By Leslie Z. Walker
In Muzzy Ranch Co. v. Solano County Land Use Commission (2008) 164 Cal.App.4th 1, decided on June 19, 2008, the appellate court resolved the issues not addressed the first time it reviewed the case. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, reversed by Muzzy Ranch Co. v. Solano County Airport Land Use Commission, (2007) 41 Cal.4th 372.) In this case, the Court of Appeal for the First Appellate District found that the Travis Airport Land Use Compatibility Plan (“TALUP”) was not inconsistent with the Air Force Installation Compatible Use Zone (“AICUZ”) and that the Solano County Airport Land Use Commission (“Commission”) did not abuse its discretion in adopting the TALUP.
In 2002, the Commission adopted the TALUP, which sets forth land use compatibility factors for six geographic zones around the airport. Compatibility Zone C, at issue in this case, “encompasses locations exposed to potential noise in excess of approximately 60 dB CNEL,” and areas occasionally affected by low-altitude aircraft overflights. The TALUP freezes residential development within Compatibility Zone C to levels currently permitted under existing general plans and zoning regulations.
Muzzy Ranch, located within Compatibility Zone C, challenged the TALUP on the following grounds: it violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”); it was not consistent with an Air Force Air Installation Compatible Use Zone (“AICUZ”) study prepared for Travis Air Force Base; and the Commission had suppressed data, employed an erroneous noise contour, and erroneously used a “maximum mission” scenario.
In January, 2005, the Court of Appeal for the First Appellate District found that the Commission violated CEQA and ordered the trial court to issue a writ of mandate ordering the Commission to set aside the adoption of the plan. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission, supra, 125 Cal.App.4th 810.) The Supreme Court found the adoption of the plan was exempt from CEQA and reversed the decision of the appellate court. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission, supra, 41 Cal.4th 372.)
As a result of a request by Muzzy Ranch Co., the appellate court considered the remaining issues: 1) whether the TALUP was consistent with an the AICUZ study prepared for Travis; and 2) whether the Commission had suppressed AICUZ data, employed an erroneous noise contour, and erroneously used a “maximum mission” scenario.
Consistency With AICUZ
Airport land use commissions (ALUCs) adopt land use compatibility plans for areas around public airports. As of 2002, an ALUC plan for any military airport must be consistent with the safety and noise standards in the AICUZ prepared for that airport. (Pub. Util. Code, subd. 21670 (b).) Muzzy Ranch Co. contended that this consistency provision requires the TALUP to adopt or incorporate the safety and noise standards in the AICUZ. To resolve the issue, the court interpreted the meaning of "consistent with." The court looked to the meaning of consistency in the general plan context (San Franciscans Upholding the Downtown Development Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 678); the legislative intent of the statute; and the Department of Transportation’s Airport Land Use Planning Handbook(“Handbook”). After evaluating these various resources, the court determined "consistent with" did not mean, as appellant contends, that the TALUP must adopt or incorporate the safety and noise standards from the AICUZ.
Interestingly, the court found that the legislative history of Senate Bill 1468, which added the consistency requirement in 2002, showed that the amendment was intended to protect the operations of military installations from encroachment by development. The court found that “consistent with” in this context means that the land use plan must be at least as protective of airport operations as the applicable AICUZ, but it need not literally adopt the safety and noise standards of the AICUZ.
The court reviewed appellants remaining contentions, which related to the Commission’s adoption of the TALUP, under Code of Civil Procedure section 1085, looking at whether the Commission’s decision was arbitrary and capricious.
Alleged Suppression of Year 2000 AICUZ
Appellant argued that the Commission suppressed a new AICUZ that the Air Force intended to issue in 2000. The Air Force had granted the Commission’s request for exemption of Travis from release of a new AICUZ study contingent upon the Commission’s adoption of the Travis AICUZ 2000 study noise contour map and the AICUZ land use recommendations in their revision of the TALUP. The court rejected appellant’s argument that the Commission failed to comply with this requirement. The court explained that appellant had not shown that the TALUP failed to satisfy the Air Force’s expectations, or that the Commission failed to consider the 2000 AICUZ data.
Next appellant argued that the Commission acted unlawfully in using 60 db CNEL as the basis for its noise contour. The TALUP recommends that local governments freeze the density at the level allowed by current zoning, in areas in the 60 db CNEL noise areas. Appellants argue that the limit should be 65 db CNEL. The court found that the Commission is not required by law to adopt the 65 db CNEL and in fact, the Handbook, suggests 65 db CNEL may be too high of a noise level for certain quieter, less urban areas. Therefore, the court found the Commission did not abuse its discretion in adopting 60 db CNEL.
“Maximum Mission” Scenario
Finally, appellant argued that the TALUP was invalid because it was based on a “maximum mission” scenario devised by the Commission, instead of the Air Force’s own project. The Handbook, which guides the adoption or amendment of ALUCs, requires ALUCs to follow closely the predictions of airport operators in forecasting future activities. This requirement however applies only to civilian airports. Since future activity at military facilities depends on factors distinct from future activity at civilian airports, commissions typically postulate a maximum mission for the base. The TALUP assumed that future use would be double the current level, currently unused flight tracks and assault landing strips would be used, and a civilian air cargo hub would be established. The court found that the approach to the “maximum mission” was consistent with the Handbook, and the assumptions were not arbitrary or capricious.
Leslie Walker is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.