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Health & Fitness

Palomar Airport: Part B: Carlsbad's Curious CUP Withdrawal, Blog 36

Closed Session Abuses in the California Courts: Reading Suggestions

For amazing examples of closed session abuses, see Los Angeles Times Communications, LLC v. Los Angles County Board of Supervisors, 112 Cal. App. 4th 1313 (2003) and Melvin Shapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002).  See a County counsel and board of supervisor scheme to frustrate voters.  See misdescribed agenda items.  See topics discussed outside the litigation privilege.

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Did the Carlsbad City Manager Have the Authority to Send the April 23, 2013 Letter Withdrawing the Carlsbad CUP 172 Comments?

In August, 2012 Carlsbad commented on the FAA review of new air service at Palomar.  Carlsbad questioned whether such service would comply with Carlsbad Conditional Use Permit 172 general aviation basic transport airport limits.

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In September and December 2012, the Carlsbad Council twice met in closed sessions to discuss a possible suit against the County as Palomar operator.

The September and December Carlsbad Council meeting minutes say that the Council took no final action.   Yet, in April 2013, the Carlsbad City Manager sent a letter withdrawing Carlsbad’s August letter to the extent the letter expressed CUP 172 concerns.   Where did the City Manager get the authority to send this letter?

Did Carlsbad Law Authorize the City Manager to Send the April 2013 Letter That Essentially Voided Portions of CUP 172?

The Carlsbad Municipal Code defines the City Manager [CM] powers and duties.   Muni Code § 2.12.035(a) empowers the CM to enforce Carlsbad laws. 

But when withdrawing Carlsbad’s request for the County to amend CUP 172 in its April 23, 2013 letter, the CM did much more than enforce a City planning ordinance.    The CM essentially voided that portion of CUP 172 limiting Palomar Airport to use as a general aviation basic transport airport.   The CM letter stated:

"The designation of the airport in CUP 172 condition Number (11) does not specifically restrict the General Aviation Basic Transport Airport airline service with respect to the weight, seat, number, or other similar limitations on an air carrier activities.  That CUP terminology is now defunct ... ." [Emphasis added.]

As will be shown next week, the quoted language contradicts a document in the Carlsbad files.   But assume for today that the CM statement is accurate.  Why doesn’t the City Manager have the authority to write the April 23, 2013 letter unless the Carlsbad City Council authorized the letter?

Understand what the CM April 2013 letter says: Palomar can handle planes of any size with any number of passengers as frequently as the County wishes if CEQA and NEPA requirements have been met.   The CM April letter essentially voids CUP 172 Condition 11 limiting Palomar Airport to use as a “general aviation basic transport.”

Perhaps the City Manager CUP conclusion is correct.  Perhaps the Carlsbad Council intentionally duped Carlsbad voters in 1979 when drafting the seemingly inconsistent CUP 172 words.   Or perhaps Carlsbad staff simply poorly drafted Carlsbad CUP 172.  Or perhaps Carlsbad’s failure to object to certain County actions from 1995 to the present waived the CUP 172 general aviation limitation. 

The point is this: the Carlsbad City Council and the courts – not the City Attorney and not the City Manager – determine whether Carlsbad planning and zoning laws will be voided by interpretation or otherwise.

Carlsbad City Charter Section 200 states in part: The City Council shall establish the policy of the City; the City Manager shall carry out that policy.”  Whether Carlsbad “CUP terminology is now defunct” is a policy decision to be made by the City Council.

Did the Carlsbad City Council Direct the CM to Send the April 23, 2013 Letter?

Unfortunately, we don’t have a transcript of what the Carlsbad Council, CM, and City Attorney discussed in 4th quarter 2012 closed sessions.  On July 1, 2013 I filed a public records request asking Carlsbad for all records that authorized the City Manager to send his April 23, 2013 letter.   Next week I will report.

Postscript: San Francisco Plane Crash

Over the weekend, several passengers died and several became paralyzed in a plane crash on a San Francisco Airport runway in one of those accidents that the FAA and County refer to as improbable.  As improbable as the Bali large aircraft crash  several month ago.    

No doubt, as improbable as a Palomar aircraft crash on the Palomar methane-emitting landfill.  

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