The California Supreme Court has ruled that an airport land use compatibility plan qualifies for a "common sense" exemption from the California Environmental Quality Act (CEQA).
Perhaps more importantly, the court opened the door for the first time to the idea that displacement of development--often an arguable consequence of a plan that favors one type of development over another--might be an issue that should be analyzed under CEQA.
Because the Travis Air Force Base Land Use Compatibility Plan (TALUP) merely incorporated existing county and city general plan and zoning policies, it created no new impacts and therefore need not receive environmental scrutiny, the unanimous state high court ruled.
However, the ruling was not exactly straightforward. First, the court found that the Solano County Airport Land Use Commission made a number of errors. The Commission incorrectly concluded the plan was not a "project" for CEQA purposes, the court found. Yet the Commission did file a notice of exemption, even though no such notice is required for non-projects. But the notice claiming a common sense exemption cited no evidence.
Second, the common sense exemption was a subject that had not beendebated in any detail at the trial court and appellate court levels.Neither side mentioned the common sense exemption in briefs for the state Supreme Court, although justices did ask several questions about it during oral arguments (see CP & DR Legal Digest, May 2007).
In addition, the court applied the "substantial evidence test" forthe exemption, even though the CEQA Guidelines and previous cases suggest that an exemption is not appropriate if an argument can be madethat a project may have a significant effect on the environment.
The case could turn out to be significant for a different reason, however. The court made clear that an agency must consider during environmental review the potential for a project to displace developmentto other locations.
"[N]othing inherent in the notion of displaced development places such development, when it can reasonably be anticipated, outside the concern of CEQA," Justice Kathryn Werdegar wrote for the court.
That statement marks the first time that a court has recognized that the unintended consequence of displacing development is a potential CEQA impact, said Richard Jacobs, the attorney for property owners who lost the case.
Development around Travis Air Force Base in Fairfield has long been controversial. Although some adjacent areas are heavily developed, much of the territory around the base is pastureland or open space. Some locals fear that additional urban encroachment would force Travis, the county's largest employer, to close (see CP & DR Elections, December 2003; Local Watch, September 2003). Still, housing pressures are substantial.
In 2002, the Airport Land Use Commission adopted the Travis plan. Under the State Aeronautics Act, city and county general plans must conform with airport land use compatibility plans unless the city or county can make specific findings that the discrepancies are consistent with the act. The TALUP sets forth compatibility factors for six geographic zones. At issue here was "zone C," which covers locations exposed to an average of at least 60 decibels of noise over a 24-hour period (known as the 60 db CNEL standard) or to rare concentrations oflow-level flights. Zone C covers more than 600 square miles of unincorporated Solano County and four cities. The airport plan called for freezing existing general plan and zoning designations for zone C, the majority of which is unincorporated land designated for agriculture.
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