Six months ago, Carlsbad commented on the FAA NEPA Assessment for new Palomar air service. Carlsbad asked how increasing passengers would affect the environment and County compliance with Carlsbad Conditional Use Permit [CUP] 172.
A passenger increase from 100,000 to more than 800,000 passengers per year raises the question: Would the County be operating an airport in excess of the “basic transport general aviation” limits set forth in CUP 172 Condition 11.
The County has told the FAA that expanding air traffic and passenger count at Palomar does not raise CUP 172 concerns. Carlsbad rejects the County’s reasoning.
The County Cannot Pick and Choose CUP 172 Conditions To Comply With
Like the County, Carlsbad expects the public and other governmental entities to comply with all conditions in its laws. Correctly, the County notes that CUP 172 Condition 8 allows the County to operate Palomar for scheduled and non-scheduled airline service.
But Condition 8 is one of 12 conditions. Condition 11 expressly states: “The existing designation of the airport as a General Aviation Basic Transport Airport shall not change unless an amendment to this CUP is approved by the Planning Commission.
The County apparently contends that Condition 8 trumps Condition 11. Under that theory, Condition 8 trumps all CUP conditions. A court will not accept such an argument, which contradicts the plain language of CUP 172.
The County Cannot Define Its CUP 172 Compliance Obligation Away
The County says that CUP 172 does not define the term “General Aviation Basic Transport” airport and hence does not limit passenger levels.
The May 2012 FAA report: “General Aviation Airports; A National Asset” does define what general aviation airports comprise, and the FAA has recently stated:
“McClellan-Palomar in Carlsbad, CA is currently classified as non-hub primary airport (scheduled air carrier service and more than 10,000 annual passenger boardings). Because they were a primary airport, they were not included in the FAA’s General Aviation Report … .”
Accordingly, the County is already out of compliance with CUP 172. The County cannot pin its argument on a lack of a CUP 172 definition. Also, the County’s “definitional approach” is disappointing. It suggests a County intent to evade rather than comply with CUP 172.
Does the County really want its message to the public to be: Look for loopholes?
The County’s Grant of an Agreement to a New Air Carrier Expands the Palomar Airport Facility Within the Meaning of CUP 172, Condition 8
CUP 172 Condition 8 – on which the County relies – states:
“The permitted uses for Palomar Airport are limited to those … in Table 1 … . Approval of any uses not specifically listed in Table 1 and/or expansion of the airport facility shall require an amendment to the Conditional Use Permit.”
In 2008, the County moved Palomar parking off the terminal to newly acquired land. In theory, the County was to share spaces with nearby businesses. The lot has about 600 spaces, more than double the spaces used at Palomar Airport before the relocation.
Palomar now uses less than half of the 600 spaces. But once passengers increase greatly, Palomar will need 600 spaces, perhaps more. In short, increased flights translate to increased parking use, traffic, pollution, noise and to expanding the Palomar facility off the airport premises.
Moreover, the County has mischaracterized its “smoothing over” of the Palomar Airport landfill safety area as “maintenance.” Curiously, such “smoothing” was not required over the last 20 years when Palomar provided only a 300-foot runway safety area to the east of the runway.
As soon as the 1,000-foot safety area became necessary to meet FAA requirements associated with a new air carrier using larger planes, the runway was “smoothed.”
The County has also modified its facilities to support larger planes in new service. Projects included upgrading its runways and creating customs facilities to attract and expedite cross border flights of new operators.
County has not assessed the cumulative impacts of these changes under CEQA. For these and other reasons, the County needs to apply to Carlsbad for a CUP 172 amendment supported by a proper CEQA analysis.
Comply with the CUP the County applied for, accepted, and has operated under for 30 years. Abide by your fiduciary duties. Be a good neighbor to residents of Carlsbad and surrounding communities.