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Marin's Seaplane Adventures - Pt. II - The Planning Commission Wades In
Controversies in the community, be they about a proposed real estate development or business operations or the impacts of a decision by a government agency, are a fact of life these days: a product of endless growth and crowding. What is important is that these disputes are adjudicated in a fair and reasonable manner and outcomes are based on substantive information, not “he said, she said” allegations.
The historic disagreements over the permitted rights and operational impacts of the Seaplane Adventures in Mill Valley ended up in front of the Marin County Planning Commission on August 28, 2017. Prior to the scheduling of that hearing, 20 Strawberry Point neighbors, along with Kate Sears Assistant, Maureen Parton, met with Mr. Singer at the Commodore Base, on January 18, 2017,to express their continued concerns about Seaplane Adventures’ operations (as enumerated in Part I of this series) in the hope of finding some resolution.
According to residents who attended the meeting, Mr. Singer made a presentation to the group that explained how the wind, tides, mud, fog all impacted the company’s operations but that, essentially, the company’s seaplanes needed to take-off, land, and fly in any way they felt they needed to ensure flight safety. He, again, contended that his pilots were adhering to all of the 1981 permit conditions in every way possible.
According to attendees, Mr. Singer also said there were no legal limitations in the Use Permit on the number of flights Seaplane Adventures could fly, daily, and that in the future they intended to fly as many as required to serve their customers. As such, he indicated that they would not accept any limits on the company’s daily operations. With its two deHaviland DHC-2 Beaver aircraft, Seaplane Adventures that meant they could fly up to 12 one-hour tourist flights per day (24 takeoffs and landings).
Since an increase in flights was one of the contentious issues brought before the County by the Strawberry Point residents, the attendees protested without success. Attendees claim that as they were leaving, Mr. Singer told them,
“You live at an airport. Get used to it.”
It’s doubtful that anyone who purchased a home in Strawberry Point believed that to be the case. However, if Mr. Singer did make that comment, it was not accurate. Seaplane Adventures operates under a “Use Permit” in an otherwise commercial zoned area. It is not zoned as an “airport” nor is the use of the Commodore base, by right (without conditions), so how Seaplane Adventures conducts its business is relevant to its right to operate.
This became the central focus of a hearing before the Marin County Planning Commission.
The Marin County Planning Commission
On August 28th, 2017 the Marin County Planning Commission met to review Seaplane Adventures Use Permit issues raised by the community. Before the meeting began, the Commission Chair John Eller and commissioner Peggy Curran recused themselves, because they live on Richardson Bay. This is a common practice at public hearings to avoid any perception of conflict of interest. Margot Biehle acted as the substitute chair for the hearing.
The Commission hearing generated significant interest, although it’s unlikely that most of those who attended knew just how complicated the discussion would end up being. It appeared that about 200 people attended. Jeremy Tejirian, now the Director of Community Development, was charged with presenting the situation as County Staff saw it.
Mr. Tejirian began by citing the findings of the Staff Report to the commissioners, which noted,
Pursuant to Marin County Code (MCC) section 22.120.020, the authority to revoke Use Permits rests with the Board of Supervisors. However, in this case, the original Use Permit for the seaplane base issued in 1953 stipulated the following:
“The Marin County Planning Commission reserves the right to revoke or review this Use Permit, after holding a public hearing thereon, said revocation and review to be instigated by the Commission at no particular time, but only when changed conditions seem to warrant.” [Emphasis added]
Those changed conditions warranting the Commission’s review include changes to zoning regulations since the Use Permit and subsequent amendments were issued, additional development in the area, and changes to the Federal legal framework enabling local regulation of seaplane businesses.
(CLICK HERE to read the County Staff Report)
In addition to explaining the overall purposes of the meeting, the Staff Report included background information as follows:
The surrounding area, including Strawberry Spit and the shoreline located to the northeast of the seaplane base around the inlet between De Silva Island and Seminary Drive, has been substantially built up since the seaplane business first started. In some cases, these properties were sold with disclosures regarding noise from the seaplane base, but operation of the seaplane base has been controversial for a long time.
In 1980, the Strawberry Point Homeowners Association complained to the Planning Division about purported noise and safety issues related to the operation of the seaplane base. Subsequently, in 1981, the Planning Commission modified the original 1953 Use Permit (attachment 4) and imposed the… conditions [noted in Part I of this series] on seaplane operations:
These conditions were imposed by the Planning Commission in recognition that the seaplanes operate in a highly developed, residential environment and therefore need to operate in a manner that minimizes the noise and other effects of frequent flights. The modified Use Permit left in place the pre-existing authority of the Planning Commission to periodically review the Use Permit. [Emphasis added]
And
By all reports, Mr. Singer has increased the number of sightseeing tours since he bought the business. More recently, Seaplane Adventures has branched out to offer longer flights to bring people to Lake Tahoe and back. Seaplane flights continue to be controversial in the area, with many residents expressing their appreciation of the business and many others complaining about the noise and disruption caused by the flights.
Changed Conditions
One of the community’s central arguments in asking the County to review the Seaplane Adventures’ Use Permit was that a dense, residential community had grown up around the Commodore Base in the past 50 years and County regulations had also changed since the initial approval in 1953 and the review in 1981. The Staff Report discussed this under its section on “Changed Conditions.” In that section it noted,
In 1981, when the current Use Permit was approved, the property was zoned RCR (Resort, Commercial, Recreational). At that time, any resort or commercial recreation use was allowable, subject to securing a Use Permit. The current Use Permit was granted by the Planning Commission under this authority. In 1983, the BFC (Bayfront Conservation) overlay zone was applied to the property. While this did not change the underlying uses allowable, it did place greater emphasis on environmental protection in recognition of the natural resources and habitats that shorelines and tidelands provide.
The shoreline surrounding the inlet between De Silva Island and Seminary Drive has undergone substantial new development since 1981, including the De Silva Island development and homes and apartment buildings adjacent to the shoreline along Seminary drive. This area is also environmentally sensitive due to shoreline habitat. While this area may have always been sensitive, the importance of wetlands and shoreline habitats is better understood now than it was in 1981 when the Use Permit was previously modified. As a result, the BFC overlay district provides more stringent environmental protections than were in place in 1981. Seaplanes continue to use the use the inlet for maneuvers prior to take-off although it is outside of the airstrip established in 1949. [Emphasis added]
In 2003, the Development Code was adopted, which contained land use tables specifying which uses are allowable in each zoning district. The Development Code’s land use tables, still in effect today, do not list “Airparks” as an allowable use in the RCR district. [Emphasis added]
“Changed conditions” was an important concept in this case. Because in order to open an investigation about whether or not the existing Use Permit should be revoked or changed, the Planning Commission first had to agree that conditions had changed sufficiently to warrant that investigation to occur. However, the Staff Report went on to add another perhaps even more important wrinkle in all this. It stated,
Presumably unknown to the Planning Commission at the time they modified the Use Permit in 1981, the US Supreme Court had in 1973 issued a ruling in the City of Burbank v. Lockheed Air Terminal case that prohibited local jurisdictions from regulating aircraft noise, viewing it as an element of aviation regulation that was left exclusively to the authority of the Federal Government. This Federal preemption calls into question the validity of the 86 decibel noise limit, which is the lynchpin (Sic) of the 1981 Use Permit. Further review of the Use Permit also indicates that the other operational restrictions related to take offs and landings may be difficult to enforce because local regulation is preempted by Federal law. [Emphasis added]
This paragraph in the Staff Report raised a question that eventually redirected the entire proceeding. If the 1973 Supreme Court decision cited was applicable, did the County even have jurisdiction over the decisions before them and the conditions noted in the 1981 Use Permit?
Tejirian’s presentation implied that the major issues being discussed at this hearing—noise and how and where planes were flown—were under the purview of the Federal Aviation Administration, not Marin County. It implied that the Planning Commission had no power to rule on the decisions before them. But it ended up being more complicated than that.
Arguments on both sides
Both Mr. Singer and the Strawberry Point homeowners were allotted 10 minutes to make presentations, by the Chairperson, although Mr. Singer and his attorney, John Sharp, ended up being permitted more than a half-hour to make his presentation and discuss the issues with commissioners, while the Strawberry Homeowners group was held to less than half that time. Still, since it was Mr. Singer’s livelihood that was a stake, the extra time for commissioners to clarify their understanding of the issues was not unreasonable.
Readers are encouraged to view the entire public hearing video HERE and make up their own minds about what transpired.
Mr. Singer clearly has a lot of friends. His supporters were allowed to cheer and applaud and give Mr. Singer a minutes-long, standing ovation when he got up to speak, in response to which he took bows and expressed his gratitude for the outpouring of support, while there was only tepid admonishment by the Chair after it was over. Meanwhile, the homeowners group was not afforded the same courtesy. This seemed a bit one-sided.
Mr. Singer presents his case
Mr. Singer’s presentation was certainly heartfelt. He talked at great length about his family, his children, his love for the community, his lack of wealth, how hard his business was to run, and how his business was one of only a few left “in the world” that provided the kind of experiences and services offered by Seaplane Adventures. He also claimed he had bent over backward to try to appease the Strawberry Point resident’s concerns. He avoided legal arguments since his attorney would follow him and deal with that, but he offered some technical comments.
He talked about his commitment to flight safety and lowering noise levels and about mufflers on the DHC-2 planes. Contrary to the Strawberry Homeowners’ claims, he stated that the plane’s engines did, in fact, have a “muffled exhaust system” (which contradicts the engine manufacturer’s specifications) and that he had recently replaced all the propellers with a new type that reduced noise by “50%.” And he compared the noise levels of his operations to the dB levels of Highway 101 and leaf blowers, which he said were even louder than his planes’ 86 dB limit.
However, this was not really an apples-to-apples comparison because highway noise is measured on the highway (not at a distance away from it) and lawn equipment noise is measured at the levels it registers when a user is holding it in his hands. Whereas, a planes’ engine noise, measured in the testing by the community, was from ground level, 50 feet below the plane as it was taking off.
He also emphasized that Seaplane Adventures had “a pristine safety record” and never had an accident. And although Seaplane Adventures does have a good safety record, that statement also wasn’t entirely accurate.[1] But his point was he’s worked hard to run a safe operation. In any event, the Commission was attentive and spent considerable time asking clarifying questions. Then Mr. Singer’s attorney, John Sharp, got up to speak.
In contrast to Singer’s comments, his presentation was strident, to the point, and “lawyerly,” as one would expect from one’s attorney. He gave no ground on any of the points raised by the Staff Report and cited regulations and case law (City of Burbank v Lockheed) in Seaplane Adventures' favor. He contended that, generally, the County had no jurisdiction whatsoever to regulate anything about how Mr. Singer ran his business and he would consider revocation of the Use Permit as an “illegal taking” of Mr. Singer’s property.
In arguing that the County had no regulatory powers in this, Mr. Sharp also said that the Army Corps of Engineers has jurisdiction over navigable waterways of the San Francisco Bay, which is a huge oversimplification. The Army Corps is only one of many agencies that have jurisdiction over “US waters,” among others such as the Regional Water Quality Control Board and the EPA. (The EPA can overrule the Army Corps) [2]
Mr. Tejirian disagreed with Mr. Sharp on several points but felt it was not his job to act as an attorney in this situation. The commissioners then began questioning Mr. Sharp on the finer points of the law until one commissioner finally realized that it might not be prudent for them to be asking Mr. Singer’s attorney for legal advice for the County, and at some point, later County Counsel Brian Case joined the proceedings to more accurately articulate the County’s legal position.
Brian Case indicated that Burbank v Lockheed related to the FAA’s regulation of "airports" and that the seaplane base is not an airport. He stated that under another court decision, Gustafson vs. City of Lake Angeles, the County did have the authority to regulate its waterways and could restrict Seaplane Adventures from operating out of the Belloc lagoon next to De Silva Island. He also said that the County could regulate the hours of operation, the number of flights, and the type of aircraft used without FAA interference.
It seemed that the complexity of these issues could only be resolved in a court of law, should it ever come to that.
The Strawberry residents present
Bill Schneider, a resident of Strawberry Point, presented on behalf of the Strawberry Homeowners group. His PowerPoint presentation was concise, clearly organized, and commented on the issues about noise, hours of operation, number of aircraft, recently changed zoning regulations, environmental impacts on wildlife in protected areas, and changes in contemporary environmental regulations as they related to the conditions laid down in the 1981 Use Permit.
His presentation stated,
We are asking the Planning to consider two questions relating to the seaplane base Use Permit:
- Does the Seaplane Adventures current operation using 2, 8-place deHaviland DH-2 Beavers flying tourist flights and scheduled airline service and one Piper Super Cub for charter and/or flight training exceed the permitted use established in 1981?
- Is the operation of 2 large, commercial aircraft for tourist flights and scheduled airline service an appropriate use given that the conditions surrounding Richardson Bay have changed dramatically both since the 1953 permit was issued and again since the permit was conditioned by the Planning Commission in 1981?
In particular, Mr. Schneider argued that Seaplane Adventures was a "non-conforming use" and as such its activities could not be increased over historic levels, which included using larger planes with bigger engines and greater seating capacity. He pointed out that it was undeniable that “conditions have changed” since the issuance of the Use Permit, opening the door for the County to reconsider the granting and conditions of that Permit.
While they may not have anticipated the magnitude of transformation of the area surrounding Richardson Bay, the Planning Commission anticipated that a permitted use for a seaplane base in a commercial waterfront might have to be modified or revoked if the nature of the area changed significantly.
With regard to environmental impacts, his presentation noted, the 1999 Adoption Board of Supervisors Ordinance 3302, recognized
…the damaging and disruptive impact on people and wildlife of loud, intrusive gasoline powered craft operating in Marin County waters, in October of 1999 the Board of Supervisors for the County adopted Ordinance No. 3302, which banned personal watercraft from the shoreline waters and estuaries of Marin County.
The two deHaviland DH-2 seaplanes operated by Seaplane Adventures numerous times daily produce the same kind of lifestyle degradation and negative environmental impact caused by personal watercraft, probably more so due to their significant noise footprint and the frequency of their operations.
Put simply, the bottom line was the community group was just seeking peace and quiet and the ability to enjoy their homes instead of feeling like they’re “living next to an airport.”
CLICK HERE to see a copy of the Strawberry Point Homeowners’ presentation.
The Commission’s deliberations
At the time, the Marin IJ reported that the Commissioners struggled with the issues before them. That was understandable. Aviation and operating aircraft is a very complicated subject. Mr. Singer claimed included the overlapping legal jurisdiction of at least 11 government agencies. But in general, the planning commissioners did a reasonably good job of parsing the various issues.
At the beginning of the hearing, Director Tejirian had lamented to the Commission that although his department had the Use Permit conditions in hand, they lacked any clarity or ability to enforce them, due to conflicts with FAA and other federal regulations, and that was what they needed the Commission to help resolve. And as I noted above, by the end of the hearing County counsel assured them that the County could regulate the hours of operation, the number of flights, and the type of aircraft used without FAA interference.
The hearing ended without any resolution about the differences of interpretations of the applicable case cited law by Mr. Sharp and County Counsel.
Commissioner Dickenson was concerned about the environmental impacts on Belloc Lagoon in Strawberry, which is a resting and nesting ground for migratory birds (and right in the path of the Seaplane take-offs due to the favorable direction of prevailing winds). But the central focus of the hearing was not about an environmental complaint (which would needed comments by the San Francisco Bay Area Water Quality Board, the Army Corps, and the EPA and possibly a CEQA compliance review) so there was little debate about this line of discussion.
The commissioners ended up dividing their decision into two parts. The first was whether or not conditions had changed sufficiently enough for them to reopen consideration of the Use Permit and potentially revoke it or amend it. On this point, they agreed that the changes were substantive enough to move to reconsider.
The second decision then was what, if anything, about the Use Permit conditions should be changed. On this point, there was considerable deliberation, but in the end, the commissioners decided that they should remove any conditions that they now understood to be unenforceable by the County because that authority was “pre-empted” by federal or state agencies. This would remove ambiguity and provide the interpretative clarity that the Community Development Agency had requested.
Throughout their deliberations, there was an acknowledgment that issues regarding the operations of Seaplane Adventures were inextricably intertwined. How could one discuss “noise” abatement without also considering how planes operated, where they landed and took off, and what kind of planes they were, and how many there were? It seemed that every issue was a commingled one (particularly as it related to noise) that had both local and federal authorities overlapping in some way. As one commissioner put it, “This is a difficult spot we’re in.”
As such, the commission voted unanimously to recommend to the Marin Board of Supervisors that they remove the following three conditions from the Use Permit for the Seaplane Adventures business operations.
Condition #1: No approaches over Strawberry Point except in the judgment of the pilot when necessary for safe operation. This condition is not intended to allow repeated approaches over Strawberry Point under unsafe conditions. Strawberry Point shall be defined as the area south of the Seminary.
Condition #3: No-power approaches to be used except when necessary for safe operations.
Condition #6: At no time should any aircraft operated by the commercial operator exceed 86 decibels.
This, however, was done with the expressed understanding by the commissioners that the County did have the authority to control or even ban the use of their waterways and where planes can or cannot land on Richardson Bay if they chose to at a later date.
In any event, the lines were drawn. The attorney for Seaplane Adventures took the position that the County has close to no authority to regulate his client’s business operations because that authority was pre-empted by higher authorities. The County took the position that they do have significant authority to regulate the business and the use of their waterways. Meanwhile, the Strawberry Point community group continued to voice the same concerns they’ve been bringing up since the beginning.
A final verdict on the issues raised at this hearing—noise, flight paths, regulations governing operating planes on the water versus in the air, where planes can and cannot land or fly and how, etc.--remain uncertain because there are so many over-lapping agency jurisdictions and federal, state, and local regulations to be considered, in this specific instance. Those determinations will have to wait for another day.
It is uncertain if the Board of Supervisors ever took official action on the Planning Commission’s recommendations.
READ PART I of Marin's Seaplane Adventures
[1] Per the FAA NPTRS database - Record # WP27201206633, reported that on 6/24/2012 Aircraft was landing on water to Mill Valley. San Francisco Seaplanes Base. Hard landing after take-off causing damage to left float struts and left elevator. Passengers on board. Pilot was (redacted). No injuries reported.Inspector Jensen inspected aircraft N5220G and found, “Heavy damage found to left front strut to fuselage connection. Damage to left float bottom (forward & aft) and float steering cables. Damage to empennage. Heavy damage to left elevator outboard.”
[2] CVP won a legal argument to save a protected wetland in "US water" by convincing the EPA to overrule the Army Corps.
Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.