BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1333
                                                                  Page  1

          Date of Hearing:  June 30, 2010

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                                Cameron Smyth, Chair
                      SB 1333 (Yee) - As Amended:  May 17, 2010

           SENATE VOTE  :  32-0
           
          SUBJECT  :  Airports: avigation easements.

           SUMMARY  :  Requires an airport to acquire an avigation easement  
          prior to the issuance of a building permit that allows for  
          construction of a residential project within the airport's 65  
          decibel (dB) or higher noise boundary, and provides for other  
          specified requirements.  Specifically, 
           this bill  :   

          1)Defines "avigation easement" to mean a less-than-fee-title  
            transfer of real property rights from the property owner that  
            may convey to an owner or operator of an airport any or all 
          of the following rights:

             a)   A right-of-way for the free and unobstructed passage of  
               aircraft through the airspace over the property at any  
               altitude above a specified surface;

             b)   A right to subject the property to noise, vibration,  
               fumes, dust, and fuel particle emissions associated with  
               normal airport activity;

             c)   A right to prohibit the erection or growth of any  
               structure, tree, or other object that would enter the  
               acquired airspace;

             d)   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; or,

             e)   A right to prohibit electrical interference, glare,  
               misleading lights, visual impairments, and other hazards to  
               aircraft flight from being created on the property.

          2)States that an avigation easement includes an easement  
            obtained pursuant to existing law related to the use of  








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            eminent domain for hazard elimination and flight disturbances,  
            as specified.

          3)Defines "CNEL" to mean the community noise equivalent level  
            established in the "Noise Standards" chapter contained in the  
            California Code of Regulations under the Division 
          of Aeronautics.

          4)Defines "noise-sensitive land use" to mean 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.

          5)Defines "noise-sensitive project" to mean a project involving  
            new construction or reconstruction for a planned  
            noise-sensitive land use within an airport's 65 decibels CNEL  
            or higher noise contour.

          6)Provides that if a political subdivision conditions approval  
            of a noise-sensitive project upon the grant of an avigation  
            easement to the owner or operator of an airport, the avigation  
            easement shall be required to be granted to the owner or  
            operator of the airport prior to the issuance of the building  
            permit that allows construction or reconstruction of the  
            noise-sensitive project, and provides that the owner or  
            operator of an airport that is granted an avigation easement  
            as a condition for approval of a noise-sensitive project shall  
            be entitled to immediately record it upon receipt.

          7)Provides that an avigation easement granted to the owner or  
            operator of an airport as a condition for approval of a  
            noise-sensitive project shall include a termination clause  
            that operates to terminate the avigation easement if the  
            noise-sensitive project is not built and the permit or any  
            permit extension authorizing construction or reconstruction of  
            the noise-sensitive project has expired or has been revoked.

          8)Provides that within 30 days after expiration or revocation of  
            a permit or permit extension that authorized construction or  
            reconstruction of a noise-sensitive project and was  
            conditioned upon the property owner granting an avigation  
            easement to the owner or operator of an airport, the political  
            subdivision that had issued the permit shall notify the owner  








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            or operator of the expiration or revocation of the permit.

          9)Provides that within 90 days after receipt of the notice from  
            the political subdivision, the owner or the operator of the  
            airport shall record a notice of termination with the county  
            recorder in which the property is located, and provides that  
            proof of filing of the notice 
          of termination shall be provided to the political subdivision by  
            the owner or operator of the airport within 30 days of  
            recordation.

          10)Provides, in filing any instrument, paper, or notice, the  
            owner or operator of an airport shall pay all applicable  
            recording fees as prescribed by law.  

          11)Provides that no reimbursement is required by this act  
            because a local agency or school district has the authority to  
            levy service charges, fees, or assessments sufficient to pay  
            for the program or level of service mandated by this act, and  
            provides that if the Commission on State Mandates determines  
            that this act contains other costs mandated by the state,  
            reimbursement shall be made to local agencies and school  
            districts for those costs.

           EXISTING LAW  :

          1)Governs the creation and operation of airports in California.

          2)Provides for the establishment of county airport land use  
            commissions to carry out various requirements, including the  
            formulation of a comprehensive land use compatibility plan to  
            provide for the orderly growth of the airport and the area  
            surrounding the airport within the jurisdiction of the  
            commission.

          3)Authorizes avigation easements from property owners for all  
            housing constructed after January 1989 that is located within  
            an airport's 65 dB or higher contour area, pursuant to Title  
            21 of the California Code of Regulations.

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, this bill contains potentially reimbursable mandate  
          costs for the recording mandate and minor, potentially  
          reimbursable costs for the easement termination notice.  Senate  
          Appropriations notes that a county recorder can charge a fee  








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          sufficient to cover the cost of recordation as imposed 
          by the bill.

           COMMENTS  :   

          1)SB 1333 ensures that real property easements for avigation  
            purposes, when required, are granted prior to the purchaser of  
            the property taking possession from the real estate developer.  
             The bill additionally requires that in the event that an  
            easement is granted and then the development process is  
            terminated, that the easement will also terminate.  Local  
            governments would be required to notify the airport of the  
            termination, and the airport would then be responsible for  
            removing the easement from the records of the County Recorder.

          2)Avigation easements are a type of easement which typically  
            convey certain rights like a right-of-way for free and  
            unobstructed passage of aircraft through the airspace, a right  
            to subject the property to noise and other things associated  
            with normal airport activity, a right to prohibit the erection  
            or growth of any structure or other object into the airspace,  
            and a right-of-entry onto the property, with proper advance  
            notice, for the purpose of removing any structure that enters  
            the airspace.  

          3)Under current practice, avigation easements are granted at the  
            time the certificate of occupancy is issued to the new  
            property owner.  According to the sponsor, the California  
            Airports Council, waiting until the certificate of occupancy  
            is issued is problematic for two reasons:  first, it is  
            difficult for an airport to monitor and track compliance as  
            the city's issuance of occupancy certificates occurs at the  
            very end of the development process, especially if the project  
            commencement was delayed or construction was halted after  
            commencement; and second, an airport's rights under the  
            easement can become subordinate to other rights and there is  
            diminished protection for the airport since the units could  
            have been sold or under a sales contract by the time the  
            occupancy certificate is issued.  

           4)Support Arguments  :  Supporters argue that provisions of SB  
            1333 will establish a workable process for local governments  
            and airports serving local communities.  By issuing the  
            easement at the beginning of the development process, airports  
            will be able to monitor and track compliance more easily and  








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            continue to plan and provide for orderly growth within the  
            airport's jurisdiction.

             Opposition Arguments  :  SB 1333 requires a local government  
            that issues a building permit for a noise-sensitive project to  
            notify an airport owner or operator of the expiration or  
            revocation of an avigation easement, as specified.  By  
            requiring this notice, SB 1333 imposes a state-mandated local  
            program because of the requirement to perform a higher level  
            of service.  However, local governments may be able to recover  
            the costs of the new duty through fees.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          CA Airports Council [SPONSOR]
          Association of CA Airports
          County of San Mateo
          San Francisco International Airport
           
            Opposition 
           
          None on file

           Analysis Prepared by  :    Debbie Michel / L. GOV. / (916)  
          319-3958