainly sought by formal and informal action to limit night
flights into Lindbergh Field.
Second, despite its stated intentions, San Diego County was
unable to press the Port District to proceed as rapidly as possible
with initiation of noise monitoring. The Noise Standards place the
primary enforcement responsibility for the monitoring requirement squarely
upon the counties, but San Diego County was unable to discharge this
responsibility in an effective manner. Protests were made to both the
Port District and to the Division of Aeronautics about different matters,
but the county seems never to have contemplated direct court action using
its own enforcement powers„ In fact, despite the clear mandates
of the Noise Standards, some confusion seems to have existed in the
minds of key county officials as to the nature of the county role in
Noise Standards enforcement, particularly regarding the county's power
to compel an airport proprietor to seek a variance. At one point the
county supervisor most concerned about airport noise expressed dis-
illusionment with the Noise Standards, principally because the CNEL
criteria to be used for Lindbergh Field for the 1970s define a noise
impact area much smaller than the area of active noise complaints. This
disillusionment may in part explain why there was no effective follow-up
on the county's expressed interest in strict compliance with the Noise
Standards.
Third, a dispute over interpretation of the Noise Standards between
the consultant for the Port District and the consultant for the County
of San Diego caused delay. In October 1972 the Port District's consultant
submitted its report on the development of a monitoring system for
85
Lindbergh Field. It contained a description of existing noise levels
23
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and operations9 a general monitoring system plan, a statistical sampling
plan for continuous monitoring at locations on or within the 80 decibel
CNEL contour, and proposed single event noise limits. The monitoring
system was to consist of eight stations, six on the 80 decibel CNEL
contour and two to measure single event noise levels at either end of
Q£
the airport's single runway. The system was to be capable of expansion
to fifteen monitoring stations.
The report was accepted by the Board of Port Commissioners of the
Port District and became the basis for the monitoring plan submitted by
the Port District to the County of San Diego and the state Division of
Aeronautics. This plan was referred by the county to its consultant for
comment, and the consultant commented that under the Noise Standards it was
improper for the Port District to monitor at the 80 decibel contour rather
than the 70 decibel contour. Ultimately this comment was transformed into a
request from the county to the Port District to monitor at the 75 CNEL contour,
a line supported by no statutory authority whatsoever. The Port District refused
to comply with this request, and the county dropped the matter.
Fourth, the state Division of Aeronautics did nothing to assist in
rapid initiation of noise monitoring. In fact, interviews with personnel
in the county Public Works Agency indicate that at the very time the
Board of Supervisors was publicly advocating quick action on airport noise
monitoring at Lindbergh Field, individuals with the Division of Aeronautics
were counseling a "go slow" attitude.
Fifth, once the monitoring system was installed, a technical
malfunction with one microphone was allowed to continue uncorrected for
many months. As a result, certification of the system by the Division of
Aeronautics was considerably delayed. The Port District collected noise
data during this period, but it has refused to release these data to
24
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the county or to the public.
c. Ontario International Airport
Despite the many delays and the disappointing attitude of
airport management toward some of the requirements of state law, progress
on noise monitoring has been made at the San Francisco International
Airport and at San Diego's Lindbergh Field. The Lindbergh Field system
was certified by the state Division of Aeronautics on September 16, 1974,
and that for San Francisco International Airport is under construction.
This "progress with delay" contrasts rather markedly with the situation
at Ontario International Airport, where there has been literally no
significant progress toward noise monitoring over the same three and a
half year period.
Many commentators on airport noise problems have emphasized
that "political fragmentation" is a key variable inhibiting progress.
The phrase encompasses two distinct concepts: first, that the governmental
entity or entities with responsibility for management of the airport impact
zone surrounding an airport are different from the governmental (or,
occasionally, private) entity with responsibility for management of
the airport itself; and second, that the impact zone entities have
little leverage over or influence upon airport management entities.
Often the fragmentation consists of airport management by the munici-
pality wherein the airport is located and major impact zone responsibility
lodged in other cities and/or the county government. In these instances
i
considerable divergence in the goals of the different governmental
entities may exist, but nonetheless as units within a single county
they must cooperate for many purposes.
25
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A more extreme form of political fragmentation is found when the
airport management entity has no tie at all with the host county,
with the exception of whatever links are created by the fact
of proprietorship itself and whatever tenuous links may be established
by regional associations of governments. In this connection
it is worthy of note that of the seven airports selected for special
attention in this study, the noise monitoring situation has been worst
at the two characterized by this more extreme form of political
fragmentation. In the case of San Francisco International Airport, the
airport is located in San Mateo County, but owned and operated by the
City and County of San Francisco. In the case of Ontario International
Airport, the airport is located in San Bernardino County, but operated
by the City of Los Angeles.
For Ontario, it was not always so. Until 1967 the airport was owned
and operated by the City of Ontario. Thus, the proprietor was the political
body directly responsible to many of those living in the noise impact
zone. The rest of the impact zone residents were citizens of neighbor-
ing cities—-Chino and Montclair—with which the City of Ontario
had regular dealings. In 1967, however, the city contracted with
the City of Los Angeles for a "joint exercise of powers" in relation
to Ontario International Airport. In order to obtain the financial
support of the City of Los Angeles for expansion and development
of the Ontario International Airport, the City of Ontario turned
over the administration of the airport to the Los Angeles Department
Q "J
of Airports. Although the contract imposes obligations on the City
of Ontario to assist with the expansion of the airport, for example
Q Q
by exercise of its power of eminent domain, the City of Ontario
89
retains virtually no control over airport operations. Only advice
26
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may be offered, through an Advisory Board made up of two members
of the Ontario City Council. Some impression of the priority which
Ontario has attached to the protection of its residents from harmful
airport noise is gained by noting that, in the list of six airport-
related problems which are said to be mutual to the cities of Ontario
and Los Angeles and with which the Advisory Board is to deal, airport
90
noise does not appear.
The 1967 contract has meant that in any attempt to enforce the
noise monitoring provisions of the Noise Standards San Bernardino
County would be confronting the Los Angeles Department of Airports
rather than the City of Ontario. The problem is exacerbated by the
fact that this department, like several other independent, "non-political"
departments of the City of Los Angeles, has a semi-antonomous status
within city government which makes it subject to only tenuous control
by the City of Los Angeles itself.
With regard to noise monitoring, Ontario International Airport
has been a casualty of the failure of the Hewlett-Packard Company's
system installed at LAX. The Los Angeles Department of Airports long-
range plan was to use telephone wires to transmit monitoring data
from Ontario International Airport to be processed by the data processing
facilities at LAX. When the Hewlett-Packard system failed at LAX and
had to be removed, this plan had to be abandoned.
For a long period after the Hewlett-Packard system failed at LAX,
no substitute noise monitoring plan was considered. Indeed, despite
the absence of any preliminary injunctive relief in favor of the
plaintiffs, the Los Angeles Department of Airports took the position
that the lawsuit challenging the validity of the Noise Standards meant
91
that there was "no law" on the matter. In other words, the Los Angeles
27
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Department of Airports treated the state's regulations as void in their
entirety, even though it had no judicial warrant for doing so. In the
face of the decision of the court to grant summary judgment only with
regard to the SENEL regulations, however, the department has reversed
its position. Recommendations have now been made by the Los Angeles City
Attorney for compliance with the Noise Standards at LAX, and presumably
the Los Angeles Department of Airports has under consideration compliance
at Ontario International Airport as well. Preparations are now being
made to go to bidding on a second noise monitoring system for the two
airports.
From a legal point of view there is no doubt that the Ontario
International Airport is operating in clear violation of both the letter
and the spirit of state law. The airport's only "time extension" expired
on June 1, 1973. No further time extension can be granted, no variance
has been applied for and no noise monitoring system has been obtained
for the airport.
Confronted with this situation, the responsible state and local
agencies have simply folded their hands. When the Community Relations
Commission of the City of Ontario complained to the state Division of
Aeronautics over the delay in initiation of noise monitoring at the
92 93
airport, the division agreed that further delay would be unreasonable.
It also stated—in what seems to be the high water mark for enforcement by
the state agency during this entire half decade of work on the problem—
the following: "This Division is currently initiating action to bring
Ontario International Airport into conformance with the requirements
of Title 4, Subchapter 6, of the California Administrative Code, which
requires certain noise monitoring to be done at the Ontario Interna-
94
tional Airport."
28
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"Action" by the Division of Aeronautics could have been of great
significance., Ontario International Airport can legally operate only
95
on the basis of the airport permit it holds from the division. State
law specifically makes this permit subject to revocation if divisional
rules or regulations are not complied with. And the noise monitoring
requirements are clearly an applicable divisional regulation. It might
be objected that permit revocation is not a viable sanction, since
politically and economically powerful forces would never allow closure
of the airport. Thus, any attempt to close the airport might be countered
immediately by special legislation to exempt it from the noise monitoring
requirements. However, revocation of the airport's present permit
could be accompanied by issuance of a new permit made conditional
upon the initiation of an acceptable noise monitoring program. The
conditions of the permit could then be enforced by court action by
the division.
A second form of "action" which the Division of Aeronautics might
have taken pursuant to its statement of September 14, 1973, would have
been court action to compel those who operate the Ontario International
Airport to comply with the Noise Standards and to compel San Bernardino
County to perform its obligation to enforce compliance with the Noise
Standards. This is a more direct course of action, and insofar as it
involves action directed at the county it seems to be quite straightforward.
Insofar as an action by the Division of Aeronautics (Department of
Transportation) to enforce the Noise Standards would be taken directly
against the airport proprietor and manager, however, it carries with it
one complication. The state statute which mandates the Noise Standards
states that it "shall be the function of the county wherein an airport is
situated to enforce the noise regulations established by the department
29
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97
[division]." This clearly gives to San Bernardino County the initial
responsibility to act to compel noise monitoring at the Ontario Inter-
national Airport. The complication arises in the potential for an
argument that suit by a state agency is barred as the statute gives
exclusive enforcement power to the county.
This interpretation has some plausibility, particularly in view of
the statutory guideline that "the maximum amount of local control and
98
enforcement shall be permitted." On balance, however, it seems incorrect.
It would leave the Division of Aeronautics in the anomalous position of
having no power directly to enforce its own administrative regulations.
It would read "maximum...local control and enforcement" not as a provision
designed to avoid state preemption of the subject matter, but rather as
a provision allowing total local governmental inaction with regard to
the subject matter. And it would run counter to language in the Noise
Standards, which were explicitly approved by the legislature, that gives
to the Division of Aeronautics at least secondary or "back-up" enforcement
responsibility.
These enforcement responsibilities of the Division of Aeronautics
contemplated by the Noise Standards are particularly compelling with
regard to noise monitoring. A noise monitoring plan is initially developed
by an airport proprietor, and then it is submitted "to the county and to
99
the department [division] for approval." The division, in fact, has
taken the position that this language means that only the division must
approve the monitoring plan and that the county merely receives "an
informational copy...for their comments and coordination with this
Division." Thus, with regard to administrative enforcement of the
requirement that a monitoring plan be approved, the division has assumed
the Noise Standards give it the primary responsibility.
30
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Further, those provisions of the Noise Standards which deal explicitly
with implementation by the Division of Aeronautics state that the division
is to "review the data submitted quarterly by the counties for the purpose
of assessing the degree of compliance" with the Noise Standards. "Compliance"
in this provision refers to compliance by the airports as well as by
the counties, for the next sentence states that the division's review
"will include... observation of any changes in boundary monitor positions
102
and any changes in numerical values of CNEL." To assess such matters
for compliance would seem a rather useless act if the division has no
power to sanction non-compliance when discovered. And if non-compliance
with the Noise Standards in the operation of a monitoring system is subject
to divisional enforcement, then divisional enforcement of the fundamental
requirement that "noise problem" airports establish monitoring systems
is an a fortiori proposition.
None of the enforcement possibilities which have been mentioned
were, however, what the Division of Aeronautics had in mind in informing
Ontario's Community Relations Commission that "action" would be taken.
What the division did was to write some letters and then drop the
matter. A letter went out to the Director of Airports for San Bernardino
County, by which background information on the noise standards was
supplied and the division noted that "no formal monitoring plan for
103
the [Ontario] monitoring system has been filed with this office." In
addition, the division offered to participate in a conference regard-
104
ing county responsibilities relative to the noise standards. And
a letter went out to the Assistant General Manager of the Los Angeles
Department of Airports, in which non-compliance at Ontario International
Airport was noted and the procedures for obtaining a variance were
outlined. The letter included the observations, however, that the
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division "has no authority to do any enforcement relative to the monitor-
ing requirements of the noise standards" and that San Bernardino County
could enforce them "to the degree it desires."
San Bernardino County evidently had no desire to enforce the
noise standards pertaining to monitoring. As will be developed in
the discussion below of land use control in the area surrounding the
Ontario International Airport, the County Board of Supervisors has
favored expansion by the airport and has consistently opposed any
action which would run counter to what airport management sees as the
airport's interest. When applied to the monitoring question, this
means those who control the county government have no intention to
compel compliance with the state regulations. With refreshing candor,
the county Director of Airports indicated to an interviewer that no
proposal to the County Board of Supervisors for action against the airport
TO 8
would be made, for if such action were proposed "I'd get fired."
2. Limited Monitoring; Metropolitan Oakland International Airport
A review of the basis for determination of a noise problem at the
Metropolitan Oakland International Airport will assist in understanding
the nature of the limited monitoring effort at that airport. The
determination was made by resolution of the Board of Supervisors of
109
Alameda County, which acted on the basis of a report to it from the
county Airport Land Use Commission (ALUC). In its report, the ALUC
considered the noise situation at both the airport's North Field and
its South Field. The North field, established in 1927, is used almost
exclusively for general aviation—in part because the take off tracks
pass directly over a residential area inhabited by about 4,000 persons.
The South Field, built in the mid-1950s on bay fill, consists of a single
runway used mainly for jet air carrier traffic.
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Pursuant to the criteria of the Noise Standards, the Alameda
County ALUC studied the complaint history for the airport, legal action
which had been taken on noise and the possible existence of a noise
impact area greater than zero using a CNEL contour of 70 decibels.
Although it found there was not a. noise impact area greater than zero,
the ALUC found there was a considerable history of complaints and
litigation for both the North Field and the South Field, with over
70% of all noise complaints prompted by the North Field. On this basis
it determined that the airport has a noise problem.
Despite the fact that a noise problem was determined to exist for
the entire airport, including both the North and South Fields, the
Noise Standards have been interpreted to require monitoring only at the South
Field. This results from the fact that SENEL monitoring is not required
for flight tracks "associated with aircraft operations which do not
112
contribute to the noise impact area of the airport." Since the noise
impact area at Oakland is created by South Field flight tracks, but not
North Field flight tracks, no North Field monitoring is thought to be
required. This demonstrates a curious gap in the Noise Standards:
complaints and litigation alone—without the existence of a noise impact
area—clearly are enough to justify determination of a noise problem;
such a determination is supposed to lead to monitoring; yet measurements
are not required where there is no contribution to a noise impact area.
This may seem logical enough if one considers the aim of monitoring to be
measurement of progress in eliminating the noise impact area calculated
by Noise Standards criteria—if there is no noise impact area, there is
nothing which needs to be eliminated. But monitoring is also a way
of checking on single event violations, which can occur whether or not
there is a noise impact area. Without North Field monitoring at
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Oakland, there is no firm basis for reviewing some of the noise
abatement procedures which have been established for that field.
Even at the South Field, monitoring is far less intensive than
at those other airports in the state which have begun to monitor under
the Noise Standards. They all have "continuous" noise monitoring, which
113
in principle means monitoring at least forty-eight weeks of the year.
Since Oakland has less than one thousand homes within the CNEL contour
of 70 decibels, however, it is required only to have "intermittent"
CNEL monitoring. This calls for one week of monitoring per calendar
quarter at each monitoring location. Since the airport has four engine
jet service and over 25,000 operations annually, only the CNEL of 80
decibels need be monitored, and this is done at only two monitoring
sites. Further, there is no SENEL monitoring at all for the South
Field, on the theory that measurements need not be made on the flight
track centerlines since these points are over water.
If one accepts the premise that noise monitoring is not an end
in itself, but is only a means to the end of noise abatement, then one
conclusion for Oakland might be that airport management is to be
commended for limiting its monitoring effort so severely. Data from
the intermittent CNEL monitoring at the South Field show not only
that there is no noise impact area there, based on a CNEL of 80 decibels,
but also that at the sites being monitored the annual CNEL runs well
below 80 decibels. If there is no present noise problem and no need
for an abatement program at the South Field, then money spent for
more elaborate monitoring would simply be wasted.
This conclusion, however, cannot be so easily reached for the
North Field. There a problem clearly exists, and on February 1, 1974,
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the airport promulgated a formal noise abatement policy for the North
Field. One element of this policy is a curfew (10 p.m. to 7 a.m.) for
many types of aircraft. The other element requires during non-curfew
hours that all aircraft meet FAR 36 noise limitations, either by
certification or by operational restrictions — otherwise, they are
to use the South Field. Each of these elements of the abatement
policy could be enforced through use of single event noise monitoring
at the North Field—yet the noise standards do not require such
monitoring, and airport management shows no propensity to go beyond
the bare requirements of the law for the North Field.
3. The Effective Use of_ Monitoring for Abatement and Educational
Purposes
An obvious premise of the California noise standards is the proposi-
tion that the collection of data by means of airport noise monitoring
programs is not an end in itself. Rather, the intent clearly is to
have data used in a way which produces effective noise abatement.
Without such abatement, the most sophisticated and reliable of monitor-
ing systems is only a useless—and expensive—plaything.
The possibilities for effective use of monitoring data vary with
the two types of data produced by the monitoring systems, that is CNEL
and "single event" data. Of the airports now engaged in monitoring
in California, only Orange County Airport engages in any significant
abatement effort on the basis of its single event data. That airport
also uses CNEL data effectively in its noise abatement progarm.
a. Orange County Airport
I./ Single Events; The Admonishment Campaign
The principal way in which Orange County Airport uses single
event data is in an organized and apparently effective admonishment
35
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campaign. This campaign was initiated on June 9, 1971, by the airport's
noise abatement specialist. Three aspects of the campaign are parti-
cularly worthy of note; 1) noise limits below the official SENEL
limits are used as a basis for admonishment; 2) the heart of the program
is direct and forceful communication to those deemed in need of admonish-
ment; and 3) the program has lacked a suitable range of coercive sanctions,
and some of those which are available have been rendered ineffective by ATA v.
Crotti, the litigation challenging the validity of the Noise Standards.
The court's order in that litigation, which grants the plaintiffs partial
summary judgment with regard to SENEL regulations, should not adversely
affect the existing Orange County Airport admonishment program.
That program has been built without any practical benefit from the
criminal penalties to which the court particularly objected. Nor has it
been essential to have the single event maximums which appear in the
Noise Standards. The airport can continue to collect single event data
to evaluate the contribution of particular operations of achievement
of its noise abatement goals, and violations of the airport's own single
event goals can be enforced if enforcement is tied to the airport's
proprietary power0 An example of such a sanction would be an increased
landing fee for a noisy operation.
The Noise Standards as promulgated and approved by the legislature
provided SENEL limits to be proposed by the airport proprietor but
approved by the Division of Aeronautics, subject to the maximums laid
out in the regulations* These maximums are very high, as they aim only
to prevent the introduction of noisier classes of aircraft at airports
with an existing noise problem. Even for existing classes of aircraft
the figures used are high, as they are based on maximum gross weight
118 T
operation without noise abatement flight procedures. In most cases
36
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proprietors have proposed limits at or near the maximum allowed by state
law, despite the statement in the Noise Standards that proprietors are
119
encouraged to recommend lower limits. For Orange County Airport the
SENEL limit for monitor number one is 112.5 decibels, which is the
maximum permitted under the noise standards.
For the admonishment program, however, 107 decibels is used for
monitor one. Comparably lower single event noise exposure levels are
used for each of the other four monitors.
On the basis of the lower noise levels which have been established,
the airport's noise abatement specialist determines individual violations
from noise data obtained by the monitors. For private (non-scheduled)
aircraft operators, violations are communicated by a letter of admonition.
The data is not included in the letter itself. Rather, the particular
operation is characterized as "very noisy" and future cooperation is
requested. Letters promising such cooperation are frequently sent in
response.
An analysis of all Orange County Airport Noise Abatement Office
correspondence for the period from June 1971 through July 1974 shows that
totally successful cooperation is not always in fact forthcoming, as
the files contain a number of letters to repeat offenders. It appears
over the three years of this program that there has been a slight decrease
in the annual number of admonitory letters sent and a significant decrease
in the number of repeaters. In addition to over two hundred letters of
admonition which dealt with excessively noisy operations during non-curfew
hours at Orange County Airport, twenty-three letters were sent to aircraft
operators who violated either a SENEL limit or the airport's curfew.
37
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The two air carriers who service the Orange County Airport receive
information from the airport's noise abatement office in a different
form. Letters of admonition are not sent for each violation. Instead,
each air carrier is sent a weekly summary of violations. These show
not only the existence of a noise level violation, but also deviation
by the aircraft from the recommended departure track over the Newport
Bay.
Analysis of the weekly summaries supplied to the two air carriers
120
during the period from January 1, 1974, through July 25, 1974, shows
a striking difference in performance. Air California has over twice
as many operations annually at Orange County Airport as Hughes Air
West, but Hughes Air West had far more violations during the period
studied. The two carriers use different aircraft, for Air California
flies Boeing 737s and Hughes Air West flies DC 9s. This hardly explains
the disparity, however, as the DC 9 is in principle a quieter plane than
the Boeing 737.
Efforts to determine the reason for this striking difference
in performance suggest that a key difference was in pilot attitude.
Pilots for Air California are members of the Teamster's Union. This
union, of course, built its membership and reputation largely with
truck drivers. It contains few pilots, and it has not shown great
interest in the airport noise problem. Pilots with Hughes Air West,
on the other hand, are members of ALPA~the Air Line Pilots Association,
a powerful organization which represents most air carrier pilots in
the county. ALPA has consistently taken a great interest in noise
abatement procedures, and in the name of safety it has often resisted
implementation of such procedures.
In addition to pilot attitude, other factors seem to have brought
about the difference in performance between Air California and Hughes
38
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Air West. Air California, for example, is headquartered in Orange
County, and therefore it has a particular stake in a favorable public
image there. Whatever the reasons for the differing patterns of
performance, it is significant that through persistent pressure based
on the factual data derived from the continuous noise monitoring system,
the airport was able to obtain a change in behavior from Hughes Air
West. An important element in that pressure was the decision to place
the airline on a month-to-month lease basis with regard to use of the
airport's facilities until the problem was solved. The airport now
reports a considerable change in performance by Hughes Air West aircraft,
and the elimination of any marked disparity between data on Hughes Air
121
West single events and those on Air California single events.
Although the noise abatement specialist at Orange County Airport
has led an aggressive admonishment campaign, which appears to have
had a beneficial impact, it is crucial to note that the coercive sanctions
available have been very limited. The state statute makes violation
of the noise standards a misdemeanor, with punishment to be a fine
122
of one thousand dollars for each infraction. This provision has remained
a dead letter, however, during the litigation of ATA v. Crotti. and it
123
has now been judicially declared to be invalid. During the litigation
lawyers representing the state deemed it advantageous to avoid any
enforcement of SENEL limits. Their judgment was that such enforcement
might allow the plaintiffs in the suit to obtain preliminary injunctive
relief and/or provide these plaintiffs with tactical advantage in
the suit itself. Contact by these lawyers with county law enforcement
personnel in the few counties where airports are monitoring led to
agreement that no prosecution would be initiated until ATA v. Crotti
was resolved. Consequently, although monitoring data at Orange County
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Airport shows that numerous SENEL violations occurred, there were no
prosecutions.
Prosecutions, in any event, would not have been possible for
the majority of violators who were within the official SENEL limits,
but above the limits set for the admonishment program. Nor is prosecution
in principle a particularly attractive weapon. District attorneys
are frequently less than anxious to devote substantial resources to
environmental law enforcement. Many of the violations involve itinerant
business jets, so the case must be brought against an operator with
home base in another jurisdiction. And given the criminal nature
of the penalty, in any contested proceeding proof beyond a reasonable
doubt would have to be provided on the basis of the state's first
airport monitoring system.
In the absence of prosecution, Orange County Airport personnel
have resorted to threats of various other sanctions. The standard
form for weekly reports to air carriers states that continued excesses
"will result" in denial of the use of airport facilities. This could
mean exclusion from the airport. Or it could mean certain less severe
measures which airport personnel have had under study, e.g., refusal
to grant tiedown or hangar space, or refusal to sell jet fuel.
So far none of these threats has been carried out, nor does it
appear likely any will be in the near future. Such measures cut against
the economic and service interests of the airport itself, and they
thus damage the airport proprietor as well as the air carrier or other
aircraft operator. A more effective form of sanction is one that
works to the economic advantage of the airport, while providing
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an incentive for pilots to do the best possible job to achieve compliance
with all noise abatement procedures. An example which has been studied
by the County Counsel of Orange County is a fee incentive system which
would relate aircraft user fees to noise levels. Departure fees would
be added to arrival fees, and each would be scaled upward where the
124
operation is noisy.
2.1 CNEL
In addition to the "single event" data which have been discussed,
the Orange County Airport's noise monitoring system produces data
used to determine the CNEL at various monitoring points. Here too,
airport personnel have developed ways to ensure that the data have
a beneficial impact and are not allowed to remain as if an end in themselves.
Reports are regularly submitted to land use decision-makers on the
aircraft-generated noise environment of proposed new developments.
These reports relate the site in question to airport flight tracks,
calculated CNELs and the noise complaint history of the area. The
data thus serve as an effective input to the land use planning process.
During the period that Orange County Airport has been engaged
in noise monitoring and the use of monitoring data to seek abatement,
some progress has been made in reducing the airport's noise impact
area. Since the airport is not served by four-engine aircraft, its
125
noise impact boundary is defined by a CNEL contour of 70 decibels.
•I o£
This boundary in March 1972 enclosed 277 acres and 335 homes. Two
years later the boundary had shrunk to enclose 143 acres and only 113
127
homes. This significant reduction seems excellent support for the
high praise the airport's program deserves.
The explanation for good progress at Orange County Airport, while
comparable airports in the state have made no substantial progress at
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all, has many aspects. Commercial jet service only began at the airport
in 1968, so the shock of a greatly increased noise impact almost coincided
with the beginning of the recent wave of environmentalism. In addition,
the airport's neighbors are in large part unusually affluent citizens
who are in a good position to turn their concern into effective political
and legal action. The contrast between the viable noise abatement
program developed for Orange County Airport and the failure even to
begin on noise monitoring at Ontario International Airport is striking,
and it owes its existence in substantial measure to the different
nature of the surrounding communities. Many homes impacted by the
Orange County Airport are in the $100,000 and up category, and they are
occupied in large part by professional and business people ttfith incomes
among the highest in the nation. For Ontario, the situation is radically
different. Homes in the impact zone seldom exceed $25,000 in value, and
I o 0
most occupants have an income placing them in middle or low income groups.
There seems to be more to the Orange County success story, however,
than simply a new problem to which an affluent citizenry has responded
with outrage and with litigation. An important aspect of the story is
the fact that the airport personnel who carry out the technical monitoring
work are also intimately involved in abatement. Within the airport
structure the noise abatement specialist reports directly to the airport
manager—not, as is planned at San Francisco International Airport,
through operations personnel who may be much more interested in untroubled
aircraft arrivals and departures than in noise abatement. And the
airport is part of the county government, which under the California
Noise Standards has responsibility for analysis and effective use
of monitoring data. It is the county which must validate monitoring
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data, report on a quarterly basis to the Division of Aeronautics,
and take on the primary responsibility for enforcement of the Noise
Standards.
Significantly, this integration of functions produced in Orange
County by the fortuity of county ownership of the airport does not
exist at any of the other California airports with operational noise
monitoring systems» In San Jose, the airport is operated by the City
of San Jose; in Oakland, by the Port of Oakland, itself a part of
the city government; and in San Diego, by a special port district.
These three systems are all relatively new, but it is nonetheless
important that none show signs of establishing an effective link between
the highly technical work of noise monitoring and the technical/
political work of noise abatement.
b. San Jose Municipal Airport
Noise monitoring at San Jose Municipal Airport was begun in 1973,
with eight remote monitoring sites operating on a continuous basis.
Single event data have been collected for the purpose of determining the
existence of any violations of the SENEL limits established under the
Noise Standards, but there has been no attempt to develop any sort of
admonishment campaign like that at the Orange County Airport. Nor do
there appear to have been concerted efforts to ensure that data developed
by monitoring are used in a systematic campaign for airport noise abatement
as is being done at the Orange County Airport. In many respects those at
the San Jose Municipal Airport seem to have pursued noise monitoring as a
technical exercise, more an end in itself than the means to the development
of site specific noise abatement planning, although efforts have been made
to supply the airport land use commission with relevant data from the noise
monitoring system. Major emphasis with regard to abatement has been placed
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upon implementation of the "two segment" approach and upon a major land
acquisition program in the approach area to the south of the runways.
Although this acquisition program is being justified primarily in terms
of the safety and efficiency of aircraft operations, quite plainly it
will be beneficial with regard to the airport's noise problems and is
129
so perceived by airport management.
One innovation at San Jose Municipal Airport which is worthy of
mention, however, is the visual display system developed for monitoring
data. Unlike other airports which carry on monitoring as a part of the
airport's non-public functions, at San Jose a small room near the center
of the airport lobby is being used for all the "read out" equipment.
Material is posted to explain to the public the nature of the equipment,
although the display lacks material to explain salient facts about
the damage caused by airport noise, to summarize the Noise Standards or to
130
link noise monitoring to noise abatement. Nonetheless, the San Jose
effort is a beginning step toward more public awareness of the work
now going on. While some might dismiss the effort as "more airport
PR," the fact is that proper public relations consists of public education,
which in turn can lead to increased public understanding of the problem
and acceptance of measures (e.g., higher passenger ticket costs) which
may ultimately be taken to deal with the problem.
E. Aviation Measures to Abate Noise
Once a particular airport has been determined to have a noise
problem, the California Noise Standards provide for two fundamental
and concurrent courses of action: noise monitoring must be initiated
and a variance must be obtained. In addition, the standards offer
to proprietors a list of methods for controlling and reducing noise
131
problemso Presumably these methods are to be utilized by proprietors
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who, in making application for a variance, must establish how compli-
132
ance with the standards will be achieved.
Aside from the variance to allow additional time for San Francisco
International Airport to complete its noise monitoring system, there
is only one instance in California of the grant of a variance. This
is the variance for Orange County Airport, which will be dealt with
133
below. Independently of the variance process, however, California
airports have taken some steps to abate their noise problems. These
steps cannot be credited to the Noise Standards. Rather each appears
to have resulted from local pressures. Nonetheless, to give a more
nearly complete picture of the noise abatement work which has been
%
undertaken by the seven airports selected for special study, major steps
taken at three airports will be briefly reviewed.
1. San Francisco International Airport
Noise abatement procedures at the San Francisco International
Airport originated in the late 1950s when commercial jet service
134
was first introduced there. At that time approximately 90% of all
departures were from runway twenty-eight through the "San Bruno Gap," a
break between Mount San Bruno on the north and coastal hills on the
south. Such departures have a serious noise impact on residential
sections of both the City of San Bruno and the City of South San Francisco.
In order to minimize this impact, two procedures have been worked
out over the past seventeen years. First, preference for departures
has been given to runway one, which allows a departure flight path
directly over San Francisco Bay. Approximately 67% of the airport's
departures now are by runway one. Second, when wind conditions require
that runway twenty-eight be used (generally in the summer months),
pilots have been encouraged to utilize a "shoreline departure." This
departure, which was made possible by a runway extension, involves a
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right turn immediately after take off. Aircraft fly over a commercial
and industrial section of the City of South San Francisco, then out
over San Francisco Bay, thus avoiding the San Bruno Gap altogether.
Recently fuel shortages and fuel price increases have made this route
attractive to airlines for eastbound and northbound flights, independently
of its noise abatement advantages. Currently some 90% of such flights,
or nearly half all flights departing from runway twenty-eight, use
the shoreline departure route.
Noise abatement procedures have also been developed over the
years for arrivals at San Francisco International Airport. Most flights
arrive from the south and use runway twenty-eight. In previous years
the approach pattern took them over Foster City, a relatively new
community developed on bay fill in the early 1960s. Changes in the
location of the ILS localizer have been made, however, so that the
approach pattern is now over San Francisco Bay.
2. San Jose Municipal Airport
At San Jose Municipal Airport the principal noise abatement
135
aviation procedure now in force is the two segment approach. This
procedure was begun by the airport manager in the early 1970s, before
the initiation of monitoring and independently of the variance and
abatement schedule requirements of the Noise Standards. The procedure
is not mandatory, but it has nonetheless had some success. Airport
officials estimate that compliance has been about 25%.136 They note
further that approximately 80% of complying aircraft are Air California
flights and that airlines whose pilots belong to ALPA virtually never
137
comply.
The two segment procedure in use at San Jose for the past two
years involves no new instrumentation on the aircraft. It is used
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only in clear weather. Air carrier pilots on Instrument Flight Rules
cross the airport's 180 degree line at 5,000 feet or higher as they
approach from the west. The two segment approach then calls for a
sharp left turn toward the runway, with an angle of descent that varies
from twelve to six degrees. This continues until the last mile, when
the angle of descent is the normal three degrees. During the period
of a sharper angle of descent aircraft are over residential and commercial
sections of San Jose which are mostly outside the 65 decibel CNEL
contour, but which are nonetheless adversely affected by aircraft
noise. Because the aircraft are higher than in a normal approach
pattern, except for the final mile, and because aircraft need less
power for this approach, the noise impact on the ground beneath the
higher angle portion of the approach is improved by up to 10 decibels.
3» Orange County Airport
Orange County Airport's admonishment program, which is linked
to the single event data obtained by the airport's noise monitoring
138
system, has been described previously. A second major noise abatement
effort has been a preferential runway system. This system was in
operation for two years and it seems to have led to an over-all improve-
ment in the airport's noise environment, but political pressures have
caused it to be discontinued.
The runways at the Orange County Airport are oriented approximately
northeast to southwest. Since the prevailing wind is from* the southwest,
routine procedures in earlier years called for all aircraft to land
and to take off to the southwest. This departure track would take
aircraft directly over a residential area of some two hundred and
fifty homes in the Santa Ana Heights. They then would pass over the
north end of Newport Bay, a narrow inlet with luxury housing both to the
east ("East Bluff") and to the west ("Westcliff").
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Because the area directly northeast of the airport is an
industrial zone less sensitive to noise, the airport in 1971 determined
that in favorable weather conditions the ordinary landing and take
off patterns would be reversed in the morning hours, when the winds
are frequently light. Beginning on October 22, 1971 (the year a noise
abatement specialist was first employed by the airport), operations
on Monday through Saturday were to the northeast between 6:00 a.m.
and 8:00 a.m. when the wind was five knots or less, the ceiling was
at least 2,000 feet and visibility was three miles or better.
Weather conditions permitted this preferential runway system
to operate about 45% of the time. Initial reactions were favorable,
and in December 1972 the hours for the system were expanded to 6:00
a.in. to 9:00 a.m. This period covered about 20% of the airport's
air carrier jet operations, including the most heavily loaded and
noisiest flights of the day. Overall, airport personnel calculate
that under the new system residents to the southwest of the airport
were trading an average of 1.5 noisy departures for an average of
5.5 quieter arrivals.
Protest arose, however, from a new quarter. After overflying
the industrial areas immediately to the northeast of the Orange County
Airport, aircraft on the new departure track passed near residential
area in the cities of Tustin and Orange. These areas are more than
two miles from the airport, and they are far beyond the 70 decibel
CWEL line xtfhich encloses most of the Santa Ana Heights. Thus, the
aircraft noise in the northern areas was far less than in the areas
to the south, traditionally overflown by departing aircraft, but the
changed pattern did intensify the noise problem for these northern areas.
The supervisor who represented this portion of Orange County led a
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campaign to prohibit the airport from use of the preferential runway
system. After a turbulent hearing in a room jammed with residents
of Tustin and Orange, the county Board of Supervisors voted three to
two on October 9, 1973, to terminate the preferential runway system.
F. Variances and Airport Noise Abatement Planning
Previously it has been emphasized that the key planning device
of the California Noise Standards is the variance procedure. The
first variance to be granted under the Noise Standards did not, however,
involve any abatement planning. In that case—the variance to allow
San Francisco International Airport an additional year to complete
installation of its monitoring system—no public hearing was held
and the findings were largely unsupported boilerplate recitations of
provisions from the regulations. The second variance granted was
to the Orange County Airport, and it is a much better example of the
local agency/state agency noise abatement planning process at work.
The hearing held on Orange County Airport's request for a variance
was held by a Hearing Officer from the state's Office of Administrative
Hearings, and it was conducted in accordance with the formalities
of the California Administrative Procedure Act. A forum was thus
provided within which the airport's progress to date could be critically
assessed, its plan for achieving compliance by a time-phased implementation
plan could be presented for review, and intervenors could represent
the views of various interested and affected persons and groups.
The airport initially applied for variances from five different
provisions of the noise standards, most of which related to the monitor-
ing system. It was argued, for example, that the accuracy of + 1.5
decibels required by the Noise Standards is a practical impossibility
given present staff, equipment and budget; that the frequency of
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measurement required for "continuous" monitoring (forty-eight weeks
a year) is overly strict, as more time is needed to service equipment;
and that specifics in the Noise Standards prescribing methods of calculating
CNEL values and the location of monitors are too rigid. Subsequently,
however, in an apparent effort to simplify the proceedings, the airport
withdrew all applications related to the monitoring system. It continued
only with the crucial application for a variance to operate with a noise
impact area greater than zero.
To support this application, the airport presented a fifteen
element noise abatement program. This included measures on aircraft
routing, takeoff procedures, the admonishment program, curfewing and
139
aircraft weight limitation. The airport argued that by means of this
program it could achieve a zero impact area by 1979.
In opposition, the intervening City of Newport Beach—Orange
County Airport's neighbor to the southwest—argued against the grant
of any variance or, in the alternative, for the imposition of stringent
and specific conditions upon any variance. These included the following:
reinstatement of the abandoned preferential runway system; a requirement
that Hughes Air West comply with existing noise abatement procedures
as fully as Air California; a program of economic incentives; and
prohibitions on an increase in the number of daily departures by existing
air carriers, the introduction of any new air carriers, and any remodeling
or expansion of terminal and parking facilities.
The Department of Transportation, the agency ultimately responsible
for granting or denying the application for a variance and for imposing
any conditions, took a much more limited view of what the airport
ought to be compelled to do. Innovative measures like economic incentives
were deemed not to be the kind of conditions contemplated by the Noise
Standards. Other proposals of Newport Beach were objected to by the
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department as being beyond the jurisdiction of the local government
proprietor, or as not being strictly necessary to effect the purposes
of the Noise Standards. The department did, however, accept the idea
that some specific conditions would be appropriate, and it proposed
the following:
To the extent legally possible, the airport proprietor
will make good faith efforts to impose the following require-
ments on aircraft operations„
1. Noise abatement approach and departure flight
procedures designed to minimize noise in the defined
noise impact area.
2. Use of flight paths designed to minimize noise in the
defined noise impact area, including jet departures
to the north when wind, traffic and safety conditions
permit.140
Three matters were significant with regard to this proposal.
Federal pre-emption was dealt with by the initial qualifying phrase.,
An attempt was made to avoid future lawsuits over violation of the
conditions by calling for "good faith efforts" rather than actual
achievement. And, by the final portion of condition two, support
was given for the reinstatement of the preferential runway system,,
On this record, the Hearing Officer adhered largely to the
department's position. Utilization of the preferential runway system
142
was made a variance condition, as was airport implementation of
143
its own fifteen element noise abatement program,, Although the Hearing
Officer found that Hughes Air West had been contributing in an "extremely
disproportionate" amount to the airport's noise problem and had been
"uncooperative" with regard to airport procedures for quieter landings
144
and departures, the proposed order made no direct reference to this
problem,, Nor did the proposed order deal directly with economic incentives,
level of service or terminal and parking facilities. For the future,
51
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the Hearing Officer found that to reduce the noise impact area to zero
would cost about four million dollars and could be achieved "over
the next few years with the exception of the DC-9 which will take
until 1980 to quiet the engine nacelle." It was noted, however, that
the major problem is with operating procedures, for which there can
be immediate implementation without new technology.
Despite the fact the Hearing Officer's conclusions went little
beyond what had been recommended by counsel for the Department of
Transportation, there was opposition from two sources in state government
to departmental approval of the proposed order. First, the chief of an
office within the Division of Aeronautics argued forcefully that no
conditions should be attached to a variance when compliance might be
achieved informally. Fear was expressed that such conditions would
serve as a precedent for requiring conditions in future grants of a
variance; that the division might have to revoke an airport's operating
permit if there was non-compliance with the conditions; that the matter
might be "taken out of our hands" as a result of judicial action by
an aggrieved public entity, homeowners association or environmental
group seeking to enforce the conditions; and that ultimately such
action would seriously jeopardize air carrier transportation. In
effect, it was argued that the airport should pursue its own schedule for
noise abatement free of any pressure by state government in the form
of planning and abatement constraints. Such restraint was justified
as necessary for accomplishment of the division's mission as a
promoter of air transportation.
A second source of pressure on the Department of Transportation
was the Attorney General's Office, which is defending ATA v. Crotti.
the lawsuit challenging the constitutional validity of the Noise Standards.
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This suit seeks to determine the scope of City of Burbank v. Lockheed Air
Terminal, Inc., in which the Supreme Court held that federal preemption
of airspace management prohibits a local government from imposing a night
time curfew on a privately-owned airport. That decision spoke to limita-
tions on the exercise of the police power by local government and,
inferentially, by state government as well. It left open the scope of the
proprietary power of an airport to engage in noise abatement activity such as
night time curfews. California, therefore, has taken the position in ATA v.
Crotti that the Noise Standards simply provide state assistance to airport
proprietors using their proprietary powers to abate noise problems. It is
thought to be inconsistent with this position for the state to require a
preferential runway system at Orange County Airport as a condition for a
variance. To avoid such inconsistency the Attorney General's office
opposed approval of the Hearing Officer's proposed order. In effect, the
Attorney General's Office takes the position that the state can impose
on airports owned by local governments performance standards—e.g.,
action to reduce a noise impact area to zero—but not program specifi-
cations. The former is represented as "assistance" to other entities,
the latter as exercise of the police power.
As a consequence of these pressures, particularly that from the
Attorney General's Office, the Department of Transportation departed
from the position on variance conditions which it had taken during the
variance proceeding. The proposed decision of the Hearing Office was
not adopted. Instead, after a delay of some six months from the date
of submission of that proposed decision, a one year variance was issued
to Orange County Airport with more general language on the critical
matter of the preferential runway system than had been proposed by the
Hearing Officer. In lieu of making the use of this system a condition
53
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of the variance, the department's decision required only that the airport
reduce its noise impact area to .047 square miles by the end of calendar
149
year 1975, with a reduction to zero anticipated by 1978. The decision
dealt with the preferential runway matter indirectly, by the following
language giving the airport a compliance "option":
In lieu of the above 1975 requirement respondent
may at its option elect to implement the following,
which will be deemed full compliance with this condition
for the 1975 requirement. Whenever wind and safety
conditions permit and whenever the control tower is
operational, respondent shall regulate its airport such
that no aircraft taking off shall cause a SENEL value
greater than 100 dB, as measured at monitoring station
No. 1 between the hours of 7 a.m. and 9 a.m.; provided,
that nothing herein shall be deemed to require respondent
to limit the hours of operation or otherwise curtail
operations at respondent's airport; and provided further
that nothing herein shall be deemed to require respondent
to take any action prohibited by federal law or
regulation...150
Any expectation on the part of the Department of Transportation that
the general requirement of noise impact area reduction combined with the
compliance option quoted above would in practice force Orange County to
reinstitute the preferential runway system has not been realized. Instead
the airport has announced a revised eleven point "Master Plan of Noise
Abatement," and it has stated that it "cannot" achieve a noise impact area
152
of zero by 1978 as anticipated by its variance. The airport now anticipates
that, "through a combination of refined noise abatement procedures; runway
extension; quieter jet engines; and land use conversion," the zero figure
153
can be achieved by 1980.
PART II; AIRPORT LAND USE COMMISSIONS
A. Introduction
When the California Noise Standards were promulgated in 1970,
the need to deal with land use control in seeking a long-term solution
to the airport noise problem was explicitly recognized. Action to
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deal with noise sources and noise propagation paths was to be complemented
by action to deal with the receivers of noise. Therefore one of the
six methods suggested to airport proprietors for controlling the impact
of airport noise was "[development of a compatible land use within
154
the noise impact boundary." It was further noted, however, that the
"least desirable" action for achieving compliance with the I-Ioise Standards
is land use conversion, for example, the elimination of existing resi-
dential development by demolition. Thus, the major thrust of the
land use provision in the Noise Standards was to take preventative
rather than remedial action.
Land use control in an airport impact zone presents difficult
problems for most airport proprietors. The most direct and secure
form of control is purchase of title to surrounding land, but in urbanized
areas where land prices are high such acquisitions are often financially
impossible. The alternative is an exercise of the police power, for
example, zoning for uses other than those most sensitive to noise.
Except in the rare instance where the entire noise impact area is
within the airport proprietor's political jurisdiction, however,
the proprietor is powerless to act by direct exercise of the police
power.
To find a way out of this dilemma, California turned to the airport
land use commission (hereinafter, the "ALUC"). ALUCs had in fact
been authorized some years earlier, for legislation enacted in 1967
created an ALUC in each county containing at least one airport operated
for the benefit of the general public and served by an air carrier
certified by the state Public Utilities Commission or the federal
Civil Aeronautics Board. These ALUCs had been created to deal with
safety, however, not noise. Furthermore, their powers were entirely
55
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advisory, both with regard to airport operation and with regard to
the land use authority of cities and counties. In any event, their
legislative "creation" was illusory, since the statute provided that
no commission was created where city and county government representatives
determined that "adequate" provision already existed for a continuing
review of land use surrounding airports. In practice, with or without
benefit of such a determination, no ALUCs functioned on the basis
of the 1967 legislation.
By 1970--after the statutory authority for the Noise Standards
had been provided and when these standards were in preparation'—the legislature
was ready to make the ALUCs more than paper organizations and to give
them a broader mandateo Legislation was passed which eliminated the
power of local government to opt out of having an ALUC, and which
required each ALUC to file a certificate of formation with the Secretary
158
of State by January 1, 1971. In addition, every ALUC was mandated
to prepare a comprehensive land use plan for the orderly growth of each
public airport in the county and the area surrounding the airport within
159
the commission's jurisdiction.
The 1970 plan provisions clearly, if indirectly, reflected the
new concern over airport noise by providing that within its planning
area the ALUC could determine building standards, "including soundproofing
adjacent to airports." Any doubt was eliminated the next year when
new legislation made it specifically the function of an ALUC "to achieve
by zoning compatible land uses in the vicinity of all new airports
and in the vicinity of existing airports to the extent that the land
in the vicinity of such airports is not already devoted to incompatible
ii 161
uses,.
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B. Formation and Membership
The state legislation allowed considerable latitude as to the
formation and membership of the ALUC. A pattern for an entirely new
organization was provided: two representatives of the county, two
representatives of the cities within the county, two representatives
of the airports within the county and one representative of the general
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public. This pattern was not required, however, if the county Board
of Supervisors and a selection committee of mayors from cities in
the county determined that "proper land use planning can be accomplished
through the actions of an appropriately designated body.,"
In the counties where the seven airports specially studied for this
report are located, the formation pattern has been quite diverse.
Only in two—Alameda and Orange—has the statutory pattern for a new
organization been followed, and in Orange County this occurred over the
strong opposition of the county. In four others an existing countywide
or semi-countywide planning body has been designated to act as the
ALUC. In San Diego County, ALUC functions are performed by the Comprehensive
Planning Organization (CPO), a council of governments which originally was
staffed by the county but now is an independent body with representatives
from the county and all cities within the county. In San Bernardino
County, these functions are performed by the West Valley Planning
Agency, a planning body for a region within the county (this region
is itself larger than many California counties). In Santa Clara
County ALUC matters are dealt with by the Planning Policy Committee,
which has representatives of the county and fifteen cities within
it. And in San Mateo County, a comparable organization, the Regional
Planning Commission, has been given the ALUC function. In the seventh
of the counties, Sacramento, the designated body is transcounty
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in jurisdiction. This is SRAPC, the Sacramento Regional Area Planning
Commission, which has planning responsibilities for six counties in
the southern Sacramento Valley. For airport noise purposes, however,
SRAPC has been designated the ALUC by only four of these counties.
Different problems occur with each of these different organizational
formso A new organization often will have an initial problem establishing
its legitimacy and exercising power effectively. In Orange County,
for example, the county government spent over a year trying to dissolve
the ALUC on the ground the existing county Airport Commission could
do everything necessary. When dissolution proved impossible, the
county attempted to starve the ALUC out of existence with a budget
of $500 per year.
An established organization, on the other hand, may simply ignore
its new function. San Diego's CPO until recently seemed to place
the ALUC function low on its list of priorities, in part because it
has been very much caught up in regional airport planning and studies
of potential sites for a new international airport. In fact, the
CPO has yet to develop even an interim plan for Lindbergh Field. Another
problem occurs because members of regional planning agencies ordinarily
have no background on airport noise problems and no involvement which
would lead them to acquire such background.
Significantly, in some cases in which the ALUC function has been
given to a regional planning organization, effective action has been
associated with delegation of the function to a smaller group of people
assigned to work on the problems of particular airports. San Diego's CPO,
for example, has organized an ad hoc committee for each airport plan.
There are some signs this committee system is effective, especially in
the effort to create a plan for the area around the Naval Air Station at Miramar.
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Co Funding Problems
Funding has been and remains today an important problem for the
ALUCSo The 1967 legislation was not entirely silent on funding, for it
indicated that counties should bear the financial burden of ALUCs. The
county Board of Supervisors was authorized to determine whether to com-
pensate commission members and/or whether to provide reimbursement for
necessary expenses. In addition, the county was required to provide
staff assistance, including the mailing of notices and the keeping of
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minutes.
These provisions applied most directly to situations in which
the county-city-proprietor form of ALUC was established, yet in one
of these two cases the county simply refused to allocate more than
a nominal sum to the ALUC. In the face of this recalcitrance by Orange
County, the legislature in 1972 strengthened its statute to state
that an ALUC's "usual and necessary operating expenses . . 0 shall
1 f c
be a county chargeo" Even this was inadequate, for Orange County
only provided significant funding when a 1974 Grand Jury report took
the Board of Supervisors to task for failing to fund the ALUC, and even
this support was less than half the amount requested by the ALUC.
In the five cases where an existing organization has been designated
as the ALUC, funding has been supplied by the designated organization
rather than by the county. Often such funding has fallen well below
what was projected when the ALUC function was assigned to the organization,
and in the case of the West Valley Planning Agency almost no funding has
been available for ALUC activity.
Do Jurisdietional Questions
1. ALUC Powers Related to Airport Noise Impact
The 1967 legislation on ALUCs gave them powers with regard to
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the height of buildings near' airports and, more broadly, land use
related to the safety of air navigation,, These consisted principally
of the power to hold public hearings on these matters and to make
advisory findings of facto The list of subjects within ALUC jurisdiction
was lengthened by a provision enacted in 1971 giving ALUCs the power to
168 .
seek "compatible" land uses for new development near airports, since
compatibility must be judged in terms of noise sensitivity as well
169
as height and safety.
Presently, the power of ALUCs to deal with height, safety and
noise sensitivity problems in the airport zone is implemented by a
two step process. The first step is formulation of a comprehensive
land use plan, which "shall include" a long-range master plan that
reflects the anticipated growth of the airport during at least the
next twenty years0 The commission plan is evidently to be one of recon-
ciliation, for it is both to "provide for the orderly growth of each
public airport and the area surrounding the airport" and to "safeguard
the general welfare of the inhabitants within the vicinity of the
airport and the public in generalo"
The second step in the process is control of development which
is incompatible with the ALUC's plan. Where a public agency takes
action or engages in regulation which is inconsistent with that plan,
the ALUC is required to hold a hearing on whether the action or regulation
17?
is in the best interest of the airport and the adjacent area. When
the answer is "no," the ALUC notifies the public agency in question.
The public agency then holds a hearing to reconsider its initial decision.
This may be reinstated, but only by a four-fifths vote to overrule
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the ALUC.
Thus, the ALUC may not have the final word on development within
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the airport zone, for it may be overriden at the end of this process.
It is important to note, however, that the veto/override provisions
do give the ALUC some slim measure of mandatory control, for absent
a four-fifths override its decision is final. This represents an
advance in power from the purely advisory status the ALUCs were first
given in 19670
One question which poses difficulties under the present statutory
language is whether an ALUC plan—and the resulting control of new
development—is intended to go beyond height, safety and noise sensi-
tivity concerns. On the one hand, the statute calls for a "compre-
hensive" land use plan, it unqualifiedly states that the ALUC "may
specify use of land" within the planning area, and a 1971 statute refers
to "zoning" by an ALUC. On the other hand, the ALUC's jurisdiction
for existing airports is limited to new development, so comprehensive
control cannot be achieved by means of amortization or redevelopment
programs; the ALUC function is keyed to the single concern of airport
1 7R
"compatibility", which seems to exclude many other planning concerns
such as densities of commercial or industrial development; and the
review nature of ALUC activity suggests that it is intended to supplement
rather than to replace the comprehensive land use.planning now required
179
of all local governments in California. On balance the better reading,
and the one more likely to bring efficient and effective ALUCs, seems
to be the more limited one: ALUCs have jurisdiction over new develop-
ments only insofar as they involve height, safety, noise sensitivity
or other matters directly related to airport compatibility.
2o Establishment of Planning Boundaries
ALUC powers, however extensive they may be, are limited geograph-
ically to the area within ALUC "planning boundaries." These boundaries
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are, however, left to each ALUC to establish after hearing and consultation
with the involved agencies. Statutory criteria for the establishment
of boundaries have not been provided. In practice, the ALUCs have
varied greatly in their approach. The West Valley Planning Agency
in San Bernardino County (now moribund as an ALUC) took the position
that its ALUC planning boundaries include the entire West Valley
area—about a third of the entire county. Other ALUCs, however, adopt
a much more restrained view. Most use different planning boundaries
for each of the three functions of height, safety and noise sensitivity.
For height, the boundary is generally defined in accordance with Federal
Aviation Regulations (FAR) Part 77, "Objects Affecting Navigable Airspace."
For the overlapping safety zone, the boundary is often defined to
conform to the outer limit of the airport horizontal surface as defined
by FAR Part 77. And for noise sensitivity, the boundary in most cases
is defined by the 65 decibel CNEL contour line.
3. Jurisdiction over Airports
Implicit in most of the work to date of California ALUCs is the
assumption that they are to function only for the areas around the
airport. Indeed, the original 1967 legislation was explicit in stating
that ALUC powers shall "in no way" be construed to give the ALUC juris-
180
diction over the operation of any airport. Although this statement
remains in the statute, it must be read with a 1970 addition which
requires each public agency owning an airport within the ALUC's planning
area to file with the ALUC for its approval "any substantive change in
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development plans." If the ALUC finds inconsistency with its own
plan, then the submitting agency is notified and holds a hearing to
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reconsider. It may then overrule the ALUC by a four-fifths vote of
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its governing body.
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So far these provisions have been largely ignored by the ALUCs.
San Mateo County's ALUC once considered invoking them in an attempt
to influence expansion plans at San Francisco International Airport,
but it dropped the idea on the ground the statutory language is somewhat
unclear« Although the terms "substantive change" and "development
plans" do lack precision, it seems certain there is presently a basis
for ALUCs exercising some sort of jurisdiction over noisy airports
as well as over noise sensitive land uses near those airports.
Eo The Land Use Plans
Under current California law ALUCs have only limited control over
development in areas surrounding airports, and this limited control
can be exercised only when the ALUC has a plan against which local
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government action can be measured for consistency. At present, the
ALUC for only one of the seven airports given special attention has
a final plan, although several others have interim plans which they
treat as satisfying the statutory requirement0 The final plan is
-I Q C
that of the ALUC of Santa Clara County, within which the San Jose Municipal
Airport is located.
Several points about the Santa Clara county final plan are worthy
of special note» First, it is a policy plan, made up of background
findings and policy statements. There are no maps to indicate particular
uses in particular places. The plan states that such details are best
•I r>£
left to the individual jurisdiction^
Second, the plan makes clear that in making 'land use planning
decisions the ALUC will be guided by both CNEL and single event data
on aircraft noise. Thus, although the CNEL data is being used to fix
the noise impact boundary within which the ALUC will review local
government land use decisions for compatibility, single event data
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will be utilized in the course of the review. The final plan points
out that a single CKEL value may in terms of individual aircraft event
levels mean wildly different levels depending on the frequency of operations
at the airport. Thus, at the 65 decibel CNEL boundary at the San
Francisco International Airport single events would average 72 decibels
for about five hundred events, but at the same boundary at the San
Jose Municipal Airport these would average 81 decibels for seventy
187
events.
Third, the plan stresses the importance of interior building
noise control and announces that developers will be required to utilize
such control„ Detailed tables are provided which show the required
building exterior noise reduction for various land uses at various
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nominal distances from aircraft take-off and landing operations.
Fourth, the plan states that the ALUC recommends to appropriate
public agencies the purchase "whenever possible" of lands with existing
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incompatible uses and their conversion to compatible use. This
recommendation runs counter, however, to the policy of the state Noise
190
Standards, which makes land use conversion the action of last resort.
And fifth, the plan states that a condition of approval in all
development referrals to the ALUC will be dedication to the airport
of an avigation easement placed at the ceiling of FAR Part 77 imaginary
surfaces.
Two other ALUCs have promulgated interim plans which approach
the detail found in the Santa Clara County plan. The San Mateo Regional
Planning Committee has adopted an interim plan, revised May 28, 1974,
which states objectives and procedures, provides noise contours and
land use compatibility standards and announces implementation pro-
cedures. And the Sacramento Regional Area Planning Commission has
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adopted a "Policy Plan" which sets out land use guidelines, criteria for
the establishment of planning boundaries and general policies of the ALUCo
This plan together with maps of particular airport planning boundaries
becomes the comprehensive land use plan once the maps are adopted.
Progress on plans has been much more limited at the other locations
studied. For Oakland the Alameda County ALUC has only a map, which
together with certain resolutions has been represented as the entire
comprehensive land use plan for the Metropolitan Oakland International
Airport. The map and resolution have, however, been judicially declared
to be insufficient to constitute the "comprehensive land use plan" required
192
by law. Orange County also has only a map—one presented to it in
1972 by the Irvine Company, a private developer in the area.
The other two counties studied have not even made that much progress
for their principal airports. In San Diego the CPO has neither a map
showing compatibility zones nor the required comprehensive land use
plan for Lindbergh Field; it has devoted its site specific land use
activity to Miramar Naval Air Station, for which it now has preliminary
policy guidelines for compatible land use. The failure to deal with
Lindbergh Field—clearly the major noise problem airport in the county—
may, however, be justified by the fact that most land around Lindbergh
Field is already developed, and hence, generally not within the jurisdiction
of the ALUC.
No similar justification is available for San Bernardino County,
for the Ontario International Airport has large quantities of agricultural
and other open space land in the immediate vicinity. Most of this
land is to the east and south of the airport, with low density residential
and commercial neighborhoods dominating the land to the west and north.
Very early in the game the West Valley Planning Agency (WVPA), before
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its designation as San Bernardino County's ALUC for Ontario International
Airport, expressed strong concern over noise problems at the airport.
A 1970 report on these problems reviewed the airport's rapid expansion
from 18,000 passengers in 1955 to 740,000 in 1969, surveyed existing
land use within a two mile radius of the airport, and made three principal
recommendations. First, it recommended creation of an industrial
buffer zone directly west of the airport; second, it suggested that
aircraft departing west over this industrial zone should make a hard
ninety degree turn south over the open space to minimize overflights
of residential areas; and third, it proposed that future expansion
needs be met by moving the airport's runways two miles to the east.
Such a move was specifically found to be the environmentally desirable
193
alternative for the future.
This carefully prepared report could have provided an excellent
policy foundation for particular decisions by the WVPA as ALUC in
the years after 1970—indeed, that body might well have emerged as
a leader in foresighted airport land use planning. Unfortunately,
none of this was to pass. There was intense opposition to the report
from- certain elected officials who appeared to favor residential
development near the existing airport, as well as from airport interests
who objected to the cost of moving the runways. Instead of provid-
ing a firm policy base for the future, the WVPA's report was a contri-
buting factor to the departure of the county planning director and
an exodus of planners from the county's staff.
As a result of this planning debacle, the WVPA was rendered entirely
ineffective as an ALUC. Efforts to develop a WVPA plan for Ontario
International Airport were abandoned. Instead, the WVALUC (i.e.,
the WVPA when it sits as an ALUC) has simply adopted city and county
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general plans as its plan, except that for the City of Ontario it
has refused to adopt the city's general plan for the airport area.
This decision was based upon the judgment that the city's general
plan does not deal adequately with airport noise considerations.
Since the WVALUC has adopted no plan of its own for that area, however,
it is legally unable to exercise any development review function.
In fact, the WVALUC now appears to be moribund. No meeting has been
held since the fall of 1973, when hearings were conducted on the Environmental
Impact Statement prepared for expansion of the Ontario International
Airport.
F. The Decision-Making Process
All the ALUCs studied, from Santa Clara County's with its completed
final comprehensive land use plan to San Bernardino County's with no
approved plan at all, have attempted to engage in some form of land
use decision-making. This section will deal with four topics of
importance to this decision-making: the manner in which particular
items are referred by local governments to the ALUC; a case study of
decision-making by the Orange County ALUC; conditions frequently
imposed on approved development by ALUCs, particularly sound attenuation
conditions; and the local government "override," as illustrated by a
current controversy over major residential development near the Oakland
Metropolitan International Airport.
1. Agenda Setting — Systems for Referrals
The statutory provisions which create ALUCs do not give them
direct permit control over development within their planning boundaries.
Nor do they require local governments with permit control over development
or comparable control over subdivision to notify the ALUC of their
decisions, although local governments with representation on the ALUC
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"shall assist in the development of an area plan" and shall file such
194
plans with the ALUC for its approval» Thus, an initial and sometimes
serious problem for a California ALUC is to determine what development
is planned in an airport impact zone. There is more than one instance
of an ALUC commissioner first learning of development near an airport
by driving past a nearly completed structure.
The more active and successful ALUCs have succeeded in establishing
Informal referral systems. In San Mateo County, for example, the
agendas for all planning commissions with jurisdiction over land in
an airport impact area are routinely forwarded to the staff secretary
of the ALUC. The onus is then placed upon the ALUC staff to sift
through these in order to discover proposals which might be inconsistent
with the ALUC plan. Items discovered by this process are then placed
upon an ALUC agenda.
The San tiateo referral system leaves the judgment on consistency
.to the ALUC staff person who engages in the agenda review. In other
jurisdictions, this initial decision on consistency is in practice
delegated to the local government itself. In San Diego County, for
example, a member of the county planning department staff reviews all
land use decisions for areas near airports to see if they are consistent
with those CPO comprehensive land use plans which have so far been
adopted. Only when this planner makes a determination of inconsistency
does the matter go to the CPO for its decision on whether to overrule
the local agency. This sytem has been adopted, according to CPO personnel,
because the regional planning organization in its ALUC capacity lacks
the resources to carry out a large number of reviews.
In counties where the ALUC is less active in its planning, there
is sometimes no referral system at all. San Bernardino County is
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one such situation. In the face of inactivity on the part of the
WPA, one of the cities in the airport noise impact area has simply
stopped routing anything at all to the ALUC.
2. Orange County Case Study
In order to obtain a sound understanding of the day-to-
day effectiveness of a particular ALUC, decisions of the Orange County
ALUC have been reviewed in considerable detail. Each ALUC studied
presents significant variation in pattern, but it is nonetheless possible
with a reasonable degree of confidence to regard the Orange County
ALUC as representative. It had the disadvantage of several early
years marked by open hostility from the Orange County Board of Supervisors,
with a concomitant lack of funding support. Financial resources were
found, however, to allow the commission to perform its obligations
without benefit of a professional staff. And it has had the distinct
advantage of close cooperation from key personnel at the airport in
question.
Records of ALUC actions from May 1, 1971, through July 14, 1974,
were reviewed to ascertain the commission's impact on land use planning
in its areas of jurisdiction. Some three hundred sixty-three items
were considered by the ALUC during that period, including zone changes,
tentative subdivision maps and use permits. In sixty-seven of the
matters reviewed, the commission raised some sort of objection to
the land use decision proposed by local government. In twelve cases
outright denial of the project in question was made. In the others,
the commission's objection took the form of a conditional denial,
an objection of an advisory nature or a suggestion that notice to
buyers or sound attenuation requirements be imposed.
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The present state of ALUC and local planning commission files
permitted follow-up on thirty-nine of the sixty-seven objections inter-
posed during the more than three year period studied. Analysis showed
the following disposition of these cases by the relevant city or county
planning commission:
ALUC decision followed . ..... 9
ALUC decision not followed . « . . <, „ 10
ALUC decision received too late for consideration. 6
No ALUC decision on file <= 7
No planning commission action, e.g., as request
withdrawn ° 4
Matter pending 3
39
On this record the ALUC for Orange County appears to have had
rather limited influence. Objections were raised in fewer than 20
of the matters heard, and in only a quarter of these cases was the
ALUC decision in fact followed. A close examination of these cases
indicates, however, that in some cases where the ALUC decision was
not followed the commission nonetheless had an influence, either directly
or through another body.
The details of a particular situation may assist in demonstrating
this influence. A recent case in Orange County is the "Maschmeyer
Annexation." This involved some 3.75 acres of county land which the
owners planned for condominium development and proposed to annex to
the City of Costa Mesa, a community directly to the west of the Orange
County Airport. Here the relevant agency was not a planning commission,
but "LAFCO"—the Local Agency Formation Commission, which by California
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law has jurisdiction over all annexations.
In this instance the county ALUC initially contacted LAFCO to
ask that the annexation decision be delayed until LAFCO had determined
for the area around the airport the boundaries for the "areas of influence"
of the respective municipalities. Shortly thereafter, LAFCO responded
by fixing a common boundary between the area of influence of Costa
Mesa and that of the neighboring city of Newport Beach. It also indicated
that the parcels now falling into the airport's clear zone should
be excluded from future annexations.
At about the same time, a member of the airport staff studied
the site in question. He reported that although the calculated CNEL
is less than 65 decibels, single events at the site have been high
enough to disturb sleep and to interfere with speech communications.
He further noted that the ALUC plan for the area calls for airport-
compatible development only and that the contemplated residential
use is not considered airport-compatible. On the basis of this report,
the Airport Commission wrote to LAFCO to recommend denial of the application
for annexation. Two weeks later LAFCO did deny the application, by
a 5-0 vote.
This action did not, however, end the decision-making process.
The property owners requested and were granted a public hearing, at
which they obtained conditional approval of their application. The
condition was a grant to the county, prior to annexation, of an avigation
easement covering the property in question. Ultimately such an easement
was granted and accepted, and annexation by the City of Costa Mesa
took place.
This instance illustrates the real, but limited, influence of
the ALUC which appears in several of the Orange County cases studied.
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Without the leverage of the ALUC plan showing that the land to be
annexed for condomimium development falls into an area in which no
residential development should take place, the Airport Commission
probably would have been unable to affect the annexation in any manner.
But in the end it affected it only by obtaining an avigation easement.
This should protect the county from liability for damage from airport
noise, but it allows the incompatible residential development to take
place.
3. ALUC Conditions cm Approved Development
The figures noted above on Orange County ALUC decisions
show quite clearly that in most cases where an objection is raised,
the ALUC did not recommend outright denial of development permission.
Rather, by way of a recommendation of conditional approval or denial
or by way of an advisory comment, the ALUC sought some modification
of the development itself or the plan for marketing the development.
In this respect, the Orange County ALUC is quite representative of
the commissions studied throughout the state.
One common modification sought by these ALUCs has been the addition
of a "buyer notification" provision. Typically the ALUC states that
it approves the development in question only if the developer agrees
to inform all buyers of the impact airport noise will have on life
in the residences in question» Another very common modification sought
has been a change in the nature of the development itself, by the
introduction of "sound attenuation" measures.
To gain some basis for judging the efficacy of such conditions,
an investigation was made of sound attenuation measures required by
San Mateo County's ALUC for development located near the San Francisco
International Airport. Between the adoption of the Interim Land Use
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Plan for this airport in November 1972 and the analysis made in July
1974, the ALUC relied on its plan to impose sound attenuation require-
ments on forty-two specific proposed developments. These requirements
were made known to the developer by means of a form letter. This
letter incorporates the noise reduction standard which the Noise
Standards lay down for high-rise apartments, i.e., interior CNEL in
19S
all habitable rooms of 45 decibels or lower during aircraft operations.
It further relies on the developer to furnish appropriate documentation
of the steps to be taken, ordinarily in the form of a return letter to
the ALUC.
During the time period studied thirty-eight such letters were
sent by the ALUC for residential development proposed for land in
the 65-70 CNEL impact zone and four more for commercial development
in the 70-80 CNEL impact zone. Developer replies were received to
only half these letters—exactly twenty-one of the forty-two. In some
cases abandonment of the proposed development occurred, but in many
others it seems the developer simply disregarded the ALUC "requirement."
The ALUC took no steps to follow up in cases where no reply was received,
so that for practical purposes from the ALUC's point of view compliance
became a voluntary matter. Interviews suggest that this situation
existed mainly because of 1) lack of ALUC staff to perform a follow-
up function and 2) lack of specific criteria against which proposed
insulation measures could be checked.
In instances where the developer did reply, however, some enforcement
was provided by another source. Copies of such replies x^ere provided
to the planning or building inspection department of the local jurisdiction,
and in some cases this department did follow up the matter. In the
City of South San Francisco, for example, issuance of a building permit
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has required that the building plans include the insulation measures
specified by the developer in his letter to the ALUC. Furthermore,
as part of the "cover-up inspection" of interior structural design,
building inspectors have ordinarily checked the insulation measures
included in the building plans. Comparable enforcement measures have
been taken by other cities near the airport, for example, Millbrae,
San Bruno and Daly City. Some, in fact, anticipate future monitoring
to ensure that interior noise levels are in fact 45 decibels or less.
It thus appears that despite the absence of systematic follow
up by the San Mateo County ALUC itself, its initiatives in the area
of sound attenuation have had some beneficial impact. These efforts
should be reinforced in the future by the fact that effective August
22, 1974, the state Department of Housing and Community Development
promulgated noise insulation standards for all residential structures
other than single family detached dwellings. These require that with
windows closed the interior CNEL attributable to exterior sources
shall not exceed an annual CNEL of 45 decibels in any habitable room.
They further require that for structures to be located within an annual
CNEL contour of sixty decibels a detailed acoustical analysis shall
be prepared showing that the structure has been designed to limit
intruding noise to the prescribed allowable levels. This requirement
has been little noticed to date, although it may carry all the explosive
potential of an environmental impact statement requirement.
4. Local Government Overrides; The Harbor Bay Isle Controversy
A dominant feature of California's ALUC legislation is the provision
that, where an ALUC after a hearing determines that public agency
action is inconsistent with the commission's comprehensive land use
plan, the public agency shall hold a hearing on the matter and may
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thereafter overrule the commission by a four-fifths vote of its governing
body. This provision, which seriously weakens the hand of ALUCs throughout
the state, was deemed a political necessity in 1970 when the ALUCs
were for the first time given a measure of power. In the years since
1970 it inevitably has forced each ALUC toward moderation and compromise
with local governments taking positions in conflict with those of
the commission.
In order better to understand the dynamics of a situation in
which local government overruling (an "override") occurs, as well as
to learn more about the impact of an overridden ALUC, considerable
detail will here be presented on a single controversy. This controversy,
now the hottest airport-noise land use matter in California, deals with
a proposal to develop for predominantly residential purposes several
hundred acres of land lying very close to the Metropolitan Oakland
International Airport. Background information essential to an understanding
of this controversy will first be presented, then recent actions by the
involved public agencies will be reviewed.
a. Background
When the City of Oakland planned many decades ago to construct
a municipal airport, the site selected was a peninsula in San Francisco
Bay known as Bay Farm Island. The area was then sparsely populated,
with truck farming as the principal economic activity. In 1927 the
airport, now known as the North Field, opened at a location in the
base of the peninsula. Although this portion of Bay Farm Island is
part of the City of Oakland, the upper portion or "tip" of the peninsula
is a part of the City of Alameda.
A situation of relative stability and compatibility between the
aviation activity at Oakland's North Field and the agricultural activity
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in Alameda's portion of Bay Farm Island prevailed until well into
the 1950s, when the tensions which have led to today's acute conflict
began to appear. At that time both Oakland and Alameda developed
plans for expansion which were keyed to dredging and filling of nearby
submerged tidelands. On the one hand, Oakland planned and constructed
on bay fill a 10,000' runway, which constituted a portion of its new
South Field. This runway, which today is the airport's major facility
for jet air carrier service, is unique in having both approach and
departure areas directly over water.
At the same time, Alameda formulated plans for the use of some
of its submerged tidelands areas. Over nine hundred acres of submerged
tidelands off Bay Farm Island were zoned by the City of Alameda for
residential, commercial and industrial development. In addition,
individuals were allowed to construct single family residences in
the "Highlands," the existing dry land portion of Bay Farm Island
adjacent to the North Field. Over one hundred such residences were
built in the 1950s, leading to gradual decline of the area's truck
farming.
During the 1960s, each side in the present controversy moved
closer to the inevitable confrontationo The City of Alameda allowed
residential development in the Highlands to proceed, so that many
hundreds of additional homes were constructed as the Highlands built
toward its present population of about 4,000 people. Oakland in 1964
initiated an action to condemn a noise easement over 94 acres of noise
impacted residentially zoned property on Bay Farm Island, an action
it brought to a successful conclusion in 1969. And Alameda continually
encouraged private development interests to formulate plans for the
reclamation of tidelands off Bay Farm Island. After one such plan
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was approved in 1964, the developer encountered financial difficulty
and had to withdraw. In 1965, however, an Alatieda firm known as Doric
Development combined with Utah International, Inc. to form a joint
venture, Harbor Bay Isle Associates ("EEI"). Between 1966 and 1968,
HBI expended some $37 million in diking 903 acres of submerged tidelands
and filling them with sand purchased from the City of Alameda.
With an investment of this magnitude in the areas which it had
diked and filled, it was clear HBI would press for approval of a development
plan which would bring it an acceptable return on investment in the
near future. In 1972, HBI's proposal was presented: a community, predominantly
high density residential in character, with an estimated population
of 25,000. The proposal included a number of unusual features: a lagoon
system fed by continuously circulating water from San Francisco Bay;
housing clustered in small villages, each with specific neighborhoods
of designated social character (e.g., families with children v. childless
households); recreational and open space areas in the form of large
island "commons" in the lagoon; and structural measures to decrease
dependence on traditional modes of transportation, for example, by
automatically supplying each home with an electric car for short haul
trips.
b. Recent Public Agency Actions
HBI's proposal led to immediate and pointed concern on the part
of the Alameda County Airport Land Use Commission. This ALUC had
begun its work in 1971 by adopting planning boundaries for three airports
within its jurisdiction (including Metropolitan Oakland International
Airport), and from 1970 to 1972 it had entertained many expressions of
concern about conflict between the Oakland airport and both existing
and proposed residential development on Bay Farm Island. Ho land use
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plan was adopteds however, until on April 12, 1972, the ALUC adopted
an interim plan for the Bay Farm Island portion of the Oakland Airport
planning area. And—under pressure from the City of Alaraeda and
doubtful at the time of its power to limit residential development—
the ALUC in its interim plan simply adopted the land uses shown for
the area on the city's general plan. This step was taken in large
part on the assumption development by IIBI would begin with areas furthest
from the airport and consequently least subject to aircraft noise
exposure.
Shortly thereafter, on the petition of the City of Alamecla and
the ItCI developers, the ALUC recommended to the county Board of Supervisors
that the airport be determined to have a noise problem. The determination
was made, the airport was brought within the regulatory scheme of
the state Noise Standards, anu the stage was set for a bitter controversy
over the meaning of those standards for local land use decisions.
This controversy has occupied the principals since 1972, and it continues
today in litigation brought by the Port of Oakland to invalidate decisions
made by the City of Alameda.
Although the determination in 1972 that the Oakland airport has
a noise problem was justified largely by a noise complaint history
related to the North Field, where business jet and occasional air
carrier jet departures have prompted complaints from residents of
the Highlands, the determination subjected the entire airport to requirements
that noise monitoring be undertaken and a noise impact boundary be prepared.
Although the parties to the land use controversy have in fact been
unable to agree on the present location of the noise impact boundary
for different CNEL values, most of the debate on contours has gone into
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their probable location at various points in the future. In this debate
all sides seem to have accepted the principle that land use decision
makers, whether the City of Alameda or the ALUC, should not now approve
residential development if in the future that development will exist
within the relevant noise impact boundary for the Oakland airport.
The boundary which has received the greatest attention is the 65 decibel
CHEL line as of the beginning of 1986.
The location of this boundary cannot, of course, be determined
by measurements made now. It is a projected boundary, but it must be
used for contemporary land use decision making. Its location turns
almost entirely upon certain key assumptions which are made about
future developments in aircraft construction and modification, in
fleet mix, and in utilization patterns and service functions of the
Oakland airportc In fact, most of the predicted noise contours at
the heart of this controversy have been prepared by a single contractor.
The contractor has used the same methodology and assumptions about
airport operational conditions for each client, but other assumptions
have been varied given the client's viexj of future developments. The
principal assumptions to be varied have dealt with the level of activities
to be anticipated, the daily allocation of flights, use of a particular
flight track and runway use. Each of these factors has become a point
of contention in the Harbor Bay Isle dispute and will be summarized
here.
Level of activity projections for Oakland have been heavily
influenced by the final plan of the "Regional Airport Systems Study,"
an endeavor of the Association of Bay Area Governments (ABAC). This
plan, prepared by a Regional Airport Systems Study Committee (RASSC),
was adopted as an element of ABAG's regional plan on November 30,
1972c 79
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The plan used an assumed historical relationship between population,
income, and employment and the generation of local and visiting air
passengers for the Bay Region (a nine-county region including San
Francisco and its environs) to forecast an enormous growth in air
passengers. Whereas in 1970 airports in the region accommodated approximately
20 million annual passengers (MAP), the RASSC study forecast 28 MAP
in 1975, 44 MAP in 1980 and 72 MAP in 1985. Thus in a fifteen year
period, nearly fourfold growth was predicted, with a very large percentage
of this growth targeted for the Oakland airport. Although in 1970
this airport had only 1.71 MAP, the initial RASSC forecast was 13
MAP by 1980 and 24 MAP by 19S5o Subsequent supplementary studies
indicate, however, a view that 13 MAP at Oakland will not be obtained
until 1985 or later. This level of passenger activity is estimated
as a function of 179,000 annual operations, 173,600 of these by air
carriers.
The aviation consultant for the City of Alameda during the early
1970s provided forecasts of much lower activity at the airport. By
assuming that until 1980 Oakland will not be taking traffic overflow
from San Francisco International Airport and consequently that annual
growth till 1980 will average only 10% and by assuming further an
annual growth rate of 17% from 1980 to 1985, an estimate of 9.5 MAP was
reached for 1985. With a passengers per operation factor of 110 by
1935, this brought an estimate of 85,000 air carrier operations —
less than half the nuuber projected for 1905 by RASSC0 These different
projections in level of activity have been one major factor influencing
the radically different contours predicted by parties to the Harbor Bay
Isle dispute.
Similar differences in assumptions exist for a series of other
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matters. With respect to allocation of flights to daytime or night time
hours, the airport estimates the present night activity of 10-13% of all
operations will be 20% by 1985, whereas the developer's figure is 10%.
Since the noise from night operations is weighted very heavily in
calculating CNEL, the impact on contours of a higher percentage of night
activity is significant. With regard to use of a flight track which is
used today by some training flights and by some flights of commuter
airlines, the airport estimates this track will be discontinued by 1986,
whereas the developer estimates continued utilization at a reduced level.
Continued utilization would mean a lessened noise impact, as this
track is a favorable one from a noise point of view. With regard
to departure/arrival allocations, the developer assumes a higher percentage
of arrivals over the critical noise impact area than does the airport,
and again this assumption leads to an estimate of reduced contours.
As a consequence of the assumptions about the future selected
by the principals in the Harbor Bay Isle land use controversy, their
conclusions on CNEL contours differ radically. The contrast is nearly
total: the airport proprietor's projection of the 1985 65 decibel CNEL
contour encompasses almost the entire area HBI wants to develop, while
the projections of the developer and the City of Alameda for the same
contour include almost none of this area0
In the face of these contrasting projections , the Environmental
197
Impact Report (EIR) prepared on the HBI proposal steered a middle course.
The 1985 level of activity at Oakland will, according to the EIR, "approach
9.5-12 MAP with a PPO [passengers per operation] factor in the range of
84-100. This implies a 45-51% average occupancy load and 95,000-144,000
198
annual operations." If by 1985 Oakland has more scheduled airline
199
activity, night operations will be "in the range of 11-15%«" The
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disputed flight track will continue to be used, but not at present levels.
And departure/arrival allocations will be less favorable for noise abatement
over Bay Farm Island than estimated by the developer, but more favorable
than estimated by the airport proprietor.
In addition to taking a middle or compromise position on the
key disputed assumptions, the EIR questions the conclusion that aircraft
using the airport in 1985 will have been retrofitted so as to comply with
the FAR Part-36 fleet noise requirements. The principals in the HBI
controversy have disputed the speed with which such compliance will be
achieved, but the airport proprietor's estimates for 1985 assume 100%
retrofit. The EIR concludes, however, that "it would not be prudent
at this time to assume that all jet aircraft using OAK by 1985 will
comply with FAR Part-36 regulations." Instead it assumes "Case A"
of engine noise reduction to the extent possible from "nacelle treatment
for all jet engines together with a power reduction during takeoff
201
operations." On this assumption, and using the compromise positions
assumed on the other factors, the EIR estimates for 1985 contours in
which the 65 decibel CNEL cuts across the middle of the disputed area.
In fact, this projection provided by the EIR in 1973, after extensive
input and much dispute, is close to the 65 decibel CNEL contour projected
on?
for 1985 by the earlier RASSC study.
In the face of so many debatable and controversial factors and
the compromise position taken by the EIR, it is hardly surprising
that the Alameda County ALUC also has reached compromises in fixing
the 1985 65 decibel CNEL contour to be used in its decision-making.
It has been faced with an unusual situation in one respect, for ordinarily
one expects an airport proprietor to make assumptions which support
the conclusion that the airport's noise environment will improve over
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time. The airport proprietor, at least the airport proprietor currently
operating a large airport in California, is faced with the prospect
of numerous inverse condemnation and nuisance lawsuits, and ordinarily
it will seek to put a better face on the future. The Port of Oakland,
however, anticipates a much worse noise environment in the future.
This could be seen as simply the logical consequence of planned airport
growth which the proprietor believes should and will take place. Or
it could be seen as a manipulation of the assumptions which determine
the judgment as to whether there can be both airport growth and an
improved noise environment0 To the extent that the airport's position
is seen as an attempt to manipulate assumptions so as to preclude
residential development which might someday prove troublesome, the
process of contour projection becomes a political rather than a technical
process.
In the Harbor Bay Isle controversy, two highly powerful land developers
have been locked in combat which in fact seems fundamentally to have
been more political than technical. The ALUC, faced with the Port of
Oakland on one side and HBI and the City of Alameda on the other, also
has treated the matter as fundamentally political and has sought
to compromise„ In April 1972 the ALUC adopted a land use plan for
the Bay Farm Island portion of the planning area for the Oakland airport
which essentially reflected the land uses shown for that area by the
General Plan of the City of Alameda,, These permitted residential
use, even within those areas which the RASSC preliminary study of
1970 had shown would lie within a 65 decibel CNEL contour.
Thus the ALUC initially took a position which formally accorded
with that taken by the City of Alameda, but at the same time its resolution
included a finding that "the circumstances require that an immediate
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action be taken on a portion of the area within the planning boundaries
..f the Metropolitan Oakland International Airport so as to forestall
203
a conflict in land useso" One commissioner recalls that the ALUC
did not then take such action because it felt it lacked legally supportable
204
criteria by which it could limit residential development. This lack was
felt with particular force because by 1972 the City of Alameda had
made clear its strong determination to resist any limit on its plans
to approve the HBI proposal.
Subsequently the ALUC held extensive hearings on its land use
plan. As a result, by a 4-3 vote, it amended its earlier plan to project
a 65 decibel CNEL contour for 1985 which cuts across the middle of
the area in which HBI proposes predominantly residential development.
As justification the ALUC in its formal resolution adopted October
10, 1973, noted that ABAC in adopting the RASSC plan projected "an
increasingly larger role as a regional airport" for the Oakland airport,
that this role is "materially dependent upon the compatibility of land
uses," and that consequently the ALUC's land use plan requires amendment
205
to ensure greater compatibility.
In addition to altering the 65 decibel CNEL contour projected
for 1985, which it termed the "line of demarcation," the ALUC moved
in several other ways to tighten its control over development on Bay
Farm Island0 It flatly prohibited additional dwelling units south
of the line of demarcation. It provided that in areas north of the
line, where residential development was permitted in principle, "specific
approval" of the ALUC would be necessary for any building such as
a school which would result in a concentration of population. And
it required for non-residential areas that the City of Alameda adopt
"noise and safety standards which this Commission has approved as
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time. The airport proprietor, at least the airport proprietor currently
operating a large airport in California, is faced with the prospect
of numerous inverse condemnation and nuisance lawsuits, and ordinarily
it will seek to put a better face on the future. The Port of Oakland,
however, anticipates a much worse noise environment in the future.
This could be seen as simply the logical consequence of planned airport
growth which the proprietor believes should and will take place. Or
it could be seen as a manipulation of the assumptions which determine
the judgment as to whether there can be both airport growth and an
improved noise environment,, To the extent that the airport's position
is seen as an attempt to manipulate assumptions so as to preclude
residential development which might someday prove troublesome, the
process of contour projection becomes a political rather than a technical
process.
In the Harbor Bay Isle controversy, two highly powerful land developers
have been locked in combat which in fact seems fundamentally to have
been more political than technical. The ALUC, faced with the Port of
Oakland on one side and HBI and the City of Alameda on the other, also
has treated the matter as fundamentally political and has sought
to compromiseo In April 1972 the ALUC adopted a land use plan for
the Bay Farm Island portion of the planning area for the Oakland airport
which essentially reflected the land uses shown for that area by the
General Plan of the City of Alameda0 These permitted residential
use, even within those areas which the RASSC preliminary study of
1970 had shown would lie within a 65 decibel CNEL contour.
Thus the ALUC initially took a position which formally accorded
with that taken by the City of Alameda, but at the same time its resolution
included a finding that "the circumstances require that an immediate
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action be taken on a portion of the area within the planning boundaries
..f the Metropolitan Oakland International Airport so as to forestall
203
a conflict in land uses0" One commissioner recalls that the ALUC
did not then take such action because it felt it lacked legally supportable
204
criteria by which it could limit residential development. This lack was
felt with particular force because by 1972 the City of Alameda had
made clear its strong determination to resist any limit on its plans
to approve the HBI proposal.
Subsequently the ALUC held extensive hearings on its land use
plan. As a result, by a 4-3 vote, it amended its earlier plan to project
a 65 decibel CNEL contour for 1985 which cuts across the middle of
the area in which HBI proposes predominantly residential development.
As justification the ALUC in its formal resolution adopted October
10, 1973, noted that ABAC in adopting the RASSC plan projected "an
increasingly larger role as a regional airport" for the Oakland airport,
that this role is "materially dependent upon the compatibility of land
uses," and that consequently the ALUC's land use plan requires amendment
205
to ensure greater compatibility.
In addition to altering the 65 decibel CNEL contour projected
for 1985, which it termed the "line of demarcation," the ALUC moved
in several other ways to tighten its control over development on Bay
Farm Island„ It flatly prohibited additional dwelling units south
of the line of demarcation. It provided that in areas north of the
line, where residential development was permitted in principle, "specific
approval" of the ALUC would be necessary for any building such as
a school which would result in a concentration of population. And
it required for non-residential areas that the City of Alameda adopt
"noise and safety standards which this Commission has approved as
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adequate to protect the public safety, health, and welfare."
These decisions placed the ALUC much more in a middle position
vis-a-vis the airport proprietor and the developer and city than had
previously been the case. The hearings had given the ALUC an opportunity
to ventilate the basic dispute, action by ABAC was seen as regional
support for the airport proprietor's position, and there had been
the beginnings of opposition to the original HBI plan within the City
of Alameda itself. This opposition had resulted in a measure on the
ballot, approved by the voters in March 1973, which prohibited further
construction of multiple unit dwellings within the City of Alameda.
The measure, now under challenge in the courts, aimed to reduce population
density within the HBI development. Voters supported it more from
concern over traffic generation and circulation problems in the City
of Alameda and devotion to a "no growth" attitude than from concern
over airport noise problems, but it had forced the developer to redesign
the project. Multiple dwellings which the developer apparently once
hoped ultimately would be approved for location within the 65 decibel
CNEL contour had been altogether eliminated. With lower densities
planned for the entire development and with no possibility of residential
development within the 65 decibel CNEL contour, it had become even
more important to the developer to show that this contour presently
is located and through 1985 will remain located south of the area
planned for residential use. Thus the AbUC's decisions of October
1973 were a severe set-back for the developer.
Further skirmishing ensued over the current location of the 65 decibel
CNEL contour. The proprietor produced data placing this contour along
the northern edge of the existing Highlands development, a line somewhat
north of that suggested by the 1970 RASSC study. This was disputed
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by the city. Work by a state agency, the Division of Aeronautics,
pursuant to review of a proposed school site, tended to confirm the
proprietor's position. As a result a motion was made at an ALUC meeting
to relocate the "line of demarcation" further to the north. Technical
considerations suggested that such a change would be appropriate,
but again the process was more political than technical. The motion
was defeated, 5-2, with the commissioner from the airport voting against
such a change. The attempt was to hold to middle ground, to continue
what was seen as a compromise on the hope the City of Alameda might
agree.
The city, however, remained thoroughly committed to the lower-
density, predominantly residential development on Bay Farm Island
then being proposed by HBI. Despite the ALUC line of demarcation, in
April 1974 rezoning and tentative subdivision map approval was given
for residential development south of the line. The ALUC formally
found that these decisions were incompatible with the ALUC land use
plan. On August 6, 1974, in one of the most significant "overrides"
in the history of the California ALUC, the City of Alameda's city
council voted unanimously to overrule the Alameda County ALUC0 Although
the override can be seen as reflective of a different judgment on the
technical factors involved, or as a judgment regarding the appropriate
trade-off between the noise impact of principal concern to the ALUC and
other matters of concern to the city council, interviews suggest that
the key issue for the city council was local control. Faced with
another government body taking significant action on land use matters
the city regards as within its exclusive jurisdiction, the city council
was unwilling to agree to any compromise. And judicial challenges by
the Port of Oakland to this exercise of local power have to date been
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207
unsuccessful,,
PART III; NOISE ELEMENTS IN GENERAL PLANS
California, as part of a general trend toward greater state
involvement in local planning, has in recent years amended its planning
laws to require that various "elements" be included in local general
208
plans. This trend has been marked by resistance from some local planning
bodies which resent state intrusion and complain they cannot afford to
do the mandated studies.
In 1971, noise was added to the list of elements required by the
legislature. This element must, in "quantitative, numerical terms,"
show contours of present and projected noise levels associated with
209
all existing and proposed major transportation elements. The contours
are to be shown in minimum increments of five decibels and are to
be continued down to 65 decibels or to 45 decibels for regions involving
hospitals, rest homes, long-term medical or mental care, or outdoor
210
recreational areas.
The Noise Element is intended to serve as a tool for designing
noise-sensitive transportation and land use policies. Each general plan
is required to include conclusions "regarding appropriate site or
route selection alternatives or noise impact upon compatible land
211
useSo" An attempt to force action consistent with these conclusions,
along with others in the general plan, is made by twin requirements
212
that all zoning conform to the general plan, and that mandatory elements
213
of general plans be amended no more than three times a year.,
Although the requirement for noise elements has now been in California's
statute books some three years, relatively few counties and cities
in fact have final noise elements. As part of this study officials
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in planning departments of counties and cities adjacent to the seven
airports selected for special study were contacted in order to ascertain
the current status of the Noise Element. All such officials were
aware of the requirement and in most cases preparation of the element
had been initiated. On the whole, however, progress has been slow.
Frequently local governments use consultants to produce their
noise elements, and often draft and even final elements contain mostly
background material which, strictly speaking, is superfluous so far
as the requirements of the statute are concerned. An example is the
Noise Element for the City of Irvine, one of the few local governments
contacted to have completed its element. A substantial portion of this
Noise Element is devoted to a background discussion of the phenomenon
of noise, systems for measuring noise and figures to demonstrate such
things as relationships between airport impact zones and land use
compatibility. No noise contours for transportation-related noise
sources are provided, much less contours with increments of five decibels.
As for policy-oriented conclusions, these are stated, but in an extremely
general fashion. Thus, one finds as policies statements that the city
shall "phase development to avoid existing noise impact areas until
operational changes and other noise abatement measures are implemented"
and shall "work with the Orange County Airport Land Use Commission in
developing a plan for compatible use in airport noise and crash hazard
,.214
areas.
In some instances local governments ambitious to comply with
the full letter and spirit of the state requirement have found themselves
thwarted, with regard to airport noise, by a refusal of the airports
in question to cooperate. The state legislation, in fact, addresses
itself to the question of interagency cooperation, as follows:
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The state, local, or private agency responsible for
the construction or maintenance of such transportation
facilities shall provide to the local agency producing
the general plan, a statement of the present and
projected noise levels of the facility, and any
information which was used in the development of such
levels." (Emphasis added.) 215
The reference "such transportation facilities" is to an earlier listing
of "major transportation elements," which is stated to include but
not be limited to: (1) Highways and freeways, (2) Ground rapid transit
systems, and (3) Ground facilities associated with all airports operating
7 ~\ f\
under a permit from the State Department of Aeronautics.
In some cases airports have seized on the fact that air facilities
(i.e., aircraft) associated with airports are not mentioned in this
listing, and they have argued that consequently airports are under
no obligation to supply local governments with noise levels insofar
as they derive from aircraft rather than ground facilities at airports.
In effect, they argue that aircraft using airports are not "major
transportation elements" (although airport ground facilities are),
so that local governments should not take them into consideration
in the preparation of noise contours. Precisely this argument has
been employed by the City of Los Angeles Department of Airports to
justify its refusal to supply aircraft-related airport noise data
regarding Ontario International Airport to the neighboring City of
Montclair.
PART IV; FINDINGS. CRITERIA AND RECOMMENDATIONS
A. Findings Regarding the California Airport Noise Control System
1. Although the airport noise control system established
by the California Noise Standards contains many useful elements, so
far the stated goal "to cause the airport proprietor, aircraft operator,
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local governments, pilots and the department [state Division of Aeronautics]
to work cooperatively to diminish noise" is largely unachieved.
2. The triggering mechanism for the California Noise Standards
is a determination that a particular airport has a "noise problem."
Determinations have been made informally} and the determination process
has not been a source of inordinate delay. Considerably more airports
have been determined to have noise problems, however, than was anticipated
by those who drafted the standards„
3. The California Noise Standards provide for detailed
and sophisticated aircraft noise monitoring systems at airports determined
to have a noise problem. Although the high degree of accuracy and
comprehensiveness which is now required is difficult for many airports
to achieve, the monitoring requirements are now generally complied
with by several airports.
4. In those instances where aircraft noise monitoring systems
have been established, both the single event and the community noise
equivalent level data have contributed significantly to awareness of
airport noise problems. They allow the issue to be forced, provide
a means for evaluation of the efficacy of different abatement strategies,
and permit the preparation of contour lines which are useful in the
development of land use policy for the airport impact zone. The single
event data allows the performance of particular pilots to be evaluated
and thus is most important for precision and effectiveness in enforcement.
5. Some California airports required by state law to have
aircraft noise monitoring systems have made very little or no progress
toward acquiring such systems. The "go-slow" attitude of these airports
is principally the result of fear that monitoring data will be used
against the airports in private lawsuits, although technical and fiscal
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aspects have been contributing factors. The attitude has been permitted
to flourish because of widespread doubt over the legality of the California
Noise Standards. Both many of those subject to the standards and
the enforcement agencies in California have taken a hands-off attitude
pending resolution of ATA v. Crotti.
6. The most successful aircraft noise monitoring program
in California is that at the Orange County Airport. Monitoring data
there has been used to develop an abatement strategy which is effective.
This success cannot, however, be credited primarily to the California
Noise Standards. The Orange County Airport program was underway prior
to implementation of the state standards, and its primary impetus
comes from a combination of intense political and litigation pressure
generated within highly affluent communities near the airport and
a responsive and aggressive attitude on the part of airport management.
Management's chief enforcement tool has been threats of exercise of
its power to exclude excessively noisy aircraft or air carriers, rather
than any tool provided by the state. The state standards have, however,
been important insofar as the variance hearing process has provided
a forum for official resolution of local controversies over particular
aspects of the abatement program.
7. Airport noise monitoring programs in California have
occasionally incorporated a visual display component. This component
is potentially an important part of the public education necessary
for full understanding of airport noise problems. Limited surveys
of airport passersby at San Jose Municipal Airport's visual display
indicate, however, that maximum public education impact is not now
being achieved.
8. Site specific airport noise abatement planning has not
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been greatly stimulated by the California Noise Standards. The standards
use a variance process to require such planning, and in principle
this variance process should go forward concurrently with the establishment
of monitoring. In practice, however, airports have treated monitoring
as a prerequisite to application for a variance, and no enforcement
authority has challenged this interpretation. To date the only noise
abatement plan adopted pursuant to a variance proceeding in California
is that for the Orange County Airport„
9. Public access to significant airport noise information
and to the decision-making process on abatement strategy has been
limited in the experience to date with the California Noise Standards.
The standards provide for public access through the public hearing
process in variance application proceedings. Amendments to the authorizing
legislation, however, provided for extensions of time limits for monitoring
without any public hearing process. Furthermore, opportunities to
request public hearings on variance applications have been lost because
there is no requirement that the Division of Aeronautics make public
the fact that application has been made for a variance. In general,
many airports subject to the Noise Standards have been reluctant to
provide outside individuals or groups with detailed information on
the airport noise environment. In some cases this reluctance has extended
to requests of governments which need the information to use in the
preparation of Noise Elements for General Plans.
10. Enforcement has been the single most significant problem
with regard to the California Noise Standards. Doubts over the legality
of the standards and the outcome of the ATA v. Crotti litigation have
greatly inhibited effective enforcement of the standards. Even without
this litigation, however, it is likely the standards would not have
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been enforced effectively. Responsibility for enforcement of the
standards is given to counties, rather than to the state agency which
promulgated them. The state agency has disclaimed even a secondary
responsibility to see to their enforcement. The counties are often
inexperienced with regard to the subject matter of the Noise Standards,
and county officials are subject to local political pressures which often
militate against vigorous enforcement. Furthermore, in many situations
the airport in question is owned by the county within which it is
located, so that the county in effect would be enforcing the Noise
Standards against itselfo In general, California counties have not
shown an interest in aggressive enforcement of the state standards.
11. The California Noise Standards provide a regulatory
scheme keyed in several ways to land use in the impact zone surrounding
the airport. The most important link is found in the prohibition against
operation of an airport with a noise impact area of other than zero
without a variance. Although the Noise Standards specify that development
of compatible land use within the noise impact boundary is a principal
method of airport noise impact control, the standards themselves provide
the proprietor with no tools to ensure compatible land use within
the noise impact boundary.
12. Airport Land Use Commissions (ALUCs), which California
law establishes outside the framework of the Noise Standards, have
performed useful service in dealing with airport noise problems, but
their impact has been minimized by severe organizational, fiscal and
jurisdictional constraints. In addition, the authorizing legislation is
poorly organized and drafted.
13. The majority of counties studied assigned the ALUC function
to an existing organization,, Where the statutory formula for establishment
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of a new body with county, city and proprietor membership has been
utilized, staff work for the new body has been provided in large part
by the county planning department. In effect, therefore, the ALUC
often represents more conceptualization of a new function than creation
of a new and independent organization. There are immediate advantages
of staff availability in this functional approach, but often the new
function is placed low among the priorities of the existing organization.
14. The statutory formula for an ALUC suggests a framework
within which competing entities will work out a compromise of their
interests regarding a single airport. Since the ALUC has jurisdiction
for an entire county, however, the commission's membership according to
the statutory formula does not comprehensively represent the entities
interested in each airport within the county.
15. Whether the statutory formula or an existing organization
is used to "form" an ALUC, effective work has required the ALUC to
proceed largely on an airport-by-airport basis. This procedure appears
most effective where it is manifested organizationally by creation
of an entity such as a subcommittee which deals only with a particular
airport.
16. The countywide jurisdictional basis of most ALUCs has
in some cases been an impediment. Only in the Sacramento region is
there an ALUC with transcounty jurisdiction. Elsewhere, the county-
based ALUC deals with problems which often are exacerbated by regional
decisions. For example, in the San Francisco Bay Area the regional
decision of ALAG to assign an increasing proportion of Bay Area air
carrier service to the Oakland airport made the work of the Alameda
County ALUC far more difficult. Even transcounty ALUCs lack, however,
jurisdiction over matters such as allocation of air carrier service
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growth within a" region.
17. Funding has been a critical problem for many ALUCs.
No independent funding mechanism is created by the legislation which
establishes ALUCs, and counties often have been reluctant to fund
the ALUC function at an appropriate level.
18. The ALUC planning function has not been properly developed
for most airports in California. Although there is some doubt as
to whether the ALUC planning function is intended to be general and
comprehensive or whether it is intended merely to supplement existing
local government planning to ensure compatibility between the airport and
land use in the airport impact zone, the latter appears the better view.
The more limited planning has not, however, been properly done for many
of the airports which were studied. Where plans have been adopted, they
frequently have amounted only to an endorsement of the existing plan for
the area developed by a county or a city. Rather than a tribute to the
quality of local government land use planning for airport zones, this
result appears testimony to a failure by understaffed and inadequately
funded ALUCs to do the job which the California legislation contemplates.
Furthermore, very little state leadership has been exercised with regard
to ALUC work.
19. Land use decision-making by ALUCs has been hampered in some
instances by lack of knowledge as to development approved by local
governments for the impact zone. An interested and aggressive ALUC
can, however, work out informal referral systems which are satisfactory.
20. A part of the work of California ALUCs has consisted of
the development of conditions placed upon approved development within
the airport impact zone. Quantitatively few such conditions have
been successfully imposed, but with increased experience ALUCs should
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have greater success with such conditions. In some instances the
ALUCs have failed to ensure that the conditions imposed are in fact
complied with by the developer in question,,
21o The power of local government to override an ALUC determination
upon a four-fifths vote severely restricts the power of the ALUC. In
practice in many situations it converts the ALUC into virtually an
advisory body. Unless the override provision is removed it is highly
unlikely ALUCs will have major impact on airport zone land use problems
in California.
22. A second major constraint on ALUC power is its lack
of jurisdiction over airports themselves. Although the law seems
to provide for some limited ALUC control over the development plans
of airports, uncertainty over the meaning of the legal provision has
inhibited attempts to use this control. In most situations airport
operation, airport expansion and coiaptaible use of land in the airport
impact zone are all intimately linked. The ALUC's effectiveness, both
actual and potential, is curtailed by doubt as to its jurisdiction
over airport development plans and by the lack of any authority to
deal with airport operations„
23. The Noise Elements required for General Plans by California
law have not yet been put in final form by many of the jurisdictions
contacted in this study. Those which exist do not appear to have
major significance for resolution of airport land use problems.
B. Criteria for a Desirable Airport Noise Control System
As a preliminary to recommendations on means for achieving federal
involvement in effective airport noise control, it is helpful to have
in mind the principal characteristics of a good airport noise control
system. On the basis of the study and findings made with regard to
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the California system, the following general cliaracteristics are suggested
as desirable:
1. A set of principles defining the goals and priorities of
the regulatory system.
2. Reliable and objective mechanisms for evaluating the
current noise environment at particular airports.
3. Mechanisms for site specific planning which:
a. Permit all affected parties including the interested
public to participate;
b. Make use of regional airport plans and have influence
upon regional airport planning decisions; and
c. Integrate development control over the airport impact
zone with control over the operation and development of the airport
itself.
40 Mechanisms for evaluating the efficacy of particular
abatement strategies and the progress being made toward regulatory
goals.
5. Strong enforcement capacity.
C. Recommendations for an Airport Noise Control System with Federal
Involvement
1. Federal action should be taken to define the goals and
priorities of the airport noise control system. This should include definition
of an optimal situation and a target date for the achievement of that
situation. The California system defines the optimum in part in terms
of zero incompatible land use within the contour obtained by use of
a particular criterion noise exposure level. This definition has
proved workable in practice and deserves careful consideration by
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concerned federal agencies. The federal action should establish airport
land use compatibility goals as minimal standards, so that states
are free to establish stricter standards for themselves if they so
choose.
2. The federal government should take steps to require
that each state develop a program aimed at meeting the established
federal goals. Such a course is preferable to direct dealings between
the federal government and noise problem airports and their neighbors.
Although the latter course is simpler in organizational structure,
it would present the federal government with far more discrete problem
situations than can feasibly be managed. Furthermore, airport proprietors
and local government are often far more ready to cooperate with the
state government than with the federal government in matters of environmental
protection and land use control. This recommendation anticipates,
however, that as a corollary to federally mandated state airport noise
control programs the federal government would directly exercise some
control over airports by means of an airport noise certification system.
Comment. This recommendation may to some extent seem inconsistent
with findings above which reflect the passive attitude the California
Division of Aeronautics has taken with regard to airport noise control.
This attitude seems to have resulted from a combination of factors,
viz. the conservative attitude taken by the state's political leadership
on environmental matters in recent years; the uncertainty created
by ATA v. Crotti; the lack of any funding source to support extensive
state work on airport noise abatement; and the initial decision taken
by the Noise Standards, reflecting a statutory mandate, to place primary
enforcement responsibilities upon the counties. Some of these factors,
such as the challenge to state power on federal preemption grounds,
98
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would not affect a federally created program. Others, such as the lack
of a funding source, are subject to correction in a redesigned program.
Doubtless the use of an additional layer of government carries with it
some inherent risks, but on balance these appear acceptable. A major
advantage of the course proposed is that in effect the federal government
would be requiring states to exercise the power they hold over local
governments regarding land use control. Absent state involvement, the
federal government lacks legally effective and politically acceptable
tools for exercising direct control over local government land use decisions.
3. The state program required by the federal government
should meet federal criteria based upon the characteristics outlined
above in sections IV (B) 2-5. Thus, states should be required to ensure
that aircraft noise monitoring or comparable systems are developed
which permit one to evaluate the current and developing noise environment
at particular airports. Consideration should be given to use of a
uniform methodology for this purpose. States should also be required to
ensure that site specific noise abatement planning is carried out
in a way which ensures that regional airport planning, airport operation
and airport impact zone land use considerations are treated in an
integrated fashion. Such integration would go well beyond the California
ALUC experience and would require that either a regional or a state
body would assume major control over certain decisions of both airport
proprietors and local governments with primary land use planning jurisdiction
over land in airport impact zones. This control should not be subject
to any sort of override by affected local governments.
4. State programs should not include any elaborate airport
classification process. An informal system such as California's "noise
problem" determination system works well and avoids the opportunities
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for delay and dispute inherent in classification schemes.
5. A crucial point is the method by which the federal government
ensures that states develop acceptable airport noise control programs
and then take the necessary steps to ensure their implementation. Direct
statutory mandates are one method. In addition the federal government
should seek to link federal money for airport management and development
to state compliance with federal airport noise control requirements.
This link should be made as well if federal funds are provided to assist
airports in the payment of noise-related money judgments. In effect,
the federal government should say to states that without such compliance
federal airport money will be sharply curtailed or suspended altogether.
100
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NOTES
1. E. Murphy, Governing Nature 27 (1967).
2. P. Ehrlich, The Population Bomb (1968).
3. National Staff of Environmental Action, Earth Day—The Beginning (1970).
4. 6 Weekly Compilation of Presidential Documents 63 (1970).
5. 42 U.S.C. § 4321 et seq. (1971).
6. Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623, 42 U.S.C. § 4321
(1971).
7. 42 U.S.C. § 4901 et seq. (Supp. II, 1973).
8. 49 U.S.C. § 1431(c)(l) (Supp. II, 1973).
9. Cal. Pub. Resources Code § 21000 et seq. (West Supp. 1975).
10. Friends of Mammoth v. Board of Supervisors of Mono County, 8 Cal. 3d
247, 502 P.2d 1049 (1972).
11. Cal. Gov. Code § 65302 (West Supp. 1975).
12. Cal. Gov. Code § 12605 (West Supp. 1975).
13. The Department of Aeronautics became the Division of Aeronautics
within the newly formed Department of Transportation on July 1, 1973.
See Cal. Pub. Utilities Code §§ 21006.5 and 21007 (West Supp. 1975);
see also Cal. Gov. Code § 14008 (West Supp. 1975). To avoid
confusion, this entity will be referred to throughout as the "Division"
of Aeronautics.
14. Cal. Pub. Utilities Code § 21669 et seq. (West Supp. 1975). See also
Cal. Health and Safety Code §§ 24180-24181 (West Supp. 1975).
15o Cal0 Pub. Utilities Code § 21670 et seq. (West Supp. 1975).
16. Cal. Gov. Code § 65302(g) (West Supp. 1975).
17. Subsequently, in 1973, the legislature in the Noise Control Act of
1973 created an Office of Noise Control. Cal. Health and Safety
Code § 39840 (West 1973). Although the director of this office, a
part of the Department of Health, is to promote coordination of the
programs of all state agencies relating to noise research, abatement,
prevention, and control, Cal. Health and Safety Code § 39870, to
date the office has had no significant role with regard to airport
noise problems.
101
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IS. The author initially suggested to the Environmental Protection Agency
that information be gathered with regard to the implementation experience
at Los Angeles International Airport, Orange County Airport, San
Francisco International Airport, San Jose Municipal Airport and the
Metropolitan Oakland International Airport. At the request of the
Environmental Protection Agency the Los Angeles International Airport
was deleted from this list and San Diego's Lindbergh Field, the
Ontario International Airport and the Sacramento Metropolitan Airport
were added to the list.
Investigation at the Sacramento Metropolitan Airport yielded very
little of value for this report. The airport is located in an agricultural
area, it has not been determined by Sacramento County to have a noise
problem, nor is there in fact any basis for an assertion that the
airport has a noise problem. The airport has no plans for a noise
monitoring system. Further, there is presently insufficient development
pressure on land around the airport now devoted to agriculture
to be able to judge the long-term effectiveness of land use control
measures designed to ensure compatible uses in the airport's impact
zone. Consequently, the airport presents little by way of "implementation
experience" to be described and analyzed.
19. Cal. Pub. Utilities Code § 21669 (West Supp. 1975)„
20. Cal. Pub. Utilities Code § 21669o4(b) (West Supp. 1975)„
21. Cal. Pub. Utilities Code § 21669.4(a) (West Supp. 1975).
22. Cal. Pub. Utilities Code § 21669.5(a) (West Supp. 1975). This limitation
originated in the Noise Standards, 4 Cal. Admin. Code § 5004, and was
added to the statute in 1971. The statutory version of the limitation
expired, however, early in 1975, Cal. Pub. Utilities Code § 21669.5(c)
(West Supp. 1975), after efforts to extend it were unsuccessful. See
Assembly Bill 4426, 1973-74 Regular Session. For an argument that the
limitation as created by the Noise Standards is invalid, see Comment,
"We May Yet Have a Quiet Environment: The New California Airport Noise
Regulations," 12 Santa Clara L. Rev. 79, 91-92 (1972).
23. Cal. Pub. Utilities Code § 21669.1, repealed by Cal. Stats. 1972,
ch. 618, § 130.
24. Cal. Pub. Utilities Code § 21669.2 (West Supp. 1975).
25. Cal. Pub. Utilities Code § 21669.3(a) (West Supp. 1975).
26. Cal. Stats. 1969, ch. 1585, § 4.
27. The consulting firm was Wyle Laboratories of El Segundo, California.
See Wyle Laboratories Research Staff, "Supporting Information for the
Adopted Noise Regulations For California Airports" (1971).
28. 4 Cal. Admin. Code § 5000 et seq.
29. 4 Cal. Admin. Code § 5000.
30c Calo Pub. Utilities Code § 21669 (West Supp. 1975).
31. 4 Cal. Admin. Code § 5005. 102
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32. Id.
33. 4 Calo Admin. Code § 5006(f).
34. 4 Gal. Admin. Code § 5006(g).
35. 4 Gal. Admino Code § 5006(h)0
36. 4 Calo Admin. Code § 5050(b)0
37. 4 Gal. Admin. Code § 5013 and §§ 5020-5025.
38. 4 Cal. Admino Code § 5005.
39. 4 Cal. Admin. Code § 5012(a).
40» See, e.go, 4 Cal. Admin. Code § 5075(a)0
41. See Division of Aeronautics, "Questions Commonly Asked Regarding
Requirements Of The Counties Relative To The Noise Standards For
California Airports, Title 4, Sub-Chapter 6, California Administrative
Code," Noo 15 (undated): ". . . Section 5012 was amended to include
the sliding scale CNEL limitations after Section 5075 was written
it
00..
42. 4 Calo Admin. Code § 5012(c).
43. 4 Cal. Admino Code § 5014.
44. 4 Calo Admin. Code § 5006(i)0
45. 4 Calo Admin. Code § 5062.
46. 4 Cal. Admin. Code § 5075(b)(3)o
47. 4 Cal. Admin. Code § 5070(b).
48. When Section 5070(b) is read with the provisions governing the request
for a variance, 4 Calo Admin. Code § 5075(b), it appears however that
no variance is required if an airport which has been determined to
have a noise problem can be operated in compliance with all requirements
of the Noise Standards.
49o 4 Calo Admin. Code § 5035.
500 4 Cal. Admin. Code § 5045(a)(l).
51. 4 Calo Admin. Code § 5035 and Figures 3A and 3B.
52. 4 Cal. Admino Code § 5035o
53o Calu Pubo Utilities Code § 21669.4 (West Supp. 1975); 4 Cal. Admino
Code § 5055.
54. Air Transport Association of America v. Crotti, 389 F. Supp. 58, 65
(1975)o
55. Ido at 65.
103
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56. Id. at 64-65.
57» The court in ATA v^ Crotti based its denial of summary judgment as to
the CNEL aspects of the Noise Standards upon the airport's "proprietary
control," which "necessarily includes the basic right to determine the
type of air service a given airport proprietor wants its facilities
to provide, as well as the type of aircraft to utilize those facilities."
Id. at 64. This proprietary power was found to have been "exempted from
judicially declared federal pre-emption by footnote 14" of City of
Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), id., and it was
seen as correlative to the airport proprietor's liability for the
consequences which attend his operation of a public airport. Id. at
63-64. The court did not consider what limits, if any, apply to the
CNEL provisions, although it termed the provision suggesting reduction
of flight frequency as a method for controlling the impact of airport
noise "suspect." Id. at 65. Jurisdiction was reserved for the determination
of appropriate CNEL issues, and at present it appears the matter may go
to trial in the near future.
58. 4 Cal. Admin. Code § 5050 (b).
59. Cal. Pub. Utilities Code § 21669.2(a) (West Supp. 1975).
60. 4 Cal. Admin. Code § 5050(b).
61. 4 Cal. Admin. Code § 5070(a).
62. 4 Cal. Admin. Code § 5050(c).
63. Id.
64. See Department of Aeronautics, "Report of Investigation and Determination
Regarding Designation of Noise Problem at Fullerton Airport" (October 18,
1972). On appeal Orange County's determination that there is no noise
problem at the Fullerton Airport was affirmed.
65. The other five airports determined to have a noise problem are Los
Angeles International, Long Beach, Santa Ana, Hollywood-Burbank and
Santa Monica.
66. Daniel, Mann, Johnson & Mendenhall, Noise Impact Assessment for San
Diego County Airports (1972).
67. 4 Cal. Admin. Code § 5070.
68. Cal. Pub. Utilities Code § 21669.3(c) (West Supp. 1975).
69. Letter from Thomas G. Bertken, Deputy Director of Airports to Richard
Dyer, January 24, 1972.
70. Letter from James K. Carr, Director of Airports, to Joseph R. Crotti,
February 28, 1972.
71. Letter from Joseph R. Crotti to James K. Carr, March 30, 1972.
72. Letter from Thomas G. Bertken to Joseph R. Crotti, November 21, 1972.
104
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73» Letter from Joseph R. Crotti to Thomas G«, Bertken, November 30, 1972.
74. Letter from Thomas G. Bertken to Joseph R. Crotti, May 29, 1974.,
75. Id.
76o Letter from William F. Shea to Thomas G. Bertken, June 12, 19740 The
April 1, 1975, deadline was not met, and the airport has submitted
an application for still another variance. At present, the equipment
for the airport's noise monitoring system has been fabricated and site
preparation is underway. Installation will proceed in July and currently
the airport anticipates an operational system by the end of August 1975.
Telephone interview with Donald Bier, June 5, 1975.
77. Id.
78. Id.
79o Letter from Thomas G. Bertken to Joseph R. Crotti, May 29, 1974.
80. Cal. Pub. Utilities Code § 21669.3(c) (West Supp. 1975).
81. Letter from Thomas G., Bertken to Fred E. Tarr, May 29, 1974.
82. Letter from Thomas G. Bertken to Joseph R. Crotti, May 29, 1974.
83. 4 Cal. Admin. Code § 5075(b)(6).
84. Daniel, Mann, Johnson & Mendenhall, supra note 66.
85. Bolt, Beranek & Newman, Development of an Aircraft Noise Monitoring
Plan for Lindbergh Field, San Diego (1972).
86. The Noise Standards require at least twelve monitoring stations along
the noise impact boundary. 4 Cal. Admin,, Code § 5021. The consultant
suggested that approval for a variance from this requirement be sought
on the ground that most of the noise impact area is in a small zone to
the east of the airport, flight paths are well defined at Lindbergh
Field because there is only one runway, and the system provides for
expansion if necessary at a later time.
87. "Contract between the City of Los Angeles and the City of Ontario for
the Joint Exercise of Powers in relation to Ontario International
Airport," October 18, 1967-
88. Id. at § 8»
89o The contract provides that the Los Angeles Department of Airports "shall
manage, operate and control ONT, in the manner and with all the powers
and duties provided by the Charter of the City of Los Angeles for its
operation of LAX." Id0 at § 7-
90, Id. at § 3,
91u Interview with Clifton Moore, Director of the Los Angeles Department
of Airports, August 1, 1974.
105
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92. Letter from Robert Smith, Chairman, Community Relations Commission, to
California Department of Aeronautics, August 6, 1973.
93. Letter from William F. Shea to Robert Smith, September 14, 1973.
94. Id.
95. Cal. Pub. Utilities Code § 21663 (West Supp. 1975).
96. Cal. Pub. Utilities Code § 21668(d) (West Supp. 1975).
97. Cal. Pub. Utilities Code § 21669.4(b) (West Supp. 1975),
98. Cal. Pub. Utilities Code § 21669.2(a) (West Supp. 1975).
99. 4 Cal. Admin. Code § 5063.
100. Division of Aeronautics, supra note 41, at No. 12.
101. 4 Cal. Admin. Code § 5065.
102. Id.
103. Letter from William F. Shea to Robert S. Goodman, September 14, 1973.
104. Id.
105. Letter from William F. Shea to Bert J. Lockwood, September 26, 1973.
106. Id.
107. See pages 65-67 infra.
108. Interview with Robert Goodman, Director, San Bernardino County
Department of Airports, July 10, 1974.
109. Alameda County Board of Supervisors, Resolution, June 13, 1972.
110. Minutes of the Alameda County Airport Land Use Commission, May 10
1972.
111. Id.
112. 4 Cal. Admin. Code § 5031.
113. 4 Cal. Admin. Code § 5022(a).
114. Id.
115. See Port of Oakland Board of Port Commissioners, "Noise Abatement Policy
for the North Field," January 16, 1974.
116. See page 11 supra.
117. Id.
106
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118. 4 Cal. Admin* Code § 5035.
119 o Id.
120o With the exception of April 3, 1974, through May 6, 1974, when the
system was out of service for calibration and no data were obtained.
121. See "Preliminary Analysis of Noise Abatement Takeoff Procedures
Adopted by Hughes Airwest October 4, 1974," an appendix to Ro Bresnahan,
Noise Abatement Program Quarterly Report For the Period October J^
1974, through December 31, 1974 (February 15, 1975).
122. Gale Pub. Utilities Code § 21669.4(a) (West Supp. 1975)o
123. See page 11 supra,
124. Tentatively a fee schedule of $30 for noisy daytime departures,
$60 for noisy evening departures and $90 for noisy night time
departures was contemplated by airport personnel. The County
Counsel, however, responded negatively to this proposal, which is
not included in the current Master Plan of Noise Abatement.
"Response from the County Counsel was withheld because of the
questionable constitutionality of the State Noise Standards. The
general concern is that the proposal will prove unworkable and
unenforceableo" R. Bresnahan, supra note 121, at 26. In view
of the comments on the existence of an airport's proprietary power
which were included in ATA v. Crotti, supra note 57, it appears
that airport-initiated noise-related graduated user fees xrould
pass constitutional muster.
125o 4 Gal. Admin. Code § 5012,,
126o Community Airport Council, Newsletter 3 (May 1, 1974).
127. Id. More recent reports indicate that the 1974 noise impact area
included 212 acres and 271 homes. R. Bresnahan, supra, note 121, at
13o This increase, however, is stated not to be due to any increase
in noise levels« "It is due to information gained from new Monitor
Stations M-6 and M-7; which indicate that sideline noise levels are
higher than previously estimated.," Id. at 9.
128o Census tract data for 1970 for airport area census tracts show that
for Ontario the median family income was $9,617, the mean family
income was $10,271, and the mean value of an owner occupied house was
$17,100. The comparable figures for Newport Beach are $16,436 for
median family income, $20,507 for mean family income, and $49,000
for mean value of an owner occupied house. These figures are for
census tracts 11, 16, 17 and 18 in Ontario and for census tracts 627,
629, 630„01, 630.02 and 631.01 in Newport Beach.
129. The airport's environmental impact report on the acquisition program
notes that the properties to be acquired are in a noise-sensitive
area, where "there is not much of a real estate market," San Jose
Municipal Airport, City of San Jose, Environmental Impact Report;
San Jose Municipal Airport -_ Land Acquisition Approach Zone 17-18
(June 1974), but where there are numerous noise complaints. Id. at
107
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19. Elimination of noise sensitive residential land use is identified
as a secondary purpose of the program. Id. at 1.
130. A limited survey to provide some basis for evaluation of the visual
display was conducted between August 23, 1974, and September 1, 1974.
During the survey periods approximately 5,844 non-airport-related
individuals passed the display room. Of these, only 54 - less than
1% - stopped to view the visual display. Of these, 29 consented to
complete survey forms. A majority of these respondents indicated
in their responses that they found the display materials "easily
understandable," but 22 of 29 indicated greater effort should be
made to attract attention to the display and 17 of 29 indicated
that the display did not satisfy their curiosity about the noise
monitoring program.
131o 4 Cal. Admin. Code § 5011.
132. The Noise Standards require an incremental schedule only in the
situation of a variance to operate with a noise impact area greater
than zero. 4 Cal. Admin. Code § 5075(b)(3). In all cases, however,
the applicant will be judged by whether bona fide measures to achieve
compliance are being taken. Id_. at § 5075(b) (4) (D) . Presumably
this requires applicants in all cases to establish the nature of the
noise abatement methodology being utilized.
133. See pages 49-54 infra.
134. The following description is based largely upon li. Garbell, "City
Planning and Airport Planning for Community Noise Abatement at the
City of South San Francisco, California" (May 11, 1974)o
135. Operations personnel at the San Jose Municipal Airport prefer the
term "low drag approach" over the term "two segment approach," since
the procedure at San Jose is not fully instrumented. Interview
with Jerome T» Bennett and Robert Jo Young, August 1974.
136. Id.
137. Id.
138. See pages 35-41 supra.
139. For the full list of elements in this program, plus a progress report
on its implementation, see R0 Bresnahan, supra note 121, at 21-28.
This report is highly recommended as an example of the sort of site
specific airport noise abatement program which the Noise Standards
aim to produce. It is authored by the Director of Aviation, 18741
North Airport Way, Santa Ana, California 92707.
140. See attachment to memorandum from Edward J. Connor, Jr. to Nicholas
C. Yost, May 17, 1974. The attorney who represented the Department
of Transportation in the variance proceeding commented that, in light
of the evidence presented to the hearing on the preferential runway
system and its termination by the Orange County Board of Supervisors,
"we concluded that any variance issued should address these problems
by the imposition of conditions. I personally feel that, under the
108
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evidence, we cannot do otherwise. If the intent of the regulations
is to be followed, it would seem that any approval of a variance should
be conditioned by some kind of a requirement of renewed effort in
these areas." Id. at 1°
141. Ro Neher, Proposed Decision in In The Matter of_ the Statement of_
Issues v. County of Orange. Case No. L-5628 (April 29, 1974.)
142. The order stated the following: "During the term [of the one year
variance], respondent shall utilize a preferential runway program
for jet departures to the north when its tower is manned, and wind
and safety conditions permito" Id. at 5. Note there was no
limitation to "good faith efforts."
143c Id.
144,, Id. at 4.
145. Id. at 3.
146o Memorandum from Fred Lemke to William F. Shea, flay 22, 1974.
147o 411 U.So 624 (1973), 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973)„
148. Joseph R. Crotti, Decision in In the Matter of the Statement of
Issues VQ County of Orange, Case No. L-5628 (November 4, 1974).
149. Id. at 10.
150. Id. at 10-11,
151. R. Bresnahan, supra note 121, at 29-30.
152. Id. at "abstract."
153 „ Id.
154. 4 Calo Admin* Code § 5011(f)o
155. Id.
156o Cal. Pubo Utilities Code § 21670 et_se_q. (West Supp. 1975).
157. Gal, Stats. 1967, ch. 852, § 1, as amended Cal. Pub. Utilities Code
§ 21670 (West Supp* 1975).
158. Calo Pubo Utilities Code § 21670 (West Supp. 1975).
159o Calo Pub. Utilities Code § 21675 (West Supp. 1975).
160. Calo Pubo Utilities Code § 21675(a) (West Supp. 1975).
161 „ Cal. Pub. Utilities Code § 21005 (West Supp. 1975). Significantly,
the 1971 legislation anticipated an ALUC role for the Division of
Aeronautics, for it provided that ALUCs "shall require that all new
construction in such areas shall conform to such standards as the
109
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department [division] may from time to time adopt." Id. In 1973
the division in fact proposed standards for ALUCs, both with regard to
new construction in the vicinity of airports and with regard to other
ALUC matters. Division of Aeronautics, "Airport Land Use Commission
Proposed Standards" (April 6, 1973). Although the division stated
that the adoption of ALUC standards is "required" by law, Notice from
Joseph Re Crotti, "Comments Requested on Proposed Airport Land Use
Standards" (April 19, 1973), after several adverse comments were received
the matter was dropped and no ALUC standards have been published. Within
the past six months the division has sponsored two workshops for ALUC
commissioners, which may indicate it will be taking a more active
role on ALUC matters in the future.
162. Cal. Pub. Utilities Code § 21670 (West Supp. 1975)o
163. Cal. Pub. Utilities Code § 21670.1 (West Supp. 1975). Such a
determination required a majority vote of both the county board of
supervisors and the selection committee of mayors.
164. Cal. Stats. 1967, ch. 852, § 1, as amended Cal. Pub. Utilities Code
§ 21671.5 (West Supp. 1975).
165. Id.
166. Cal. Pub. Utilities Code § 21671.5 (West Supp. 1975).
167. Cal. Pub. Utilities Code § 21674 (West Supp. 1975).
168. Cal. Pubc Utilities Code § 21005 (West Supp. 1975).
169. In addition, the 1970 legislation on ALUC land use plans shows
sensitivity to noise problems in authorizing the ALUC to "determine
building standards, including soundproofing adjacent to airports...."
Cal. Pub. Utilities Code § 21675 (West Supp. 1975).
170. Id.
171. Id.
172. Cal. Pub. Utilities Code § 21676 (West Supp. 1975).
173. Id.
174. Cal. Pub. Utilities Code § 21675 (West Supp. 1975).
175. Id.
176. Cal. Pub. Utilities Code § 21005 (West Supp. 1975).
177. Id.
178. Id.; see also Cal. Pub. Utilities Code § 21675 (West Supp. 1975).
179. See Cal. Pub. Utilities Code § 21676 (West Supp. 1975).
180. Cal. Pub. Utilities Code § 21674 (West Supp. 1975).
110
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131. Calo Pub. Utilities Code § 21676 (West Supp. 1975)„
182. Id.
183. Id.
184. Id.
185. Santa Clara County Airport Land Use Commission, Land Use Plan for
Area Surrounding Santa Clara County Airports (August 1973).
186. Idc at 1.
187. Id. at 3.
188. Ido at 30-33.
189. Ido at 8.
190. 4 Cal. Admino Code § 5011.
191. Santa Clara County Airport Land Use Commission, supra note 185, at 14.
192. City of Oakland v. City of Alameda, No, 453290-3, Order on Motion for
Summary Judgment (Super. Cto, Alameda County, March 4, 1975)« Another
ground for the order was that no environmental impact report was
prepared by the ALUC upon its plans and actions.
193. San Bernardino County Planning Department, Airport Impact 48 (1970).
194. Cal. Pubo Utilities Code § 21676 (West Supp. 1975).
1950 4 Calc Admino Code § 5014(g)„
196, 25 Cal. Admin. Code § 1092.
197. Arthur D0 Little, Inc., Harbor Bay Isle; A Residential/Industrial
Development on Bay Farm Island, City of Alameda -_ Environmental
Impact Report (Draft) (November 21, 1973). This report provides an
excellent review of the positions of the groups in conflict over this
development. See also the final environmental impact report, Arthur
Do Little, Inc., Harbor^ Bay Isle; A Residential/Industrial Development
oil Bay Farm Island, City £f Alameda ^ Environmental Impact Report
"(January 18, 1974).
198. Id. (draft) at IV-117-
199o Id. at IV-120.
200. Id. at IV-124.
201. Ido at IV-122.
202o This is shown in the RASSC study as a NEF 30 decibel line.
203. Alameda County Airport Land Use Commission, Resolution (April 12, 1972),
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204o Interview with Commissioner Shirley, August 1974.
205. Alaineda County Airport Land Use Commission, Resolution (October 10, 1973),
206. Id.
207. See supra note 192 and the accompanying text.
203. Calo Gov. Code § 65302 (West Supp. 1975).
209. Cal. Gov. Code § 65302(g) (West Supp. 1975).
210. Id.
211. Id.
212. Cal. Govo Code § 65860 (West Supp. 1975).
213. Cal. Gov, Code § 65361 (West Supp. 1975).
214. City of Irvine, Noise Element of the General Plan, penultimate page
(1974).
215. Cal. Gov. Code § 65302 (West Supp. 1975) .
216. Id.
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