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ALUC Minutes Page 7 March 18, 2004 Mr. Brady continued with the current staff report conclusion, stating that after reviewing all of this material, staff has not found a basis to change the previous assumptions that led to staffs recommendation oftechnical consistency with the JWA AELUP. Noting the ALUC's January 15 action to amend staffs recommendation, he reiterated staffs conclusion that the project is technically consistent subject to the same conditions specified previously. Replying to Commissioner H. Beverburg, Mr. Brady related the details of the apparent FAA technical error in the aeronautical study for the 12-story building in 1989 which based on its height would become an obstruction, noting that red obstruction lights were provided, none the less. Mr. Hans Van Ligten, on behalf of Geneva Commons, noted the question of standards, and the fact that the staff report is consistent with both hearings in that the standards in the adopted plan are clear, allowing the ALUC to review FAR Part 77 compliance and conclude that the project is consistent. He stated that nothing in the plan justifies selecting an arbitrary height as a project condition, making the action arbitrary, capricious and illegal under state law. He continued that it is inappropriate for the ALUC to ad hoc use such a standard without following the AELUP amendment process, with public involvement. Likewise, he stated it is inappropriate to condition a project that complies with a standard illegally adopted through a de facto amendment. He pointed out that the statute allows an annual amendment with notice to adjoining jurisdictions, and the ALUC is de factor redefining standards that will affect numerous communities besides Santa Ana. He stressed that standards capable of articulation are in the written adopted plan, which can't be modified on the fly. He disputed the ALUC view of the state's provision for general health and safety, since the law says consistency/inconsistency with the plan and the plan says the sole standard is the FAA's report, with deference to the FAA's determination. Mr. Van Ligten repeated their request that the ALUC abide by its AELUP, state law and the FAA report. He suggested that the ALUC and its staff take the analysis a step further in terms of the Development Agreement which, as a separate legal document, froze development standards upon its adoption. Repeating the earlier testimony about no specific height limits, he stressed that the owner has a vested right to a maximum square footage for the project, and that the plan was reviewed by ALUC a long time ago. He stated the property owner's difficulty in understanding the standard that is being applied, since the record does not show an articulable legal standard for arbitrarily finding the project inconsistent. Mr. Van Ligten opined that choosing inconsistency will have a broad impact, because property owners and jurisdictions will have no option but to scrutinize the ALUC action of not following its own plan. He repeated that the legal amendment process would include public notice and hearing, but that the ALUC is de facto modifying its standards and applying a new, different standard not provided by the AELUP. He added that a general welfare standard is inconsistent with past ALUC practice as indicated by the staff report, that there is probably no prior example in the ALUC's history, and is inconsistent with the PUC provisions. He concluded that it is outside of the ALUC jurisdiction to do so, repeating that their request is to obey the law as everyone else must, and to apply the AELUP as adopted since staffs position is clear that the project technically complies, which is the only correct evidence. Replying to Commissioner Webb, Commissioner Propst referred to the AELUP, second paragraph on page 13 and quoted "that the Commission may utilize criteria criteria for protecting aircraft traffic patterns at individual airports" and "which may differ from those contained in Part 77" and "should evidence of health, welfare or air safety surface sufficient to justify such an action". He noted the height and proximity of the residential project to the operating airspace. Referring to the page again, he noted the ALUC's responsibility to simultaneously protect the airports and the people, voicing his view that the motion leans more to protecting people. Noting that he was not a member in 1987 or 1989, he stated that height seems 75C-181