PURPOSE:

This report requests that the City Council approve the Burbank-Glendale-Pasadena Airport Authority�s request to amend the Grant of Easements, Declaration of Use Restrictions and Agreement for Trust Property (�Trust Property Easements�) to permit Southern California Public Power Authority (�SCPPA�) to utilize approximately four (4) acres of the Airport zoned portion of the Trust Property, a portion of the former Lockheed B-6 site, as a temporary location for storage and staging of materials used in the construction of the Magnolia Power Project.  The proposed amendment to the Trust Property Easements would not permit any additional use of the Trust Property without further approval by the City Council, and SCPPA�s ability to use a defined portion of the Trust Property would expire the earlier of October 30, 2005 or the date that its lease with the Authority otherwise is terminated. 

BACKGROUND:

SCPPA is a joint powers authority consisting of 10 municipal utilities and one irrigation district.  SCPPA members deliver electricity to approximately 2 million customers over an area of 7,000 square miles, with a total population of 4.8 million. SCPPA Members include the municipal utilities of the cities of Anaheim, Azusa, Banning, Burbank, Colton, Glendale, Los Angeles, Pasadena, Riverside, and Vernon, and the Imperial Irrigation District, and Cerritos. SCPPA is constructing the Magnolia Power Project and its general contractor, Aker Kvaerner, requires approximately four (4) acres to use for the staging of work and storage of piping, structural steel members, cable reels, rebar, etc.  It is anticipated that the Magnolia Power Project will be completed approximately July 1, 2005.  At that time, all equipment and material will be removed from the site and the staging area will be returned to its previous state.  SCPPA is prepared to execute a lease with the Authority whereby the Authority agrees to lease the site subject to the Trust Property Easements.

THE APPLICATION:

The Authority asked the City to amend the Trust Property Easements in order to permit the temporary use of approximately 4 acres of the Airport zoned portion of the Trust Property by SCPPA.  A map depicting the proposed temporary site, and temporary improvements such as fencing, is attached as Exhibit A.

Access to the temporary facility would be from one location: off Hollywood Way, as shown on Exhibit A.  SCPPA does not intend to grade or excavate the site; instead, they may put gravel on the ground. No structures will be constructed. The only improvements will consist of a chain-link security fencing, which will be removed when SCPPA�s lease terminates, if requested by the Authority.

APPLICABLE LEGAL STANDARDS:

Zoning Approval

The site for the proposed facility is located in the Airport Zone.  Pursuant to Burbank Municipal Code Section 31-502, storage or temporary construction materials during the construction is allowed for in every zone in the City. The section reads as follows: "Temporary structures and the storage of materials necessary and incidental to work being performed on uses or structures authorized by this chapter are permitted for the duration of the work and for ten (10) days after completion�.  Accordingly no zoning approval or conditional use permit is required for the proposed use.

1999 Grant of Easements, Declarations of Use Restrictions and Agreements for the Trust Property

Uses on the Trust Property are subject to easement and use restrictions pursuant to the Trust Property Easements.  A copy of the Trust Property Easements is attached as Exhibit B.  The Trust Property Easement was executed as part of a complex transaction among Burbank, the Authority and Lockheed that allowed the Authority to pay Lockheed for the B-6 property, but restricts the ability of the Authority to use the B-6 Property without prior approval by the City.  Pursuant to those Title Transfer Documents, title to the Trust Property is held by a Trustee. The Trust Property Easements essentially prohibit any use of the Trust Property other than certain historical uses as permitted by a 1997 Stipulated Order between the Authority and the City.  The proposed use of the Trust Property for the Project is not permitted pursuant to the Trust Property Easements.  Accordingly, the project cannot be implemented unless and until the City, the Trustee and the Authority agree to amend the Trust Property Easements.  Because the temporary use of a portion of the Trust Property for the SCPPA project would not enlarge Airport operations, and is temporary in nature, staff recommends that the Trust Property Easements be amended to allow the SCPPA project.  The amendment would permit the use on a portion of the Trust Property for the earlier of:  October 30, 2005 or the date that the SCPPA lease with the Authority otherwise is terminated. The proposed amendment would not permit any additional use of the Trust Property, and would not permit any use of the Trust Property not permitted in the 1999 Trust Property Easements after October 30, 2005 at the very latest. A copy of the proposed Fourth Amendment to the Trust Property Easements is attached as Exhibit  C.

Compliance with California Environmental Quality Act (CEQA)

This project is categorically exempt from CEQA pursuant to Guidelines Section 15301, Existing Facilities, and Section 15304, Minor Alterations to Land. Section 15301 exempts the leasing, licensing, permitting, or minor alterations of existing public or private facilities or topographical facilities, which involve negligible or no expansion of use beyond that existing at the time of the lead agency�s determination. In addition, Section 15304  exempts minor public or private alterations in the condition of land which includes minor temporary use of land having no negligible or no permanent effects on the environment.

Generally, the City would act as a responsible agency with respect to this approval, since it is part of the larger project for which the California Energy Commission (�CEC�) is the lead agency under a certified regulatory program. Pursuant to CEQA Guidelines Section 15250 et seq. certified regulatory programs are exempt from CEQA and instead require a substitute document pursuant to CEQA Guidelines Section 15252.  In March, 2003, the CEC approved the EIR Substitute Document. Subsequently, SCPPA has requested the approval of the off-site construction laydown areas, which includes the proposed  4 acre site of Trust Property, and has submitted an environmental analysis to the CEC  (Exhibit D).

The CEC has not yet approved the project changes, but SCPPA will not use the 4 acres unless the CEC approves the off-site construction laydown areas. The environmental document anticipates 8 one-way vehicle trips (4 round trips per day) from the site to the Magnolia Power Plant site. The proposed route has trucks leaving the Trust Property site, and driving northbound on Hollywood Way to southbound San Fernando Blvd. From San Fernando Blvd., the route turns to Victory Place which turns into Victory Blvd. to Olive Avenue. The trucks will take a left onto Olive going northeast, staying in the outside lane. Instead of traveling over the freeway, the trucks will proceed to the one way at-grade segment of Olive Avenue and make a U-turn underneath the bridge towards the other one-way at-grade segment where the route makes the final right turn to the Magnolia Power Plant.  The report concludes that the added trips would be minimal and would not significantly impact the existing traffic operations of these streets. (see p.3 of Ex. D).

Had the CEC approved the changes to the project, the City as a responsible agency would have been required to have used the environmental analysis document prepared for the project (Guidelines Section 15253). But until CEC acts,  the City is obligated to proceed as lead agency.   

FAR Part 77 Regulations

Part 77 of the Federal Aviation Regulations (14 C.F.R. Part 77) establishes imaginary surfaces that extend upward and outward from runway surfaces.  Constructed and natural objects that fall within the Part 77 surfaces are considered by the FAA to be potential obstructions to air navigation.  PUC Section 21659 prohibits construction or natural growth in violation of Part 77 standards, unless the FAA has determined that the construction or natural growth would not constitute a hazard to, or create an unsafe condition for, air navigation.

The Airport Authority has stated that the SCPPA�s proposed use does not violate the height limits imposed by Part 77.  Staff notes that as the Airport proprietor, the Airport Authority is responsible for complying with Part 77 and PUC Section 21659.  Nothing in the City�s actions under Section 21661.6 should be construed as approving a project that would be in violation of Part 77 or PUC Section 21659.

Ordinance No. 3601 (IDCO)

On August 20, 2002, the City Council adopted Ordinance No. 3601, enacting an Interim Development Control Ordinance on certain development on and near the Airport requiring only ministerial approvals.  On October 4, 2002, the City Council extended the IDCO until August 19, 2004.  The SCPPA project is not subject to the IDCO because it cannot be approved as a ministerial matter.  As noted above, the SCPPA project requires this discretionary approval to amend the Trust Property Easements.  Furthermore, the SCPPA project is not subject to Measure B because the SCPPA project does not involve the enlargement, expansion or relocation of the Airport passenger terminal.

California Public Utilities Code � 21661.6

California Public Utilities Code �21661.6 requires, in general, that prior to acquiring an interest in land in the City, the Airport Authority must obtain City Council approval of the Airport Authority�s plan to use that interest.  PUC Section 21661.6(e) requires City Council approval for any new uses of property the plan for the use of which was previously approved.  Section 21661.6 approval is not necessary for SCPPA�s temporary use of a portion of the Trust Property because the Airport Authority does not hold legal title to the Trust Property (the Trustee does) and would not acquire title to the Trust Property by virtue of SCPPA�s use of the property. 

ANALYSIS AND CONCLUSIONS:

SCPPA  must find a temporary staging site to assist in the construction of the Magnolia Power Plant.  The current request to amend the Trust Property Easements is necessary to allow SCPPA to temporarily lease Authority land on the Trust Property while they construct the Magnolia Power Plant.

It is staff�s conclusion that the Trust Property Easements should be amended to permit the temporary location of SCPPA on approximately 4 acres of the Trust Property in order to allow SCPPA to lease a portion of Authority land. The proposed Fourth Amendment to the Grant of Easements, Declaration of Use Restrictions and Agreement for Trust Property allows SCPPA to use a defined portion of the Trust Property for a defined period of time for the limited purpose to store new cars.  The proposed Fourth Amendment would not permit any other use of the Trust Property.  Accordingly, staff concludes that the proposed Second Amendment preserves the City�s control over the use of the Trust Property as contemplated in the 1999 Title Transfer Documents.

RECOMMENDATION:

It is recommended that the City Council approve the Resolution entitled: 

A RESOLUTION OF THE COUNCIL OF THE CITY OF BURBANK APPROVING A FOURTH AMENDMENT TO THE �GRANT OF EASEMENTS, DECLARATION OF USE RESTRICTIONS AND AGREEMENT FOR TRUST PROPERTY� TO PERMIT TEMPORARY USE OF APPROXIMATELY 4 ACRES OF THE AIRPORT ZONED PORTION OF THE TRUST PROPERTY FOR USE BY SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY (BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, APPLICANT).

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