BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: SB 1333 HEARING: 4/19/10
AUTHOR: Yee FISCAL: Yes
VERSION: 4/12/10 CONSULTANT:
Weinberger
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
conveys:
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
airspace.
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.
Comments
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
easements.
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.