An airport land use compatibility plan that discourages housing development on thousands of acres is a “project” that requires a review of potential environmental impacts, the First District Court of Appeal has ruled.

The court ruled for a large landowner near Travis Air Force Base in Solano County. Muzzy Ranch Company, which owns 5,000 acres, had challenged the Solano County Airport Land Use Commission's determination that an airport land use compatibility plan was exempt from the California Environmental Quality Act.

The court ruled: “As it is presently unclear how adoption of the TALUP [Travis Air Force Base Land Use Compatibility Plan] will affect the environment, it is undeniable that placing a vast area of land largely off-limits to future residential development will have long-term impacts on the use of land and population distribution in the region. As with adoption or amendment of a general plan, the application of CEQA to adoption of the TALUP 'comports with the policy that the environmental consequences of a proposed activity, whether public or private, be considered at the earliest possible stage.'” The court cited § 15013 of the CEQA Guidelines.

Development around Travis has been controversial for years (see CP&DR, December 2003; CP&DR Local Watch, September 2003). The area is under intense growth pressure, but many people fear that additional development near Travis will force the Air Force to close the base, which is the county's largest employment center.

In June 2002, the Solano County Airport Land Use Commission adopted the Travis compatibility plan, or TALUP. Airport land use commissions are required to adopt compatibility plans, and cities and counties are supposed to make their general plans consistent with the compatibility plans. In June 2002, airport land use commissions were authorized - but not required - to adopt compatibility plans for military airports. Later that year, the Legislature amended the Public Utilities Code to require such plans around military airports.

The 2002 TALUP set forth compatibility factors for six geographic zones. At issue in the litigation was “compatibility zone C,” which covered locations exposed to certain levels of noise and occasional airplane flights below 3,000 feet. Compatibility zone C encompassed hundreds of thousands of acres stretching over 35 miles. The TALUP froze development at the level permitted by existing general plan and zoning regulations. Five days after adopting the compatibility plan, the Airport Land Use Commission filed a “notice of exemption” from CEQA.

Muzzy Ranch sued, alleging that the Commission violated CEQA and used the wrong noise standard. Solano County Superior Court Judge Donald Fretz ruled for the Commission. On appeal, the First District overturned the lower court on CEQA grounds.

Muzzy Ranch argued that the TALUP had the potential for causing indirect environmental impacts by displacing housing development to areas outside of compatibility zone C. The Commission argued that such displacement was too speculative or remote to force an environmental review.

The court ruled that the burden of proof fell on the Commission, not Muzzy Ranch. If legitimate questions are raised about significant impacts, an agency cannot exempt a project from environmental review, the court ruled. The Association of Bay Area Governments, the court pointed out, has projected Solano County to be the fastest growing county in the greater Bay Area.

“[I]t is reasonable for appellant [Muzzy Ranch] to argue that housing construction that would otherwise ultimately occur in that zone will now need to be built elsewhere. … At this first stage in the CEQA review process appellant was only required to present a 'reasonable argument' that adoption of the TALUP has the potential to result in physical changes to the environment,” Justice Linda Gemello wrote for the court. She cited Davidon Homes v. City of San Jose, 54 Cal.App. 4th 106 (see CP&DR Legal Digest, May 1997), in which the court ruled that adoption of a geologic hazards ordinance was not exempt from CEQA.

The First District also rejected the Commission's argument that it could not consider potential housing displacement because the Commission would have to speculate about other agencies' future land use decisions.

“Housing displacement is a physical change that may require discussion in an EIR,” Gemello wrote. “Study by the Commission at subsequent stages of the CEQA review process can provide information about the likelihood and scope of such displacement, but the possibility that the displacement effect will be too speculative to gauge with reasonable accuracy is not a basis for concluding that adoption of the TALUP was not a project.”

The court also shot down the Commission's argument that adoption of the TALUP was not part of a chain of events that could culminate in physical impacts on the environment. “In this case,” Gemello wrote, “adoption of the TALUP is a conclusive step on the part of the Commission, which will foreseeably lead to some displacement of future development to outside the TALUP areas.”

The Case:
Muzzy Ranch Co. v. Solano County Airport Land Use Commission, No. A104955, 05 C.D.O.S. 349, 2005 DJDAR 378. Filed January 5, 2005. Modified February 8, 2005 at 2005 DJDAR 1565.
The Lawyers:
For Muzzy Ranch, Richard C. Jacobs, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, (415) 434-1600.
For the Commission: James Laughlin, deputy county counsel, (707) 421-6140.