San Mateo County must approve plans for expansion of San Francisco International Airport before the project is considered by a state panel that decides on development along San Francisco Bay, according to a state Attorney General's opinion.
The airport is on land owned by San Francisco in San Mateo County, and San Mateo County officials have often chafed at the lack of authority they have over SFO development. In recent years, SFO planners have inched forward on construction of new runways in the bay. The airport's current runways are too close together for two planes to land simultaneously in the fog, a limitation that makes flights to and from San Francisco among the most delayed in the country. The new runways would be far enough apart for two planes to land at the same time when the fog rolls in.
When SFO initially started planning the runway expansion, San Francisco disputed San Mateo County's jurisdiction because the site of the proposed runways is public trust land in the bay, which is under the jurisdiction of the Bay Conservation and Development Commission (BCDC). However, state legislation approved last year (SB 244, Speier) made clear that the runway proposal would need San Mateo County's approval.
The BCDC asked the Attorney General if San Francisco must get San Mateo County approval for the project before bringing it to the Commission. The BCDC also asked if it could waive or postpone the requirement for San Mateo County's approval.
The opinion authored by Deputy Attorney General Gregory Gonot said San Mateo County gets to decide before the BCDC does, and that there is nothing the BCDC can do about it. The most important aspect of the opinion is that it resolved where BCDC fit into the procession of public agencies that must decide on the project, said Michael Murphy, San Mateo chief deputy county counsel.
"The Commission's decision," Gonot wrote, "concerning whether San Francisco Bay should be subject to the placement of fill for a particular project must be based upon as complete a record as possible. If discretionary approvals by other local or regional governments have not been given, the Commission cannot make an informed decision as contemplated by the Legislature."
Gonot cited Government Code § 66632, as well as §10311 of title 14 of the California Code of Regulations, which clearly state that the BCDC "may not waive or modify … the requirement that a permit application must obtain all local discretionary governmental approvals."
According to Gonot, San Mateo County has both "jurisdiction" and "discretionary approval" over the project under §§ 21001-27007 of the Public Utilities Code, portions of which SB 244 amended. "[T]he board of supervisors of the county is required to conduct a public hearing on the proposed airport expansion plan and approve or disapprove the plan. This approval process meets the traditional definition of having ‘jurisdiction,'" Gonot wrote.
"Moreover," he continued, "the county has ‘discretionary approval' over the proposed project. … Determining whether the proposed airport expansion would be in the best interests of the county presents the same type of issues as presented in other land use regulatory decisions made pursuant to local police power authority."
The opinion, combined with last year's legislation, make certain that San Francisco cannot move forward on the runway project without San Mateo County's approval.
"It's been difficult because of their exemption from local building and zoning regulations," said Murphy, the county lawyer. "There have been disputes in the past over whether a specific undertaking is covered by county regulations."
Not addressed in the opinion are all of the other state and federal agencies that must also review the SFO runway project, and where those entities fit into the decision-making procession. Also, San Francisco voters approved an initiative last year that requires all city projects involving the fill of more than 100 acres of bay to receive voter approval. The proposed runways would fill about 900 acres.
Opinion No. 00-1212 was filed January 11, 2002. It can be found at 02 C.D.O.S. 355, and 2002 DJDAR 507.
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