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