040405 Jt PH Cond Use, Develpo Agmt, Zoning, etc.-Geneva Commons Proj 200 E. First American Way

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Mr. Jack W. Golden September 16, 2004 Page 6 of 20 II. Page 1, Sentence 3 .. []n an attempt to anticipate concerns that the AL UC may have with respect to the City's proposed General Plan amendments, and to coordinate with you on these issues prior to ALUC review, I have evaluated the proposed amendments in the context of both the California Airport Land Use Planning Handbook... the Airport Environs Land Use Plan ( "AELUP') forJohn Wayne Airport, Orange County (VWA'), and related documents. " I am uncertain what "related documents" you reviewed, but the only relevant document that you needed to review was the AELUP. The language in the Handbook is irrelevant for the determination of "consistency." Section 21674.7(a) states that the ALUC shall be guided by the Handbook when they formulate, adopt or amend their AELUP. The City "shall be guided by the height, use, noise, safety and density criteria that are compatible with airport operations" established by the Handbook "to the extent that the criteria has been incorporated in to the plan prepared by the commission." Section 21674.7(b) (emphasis added). Since the Handbook criteria were not incorporated into the AELUP it is irrelevant to our discussion.10 Consequently, the only document that the ALUC is legally permitted to utilize to determine consistency is the AELUP. III. Page 2, Para;raph 2 "If the City disagrees with the contents of the AELUP, it should have so stated during the consultation and public review period when the AELUP was amended in 2002. " I am uncertain where you have gotten this impression; the City does not disagree with the contents of the AELUP. As indicated above, the purpose of amending our general plan was to be consistent with the AELUP. What the City disagrees with is the ever changing "demands" to amend our general plan to become a "consistent agency," when the changes are unsupported by the language of the AELUP or state law. 10 The courts have uniformly ruled that advisory guidelines have no place in reviewing allegations of inconsistency in a general plan. E.g., Bownds v. City of Glendale (1980)113.Ca1. App. 3d 875, 885 -886 ( "In summary, the decision making power in the area of land use and planning still rests with the local governmental agencies to be exercised within the constraints prescribed by enactments of the State Legislature. When any attack is made upon the exercise of that decision making power and the adequacy of the general plan within which it is to be exercised, a presumption of validity attaches to the actions of the local governmental agency. Guidelines promulgated by the Department are not self - executing and do not have the binding effect of law.... [T]he authority of the local government to regulate in the area should not hinge upon subjective interpretation by courts or administrative boards of the vague or general language to be found in the planning and land use law. If the Legislature desires to preempt the decision making power of local governments in the field, it should specifically say so. ") (emphasis added).