By Leslie Z. Walker

In Muzzy Ranch v. Solano County Airport Land Use Commission, 41 Cal.4th 372, decided on June 21, 2007 and modified on September 12, 2007, the Supreme Court upheld the common sense exemption as applied to an Airport Land Use Compatibility Plan (“ALUCP”), but found that development displaced by density limits is not too speculative of an impact to require CEQA analysis.

In 2002 the Solano County Airport Land Use Commission (“Commission”) adopted the Travis Air Force Base Land Use Compatibility Plan (“TALUP”), which set future development policies for the area surrounding the air force base. The TALUP restricted residential development within Compatibility Zone C to levels currently permitted under existing general plans and zoning regulations.

After adopting the TALUP, the Commission filed a Notice of Exemption, claiming the project was exempt from environmental review under the common sense exemption. (CEQA Guidelines, § 15061 (b)(3).) The common sense exemption applies, “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (Id.)  

Muzzy Ranch, which is included within Compatibility Zone C, claimed that the Commission violated CEQA by 1) concluding that adopting the TALUP was not a project under CEQA, and 2) failing to examine the potential impacts of adopting the TALUP before claiming the common sense exemption.

The trial court denied the petition and entered judgment for the Commission. The Court of Appeal reversed.

Project Under CEQA

The Commission first argued it was not required to consider densities displaced by the TALUP because such effects were speculative. The court found that “Nothing inherent in the notion of displaced development places such development, when it can reasonably be anticipated, categorically outside the concern of CEQA.” The court explained that a government agency may reasonably anticipate that restricting development in one area of a jurisdiction may displace development to other areas of the jurisdiction. Quoting No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, the court reiterated the extent of CEQA. It said, “CEQA does not speak of projects that will have a significant effect, but those which may have such effect.” ( 74.) Therefore, “[t]hat further governmental decisions need to be made before a land use measure’s actual environmental impacts can be determined with precision does not necessarily prevent the measure from qualifying as a project.” 

The Commission next argued that because the TALUP merely advises jurisdictions it affects, it cannot be the legal cause of environmental change. The court explained that ALUCPs are like multi-jurisdictional general plans because general and specific plans must be consistent with the ALUCPs. The court explained that since general plans guide development, they have a potential for resulting in physical changes to the environment, they are subject to environmental review under CEQA.  Since ALUCPs also guide growth, they are also subject to environmental review under CEQA.

Common Sense Exemption

Curiously, in addition to arguing that the TALUP was not a project under CEQA, the Commission found that it was exempt from environmental review under the common sense exemption. The Commission filed a Notice of Exemption but failed to cite any evidence that the exemption applied. Citing Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, the court found the Commission in error: “The agency’s exemption determination must be supported by evidence in the record demonstrating that the agency considered possible environmental impact in reaching its decision.” ( 117.)

Notwithstanding these errors, the court upheld the common sense exemption, finding that CEQA does not require more than a general analysis of projected growth, and the required detail varies on a case by case basis. The court found that since TALUP’s density limit incorporates the existing county general plan and zoning provisions, any potential displacement that TALUP might have effected would be accounted for by the existing land use policies and zoning regulations.

Initially, the court applied the substantial evidence standard to the common sense exemption, explaining that “the agency invoking the exemption has the burden of demonstrating it applies, and that its finding in that regard is subject to review under the substantial evidence standard.” In September however, the court reconsidered its decision in the case and issued a modified opinion, sustaining its earlier finding that the exemption applied, but removing all references to substantial evidence. The court added, “evidence appropriate to the CEQA state in issue is all that is required,” implying the sufficiency of the evidence presented.

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.