BILL ANALYSIS                                                                                                                                                                                                    

                            Senator Dave Cox, Chair

          BILL NO:  SB 1333                    HEARING:  4/19/10
          AUTHOR:  Yee                         FISCAL:  Yes
          VERSION:  4/12/10                    CONSULTANT:   
                              AVIGATION EASEMENTS

                           Background and Existing Law  

          The State Department of Transportation must adopt noise  
          standards governing the operation of aircraft and aircraft  
          engines based upon the level of noise acceptable to a  
          reasonable person residing in the vicinity of the airport   
          (AB 645, Foran, 1969).

          California airport noise regulations:
           Establish the standard for the acceptable level of  
            aircraft noise for persons living in the vicinity of  
            airports to be a community noise equivalent level (CNEL)  
            of 65 decibels,  and  
           Deem new development of residential and certain other  
            land uses within the 65 dB CNEL contour of a noiseproblem  
            airport to be incompatible unless the airport obtains an  
            avigation easement for aircraft noise. 

          An avigation easment is a type of easement which typically  
           A right-of-way for free and unobstructed passage of  
            aircraft through the airspace over the property at any  
            altitude above a specified surface.
           A right to subject the property to noise, vibrations,  
            fumes, dust, and fuel particle emissions associated with  
            normal airport activity.
           A right to prohibit the erection or growth of any  
            structure, tree, or other object that would enter the  
            acquired airspace.
           A right-of-entry onto the property, with proper advance  
            notice, for the purpose of removing, marking, or lighting  
            any structure or other object that enters the acquired  
           A right to prohibit electrical interference, glare,  
            misleading lights, visual impairments, and other hazards  
            to aircraft flight from being created on the property.


          SB 1333 -- 4/12/10 -- Page 2

          Pressures to construct housing, schools, or healthcare  
          facilities near urban airports can sometimes outweigh  
          concerns over noise impacts and result in decisions to  
          allow development where these uses would normally be  
          incompatible.  Some cities have ordinances requiring  
          property owners to grant avigation easements as a condition  
          for approval of potentially incompatible development  
          projects within an airport's noise impact boundary.  These  
          easements are often granted when local officials issue  
          certificates of occupancy to property owners.

          Commercial airport operators say that granting these  
          easements after completion of a development project can  
          subordinate the easements to other property rights and may  
          provide potential property buyers with insufficient  
          awareness of airport noise effects.  They want avigation  
          easements that are granted as a condition of approval for a  
          potentially incompatible development project to be granted  
          earlier in the development process.

                                   Proposed Law  

          When a political subdivision's approval of a  
          noise-sensitive project is conditioned upon the grant of an  
          avigation easement to the owner or operator of an airport,  
          Senate Bill 1333 requires that the avigation easement be  
          granted before to the issuance of the building permit that  
          allows construction or reconstruction of the  
          noise-sensitive project.

          SB 1333 defines "noise-sensitive project" as a project  
          within an airport's 65 decibels CNEL or higher noise  
          corridor involving new construction or reconstruction for  
          residential uses, including detached single-family  
          dwellings, multifamily dwellings, highrise apartments or  
          condominiums, mobilehomes, public and private educational  
          facilities, hospitals, convalescent homes, churches,  
          synagogues, temples, and other places of worship.

          SB 1333 defines "avigation easement" as a property right  
          that authorizes the use of the airspace above, adjacent to,  
          or in the vicinity of, the property of the permitholder  
          granting the easement, to enable aircraft to take-off from  
          or land on one or more of an airport's runways, including  
          an easement obtained pursuant to state law.


          SB 1333 -- 4/12/10 -- Page 3

          The bill states that the owner or operator of an airport  
          that is granted an avigation easement as a condition for  
          approval of a noise-sensitive project is entitled to  
          immediately record the easement upon receipt.

          SB 1333 requires that an avigation easement granted to the  
          owner or operator of an airport as a condition for approval  
          of a noise-sensitive project must include a termination  
          clause that terminates the easement if the project is not  
          built and the permit or any permit extension authorizing  
          construction of the project expires or is revoked.  The  
          bill requires the political subdivision that issued a  
          permit to notify the owner or operator of the airport  
          within 30 days of a permit's expiration or revocation.  The  
          owner or operator of the airport must record a notice of  
          termination with the county auditor within 90 days after  
          the receiving notice of a permit's expiration or revocation  
          from a political subdivision.  Within 30 days of recording  
          the notice of termination, the owner or operator of the  
          airport must provide the political subdivision with proof  
          of filing.


          1.   Timing is everything  .  To remain in compliance with  
          airport noise regulations, San Francisco International  
          Airport (SFO) officials have worked with officials in  
          neighboring cities to address issues relating to  
          potentially incompatible development projects.  City  
          officials in San Bruno and South San Francisco have  
          cooperated with SFO by requiring property owners to grant  
          avigation easements as a condition of approval for some  
          development projects within SFO's noise impact boundary.   
          SFO officials believe that these easments' effectiveness in  
          addressing airport noise issues is affected by when the  
          easments are granted.  By requiring these easements to be  
          granted before the issuance of a building permit, SB 1333  
          ensures that the airport's rights are fully protected and  
          that potential property buyers are properly notified that  
          the property is subject to the conditions specified in the  

          2.   Definition  .  SB 1333 defines "avigation easement" more  
          narrowly than the definition used, for example, in the  


          SB 1333 -- 4/12/10 -- Page 4

          Airport Land Use Planning Handbook produced by the  
          Department of Transportation's Aeronautics Division.   
          Proponents of the bill continue to have discussions with  
          other stakeholders to ensure that the bill's definition of  
          avigation easement is accurate.  The Committee may wish to  
          consider whether the definition of avigation easement in SB  
          1333 should be amended to ensure that it supports the  
          bill's purpose.

          3.   Mandate  .  The California Constitution requires the  
          state to reimburse local governments for the costs of new  
          or expanded state mandated local programs.  Because SB 1333  
          imposes new notice requirements on local governments and  
          requires notices of termination to be recorded, Legislative  
          Counsel says that the bill imposes a new state mandate.  SB  
          1333 disclaims the state's responsibility for providing  
          reimbursement by citing local governments' authority to  
          charge for the costs of implementing the bill's provisions.

                        Support and Opposition  (4/15/10)

           Support  :  California Airports Council, San Francisco  
          International Airport.

           Opposition  :  Unknown.