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 SB 1333 Page 2 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 SB 1333 Page 3 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 SB 1333 Page 4 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 SB 1333 Page 5 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