Citizens Opposing A Dangerous Environment v. County of Kern CA5 , 228 Cal. App. 4th 360 ( 2014 )

Filed 6/30/14 Citizens Opposing A Dangerous Environment v. County of Kern CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CITIZENS OPPOSING A DANGEROUS
ENVIRONMENT, F067567
Plaintiff and Appellant, (Super. Ct. No. CV-275009)
v.
OPINION
COUNTY OF KERN et al.,
Defendants and Respondents;
NORTH SKY RIVER ENERGY, LLC et al.,
Real Parties in Interest and Respondents;
JAWBONE WIND ENERGY, LLC et al.,
Real Parties in Interest and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.
Theresa A. Goldner, County Counsel, and Charles F. Collins, Deputy County
Counsel, for Defendants and Respondents.
SSL Law Firm, Zachary R. Walton, Christine R. Wade, Elizabeth L. Bridges, and
Corinne I. Calfee; Drinker Biddle & Reath, George T. Caplan and Kristopher S. Davis for
Real Parties in Interest and Respondents North Sky River Energy, LLC and North Sky
River Land Holdings, LLC.
Law Offices of Philip Rudnick and Philip R. Rudnick for Real Parties in Interest
and Respondents Jawbone Wind Energy, LLC and Philip Rudnick.
-ooOoo-
This is an appeal from an order of the Superior Court of Kern County denying a
petition for a writ of mandamus in favor of respondents County of Kern (the County) and
Kern County Board of Supervisors (the Board).
Real parties in interest North Sky River Energy, LLC (North Sky River), and
Jawbone Wind Energy, LLC (Jawbone),1 applied for rezoning and a conditional use
permit for mobile concrete batch plants in order to build and operate a wind farm in the
Tehachapi Wind Resource Area. Pursuant to the California Environmental Quality Act
(CEQA) (Pub. Resources Code, § 21000 et seq.)2 and its Guidelines,3 the County
conducted an initial study, determined that the project might impose a significant impact
on the environment, and prepared a draft environmental impact report (EIR). The draft
EIR, inter alia, indicated that the project’s wind turbine generators (WTG’s) might pose a
1 North Sky River Land Holdings, LLC, and Philip Rudnick, Jawbone’s owner and
counsel, have also been identified as real parties in interest.
2 Unless otherwise indicated, subsequent statutory citations refer to the Public
Resources Code.
3 The Guidelines refer to California Code of Regulations, title 14, section 15000
et seq. (Laurel Heights Improvement Assn. v. Regents of University of California (1988)
47 Cal. 3d 376, 391, fn. 2 (Laurel Heights I).) They are authorized by CEQA (§ 21083)
and accorded great weight in interpreting the statute except where they are clearly
unauthorized or erroneous (Sunset Sky Ranch Pilots Assn. v. County of Sacramento
(2009) 47 Cal. 4th 902, 907, fn. 3).
2.
significant safety hazard to aircraft and gliders using Kelso Valley Airport (KVA), and
described Mitigation Measure 4.8-8 (MM 4.8-8) which required North Sky River and
Jawbone to obtain a “Determination of No Hazard to Air Navigation” from the Federal
Aviation Administration (FAA) for each WTG prior to issuance of building permits.
After the County circulated the draft EIR for public review and prepared a final EIR
responding to comments, the Board concluded that MM 4.8-8 minimized the WTG’s
potential adverse effects on aviation safety, certified the final EIR, and approved North
Sky River and Jawbone’s rezoning and conditional use permit requests.
On October 19, 2011, appellant Citizens Opposing A Dangerous Environment
(CODE)4 timely petitioned for a writ of mandamus to set aside EIR certification and
project approval on the grounds that MM 4.8-8 was ineffective and respondents failed to
comply with CEQA’s requirements.5 The superior court tentatively denied the petition
on February 19, 2013, affirmed its ruling on April 9, 2013, and signed its order on
May 20, 2013. Respondents served and filed a notice of entry of the court’s order on
May 30, 2013, and CODE filed a notice of appeal on June 18, 2013.6
4 Philippe Athuil, owner of KVA, is a member of CODE.
5 CODE’s petition for a writ of administrative mandamus will be reviewed as one
for a writ of traditional mandamus under section 21168.5 because the challenged agency
decision is legislative in character. (See, e.g., Friends of Sierra Madre v. City of Sierra
Madre (2001) 25 Cal. 4th 165; Porterville Citizens for Responsible Hillside Development
v. City of Porterville (2007) 157 Cal. App. 4th 885.) The distinction between traditional
mandamus and administrative mandamus is relevant in this case because “the rules
regarding the admission of extra-record evidence in a CEQA matter involving ordinary
mandamus are judicially made, and the foundation for those rules was established by the
California Supreme Court in Western States Petroleum Assn. v. Superior Court (1995) 9
Cal. 4th 559 (Western States).” (Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal. App. 4th 48, 61, fn. 4.)
6 The respondents’ brief, which was filed by respondents and North Sky River and
later joined by Jawbone, states that North Sky River completed its portion of the wind
farm in 2012, but Jawbone has yet to obtain any building permits.
3.
On appeal, CODE presents the following issues:
“[(1)] Whether federal aviation law preempted the County from identifying
and imposing feasible alternatives and/or mitigation measures on the
Project to avoid or eliminate the Project’s admitted potentially
hazardous impacts on KVA; [¶] … [¶]
“[(2)] Whether the County’s responses to CODE’s comments on the EIR
and the Project complied with CEQA and the Guidelines;
“[(3)] Whether substantial evidence in the [administrative record] supports
the County’s finding that MM 4.8-8 reduces the Project’s admitted
potentially hazardous aviation impacts on KVA to a level of
insignificance;[7]
“[(4)] Whether the County improperly rejected CODE’s proffered feasible
alternatives and mitigation measures to eliminate the Project’s
admitted potential impact on aviation at KVA; and
“[(5)] Whether substantial evidence in the [administrative record] supports
the County’s rejection of the EIR’s environmentally superior
alternative.”
In a related matter, Jawbone moves to be dismissed from this appeal, citing our
“inherent power.” We deny the motion: Jawbone was named as a recipient of approval
in the Board’s notice of determination and is therefore a real party in interest that should
be included in the litigation pursuant to section 21167.6.5, subdivision (a). (Cf.
Quantification Settlement Agreement Cases (2011) 201 Cal. App. 4th 758, 848.)
7 CODE identifies as separate issues “[w]hether CEQA permitted the County to
ignore evidence that [North Sky River] had carried out MM 4.[8]-8 in a fraudulent
manner” and “[w]hether CEQA permitted the County to approve the Project despite
being presented with evidence that MM 4.8-8 had already failed in its purpose to mitigate
the Project’s admitted potentially hazardous aviation impacts on KVA.” These issues
relate to MM 4.8-8’s efficacy or lack thereof. “[W]hether the proposed mitigation
measure[] will really work … is not the appropriate question.” (National Parks &
Conservation Assn. v. County of Riverside (1999) 71 Cal. App. 4th 1341, 1366.) Instead,
the proper inquiry is whether the public agency “ha[d] a sufficient basis in expert opinion
and other evidence to conclude that the potential impact[] of the project … had been
mitigated to a level of insignificance[.]” (Ibid.) Therefore, any arguments relating to
MM 4.8-8’s efficacy shall be addressed within the framework of the substantial evidence
standard.
4.
We conclude: (1) as a matter of law, the County’s EIR described a legally feasible
mitigation measure; (2) as a matter of law, the County was not required to respond to late
comments; (3) substantial evidence supported the Board’s conclusion that MM 4.8-8
mitigated significant impacts on aviation safety; and (4) the Board was not required to
consider either CODE’s proffered mitigation measure or the EIR’s “environmentally
superior alternative.” Therefore, we affirm the superior court’s order denying CODE’s
petition for a writ of mandamus.
5.
FACTUAL HISTORY8
North Sky River and Jawbone proposed the construction and operation of a 339-
megawatt wind farm, consisting of 116 WTG’s, ancillary facilities, and supporting
8 The appellate record consists of appellant’s appendix, in lieu of the clerk’s
transcript (see § 21167.6, subd. (g), citing Cal. Rules of Court, rule 8.124), administrative
record excerpts, and a joint appendix of administrative record excerpts (see Cal. Rules of
Court, rule 3.1365(c)). In their respective briefs, the parties cite material that cannot be
found in this record. “Factual matters that are not part of the appellate record will not be
considered on appeal and such matters should not be referred to in the briefs.” (Lona v.
Citibank, N.A. (2011) 202 Cal. App. 4th 89, 102; see Princess Cruise Lines, Ltd. v.
Superior Court (2009) 179 Cal. App. 4th 36, 45 [“Statements of facts not supported by
references to the record may be disregarded as a violation of rule 8.204(a)(1)(C) of the
California Rules of Court.”].)
CODE asks us to judicially notice 108 documents from the FAA’s “Circle Search
for Airports” online database, which display public-use airports located within a 20-
nautical-mile radius of each of the project’s WTG’s. We deny the request. First, CODE
has not shown that the search results were part of the administrative record under section
21167.6, subdivision (e), and excluded from the record certified by the County. Second,
CODE has not shown that the search results were admissible as relevant, extra-record
evidence on grounds either recognized or left open by the Supreme Court in Western
States, supra, 9 Cal. 4th 559. (See Madera Oversight Coalition, Inc. v. County of
Madera, supra, 199 Cal.App.4th at p. 62 [“Specifically, there are two distinct ways to
place evidence before the superior court in a CEQA matter: [t]he evidence can be (1)
included in the administrative record … or (2) admitted as extra-record evidence.”].)
North Sky River asks us to judicially notice FAA Order JO 7400.2H, “Procedures
for Handling Airspace Matters” (Mar. 10, 2011), which “specifies procedures for use by
all personnel in the joint administration of the airspace program” and was effective for
the period of March 10, 2011, to February 8, 2012. ( [as of May 29, 2014] (FAA Order JO 7400.2H).) We grant
this request because FAA Order JO 7400.2H was referenced in documentation prepared
for and presented to the Board. (Cf. Porterville Citizens for Responsible Hillside
Development v. City of Porterville, supra, 157 Cal.App.4th at p. 890; see Western States,
supra, 9 Cal.4th at p. 573, fn. 4.)
6.
infrastructure, on a 13,535-acre site in the Tehachapi Wind Resource Area.9 They
requested the rezoning of 2,442 acres from exclusive agriculture districts to wind energy
combining districts and a conditional use permit for mobile concrete batch plants.10 The
County conducted an initial study, determined the project might impose a significant
environmental impact, prepared a draft EIR, and circulated the document for public
review from May 6, 2011, to June 20, 2011. The comment period closed June 20, 2011.
The draft EIR enumerated the following project objectives:
“[North Sky River’s] objectives for the project are to:
“1. Make a significant contribution toward achieving the California
Renewable Portfolio Standard … goal that 33 percent of electricity
be generated by renewable energy by 2020;
“2. Maximize energy production and economic viability by locating the
project in an area with optimal wind and solar resources and terrain
characteristics;
“3. Optimize the use of underused and undeveloped land within the
Tehachapi Wind Resource[] Area;
“4. Increase local short-term and long-term employment opportunities;
“5. Reduce greenhouse gas emissions by providing a long-term
alternative means of energy to conventional fossil fuels;
“6. Use state-of-the-art WTG technology to achieve increased
performance, lower cost, higher reliability, and longer service life;
and
9 The project site is located south and east of the Kelso Valley Road and Jawbone
Canyon Road intersection, approximately six miles east of Twin Oaks, eight miles west
of Cantil, and 13 miles north of the State Route 58 and State Route 14 interchange.
10 North Sky River and Jawbone submitted separate applications for their respective
projects. Because the proposed projects were located on adjacent parcels, they were
treated as a single project by the County.
7.
“7. Produce electricity without the need for large amounts of water in
relation to conventional means (approximately 1/600 as much water
per unit of electricity produced compared with nuclear and
approximately 1/500 as much as coal).
“[Jawbone’s] objectives for the project are to:
“1. Provide an approximately 39-[megawatt] project generating
approximately 100,000 [megawatt hours] per year of electricity, in
California, through optimization of renewable energy sources;
“2. Supply renewable energy that will help the State of California meet
its goals by reducing reliance on energy generated from fossil fuels;
“3. Provide property tax revenues to [the] County;
“4. Assist [the] County in promoting its role as the State’s leading
renewable energy producer;
“5. Provide green jobs to [the] County and the State of California;
“6. Realize the full potential of the wind resource;
“7. Result in an economically feasible renewable energy project that
would be developed through commercially available financing;
“8. Supply clean, safe, renewable energy for approximately 9,000
homes; and
“9. Support California’s goal of 33 percent renewable energy generation
by 2020.”
Concerning the project’s potential adverse effects on aviation safety and the
mitigation of these effects, the draft EIR detailed:
“Impact 4.8-4: For a Project Within the Vicinity of a Private Airstrip,
Would the Project Result in a Safety Hazard for People Residing or
Working in the Project Area[?]
“The project could pose a navigation hazard to private aircraft and
high performance gliders using nearby private airstrips due to the
height of the WTG structures (maximum height of 500 feet above
ground surface). The proposed project is located near one
8.
unpermitted private airstrip [KVA], which is located 1.2 miles
northwest or west of the project site boundary. MM 4.8-8 would
ensure that the proposed project complies with all FAA regulations
regarding structures located within proximity to airstrips.
“Mitigation Measures[:] [¶] Implement [MM] 4.8-8.
“Level of Significance after Mitigation[:] [¶] Impacts would be
less than significant.”
“MM 4.8-8[:] Prior to issuance of building permits, the project
proponents shall submit Form 7460-1 (Noti[ce] of
Proposed Construction or Alteration) to the [FAA], in
the form and manner prescribed in 14 Code of Federal
Regulation[s] [part 77.7]. The project proponents shall
also provide documentation to the [County’s] Planning
and Community Development Department
demonstrating that the [FAA] has issued a
‘Determination of No Hazard to Air Navigation.’ This
documentation shall include: (1) written concurrence
from the military authority responsible for operations
in the flight area depicted in [the County’s] Zoning
Ordinance Figure 19.08.160 that all project
components would create no significant military
mission impacts; (2) a wind turbine generator lighting
plan; and (3) a helicopter lift plan demonstrating
compliance with all requirements set forth by the
[FAA] and [the] County. Documentation shall also be
furnished to the [County’s] Planning and Community
Development Department demonstrating that a copy of
the approved form(s) has been provided to the
operators of [KVA], California City Municipal
Airport, Tehachapi Municipal Airport, Edwards Air
Force Base, China Lake Naval Air Weapons Station,
and Fort Irwin/National Training Center.”
“The FAA regulates aviation at regional, public, private, and military
airports …. The FAA regulates objects affecting navigable airspace and
structures taller than 200 feet according to … [14 Code of Federal
Regulations part 77.9]. The U.S. and California Departments of
Transportation also require the proponent to submit FAA Form 7460-1,
Notice of Proposed Construction or Alteration. According to [14 Code of
Federal Regulations part 77.5], notification allows the FAA to identify
9.
potential aeronautical hazards in advance, thus preventing or minimizing
any adverse impacts on the safe and efficient use of navigable airspace….
“As described in [14 Code of Federal Regulations part 77.9] (Construction
or alteration requiring notice), each sponsor who proposes any of the
following construction or alteration scenarios shall notify the FAA in the
form and manner prescribed in [14 Code of Federal Regulations part 77.7]:
[¶] (1) Any construction or alteration of more than 200 feet in height above
the ground level at its site. [¶] … [¶]
“Per [14 Code of Federal Regulations part 77.7], notification requirements
include sending one executed form set (four copies) of FAA Form 7460-1,
Notice of Proposed Construction or Alteration, to the Manager, Air Traffic
Division, FAA Regional Office having jurisdiction over the area within
which the construction or alteration will be located. The notice required
must be submitted at least [45] days before the earlier of the following
dates: (1) the date the proposed construction or alteration is to begin or (2)
the date an application for a construction permit is to be filed.”11
The draft EIR also described three alternatives.12 “Alternative A: No Project”
precluded construction and maintained the environmental status quo for the foreseeable
future. “Alternative B: Relocate to San Gorgonio Wind Resource[] Area” moved the
project to a comparable site in Riverside County. Lastly, “Alternative C: Reduced
Project Size” eliminated up to 23 WTG’s in areas of high biological and cultural resource
sensitivity. The draft EIR concluded:
11 At oral argument, North Sky River’s counsel explained the process of obtaining
no-hazard determinations in three stages. First, a conceptual site plan was submitted to
the FAA to identify potential aeronautical hazards in advance of construction. Second,
the FAA issued “preliminary” no-hazard determinations, which led to approval of the
building permits. Third, after the WTG’s were constructed, the FAA evaluated the actual
structures to corroborate its previous findings and issued “final” no-hazard
determinations.
12 The County eliminated three other alternatives from consideration because they
either failed to satisfy the project’s objectives or were infeasible: (1) relocation to the
Altamont Pass Wind Resource Area in Alameda County; (2) construction of a solar
photovoltaic facility; and (3) reduction of the project’s construction rate.
10.
“Alternative A, the No Project Alternative, would be environmentally
superior to the project on the basis of the minimization or avoidance of
physical environmental impacts. Section 15126.6(e)(2) of the …
Guidelines states that if the no project alternative is found to be
environmentally superior, ‘the EIR shall also identify an environmentally
superior alternative among the other alternatives.’
“Due to the reduction of impacts to aesthetics, biological resources, and
cultural resources achieved by Alternative C (Reduced Project Size), it is
considered the environmentally superior alternative. Alternative C reduces
the significant and unavoidable impacts of the proposed project … and has
less severe significant impacts as compared to Alternative B….”
“Alternative C would achieve some of the project proponents[’] objectives.
Because the alternative would reduce the project by up to 23 WTG[’]s, it
would reduce the contribution towards achieving the California [Renewable
Portfolio Standard] goal … and would subsequently reduce the benefit
renewable energy offers to greenhouse gas emissions ….”
KVA, a private airport owned by Dr. Philippe Athuil (ante, fn. 4), is located on a
296-acre plot adjacent to the Tehachapi Wind Resource Area,13 about 1.2 miles from the
project site. One of Athuil’s attorneys, Dale J. Goldsmith, sent the following letter dated
June 20, 2011, to the County:
“… Dr. Athuil is very concerned that the construction and operation
of the Project as proposed will present severe safety risks to the glider
pilots who use [KVA]. The Project proposes to erect a number of up to
500-foot-tall [WTG’s] in the glide path of the gliders. A collision between
a glider and a WTG could maim or kill the pilot. The Project can and
should be modified to eliminate this safety hazard to allow [KVA] and the
Project to coexist. [¶] … [¶]
“… [E]xisting terrain limits the number of feasible ingress and
egress routes to and from [KVA]. The proposed WTG’s would block or
severely limit the use of two of the three primary approach routes, leaving
only one practical air route to and from [KVA]. Moreover, the proposed
13 KVA consists of a set of runways in the southwestern part of the property and a
second set in the northeastern part. Otherwise, the land is “rural,” “sparsely developed,”
and primarily zoned for exclusive agriculture and recreational forestry.
11.
WTG sites are densely clustered and positioned on ridges that normally
provide additional lift for gliders attempting to return to the airport.
Unpowered aircraft such as gliders have extremely shallow descent ratios,
ranging from 50-100 to 1 without the use of spoilers or other lift reducing
equipment techniques. Increasing the height of the obstruction field with
WTG[’]s and eliminating a pilot’s ability to safely use the ridgeline will
change the pilot’s transit strategy and substantially decrease margins of
safety for landing at [KVA]. This could result in tragic consequences.
[¶] … [¶]
“The [draft EIR] does not consider the Project’s land use
compatibility with adjoining land uses, including [KVA]. As discussed
above, the WTG[’]s along the nearby ridgeline will severely impact current
glider operations at [KVA] and create significant safety hazards. It also
will likely preclude future commercial use of [KVA]. The [draft EIR]
should be revised to include this analysis, disclose adverse impacts, and
require mitigation measures, such as relocating the WTG[’]s from the
ridgelines, to reduce the impacts to less than significan[t].”14
In July 2011, the County published the final EIR, which contained the following
response to Goldsmith’s June 20, 2011, letter:
“… [KVA] was considered in the analysis and the implementation of [MM
4.8-8] …. [¶] … [¶] … MM 4.8-8 would require that the project proponent
file a form 7460-1, Noti[ce] of Proposed Construction or Alteration, with
the FAA for each WTG, met[eorological evaluation] tower, transmission
line tower and construction crane meeting the FAA 7460 requirements for a
determination of no hazard to air navigation. If the FAA determines that
the project would result in a potential obstruction unless reduced to a
specified height, the project proponents would be required to work with the
FAA to resolve any adverse effects on aeronautical operations. This
mitigation measure would ensure less than significant impacts to existing
aviation facilities and airspace use. The [FAA] makes the final
determination on safety issues related to flight hazard.”
Howard Weinberg, another of Athuil’s attorneys, provided the County with a
report by William P. Long dated August 10, 2011. In his report, Long detailed:
14 Goldsmith also challenged the draft EIR’s description of KVA as “unpermitted”
and, in the alternative, asserted that Athuil could still operate KVA “as a legal,
nonconforming use” in the absence of the proper land use permits.
12.
“As an Aviation Services Professional, my career includes experience in
aircraft ground services, air traffic control, airspace management, airport
operations management, aviation system development and as a Senior
Aviation Consultant and former [FAA] Airport Certification/Safety
Inspector. I possess a rich and uniquely diverse foundation of ensuring
airport environments that support and encourage safe and practical aircraft
operations which in turn enhances the safety of communities enhanced
and/or impacted by aviation.… [¶] … [¶]
“It is my understanding that two separate FAA Form 7460-1 applications
were made by the Project proponents with regard to proposed construction
of WTG[’s]…. [Athuil] and his representatives have never been contacted
by the FAA, have never been invited to submit comments to the safety
analysis performed by the FAA, and have never received copies of the
determinations allegedly issued by the FAA. All of this is a direct violation
of the formal process, procedures and protocol required by the operating
rules and policies of the FAA. [¶] … [¶] … There is little credibility to any
FAA safety study conducted based solely upon the FAA Form 7460-1
submitted by the Project applicants. The only legitimate safety review must
be conducted as part of a public process, including comments by the
stakeholders who will be the direct beneficiaries of a proper safety study,
and who, without a proper[] safety study, will be the injured parties
colliding with dangerously placed WTG[’]s.”
On August 11, 2011, the County’s Planning Commission conducted a public
hearing and recommended EIR certification and project approval.
On or after August 29, 2011, Zachary Walton, counsel for North Sky River,
provided the County with an airspace and obstacle evaluation study by Ron Morgan of
JDA Aviation Technology Solutions. In this study, Morgan disputed Long’s August 10,
2011, report:
“… [KVA] is a private-use airport and not subject to the same protections
afforded to airports that serve the public. That being said, the FAA has
means to mitigate turbine development in close proximity to airport finals
and has done so at many airports around the country….
“Analysis conducted by the FAA shows that there is no airspace
compatibility issue to [KVA] as a result of [North Sky River’s share of
WTG’s]. All 102 turbines have been issued Determinations of No Hazard.
13.
Very few airports in the United States, either private or public, have an
obstruction free (ground up) surface around the airport. [¶] … [¶]
“Mr. Long’s finding that no valid conclusions of airspace safety could be
concluded are … based upon the assumption that A) not all FAA offices
were consulted in the [Obstruction Evaluation] process and B) that
comments were not solicited from the airport owner. JDA contacted the
FAA specialist who handled these cases and found that all offices either
responded to the case or were auto-screened. In the development of the
[Obstruction Evaluation/Airport Airspace Analysis] automation system, the
FAA developed criteria for the assessment of aeronautical studies by the
disparate lines of business. Certain offices opted to allow for automated
review of certain cases based upon the location and height of the planned
obstacle. The Office of Airports, for example, auto-screens all cases with
planned structures that are greater than 3 nautical miles from a public-use
airport reference point. However, the office with responsibility for
assessing impact on [Visual Flight Rule] operations did review the case and
found that the planned structures would have no adverse impact on [Visual
Flight Rule] operations.
“FAA Order 7400.2H paragraph 6-3-17(a)(1) states that ‘Normally, any
structure that would exceed obstruction standards, affect an airport, have
possible [Visual Flight Rule] effect, and/or require a change in aeronautical
operations or procedures should always be circularized.’ The planned
turbines do not exceed the obstruction standards specified in 14 [Code of
Federal Regulations] Part 77. The planned turbines were found to have no
impact on a public use airport and have no possible [Visual Flight Rule]
effect. No aeronautical operations or procedures would be changed as a
result of the planned turbines. Therefore, it was not necessary to circularize
the cases. However, had the cases been circularized and had [KVA’s]
owner objected to the planned turbines based on perceived impacts to
[KVA], the FAA would likely have found that neither the standards for
adverse effect nor substantial adverse effect would have been met. This
would have resulted in the issuance of determinations of no hazard for all
102 cases reviewed.”
In a letter to the Board dated September 12, 2011, Weinberg remarked:
“We have repeatedly asked for aviation safety studies to be
performed, but the County has refused. We are now informed that [North
Sky River] has had the FAA conduct some sort of ‘automated’ or desktop
review of the aviation risks posed by [North Sky River’s portion of the
14.
project]. As discussed below, these FAA Determinations (which have not
been provided to us or to the public) are inaccurate and inadequate.
“Our client, at some considerable expense, has had an aviation
expert develop[] a map of the Project[’s] area[] and the areas of intersection
between the proposed WTG[’]s and the flight paths of aircraft to and from
[KVA]…. One can, with no engineering or surveying expertise,
immediately determine from the [m]ap[] that the proposed WTG locations
will result in an unavoidable safety problem for aircraft using [KVA]. In
fact, if the Project[] [is] approved and constructed, it would be so dangerous
to fly near the WTG[’]s that it is likely [KVA] would become unusable. As
the [m]ap[] make[s] clear, the Project[] cannot be approved until a detailed
and proper aviation safety study is conducted and then the County can
consider the aviation safety impacts of the Project.[15] [¶] … [¶]
“The Project cannot be now approved, because there is no required
mitigation at all. In the case of [KVA], the FAA has no authority to require
the relocation of the WTG[’]s, the change in their size or orientation - in
fact, the FAA has no authority whatsoever regarding the construction of the
proposed Project. All that the FAA can do is study the WTG[’]s to be
constructed and then determine the nature and extent of the aviation safety
risk that will be created by such construction. Simply requiring the project
applicant, at some time in the future, to obtain a Determination of No
Aviation Risk prior to the issuance of a building permit is not [a] well[-
]defined or adequate mitigation measure. Also, the County has failed to
identify and consider all feasible mitigation measures. One example of a
feasible mitigation measure is to relocate or eliminate all of the WTG[’]s in
the flight paths of aircraft using [KVA] (i.e. the WTG[’]s shown on the
[m]ap as interfering with aviation flight paths). This one mitigation
measure alone is both feasible and necessary. [¶] … [¶]
“[Morgan’s letter] states that [North Sky River] has obtained 102
Determinations of No Hazard from the FAA…. As you know from our
previous Comment Letters, the owner of [KVA] has never been contacted
by the FAA or [North Sky River] and has never given input into any FAA
safety determination, nor has Dr. Athuil (or this firm) ever received a copy
of the FAA Determinations. [¶] … To date, the applicants for the Project
have spent a considerable amount of time and legal maneuvering to avoid
disclosure of their interaction with the FAA and the results of the FAA
review. Even now, neither the County nor the public has reviewed the
15 This map is included in the appellate record.
15.
FAA Determinations. We believe that when a proper and fully public
aviation safety study is completed, it will show the dire and unmitigated
aviation safety impacts that would be created if the Project[] [was]
constructed. [¶] … [¶]
“… [I]f the FAA Determinations were issued, they have been issued
in violation of numerous applicable codes and regulations. Dr. Athuil has
never been contacted by the FAA in connection with any such
Determination, no member of the FAA has ever visited [KVA] to consider
the physical layout of the airport and its orientation and proximity to the
proposed WTG[’]s, no[r] has any hearing been held to consider this
determination. These facts were confirmed by [Morgan’s letter] that
explained the FAA Determinations were ‘auto-screened;’ technical jargon
for the FAA analyzing hazards based only upon the data presented to them
by [North Sky River], without any confirmation that the data in fact
comports with conditions on the ground - and without contacting [KVA]….
[¶] … To our knowledge, the only way that the FAA could have analyzed
the aviation safety impacts of the WTG[’]s would have been to use the old
data in their database - that showed the old runway configurations for
[KVA]. Of course, if the FAA did use these old runways as the basis of the
FAA Determinations, they would have made significantly different
conclusions about safety, because the old runway configurations did not
have the direct flight path impacts into the WTG[’]s that exist now for the
current runway configurations.” (Original fns. omitted.)
In a report to the Board dated September 13, 2011, the County’s staff responded to
Weinberg’s September 12, 2011, letter:
“… [T]he [d]raft EIR discussed [KVA] and it was considered in the
analysis and implementation of [d]raft EIR MM 4.8-8. [MM 4.8-8] would
require that the project proponents file a form 7460-1, Noti[ce] of Proposed
Construction or Alteration, with the FAA for each [WTG], met[eorological
evaluation] tower, transmission line tower, and construction crane meeting
the FAA 7460 requirements for a determination of no hazard to air
navigation. If the FAA determines that the project would result in a
potential obstruction unless reduced to a specified height, the project
proponents would be required to work with the FAA to resolve any adverse
effects on aeronautical operations. This mitigation measure would ensure
that the project’s impacts on the environment would result in less than
significant impact to existing aviation facilities and airspace use. [¶] … [¶]
“With regard to the concerns raised by Mr. Weinberg regarding the
adequacy of the FAA’s determinations on ‘no hazard to air navigation,[’]
16.
Staff notes that the FAA is the expert federal Agency in the field of air
navigation and in determining hazards to air navigation. A major
component of the FAA’s purpose is to ensure the safety of aircraft and the
efficient use of airspace. The FAA has issued a ‘Determination of No
Hazard’ for … both components of the project, including … North Sky
River[’s] and Jawbone Wind Energy[’s] portions.
“This expert opinion is supported by a professionally prepared aeronautical
study …. Additionally, Staff notes that 14 [Code of Federal Regulations]
Part 77 requires the FAA to evaluate and produce a report on the
construction of objects that may constitute a hazard to air navigation, for
the purpose of ensuring the safety of aircraft and the efficient use of
airspace. Thus, Staff concludes that it is appropriate for the County to rely
upon the FAA’s expertise in evaluating whether the project will have an
impact on air navigation.”
The County’s staff further advised in an addendum report to the Board dated
September 13, 2011:
“Generally, airports are protected from encroachment by surrounding
properties through the establishment of land use compatibility plans for
public use airports, by airports acquiring avigation easements, or by the
purchase of buffer lands. Staff notes that the proposed project is not
located within the sphere of influence of any adopted … Airport Land Use
Compatibility Plan, nor has [KVA] actively pursued or attempted to
establish any avigation easements on adjacent properties. With no other
land use mechanism having been established by [KVA], the [County]
concludes that the [FAA] is the most appropriate agency to make any final
determinations as related to any Hazards to Flight associated with the
proposed project. [¶] … [¶]
“… Staff notes that … an analysis of the proposed project and its potential
impacts to [KVA] … was prepared by Mr. Ron Morgan in association with
JDA Aviation Technology Solutions. Mr. Morgan is the former Director of
the FAA’s Air Traffic Services Division and is an expert in the field of
aviation….
“As previously stated, it was the determination of the [County] that impact
to [KVA] could be reduced to less than significant … with implementation
of the identified mitigation measure[]. This conclusion was further verified
by Mr. Morgan. Your Board should be advised that Mr. Weinberg
disagrees with this conclusion. [Section] 15151 specifically states that a
disagreement among experts does not make an EIR inadequate, but that the
17.
EIR should summarize the main points of disagreement among the experts.
Staff notes that these points of contention as raised by Mr. Weinberg have
been described in the … Final EIR, and in subsequent Staff Reports
prepared for this project, pursuant to CEQA. Additionally, the [FAA] has
been provided copies of the EIR and notifications of the proposed hearings.
As of the time of this writing, Staff has not received any comments from
the FAA indicating that additional analysis is required to determine whether
or not construction of [WTG’s] within the project boundary would result in
a significant hazard to flight. It is the [County]’s determination that under
CEQA, sufficient information has been included into the record regarding
the potential impacts to [KVA] for your Board to take action today
regarding the proposed project. Based on all information in the record, the
[County] continues to believe that with implementation of [MM] 4.8-8,
requiring submittal of a Form 7460 with the FAA, impacts will be reduced
to a less th[a]n significant impact. [¶] … [¶]
“… [T]he project before your Board for consideration is a request to
incorporate the [wind energy combining district] to various parcels within
the project area. Although the Final EIR prepared for the project has
identified preliminary locations for future [WTG’s], these locations are
subject to change based on compliance with the [County’s] Zoning
Ordinance and other micro-siting requirements presented in the EIR that
have yet to take place. The FAA determinations have not been included
into the record because at this time the existing zoning would not allow for
the installation of any WTG[’s] on site. Although the applicant may have
formal determinations by the FAA as they relate to Determinations of No
Hazard to Flight, Staff notes that these FAA determinations are preliminary
and were submitted by the applicant to the FAA to determine whether there
were any existing conditions that would prevent the implementation of
[WTG’s] within the project boundary. Any change in location and[/]or size
of the proposed WTG’s would require the project proponent to resubmit
their Form 7460 to the FAA for consideration. [¶] … [¶]
“The commenter states that the owner of [KVA] was not contacted by the
FAA regarding any hazard to flight determinations. Staff notes these
determinations are made by the FAA and are outside the legal authority and
control of the County. How the FAA makes these determinations are not
germane to the land use actions before your Board for consideration today
and are not subject to CEQA as it relates to this project. [¶] … [¶]
“… If approved, the project proponent will be required to submit building
permits for proposed turbines. Prior to issuance of that building permit,
[MM] 4.8-8 requires the project proponent to submit to Staff an adequate
18.
FAA 7460 determination. Implementation of this measure will ensure that
any restrictions identified by the FAA will be incorporated into the
proposed project…. [T]he FAA has been provided copies of the EIR and
hearing notices for the proposed project. No evidence has been submitted
into the record by the FAA indicating that additional information is
necessary at this time…. Should the FAA determine that construction of
[WTG’s] at specific locations would result in significant hazards to flight,
the project proponent will be required to either reduce the turbine size,
relocate the turbine or simply not construct that turbine at that location….
[¶] … [¶]
“… Staff explains that the final layout o[f] WTG[’]s will be determined
through final engineering and micro-siting if the project is approved, and
that the full extent of the proposed [wind energy combining district] zone
corridors where the WTG[’]s could be located have been fully analyzed in
the EIR. Staff also explains that in analyzing the proposed [e]ffects of the
[WTG’s], the Final EIR took a ‘worst-case’ scenario approach and assumed
that the applicants would utilize the largest and tallest possible [WTG’s]
and analyzed for a maximum height of 497 feet. Therefore, the possible
impacts of any of the proposed [WTG] models have been disclosed. Staff
notes that since that time, [North Sky River] has selected a WTG type that
is less than 430 feet in height, which was analyzed in the EIR.”
The Board conducted a public hearing on September 13, 2011. At the hearing,
Morgan testified:
“My last six years I spent as the director of air traffic for FAA,
responsible for all the air traffic operation, all the air space operation in the
United States.
“The organization that deals with obstruction evaluation is an
organization that worked for me when I was the director, so I’m fairly
familiar with the processes and -- and rules that are -- are used by that
organization. I continue as consultant working in that area with my partner,
Ben Doyle … and we probably work a thousand wind turbines a year
related to obstruction evaluation issues.
“There’s been a lot said about the obstruction evaluation process and
documentation provided to this case and the fact that it was not done
correctly. I personally had the discussion with the obstruction evaluation
specialist who performed the work. There are a number of activities that
she needed to go through to make sure it was correct. I asked her about
19.
those, and I can stand here tonight and tell you that she did every one of
those.
“We stand with 102 determinations of no hazard issued by the
federal government authority with the appropriate standing to make that
decision. And with those 102 determinations, I can tell you that [KVA] and
the turbines which are being proposed can co-habitate with no hazard.”
The Board thereafter determined that MM 4.8-8 mitigated the adverse effects of
the project’s WTG’s on aviation safety, certified the EIR, and approved the project. The
Board outlined the following in its mitigation monitoring program:
“Steps to Compliance:
“A. The project proponents shall comply with all requirements to
maintain the [FAA] Determination of No Hazard to Air Navigation.
“B. The project proponents shall consult with the FAA to resolve
adverse effects on aeronautical operations.
“C. The project proponents shall submit documentation of all
communications with the FAA and evidence of compliance with
FAA requests to the [County’s] Planning and Community
Development Department.
“D. The [County’s] Planning and Community Development Department
will verify prior to issuing building and grading permits for the
disputed [WTG’s] or areas.”
20.
DISCUSSION16
I. Overview of CEQA and the EIR process.
“CEQA is a comprehensive scheme designed to provide long-term protection to
the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal. 4th
105, 112 (Mountain Lion), citing § 21001.) The statute “contains a ‘substantive mandate’
requiring public agencies to refrain from approving projects with significant
environmental effects if ‘there are feasible alternatives or mitigation measures’ that can
substantially lessen or avoid those effects.” (County of San Diego v. Grossmont-
Cuyamaca Community College Dist. (2006) 141 Cal. App. 4th 86, 98, italics omitted,
quoting Mountain Lion, supra, at p. 134; accord §§ 21002, 21081.) A “‘[s]ignificant
effect on the environment’ means a substantial, or potentially substantial, adverse change
in any of the physical conditions within the area affected by the project including land,
air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic
significance.” (Guidelines, § 15382.) “If the physical change causes adverse economic
or social effects on people, those adverse effects may be used as a factor in determining
whether the physical change is significant.”17 (Id., § 15064, subd. (e); accord id.,
§§ 15131, subd. (b), 15382.)
16 In violation of California Rules of Court, rule 8.204(a)(1)(B), CODE presents
contentions in its brief that are not listed “under a separate heading or subheading ….”
Thus, we decline to address these contentions. (See, e.g., Silverado Modjeska Recreation
& Park Dist. v. County of Orange (2011) 197 Cal. App. 4th 282, 314, fn. 24; Sierra Club
v. City of Orange (2008) 163 Cal. App. 4th 523, 542.)
Also, respondents and North Sky River assert for the first time on appeal that
CEQA does not apply in this case on the basis that the statute does not regulate
environmental impacts that do not affect the public at large. We do not consider new
matters raised for the first time on appeal. (See, e.g., A Local & Regional Monitor v. City
of Los Angeles (1993) 12 Cal. App. 4th 1773, 1804; Association for Protection etc. Values
v. City of Ukiah (1991) 2 Cal. App. 4th 720, 737.)
17 “For example, if the construction of a new freeway or rail line divides an existing
community, the construction would be the physical change, but the social effect on the
21.
“Whenever a project may have a significant and adverse physical effect on the
environment, an EIR must be prepared and certified.” (Mountain Lion, supra, 16 Cal.4th
at p. 113, citing § 21100, subd. (a); accord § 21151, subd. (a).) This process entails “the
preparation of a draft EIR; the circulation of that draft for comment; the preparation of a
final EIR which responds to those comments; and the certification that the final EIR has
been completed in compliance with CEQA.”18 (Sunset Drive Corp. v. City of Redlands
(1999) 73 Cal. App. 4th 215, 220, citing Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal. 4th 1112, 1123-1124 (Laurel Heights II).) The EIR
“is the mechanism prescribed by CEQA to force informed decision making and to expose
the decision making process to public scrutiny.” (Planning & Conservation League v.
Department of Water Resources (2000) 83 Cal. App. 4th 892, 910.) As “‘the heart of
CEQA’” (Laurel Heights I, supra, 47 Cal.3d at p. 392, quoting Guidelines, § 15003,
subd. (a)), the EIR “provides the public and responsible government agencies with
detailed information on the potential environmental consequences of an agency’s
proposed decision,” and “describes ways to minimize significant environmental effects,
and suggests alternatives to the project, including the option of ‘no project.’” (Mountain
Lion, supra, at p. 113, citing § 21061; accord § 21002.1, subd. (a).)
“The core of an EIR is the mitigation and alternatives sections.” (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.) “An EIR shall
describe feasible [mitigation] measures which could minimize significant adverse
community would be the basis for determining that the effect would be significant. As an
additional example, if the construction of a road and the resulting increase in noise in an
area disturbed existing religious practices in the area, the disturbance of the religious
practices could be used to determine that the construction and use of the road and the
resulting noise would be significant effects on the environment.” (Guidelines, § 15131,
subd. (b).)
18 While public hearings are encouraged, they are not required at any stage of the
EIR process. (Guidelines, §§ 15087, subd. (i), 15202, subd. (a); cf. id., § 15201.)
22.
impacts ….” (Guidelines, § 15126.4, subd. (a).) Such measures “[a]void[] the impact
altogether by not taking a certain action or parts of an action,” “[m]inimiz[e] impacts by
limiting the degree or magnitude of the action and its implementation,” “[r]ectify[] the
impact by repairing, rehabilitating, or restoring the impacted environment,” “[r]educ[e] or
eliminat[e] the impact over time by preservation and maintenance operations during the
life of the action,” or “[c]ompensat[e] for the impact by replacing or providing substitute
resources or environments.” (Id., § 15370.) In addition, “[a]n EIR shall describe a range
of reasonable alternatives to the project, or to the location of the project, which would
feasibly attain most of the basic objectives of the project but would avoid or substantially
lessen any of the significant effects of the project, and evaluate the comparative merits of
the alternatives.” (Id., § 15126.6, subd. (a).) Whether a mitigation measure or alternative
is feasible “involves a balancing of various ‘economic, environmental, social, and
technological factors.’” (City of Del Mar v. City of San Diego (1982) 133 Cal. App. 3d
401, 417, quoting § 21061.1; see Guidelines, § 15364 [“‘Feasible’ means capable of
being accomplished in a successful manner within a reasonable period of time, taking
into account economic, environmental, legal, social, and technological factors.”].)
II. Standards of review.
“In reviewing an agency’s compliance with CEQA in the course of its legislative
or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’” (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 426 (Vineyard), quoting § 21168.5.)
“Such an abuse is established ‘if the agency has not proceeded in a manner required by
law or if the determination or decision is not supported by substantial evidence.’
[Citations.]” (Vineyard, supra, at pp. 426-427, quoting § 21168.5.)
Where the alleged defect predominantly relates to a legal error, such as improper
procedure, the courts determine de novo whether the agency either complied with
“‘legislatively mandated CEQA requirements’ [citation]” or “‘failed to proceed in the
23.
manner prescribed by CEQA.’ [Citations.]” (Vineyard, supra, 40 Cal.4th at p. 435; see
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87
Cal. App. 4th 99, 118 [“[Q]uestions of interpretation or application of the requirements of
CEQA are matters of law.”].) Under this standard, the courts evaluate the EIR’s
“‘sufficiency as an informative document.’ [Citation.]” (Laurel Heights I, supra, 47
Cal.3d at p. 392.) “Noncompliance with CEQA’s information disclosure requirements is
not per se reversible; prejudice must be shown.” (Association of Irritated Residents v.
County of Madera (2003) 107 Cal. App. 4th 1383, 1391; see, e.g., California Native Plant
Society v. City of Santa Cruz (2009) 177 Cal. App. 4th 957, 986 [“An EIR will be found
legally inadequate—and subject to independent review for procedural error—where it
omits information that is both required by CEQA and necessary to informed
discussion.”].)
Where the alleged defect predominantly relates to a factual dispute, such as
“‘whether adverse effects have been mitigated or could be better mitigated’ [citation],”
the courts “accord greater deference to the agency’s substantive factual conclusions.”
(Vineyard, supra, 40 Cal.4th at p. 435; see Sierra Club v. County of Napa (2004) 121
Cal. App. 4th 1490, 1497 [“The decisions of the agency are given substantial deference
and are presumed correct. The parties seeking mandamus bear the burden of proving
otherwise ….”].)
“An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: [t]he appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.” (Vineyard, supra, 40
Cal. 4th 412 at p. 427; see Association of Irritated Residents v. County of Madera, supra,
107 Cal.App.4th at p. 1390 [“‘The appellate court reviews the administrative record
independently; the trial court’s conclusions are not binding on it.’”].)
24.
III. As a matter of law, the County’s EIR described a legally feasible mitigation
measure.
At the outset, CODE contends the County “abdicat[ed] its statutory duty under
CEQA to identify … [a] mitigation measure that would … keep the Project from causing
… adverse and potentially fatal air navigation impacts” and, in lieu of exercising its
power to regulate land use (see Cal. Const., art. XI, § 7; City of Riverside v. Inland
Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal. 4th 729, 742-743), “hid[]
behind the fig leaf of a non-existent federal preemption.”
First, to the extent CODE suggests the County’s EIR failed to describe a
mitigation measure that could avoid or minimize significant impacts to aviation safety
(see Guidelines, § 15126.4, subd. (a)), we disagree. The EIR identified MM 4.8-8, which
required North Sky River and Jawbone to submit Form 7460-1 “Notice of Proposed
Construction or Alteration” to the FAA, and obtain from the FAA, a “Determination of
No Hazard to Air Navigation” for each WTG. (See generally 14 C.F.R. §§ 77.7, 77.9,
77.31.) If the FAA found any adverse effects on aeronautical operations, North Sky
River and Jawbone, in consultation with the FAA, had to remedy those effects before
they could obtain building permits from the County. If no such effects were found, North
Sky River and Jawbone were nonetheless obligated to observe the federal agency’s rules
and regulations, so as to maintain this determination, and submit proof of compliance to
respondents. “[A] condition requiring compliance with regulations is a common and
reasonable mitigation measure, and may be proper where it is reasonable to expect
compliance.” (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal. App. 4th
884, 906.)
Second, we reject CODE’s claim that the County “hid[] behind the fig leaf of a
non-existent federal preemption” and consequently failed to exercise its “express or
implied powers” to mitigate a significant environmental impact (§ 21004). The goal of a
mitigation measure is “to reduce the impact [of a proposed project] to insignificant
25.
levels.” (Save Panoche Valley v. San Benito County (2013) 217 Cal. App. 4th 503, 529.)
In the instant case, the impact at issue concerned aviation safety. “[F]ederal law occupies
the entire field of aviation safety” (Montalvo v. Spirit Airlines (9th Cir. 2007) 508 F.3d
464, 473; accord Sierra Pacific Holdings, Inc. v. County of Ventura (2012) 204
Cal. App. 4th 509, 515; Booth v. Santa Barbara Biplane Tours, LLC (2008) 158
Cal. App. 4th 1173, 1180; see 49 U.S.C. § 40103(a)(1) [“The United States Government
has exclusive sovereignty of airspace of the United States.”]) and the FAA “exercise[s]
sole discretion in regulating air safety” (Abdullah v. American Airlines, Inc. (3d Cir.
1999) 181 F.3d 363, 369, italics added; see 49 U.S.C. § 40103(b)(1); Air Line Pilots
Association, International v. Quesada (2d Cir. 1960) 276 F.2d 892, 894 [“The Federal
Aviation Act was passed by Congress for the purpose of centralizing in a single authority
-- indeed, in one administrator -- the power to frame rules for the safe and efficient use of
the nation’s airspace.”]).
Pursuant to title 49 United States Code sections 40103 and 44718, the FAA
promulgated 14 Code of Federal Regulations part 77 (Big Stone Broadcasting, Inc. v.
Lindbloom (D.S.D. 2001) 161 F. Supp. 2d 1009, 1011, 1015-1016), which “establishes
standards for determining obstructions in navigable airspace, sets forth the requirements
for notice of certain proposed construction plans, provides aeronautical studies to
determine the effect of any proposed construction on the safe and efficient use of
airspace, and provides for public hearings on the hazardous effect of any proposed
construction.” (Id. at p. 1016; see Aircraft Owners & Pilots Association v. Federal
Aviation Administration (D.C. Cir. 1979) 600 F.2d 965, 966 (Aircraft Owners).) These
standards, in particular, apply to wind farms proposals. (See, e.g., Town of Barnstable v.
Federal Aviation Administration (D.C. Cir. 2011) 659 F.3d 28, 30-31; Clark County v.
Federal Aviation Administration (D.C. Cir. 2008) 522 F.3d 437, 439-440.) “Once the
FAA has been given notice under Part 77, the FAA’s Obstruction Evaluation Service has
the responsibility for conducting an ‘obstruction evaluation’ to determine the effect, if
26.
any, that the proposed construction or alteration would have on navigable airspace.
[Citation.] The result of a study under Part 77 ‘is normally a determination as to whether
the specific proposal studied would be a hazard to air navigation.’ [Citation.]”
(Goodspeed Airport, LLC v. East Haddam Inland Wetlands & Watercourses Commission
(D. Conn. 2010) 681 F. Supp. 2d 182, 194-195.)
Although CODE correctly points out that the FAA could not enforce its own
“hazard/no-hazard” determinations (see Aircraft Owners, supra, 600 F.2d at p. 966), it
incorrectly assumes that this rendered MM 4.8-8 legally infeasible. (See Masonite Corp.
v. County of Mendocino (2013) 218 Cal. App. 4th 230, 238 [“The legal feasibility of a
mitigation measure is not a question of fact reviewed for substantial evidence but rather is
an issue of law that we review de novo.”].) “The FAA is not empowered to prohibit or
limit construction it deems dangerous to air navigation.” (Aircraft Owners, supra, 600
F.2d at p. 967; see Gustafson v. City of Lake Angelus (6th Cir. 1996) 76 F.3d 778, 784
[“The FAA has acknowledged that land use matters within the federal aviation
framework are intrinsically local.”]; id. at p. 786; FAA Order JO 7400.2H, supra, § 5-1-
2a [“It should be noted[,] however, that Section 44718 does not provide specific authority
for the FAA to regulate or control how land (real property) may be used in regard to
structures that may penetrate navigable airspace.”].) Nevertheless, “a hazard/no-hazard
determination … has substantial practical impact” (Aircraft Owners, supra, at pp. 966-
967, fn. omitted) because it “can hinder the project sponsor in acquiring insurance,
securing financing or obtaining approval from state or local authorities” (BFI Waste
Systems of North America, Inc. v. Federal Aviation Administration (2002) 293 F.3d 527,
530, italics added). Thus, while the FAA could not halt construction of North Sky River
and Jawbone’s WTG’s if it deemed those structures hazardous, under MM 4.8-8 the
County was bound to do so through the exercise of its police power. (See § 21081.6,
subd. (b) [“A public agency shall provide that measures to mitigate or avoid significant
effects on the environment are fully enforceable through permit conditions ….”]; see also
27.
Scrutton v. County of Sacramento (1969) 275 Cal. App. 2d 412, 418 [local government’s
power to regulate land use includes power to grant building permits contingent on the
applicant’s compliance with reasonable conditions].)19
IV. As a matter of law, the County was not required to respond to late comments.
“[A]fter a [draft EIR] has been completed, it must be made available to interested
parties and the public for their comments.” (Marin Mun. Water Dist. v. KG Land
California Corp. (1991) 235 Cal. App. 3d 1652, 1666, citing Guidelines, § 15087; accord
§ 21092.) “The lead agency shall evaluate comments on environmental issues received
from persons who reviewed the draft EIR and shall prepare a written response. The lead
agency shall respond to comments received during the noticed comment period and any
extensions and may respond to late comments.” (Guidelines, § 15088, subd. (a); accord
§ 21091, subd. (d)(1).) “When a comment raises a significant environmental issue, the
lead agency must address the comment ‘in detail giving reasons why’ the comment was
‘not accepted. There must be good faith, reasoned analysis in response. Conclusory
statements unsupported by factual information will not suffice.’” (The Flanders
Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal. App. 4th 603, 615, quoting
Guidelines, § 15088, subd. (c); see City of Maywood v. Los Angeles Unified School Dist.
(2012) 208 Cal. App. 4th 362, 391 [“If the agency rejects a recommendation or objection
concerning a significant environmental issue, the response must explain the reasons
why.”].) “The requirement of a detailed written response to comments helps to ensure
that the lead agency will fully consider the environmental consequences of a decision
before it is made, that the decision is well informed and open to public scrutiny, and that
public participation in the environmental review process is meaningful.” (City of Long
19 Because the EIR described a legally feasible mitigation measure, as required by
CEQA, we need not answer CODE’s enigmatic question as to whether federal aviation
law “preempted” the County from identifying and imposing such a measure. (See ante,
at p. 4; cf. Tracy First v. City of Tracy (2009) 177 Cal. App. 4th 912, 934, fn. 7.)
28.
Beach v. Los Angeles Unified School Dist. (2009) 176 Cal. App. 4th 889, 904, citing
People v. County of Kern (1974) 39 Cal. App. 3d 830, 841-842.)
On this issue, CODE makes one specific contention: the County “dismissed” the
comment that “MM 4.8-8 would not eliminate the Project’s acknowledged potentially
dangerous aviation impacts on KVA because [North Sky River] was shutting [Athuil] out
of the Form 7460-1 process[.]” The record before us, however, indicates that this
comment was first brought to the County’s attention on or after August 10, 2011, more
than a month after the public review period ended. “Under CEQA, the lead agency may,
but is not required to, respond to late comments.” (Gray v. County of Madera (2008) 167
Cal. App. 4th 1099, 1110, italics added; accord § 21091, subd. (d)(2)(B); Guidelines,
§§ 15207, 15088, subd. (a), 15089, subd. (b); see Guidelines, § 15005, subd. (c) [“‘May’
identifies a permissive element which is left fully to the discretion of the public agencies
involved.”].) Because the County had no legal duty to address the comment, CODE’s
contention, even if true, “is not sufficient to render approval of the CEQA project
ineffective or contrary to law.” (Gray v. County of Madera, supra, at p. 1111.)
V. Substantial evidence supported the Board’s conclusion that MM 4.8-8
mitigated significant impacts on aviation safety.
“For projects for which an EIR has been prepared, where substantial evidence
supports the approving agency’s conclusion that mitigation measures will be effective,
courts will uphold such measures against attacks based on their alleged inadequacy.”
(Sacramento Old City Assn. v. City Council (1991) 229 Cal. App. 3d 1011, 1027.)
“‘Substantial evidence’ … means enough relevant information and reasonable inferences
from this information that a fair argument can be made to support a conclusion, even
though other conclusions might also be reached.” (Guidelines, § 15384, subd. (a).) Our
Supreme Court explained:
“In applying the substantial evidence standard, ‘the reviewing court must
resolve reasonable doubts in favor of the administrative finding and
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decision.’ [Citation.]… [¶] A court may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have
been equally or more reasonable. [Citation.] A court’s task is not to weigh
conflicting evidence and determine who has the better argument …. We
have neither the resources nor scientific expertise to engage in such
analysis, even if the statutorily prescribed standard of review permitted us
to do so. Our limited function is consistent with the principle that ‘[t]he
purpose of CEQA is not to generate paper, but to compel government at all
levels to make decisions with environmental consequences in mind. CEQA
does not, indeed cannot, guarantee that these decisions will always be those
which favor environmental considerations.’ [Citation.]” (Laurel Heights I,
supra, 47 Cal.3d at p. 393.)
The appellant has the burden to demonstrate that the evidence in the administrative
record did not sufficiently justify the agency’s action. (Citizens for a Megaplex-Free
Alameda v. City of Alameda (2007) 149 Cal. App. 4th 91, 112.)
We conclude that substantial evidence supported the Board’s conclusion that
MM 4.8-8 mitigated significant impacts on aviation safety. Staff reports to the Board
show that, in consideration of federal law (see ante, at pp. 24-26), the County relied on
the FAA, which has sole discretion over matters of air safety, to assess adverse impacts
of the project’s WTG’s on the safe use of navigable airspace around KVA. MM 4.8-8, as
described in the EIR and staff reports, explicitly required North Sky River and Jawbone,
prior to issuance of building permits, to participate in the FAA’s Obstruction Evaluation
Process and obtain, as well as maintain, no-hazard determinations for each WTG.
Morgan, North Sky River’s aviation expert and a former director of the FAA’s air traffic
services division, advised in his airspace and obstacle evaluation study that the FAA had
the means to mitigate turbine development in close proximity to private airport finals
through its Obstruction Evaluation Process, had analyzed 102 of the project’s WTG’s,
and had issued no-hazard determinations for each WTG prior to project approval.
Morgan also testified that he spoke to the FAA specialist who performed the evaluation
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and verified that the specialist proceeded in the proper manner.20 In view of the County’s
reliance on federal aviation standards (cf. Oakland Heritage Alliance v. City of Oakland,
supra, 195 Cal.App.4th at pp. 904, 905 [upholding city’s finding that compliance with
state building code standards, in conjunction with other requirements, provided
substantial evidence that mitigation measures adequately reduced seismic impacts to a
less than significant level]), staff reports (see Browning-Ferris Industries v. City Council
(1986) 181 Cal. App. 3d 852, 866 [“An agency may also rely upon the opinion of its staff
in reaching decisions, and the opinion of staff has been recognized as constituting
substantial evidence.”]), and Morgan’s expert opinion21 (see Guidelines, § 15384), the
Board’s conclusion as to the efficacy of MM 4.8-8 was supported by substantial
evidence.
The parties do not dispute that North Sky River had informed the FAA about its
share of WTG’s, participated in the Obstruction Evaluation Process, and successfully
obtained “preliminary” no-hazard determinations for each of its WTG’s before the
project was approved by the Board. CODE essentially argues that certain flaws were
revealed during this assessment that demonstrated MM 4.8-8’s inefficacy. First, North
20 Although the reports from the County’s staff and Morgan were submitted in
response to late comments, “[c]ourts have found that … approval of a CEQA project can
be supported by substantial evidence found in the responses to late comments.” (Gray v.
County of Madera, supra, 167 Cal.App.4th at pp. 1110-1111, citing Citizens of Goleta
Valley v. Board of Supervisors, supra, 52 Cal.3d at pp. 567-568.)
21 CODE challenges Morgan’s credibility. Ordinarily, credibility findings cannot be
reversed by a reviewing court applying the substantial evidence standard unless the
testimony is incredible on its face or inherently improbable. (Consolidated Irrigation
Dist. v. City of Selma (2012) 204 Cal. App. 4th 187, 201.) For testimony to be inherently
improbable, “‘there must exist either a physical impossibility that [it is] true, or [its]
falsity must be apparent without resorting to inferences or deductions.’” (Daly v.
Wallace (1965) 234 Cal. App. 2d 689, 692, quoting People v. Huston (1943) 21 Cal. 2d
690, 693.) Here, CODE has not shown that Morgan’s testimony was obviously false or
included assertions of fact that were physically impossible.
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Sky River withheld information about KVA from the FAA to prevent the federal agency
from analyzing the project in relation to the airport. Second, according to Long, Athuil’s
aviation expert and a former FAA airport certification and safety inspector, the FAA
failed to contact Athuil during the Obstruction Evaluation Process in “direct violation of
the formal process, procedures and protocol required by the operating rules and policies
of the FAA,” thus undermining the credibility of the evaluation. Third, the FAA only
conducted a cursory “‘auto-screened’” review.
Assuming arguendo that CODE’s allegations are true, our task “is not to weigh
conflicting evidence and determine who has the better argument” and we “may not set
aside an agency’s approval of an EIR on the ground that an opposite conclusion would
have been equally or more reasonable.” (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
In spite of this, we do note the following: First, the County’s staff related in its
September 13, 2011, addendum report to the Board that the FAA received copies of the
EIR and public hearing notices and were therefore aware of KVA’s presence. Second, in
his study, Morgan disagreed with Long and explained that circularization was
unnecessary because the planned WTG’s did not exceed obstruction standards, affect a
public airport, have a possible Visual Flight Rule effect, or require a change in
aeronautical operations or procedures. (See FAA Order JO 7400.2H, supra, § 6-3-17a;
see also Oakland Heritage Alliance v. City of Oakland, supra, 195 Cal.App.4th at p. 900
[“‘[A] public agency may choose between differing expert opinions.’”].) Finally,
Morgan attested that he contacted the FAA and confirmed that the case was reviewed, not
auto-screened. (See Association of Irritated Residents v. County of Madera, supra, 107
Cal.App.4th at p. 1397 [“When the evidence on an issue conflicts, the decisionmaker is
‘permitted to give more weight to some of the evidence and to favor the opinions and
estimates of some of the experts over the others.’”].)
We conclude that CODE did not meet its burden under the stringent substantial
evidence standard. (See In re Michael G. (2012) 203 Cal. App. 4th 580, 589 [“The
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substantial evidence standard of review is generally considered the most difficult
standard of review to meet, as it should be, because it is not the function of the reviewing
court to determine the facts.”].)
VI. The Board was not required to adopt either CODE’s proffered mitigation
measure or the EIR’s “Environmentally Superior Alternative.”
CODE asserts the Board improperly rejected its proffered mitigation measure:
relocation of WTG’s from the ridgelines and flight paths of aircraft using KVA.22 CODE
also asserts the Board improperly rejected the EIR’s Alternative C, which removed up to
23 WTG’s from the site.
We reject both propositions. “A public agency shall not decide to approve or
carry out a project for which an EIR was prepared unless … [¶] … [¶] … [t]he agency
has … [¶] … [e]liminated or substantially lessened all significant effects on the
environment where feasible ….” (Guidelines, § 15092, subd. (b)(2)(A); accord § 21081,
subd. (a)(1).) Logic dictates that “[i]f adopted mitigation measures will substantially
lessen a significant environmental impact, the agency need not take further steps to
mitigate that impact.” (2 Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act (Cont.Ed.Bar 2d ed. 2013) Project Approval & Findings, § 17.20, p. 816; see,
e.g., A Local & Regional Monitor v. City of Los Angeles, supra, 12 Cal.App.4th at
p. 1810; see also San Franciscans for Reasonable Growth v. City and County of San
Francisco (1989) 209 Cal. App. 3d 1502, 1519 [“[A]gency need not, under CEQA, adopt
every nickel and dime mitigation scheme brought to its attention or proposed in the
project EIR ….”].) Because substantial evidence supported its determination that
MM 4.8-8 was effective, the Board did not have to adopt additional mitigation.
22 CODE also described this mitigation measure as an “alternative.” (See Laurel
Heights I, supra, 47 Cal.3d at p. 403 [“[A]lternatives and mitigation measures have the
same function—diminishing or avoiding adverse environmental effects…. [A]lternatives
are a type of mitigation.”].)
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With regard to Alternative C, the case law is more definitive: “CEQA does not
require the lead agency to choose the environmentally best alternative identified in an
EIR if … through the imposition of feasible mitigation measures identified in the report
the environmental damage from a project can be reduced to an acceptable level ….”
(Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692, 731; accord
Laurel Heights I, supra, 47 Cal.3d at p. 402; see Mira Mar Mobile Community v. City of
Oceanside (2004) 119 Cal. App. 4th 477, 490; Rio Vista Farm Bureau Center v. County of
Solano (1992) 5 Cal. App. 4th 351, 379 [CEQA does not require an agency to consider
feasibility of proposed alternatives once it determined that mitigation measures avoided
or substantially lessened that impact].)
DISPOSITION
The judgment of the superior court is affirmed. Costs on appeal are awarded to
respondents and real parties in interest.
The motion filed by CODE for judicial notice is denied. The request filed by
North Sky River for judicial notice is granted. The request by Jawbone and Philip
Rudnick to be dismissed from this appeal is denied.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
FRANSON, J.
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