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 13 of 20 Additionally, it is not essential "to provide the City Council with the flexibility to invoke such a public health, welfare and safety standard if the mere numbers do not tell the full story." The City is fully empowered under its police powers to protect the public health, safety and welfare. As such, if "sufficient evidence" was brought forward, either entity, ALUC or the City, is entitled to act against a project based upon the evidence provided. Accordingly, there is nothing within this section of your letter that indicates how the AEE is inconsistent with the AELUP in this regard. B. Paragraohl, Second Sentence .. the additional language from the AELUP (presently on pages 13 and 18), which has been a part of the Plan since at least as far back as 1983, invoking the right to utilize criteria for protecting air traff c patterns which may differ from Federal Aviation Regulation ('FAR') Part 77, should evidence of health, welfare or air safety surface sufficiently to justify such an action. " While this statement is not relevant to whether the AEE is consistent with the present AELUP, you should be aware that this statement is misleading. Prior versions of the AELUP stated, "[t]he Commission my consider the adoption of criteria ..." See AELUP (amended November 16, 1995) Section 2.2.2. The AELUP allowing the ALUC to adopt criteria is substantially different than "utilizing criteria." The former involves an actual action by the ALUC to "adopt" criteria, while the later, "utilize" criteria, permits the ALUC to use any standard it chooses for a given project. As such, the language in the current AELUP is a less stringent standard than found in previous versions of the AELUP. B. Paragraph 2 "In addition, the Airport Environs Element should require all development proposals that exceed in height the imaginary surfaces as defined by the FAA in FAR Part 77, as well as all development proposals that are described in Section 2.1.6 of the AELUP on pages 15 and 16, to be sent to the ALUC for a consistency determination." The ALUC cannot require the submittal of all development proposals that exceed the height of the imaginary surfaces or all development proposals that are described in Section 2.1.6 of the AELUP in order to for the AEE to be consistent with the AELUP. This exceeds the authority granted to ALUC under state law. The ALUC is a public agency of limited power, and must restrain itself to exercise only those powers expressly granted to it by and only in furtherance of the statute's purpose. See Opinion of Bill Lockyer, 2004 DJDAR 9081 (July 22, 2004). Once the City is consistent with the ALEUP, the City is only obligated under state law to submit for ALUC review of consistency, "amendments of a general plan or specific plan, or the adoption or