Palomar Airport: Part E: The Not-So-Curious CUP Withdrawal, Blog 39

As Sir Arthur Conan Doyle might say, the plot thickens.

Last week’s blog asked Carlsbad and the County to quickly end their chronic disputes about Palomar Airport expansion.   Retain retired court of appeal judges to declare how Carlsbad Conditional Use Permit 172 restricts Airport expansion.

The blog promised a discussion this week of the liability issues that Carlsbad and the County invite when they expand Palomar stealthily rather than publicly.  

The California Pacific Airlines Claim Against the County

In December 2012, California Pacific Airlines [CPA] filed a $100,000,000 claim against the County related to CPA’s desire to use Palomar Airport.

Referring to the Carlsbad August 2012 comments on CPA new Palomar service, CPA said that the County had  “misrepresented, concealed and failed to disclose” the Carlsbad CUP Palomar Airport limitations.

The September & December 2012 Carlsbad City Council Closed Sessions

The Carlsbad Council met in closed session in late 2012 to discuss initiating suit against the County.   Neither the Carlsbad Council agenda nor meeting minutes provides details except to say that the Council did not take any final action.

The City Manager April 2013 CUP Withdrawal Letter

In April 2013, the Carlsbad City Manager [CM] wrote the FAA CPA environmental  consultant  to withdraw Carlsbad’s concerns related to the general aviation basic transport limit contained in CUP 172 Condition 11.

Carlsbad’s CUP withdrawal letter likely required Carlsbad Council action, not simply a CM letter.  The Carlsbad Charter and Municipal Code grant the Council, not the CM, the right to set Carlsbad policy.   Carlsbad has not produced any document showing that the Council authorized the CM to send his letter.

We do not really know why the Carlsbad City Manager sent his CUP withdrawal letter.  Perhaps he was concerned that Carlsbad too would be dragged into a $100 million dollar lawsuit.   

Or, possibly, there was an undisclosed City Council action directing the City Manager to send the letter.   The Carlsbad Municipal Code prohibits the Mayor or any council member from individually instructing either the City Attorney or the City Manager. [Muni Code §2.14.060 and §2.12.110]. 

Why the City Manager acted is especially puzzling because the Carlsbad Municipal Code assigns Palomar Airport conditional use permit matters to the City Council, not the CM.  [See Muni Code §21.42.070 and page 25 of Carlsbad Agenda Bill 21.321.]

Should Carlsbad and the County Have Palomar Liability Concerns?

What “liability” concerns do Carlsbad-and-County-continued secret dealings raise?

1.  The CPA $100,000,000 Claim.  Whether CPA could win monies from the County or Carlsbad attributable to delays in CPA beginning its Palomar operations depends on many fact and legal questions.   But it is clear that the city and County could have resolved the CUP 172 issue long before the Carlsbad August 2012 comments or within a few months thereafter.   Failure to timely resolve the dispute exposes both entities to the CPA claim.  In addition, Carlsbad – by acting through the City Manager rather than through the council – may have compromised certain Government Code immunities that public entities usually claim.

2. Palomar Landfill Issues.   Allowing Palomar to serve large passenger planes next to the methane-emitting landfill without a reasonable engineering and environmental analysis invites liability claims against the County.   Carlsbad’s loss would likely be indirect: closure of the airport if a large plane leaking aviation fuel converted the landfill to a hazardous waste site.

Other liability concerns also exist.  Just too many to list now.

P.S.  Last week another “improbable” airport runway accident occurred.   A landing gear collapsed while a Southwest plane landed at La Guardia Airport in New York.  A similar landing gear collapse on the Palomar Runway could take the aircraft onto the Palomar methane emitting landfill.