BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 2776 A
Assembly Member Simitian B
As Amended May 28, 2002
Hearing Date: August 6, 2002 2
Business & Professions Code 7
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SUBJECT
Aviation: Noise
DESCRIPTION
This bill would substantially increase the notice required
to be given to prospective homeowners when the homes they
intend to purchase are located near an airport. Specified
disclosures regarding airport proximity would be required
in applications for new housing developments, declarations
for new common interest developments, and in conjunction
with the transfer disclosure statement (TDS) on existing
homes.
The bill also would provide that, where notice of airport
proximity has been made in conjunction with a TDS, a
realtor would not be required to provide any additional
information regarding airport-related annoyances.
BACKGROUND
As the state grows, conflicts between homeowners and
adjacent airports also are growing as new housing
developments encroach upon planned airport expansion areas.
Problems range from homeowners upset about airport noise
and odors, to airports' concerns about structures impeding
flight paths, to basic community conflicts in balancing
housing and commercial priorities.
Current laws require subdivision reports to note the
location of nearby airports, and require real estate
(more)
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transfer disclosures to disclose "neighborhood noise
problems" to prospective purchasers.
This bill would attempt to minimize conflicts between
prospective homeowners and adjacent airports by expanding
the circumstances under which notice of airport proximity
to housing must be given, and by making these required
notices more prominent and specific.
CHANGES TO EXISTING LAW
1. Existing law requires any person who intends to sell
or lease subdivided lands to file with the Department of
Real Estate an application for a public subdivision
report making various disclosures relevant to the sale or
lease of the property, including "the location of all
existing airports, and of all proposed airports shown on
the general plan of any city or county, located within
two statute miles of the subdivision." [Bus. & Profs.
Code Sec. 11010.]
This bill would state that the Legislature finds and
declares that the current mechanisms for providing notice
to homebuyers of potential airport impact are inadequate,
as evidenced by the number of complaints and lawsuits
regarding airport noise by residents of surrounding
communities.
This bill would require an application for a subdivision
report to state whether the property is located within an
"airport influence area," defined as "the area in which
current or future airport-related noise, overflight,
safety, or airspace protection factors may significantly
affect land uses or necessitate restrictions on those
uses as determined by an airport land use commission,
including an airport referral area."
This bill would require an application for a subdivision
report for property located within an airport influence
area to place the following statement in the application:
NOTICE OF AIRPORT IN VICINITY
This property is presently located in the vicinity of
an airport, within what is known as an airport
influence area. For that reason, the property may be
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subject to some of the annoyances or inconveniences
associated with proximity to airport operations (for
example: noise, vibration, or odors). Individual
sensitivities to those annoyances can vary from
person to person. You may wish to consider what
airport annoyances, if any, are associated with the
property before you complete your purchase and
determine whether they are acceptable to you.
2. Existing law requires that, in any transaction for the
resale of a house, the seller provide the prospective
buyer with a TDS disclosing specified conditions of the
property and the neighborhood known to the seller,
including "neighborhood noise problems." [Civ. Code Sec.
1102.6.]
Existing law further requires the TDS to identify reports
making additional disclosures required by law that have
been or will be made in connection with the sale of the
property. [ Id .]
Existing law further requires the seller to provide, as
one such additional report, a Natural Hazard Disclosure
Statement (NHDS), disclosing whether the property is
located within a hazardous area, as indicated on a map
prepared by the state or federal government, relating to
floods, fire, or earthquakes. [Civ. Code Sec. 1103.2.]
Existing law further provides that the seller may obtain
an NHDS from a licensed engineer, land surveyor,
geologist, or other expert in natural hazard discovery.
[Civ. Code Sec. 1103.4.]
This bill would require the expert requested to prepare
the NHDS to determine whether the property is within an
"airport influence area," as defined.
This bill further would require, if the property is
within an airport influence area, that the NHDS include a
statement titled "NOTICE OF AIRPORT IN VICINITY"
identical to the statement this bill would require in an
application for a subdivision report.
This bill would require the TDS to specify that
additional disclosures have been or will be made pursuant
to the NHDS, including disclosures as to any "airport
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annoyances."
This bill further would provide that, if an NHDS
including such a notice provision is delivered to the
prospective purchaser, the seller or broker is deemed to
have provided adequate information regarding
airport-related annoyances that may affect real property,
and is not required to provide additional information.
3. Existing law requires any person or entity that
creates a common interest development (CID) to record a
declaration containing a legal description of the
development and the covenants, codes and restrictions
intended to be applicable to the CID. [Civ. Code Sec.
1353.]
This bill would require that, if the CID property is
located within an "airport influence area, as defined,"
any CID declaration recorded after January 1, 2003, shall
include a statement titled "NOTICE OF AIRPORT IN
VICINITY" identical to the statement this bill would
require in an application for a subdivision report and an
NHDS.
This bill would become operative on January 1, 2004.
COMMENT
1. Stated need for legislation
The author notes that conflicts between airports and
homeowners are increasing. As these conflicting property
uses infringe on each other, homeowners have sought
everything from civil injunctions on airport operations,
to flight curfews, to city-funded soundproofing of homes.
Airports, on the other hand, have sought relief from
these actions through aviation easements. The author
states,
[T]o the extent that new homes and communities are
built near existing airports, the homeowner should be
responsible for choosing to live there. . . . This
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bill requires that home buyers be provided with
additional notice if the house they intend to purchase
is located near an airport and may be subject to
noises, vibrations, or odors. The goal is to help
homeowners make informed choices, and to avoid the
potential for conflict between neighborhood residents
and general aviation pilots.
2. Policy implications for nuisance actions
A clear goal of this bill is to reduce the threat of
nuisance lawsuits brought by new homeowners
insufficiently aware of the present, and potential
future, negative aspects of living near an airport.
Disclosure requirements of the sort proposed here usually
constitute good policy, since informed choices tend to be
more satisfactory choices.
Since the purchase of property with disclosed defects
usually manifests acceptance of those defects, however,
consideration should be given to the extent the increased
disclosure proposed by this bill might be considered to
waive a homeowner's right to enjoin, or recover damages
for, excessive noise, fumes, or other nuisances incident
to the operation of a nearby airport.
General principles of nuisance law hold that when a
plaintiff "comes to the nuisance" ( e.g ., moves into a
house near an established entity, such as an airport),
the plaintiff accepts the entity's existence, waiving the
right to sue for injunctive or monetary relief for
alleged nuisances caused by its activities. More
specifically, state laws provide that airports and other
businesses operating in approved zones may not be
enjoined by private plaintiffs from engaging in their
reasonable and necessary operations, and that an airport
in existence for three years shall be presumed not to be
a nuisance. [CCP Secs. 731a, 731b.]
This statutes and principles, however, relate only to the
reasonable operations of the existing entity, and do not
bar suits alleging unreasonable operations ( e.g .,
dangerously low flights) or expanded or changed practices
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( e.g ., new runways or changed flight paths).
In a nuisance suit, advance notice to the plaintiff of
the existence of a potential nuisance is a factor to be
considered with all the other facts of the case, and the
more clear and specific the notice, the more that factor
will benefit the defendant. In the context of a real
estate purchase, however, the issue of notice relates
more to the liability of the seller, who has the
obligation to disclose, than it does to suits against the
alleged nuisance itself.
Thus, the enhanced notice of airport proximity proposed
by this bill probably would provide some protection to
developers and private homeowners from future nuisance
suits by disgruntled home purchasers. This seems
appropriate, since any diminution in the value of the
property resulting from enhanced disclosure of airport
proximity should be taken into account in price
negotiations, with the seller bearing the consequences of
the reduced price.
Enhanced notice would appear to have little effect on any
homeowner action against the airport itself, however,
which would be governed by the laws and principles
summarized above.
3. Effect of recent amendment
At the behest of realtors, the bill recently was amended
to move the required airport notice from the seller's TDS
to the supplementary natural hazard report, the NHDS.
Realtors sought this amendment because the TDS normally
is prepared by the seller, where the NHDS usually
requires expert analysis and reference to government
maps. As determination of a property's location relative
to an "airport influence area" would seem to require this
level of expertise, the NHDS arguably is the more
appropriate location for the notice.
This amendment should not impair the level of notice
received by the buyer, since the NHDS is a required
supplementary report, and since the TDS would make
specific reference to possible "airport annoyance"
information in the NHDS.
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4. Determining whether property is in an "airport
influence area "
The bill adopts the term and the definition of "airport
influence area" from the California Airport Land Use
Planning Handbook, published by the Aeronautics Division
of the Department of Transportation (DOT). The DOT
handbook states that, in most circumstances, the airport
influence area is designated by the local airport land
use commission (ALUC) as its planning area boundary for
the airport. (This area also is referred to as an
"airport referral area," since the ALUC planning
boundaries set the limits of the area within which
proposed land use projects are referred to the ALUC for
review.)
ALUCs are authorized in any county with a public-use
airport, and are established to promote compatibility
between airports and surrounding land uses. ALUCs are
required to adopt compatibility plans for each public-use
airport within their jurisdiction, including maps
indicating the planning area boundaries. Accordingly,
the bill's requirement that subdivision developers, CIDs,
and private sellers' NHDS reports specify whether the
property is in an "airport influence area" should be
achievable with reference to the local ALUC's planning
area boundary map.
5. Opponents' concerns: Are ALUC maps adequate sources
for notice ?
Opponents of this bill have expressed concerns that the
sophistication, specificity, and availability of ALUC
maps vary widely from county to county. One opponent
claims that some ALUCs do not even have planning boundary
maps, and that due to lack of funding, ALUCs are slow to
prepare maps at all, or to provide them in a format
easily available to the public ( i.e ., on the internet,
where many of the government maps used for other natural
hazard determinations are available).
Further, both proponents and opponents are concerned
that, even where ALUC maps are reasonably detailed and
available, they are not parcel-specific. This lack of
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specificity would make it difficult for the preparer of
an NHDS report on a residential property close to the
ALUC planning area boundary to determine if the property
lies within or without the airport influence area.
Finally, one opponent objects to the use of "airport
influence area" map boundaries as an overly broad basis
for disclosure, since those maps cover areas affected not
only by noise but by overflight, safety, and airspace
protection considerations. (This objection seems
grounded in a belief that inclusion in the disclosure
zone would automatically and significantly lower the
value of the affected property - a belief that does not
appear to be well founded in light of brisk, well-priced
home sales in areas close to airports across the state.
Further, location in an affected zone is only one piece
of a larger informational pie; a property's proximity to
runways, as opposed to a location out on the border of
the zone, would more substantially effect the property's
value.)
6. Liability waiver: CAOC opposition
The Consumer Attorneys of California (CAOC) oppose the
liability waiver for realtors added to the most recent
version of the bill (at page 18, lines 13-19). CAOC
asserts that this waiver is overbroad, contravening
existing laws requiring realtors to conduct a reasonably
competent and diligent visual inspection and to disclose
material facts (Civ. Code Sec. 2079). CAOC argues that
the existing limitations on liability for realtors should
be adequate.
The CAOC's concerns about the breadth of the waiver seem
well founded. Further, the waiver appears to be
unnecessary, since subparagraph (a) of Civil Code Section
1103.4 already immunizes owners and real estate agents
for information errors in reports that are not within
their personal knowledge, if the information was obtained
with ordinary care.
SHOULD THE ADDITIONAL REALTOR LIABILITY WAIVER BE
DELETED?
7. Other factors for Committee consideration
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One way to address opponents' concerns about the
potential lack of readily available ALUC maps would be to
condition the applicability of the bill's notice
provisions on the availability of an ALUC map in the
county at issue, defining the airport's influence area in
a format reasonably available to the general public
( i.e ., with reproductions of the map provided to title
companies, the public library, or other public venue, or
posted on the internet).
With respect to parcel specificity, the author states
that some natural hazard disclosure firms that would be
charged with making the "airport influence area"
disclosure have indicated that overlaying a parcel map on
an ALUC map should not be difficult or cost-prohibitive.
The author asserts a willingness to amend the bill to
allow a "default" to nondisclosure in an NHDS report when
the parcel in question appears to be right on the
planning area boundary.
However, a "default to nondisclosure" raises the
potential for abuse, since the hazard disclosure firm
responsible for making that determination may be
pressured by a seller to err on the side of
nondisclosure. It may be more accurate to allow the
disclosure firm simply to indicate that, based on the
maps available, the parcel in question is located too
close to the boundary to permit a precise determination
of whether it is inside or outside of the influence area.
8. Suggested amendments
(a) The California Building Industry Association (CBIA)
is concerned that the bill's definition of "airport
influence area" also includes the term "airport
referral area," without defining the term or explaining
its relationship to an airport influence area.
According to the DOT handbook, "airport referral area"
is synonymous with "airport influence area."
Accordingly, the CBIA's concerns may be addressed by
revising the definition of "airport influence area" as
follows (on page 5, line 26, and page 19, line 13):
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For purposes of this section, an "airport influence
area , " also called an airport referral area, is the
area in which current or future airport-related
noise, overflight, safety, or airspace protection
factors may significantly affect land uses or
necessitate restrictions on those uses as determined
by an airport land use commission , including an
airport referral area .
(b) A provision referring to the proposed effective date
of this legislation, which is January 1, 2004, is
misdated. On page 18, line 31, "2003" should be
"2004."
(c) Delete the waiver of liability provision, as
noted in Comment 6.
Support: Aircraft Owners and Pilots Association;
California Pilots Association; City of Santa
Barbara; San Francisco International Airport
Opposition: California Building Industry Association;
Consumer Attorneys of California (opposed to
realtor liability waiver provision); County of San
Mateo; People Over Planes, Inc.; one individual
HISTORY
Source: San Carlos Airport Pilots Association
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Local Government Committee 8-2
Assembly Appropriations Committee 15-2
Assembly Floor 46-31
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