DATE: May 12, 2016
TO: Planning Commission
FROM: Development Services Director
SUBJECT:
Title
Overview of Draft Airport Overlay Zoning Regulations
End
RECOMMENDATION
Recommendation
That Plannning Commission reviews this report and attachments and provides feedback.
Body
SUMMARY
Consistent with Hayward General Plan policies, the City is developing new airport overlay zoning (AOZ) regulations to help ensure that future development within the AOZ is consistent with state and federal FAA regulations and guidelines. The new regulations would not apply to airport property itself, nor to land in unincorporated Alameda County. Hayward’s current Airport Approach Zoning regulations, which were adopted in 1964, are outdated. Per the attached draft ordinance, the purpose of the new regulations is to:
a. Implement the City’s General Plan Policies to ensure that all land uses within the Airport Overlay Zone (AOZ) are consistent with the State Aeronautics Act, Cal. Public Utilities Code § 21670, et seq. <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=puc&group=21001-22000&file=21670-21679.5>, federal law, FAA regulations, and the California Department of Transportation’s Division of Aeronautics 2011 California Airport Land Use Planning Handbook <http://www.dot.ca.gov/hq/planning/aeronaut/documents/alucp/AirportLandUsePlanningHandbook.pdf> (Handbook) guidance;
b. Ensure that land uses and development within the AOZ are compatible with existing and future Hayward Airport operations;
c. Avoid or minimize exposure of persons to potential hazards associated with current and future Hayward Airport operations;
d. Prohibit development, uses or any installations or activities which represent a hazard to existing and future flight operations;
e. Achieve a necessary balance between the economic vitality and long term development goals of the City, and the growth and economic integrity of the Airport;
f. Recognize unique constraints and considerations applicable to properties potentially affected by airport operations by establishing regulations and review criteria for land use and development which applies specifically to properties within the AOZ; and
g. Recognize the AOZ as encompassing the “Airport Influence Area”.
BACKGROUND
Hayward’s Current Regulations - Chapter 10, Article 6 of the Hayward Municipal Code (Airport Approach Zoning Regulations <http://www.hayward-ca.gov/sites/default/files/Ch-10_A-6_AirportApproachZoningRegs.pdf>) was adopted over fifty years ago “for the purpose of promoting the health, safety, and general welfare of the inhabitants of the City of Hayward by preventing the creation or establishment of airport hazards, thereby protecting the lives and property of the users of the Hayward Air Terminal and of the occupants of the land in its vicinity, and preventing destruction or impairment of the utility of the airport and the public investment therein.” However, due to changes in regulations associated with airport land use planning, this five-page set of regulations has become outdated. For example, Section 10-6.35 (Use Restrictions) provides little guidance in terms of objective development standards for developers and planners as it states, “Notwithstanding any other provisions of this Article, no use may be made of land within any airport approach zone, airport turning zone or airport transition zone in such a manner as to create harmful electrical interference with radio communication between the airport and aircraft, make it difficult for flyers to distinguish between airport lights and other lights, result in harmful glare in the eyes of the flyers using the airport, impair visibility in the vicinity of the airport, or otherwise endanger the landing, take off or maneuvering of aircraft.”
Policy Foundation/Context - Hayward’s new General Plan that was adopted in July of 2014 contains the following relevant policies:
Mobility Chapter
Policy M-10.2: Airport Land Use Compatibility
The City shall ensure uses surrounding the Hayward Executive Airport are compatible with existing and planned airport operations and comply with all applicable federal statutes (including 49 U.S.C. 47107), federal regulations (including 14 Code of Federal Regulations 77 et seq.), the FAA’s Airport Compliance Manual, FAA Advisory Circulars and other forms of written guidance, and State law, with respect to criteria related to land use safety and airspace protection.
Hazards Chapter
Policy HAZ-7.1 Land Use Safety Compatibility and Airspace Protection Criteria
The City shall consider all applicable federal statutes (including 49 U.S.C. 47107), federal regulations (including 14 Code of Federal Regulations 77 et seq.), the FAA’s Airport Compliance Manual, FAA Advisory Circulars and other forms of written guidance, and State law, with respect to criteria related to land use safety and airspace protection when evaluating development applications within the Airport Influence Area of the Hayward Executive Airport.
Policy HAZ-7.2 Airport Land Use Compatibility Plan
The City shall require all development projects within the Airport Influence Area designated in the Airport Land Use Compatibility Plan of the Hayward Executive Airport to comply with all applicable federal statutes (including 49 U.S.C. 47107), federal regulations (including 14 Code of Federal Regulations 77 et seq.), the FAA’s Airport Compliance Manual, FAA Advisory Circulars and other forms of written guidance, and State law, with respect to criteria related to land use safety and airspace protection.
Policy HAZ-7.3 Commission Review
The City shall ensure that all applicable plans, ordinances, and development applications are reviewed by the Alameda County Airport Land Use Commission if required by State law.
Policy HAZ-8.15 Airport Noise Evaluation and Mitigation
The City shall require project applicants to evaluate potential airport noise impacts if the project is located within the 60 dB CNEL contour line of the Hayward Executive Airport or Oakland International Airport (as mapped in the Airport Land Use Compatibility Plan). All projects shall be required to mitigate impacts to comply with the interior and exterior noise standards established by the Airport Land Use Compatibility Plan.
Policy HAZ-8.16 Airport Disclosure Notices
The City shall require that all new development within an airport-defined over-flight zone provide deed notices disclosing airport over-flights and noise upon transfer of title to future residents and property owners.
The proposed new regulations seek to implement these important airport-related policies.
Alameda County Airport Land Use Commission and Hayward Airport Land Use Compatibility Plan- An updated Hayward Executive Airport Land Use Compatibility Plan (ALUCP) <http://www.acgov.org/cda/planning/generalplans/documents/HWD_ALUCP_082012_FULL.pdf> was approved by the Alameda County Airport Land Use Commission (ALUC) on July 18, 2012. Per Section 21676(b) of the California Public Utilities Code (PUC), the City was therefore required to refer any amendment of a general plan or specific plan, or the adoption or approval of a zoning ordinance or building regulation, to the ALUC. The ALUC would then make a determination of whether the proposal would be consistent with the adopted ALUCP.
If the ALUC determined that the proposed amendment or adoption was not consistent with the ALUCP, the City would have up to 180 days after such determination to modify its General Plan to achieve consistency or take an overrule action (requiring a 2/3 vote of City Council and making certain findings) on the ALUC’s determination of inconsistency. If Hayward did not modify its General Plan or take an overrule action within 180 days, it would need to refer to the ALUC any local land use action, regulation, and permit within the Airport Influence Area.
2013 Overrule Action - On May 28, 2013, after making findings and expressing concerns related to potential impacts on future development at Southland Mall, the City Council <http://citydocuments.hayward-ca.gov/WebLink8/DocView.aspx?id=154769> took an overrule action on ALUCP Section 2.7.5.7. That section of the ALUCP contained provisions related to infill development, nonconforming uses, and other related items. The City forwarded the overrule determination with findings to the ALUC and the State Department of Transportation’s Division of Aeronautics. In response, the ALUC and the State provided several responses to the Council’s findings, and staff determined a better strategy would be to wait until a new General Plan was adopted and, if necessary, take an overrule action if the ALUC determined the General Plan was inconsistent with the ALUCP. That way, the City and developers could have some assurance that development applications that were consistent with the General Plan would be processed in a timely fashion. Therefore, no required final overrule action related to ALUCP Section 2.7.5.7 was taken by the City Council.
Related to the General Plan, the City satisfied the referral requirement by sending a draft of the new General Plan to the ALUC in January of 2014. Although City staff received some comments from ALUC staff in March of 2014, no notice of determination of inconsistency was ever received from the ALUC. Under PUC Section 21 676(d), the ALUC had 60 days from the City's January 2014 referral to make a determination regarding consistency. In the absence of such timely determination of inconsistency, the General Plan was automatically deemed consistent with the ALUCP. Thus, by operation of law, there is no longer a need to refer development projects that are consistent with the existing General Plan to the ALUC.
Review by the Council Airport Committee on January 28, 2016 <https://hayward.legistar.com/LegislationDetail.aspx?ID=2557233&GUID=C855814A-FFD7-4916-9B15-2A5FBFA38864&Options=&Search=> - Staff presented an overview of the regulations and an early draft of the airport safety zones map and related land use compatibility table to the Committee in late January. Committee members asked how the new regulations would impact Southland Mall and general questions about the regulations. The manager of Southland Mall attended the meeting. The draft minutes from that meeting are included as Attachment III.
Review by the City Council - The City Council held a work session on April 19, 2016 (see draft meeting minutes, Attachment II). As the draft minutes reflect, the Council was generally supportive of the draft provisions and encouraged staff to continue to work with the condultant and develop the regulations.
DISCUSSION
The new AOZ Ordinance requires that all ministerial and discretionary actions within the AOZ be reviewed for consistency with the AOZ Ordinance prior to approval. Attachment I is a draft of the proposed new regulations. While some of the proposed regulations are similar to those in the Hayward Airport ALUCP, they differ in that they allow a greater overall intensity per acre than do the ALUCP standards, and utilize the 2011 California Airport Land Use Planning Handbook, versus the previous 2002 version upon which the ALUCP was developed.
Overview of the AOZ Ordinance - The proposed AOZ regulations comply with federal statutes and regulations, including, but not limited to, 49 U.S.C. § 47107 (establishing the City’s contractual obligations to the federal government); 14 C.F.R. Part 77 (governing allowable heights of structures surrounding airports); and with state law setting forth criteria related to land use, safety and airspace protection. The proposed AOZ addresses the compatibility of surrounding land uses with aircraft operations so as to maintain the safety and efficiency of aircraft operations while at the same time protecting occupants of surrounding land uses from unacceptable levels of noise and/or safety hazards. More specifically, the proposed AOZ Ordinance addresses, among other items, density and intensity of uses, noise requirements, overflight and height and obstruction provisions, and disclosure requirements regarding airport operations.
Land Use and Density (Section 10-6.30 in Attachment I) - Land uses within the AOZ are more restricted the closer a property is to the Airport’s runways. Figure 1 in the attached draft regulations shows locations of the various airport safety zones. Table 1 is a land use compatibility table that indicates where various uses are allowed, conditionally allowed, or prohibited. The table was developed utilizing Table 3-2 of the ALUCP and to be consistent with Handbook criteria and standards. There are differences between this table and the one in the ALUCP adopted by the ALUC in 2012. Unlike the ALUCP table, there are no uses listed as being conditionally compatible with the ALUCP that would normally need to be referred to the ALUC for a consistency determination. As long as new uses would be consistent with the new AOZ regulations and criteria, there would be no need to refer development projects to the ALUC. Only if amendments are proposed to the General Plan, Zoning Ordinance, AOZ regulations, applicable specific plans, or building regulations would there be a need for referral to the ALUC.
Readers will note that most of the central portion of the Southland Mall property is in Zone 2 (Inner Approach/Departure Zone), which is very restrictive, as indicated in Table 1 in Attachment I. The southwest portions of the Mall, including along Hesperian Boulevard, are located in Zone 3 (Inner Turning Zone), which allows a greater variety of uses than does Zone 2; with the northern and eastern portions of the Mall, including Sears and the recently approved new theater, located in Zone 6 (Traffic Pattern Zone), which is the least restrictive safety zone.
Although new uses are restricted in Zones 2 and 3, which comprise the majority of the Southland Mall property, provisions in the recommended new regulations allow for infill development or new development that replaces nonconforming development as long as it is no more intense than existing development. Specifically, Section 10-6.10(b) references the nonconforming provisions <http://www.hayward-ca.gov/sites/default/files/Ch-10_A-1_S-1.2900_nonconforming-uses.pdf>of the Zoning Ordinance. Those provisions include the following language:
“A nonconforming use or a portion of a nonconforming commercial or industrial center or complex may be established or replaced by another similar nonconforming use when the Planning Director finds:
(1) That the nonconforming use is similar to or less intensive than the ones originally
allowed in the center or complex;
(2) That the nonconforming use will not adversely affect or be materially detrimental to adjoining properties; and
(3) That the use of the entire center or complex has not been vacant or discontinued for a period of six or more calendar months.”
Construction of Famous Dave’s BBQ restaurant that replaced Marie Callender’s restaurant, Buffalo Wild Wings restaurant that replaced Mimi’s Café, and the new City Sport Fitness/Health center that replaced commercial space were all processed and approved using this approach.
Noise (Section 10-6.50 in Attachment I) - Regarding noise, the proposed AOZ Ordinance will ensure that development in the Safety Compatibility Zones will not expose persons or property to excessive noise levels and will meet noise standards of the Handbook, the 2002 Hayward Airport Master Plan, and the General Plan.
Airspace Protection(Section 10-6.40 in Attachment I) - Airspace protection standards are intended to reduce the risk of harm to people and property resulting from an aircraft accident by preventing the creation of land use features, and the prohibition of any activities, that can pose hazards to the airspace used by aircraft in flight. The AOZ Ordinance requires proponents of a project to file a Notice of Construction or Alternation with the FAA if it meets certain standards, including if a proposed structure rises more than 200 feet above ground level or exceeds one foot in height for every 100 feet from the edge of the nearest point on the runway for a distance up to 20,000 feet. Building permits shall not be issued for a project until a determination of no hazard has been issued by the FAA and any conditions in that determination are met. Other hazards, such as lighting; sources of smoke, dust, and plumes; and concentration of wildlife are also be addressed in the attached AOZ Ordinance.
Overflight Notice (Section 10-6.60 in Attachment I) - In that the Handbook states that “overflight” is “the acceptability of a given noise level with respect to a particular type of land use [and] should solely be a function of the noise level and the land use,” the proposed AOZ Ordinance requires that all discretionary actions for projects within safety zones 5 and 6 include a condition of approval requiring owners of property offered for sale or lease within the AOZ to provide the Real Estate Transfer Disclosure Statement required by law prior to selling or leasing property. For new residential land uses, the overflight notification shall be recorded and appear with the property deed as required by the Handbook.
Future Referrals to the ALUC - Proposed future General Plan land use amendments, zoning amendments and specific plan amendments that impact density or intensity of development within the AOZ in such a way so as to be inconsistent with the existing General Plan shall be referred to the ALUC for a determination of compatibility with the adopted ALUCP. The City will still have the ability to take an overrule action on any finding by the ALUC of inconsistency with the ALUCP.
ECONOMIC AND FISCAL IMPACTS
Having regulations that bring predictability regarding regulations associated with properties in proximity to the Hayward Executive Airport will help streamline the development review process and help attract new developments. Although some restrictions will exist regarding future development at Southland Mall and within the AOZ, such restrictions would allow for redevelopment at the Mall that is not more intensive than existing development. Also, the proposed regulations and are in line with State and Federal laws and will ensure safe and compatible uses exist in the vicinity of the Hayward Airport. Finally, such regulations will also help ensure the City remains eligible for FAA grants and awards related to the Airport operations and facilities.
PUBLIC OUTREACH
Staff sent notices to the newspaper of the Council April 19 work session and this work session, including to the owner of Southland Mall, as well as nearly 2,000 notices to residential HOAs and businesses within the most restricted safety zones. Staff also met with the Mall manager prior to the April 19 Council work session to discuss these draft regulations.
NEXT STEPS
Staff will take feedback and direction from both Council and the Commission and work with its consultant to develop final draft regulations and conduct any required environmental impact analysis, and return with recommended final regulations at public hearings before the Planning Commission and City Council, anticipated for later this spring and summer. Staff will also conduct further outreach, including especially to the owner of Southland Mall and owners of properties located within the most restrictive airport overlay zones.
Prepared by: David Rizk, Development Services Director and Joseph Brick, Assistant City Attorney
Staff contact
Recommended by: David Rizk, Development Services Director
end
Approved by:
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Sara Buizer, Planning Manager
David Rizk, Development Services Director
Attachments:
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Attachment I: |
Draft Airport Overlay Zone Ordinance Provisions |
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Attachment II: |
Draft Minutes of the April 19, 2016 City Council Work Session |
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Attachment III: |
Draft Minutes of the January 28, 2016 Council Airport Committee Meeting |