Sacramento County properly used 1997 conditions as the baseline for the environmental review of an airport project, even though the general aviation airport had been operating and growing without county permits since the early 1970s, the Third District Court of Appeal has ruled.

The court rejected an argument from airport neighbors that conditions in effect in 1970 — the year the California Environmental Quality Act was adopted — should serve as the baseline because the airport had never received environmental scrutiny.

"[The] County followed the required procedures," Justice Connie Callahan wrote for the unanimous three-judge panel. "The initial study represents an objective, good faith effort to comply with CEQA. It describes the existing environmental setting, and the limited impact of the proposed expansion project."

The facts of the case are complicated. An airport has operated at the site of Sunset Skyranch Airport in Elk Grove since 1934. In 1971, Daniel Lang acquired the property, which then consisted of a dirt landing strip, one hangar and four or five airplanes. That same year, the Sacramento County Board of Supervisors approved a conditional use permit for "a private use airstrip and ancillary uses." The use permit was good for two years but was never renewed. A 1972 county general plan amendment designated the site for a public use airport. Also in 1972, the state issued an airport permit for the property, and the permit has been kept active since then.

In 1988, the Airport Land Use Commission of Sacramento, Sutter, Yolo and Yuba Counties (ALUC) adopted the Sunset Skyranch Airport Comprehensive Land Use Plan. The ALUC declared the project exempt from CEQA, a decision no one challenged.

In 1989, the county denied the airport a business license. The following year, the county planning director rejected the airport's application for a certificate of nonconforming use. The county also initiated two zoning enforcement actions to require the airport to get a conditional use permit. Meanwhile, the ALUC amended the comprehensive land use plan in 1992. By that time, the runway had been paved, 71 aircraft were based on the airport (including 22 in hangars) and annual operations were estimated at 30,000 flights and landings. The ALUC adopted a negative declaration because the agency determined the plan amendment would not have a significant effect on the environment. Again, no one contested the negative declaration.

Lang and Sunset Skyranch Pilots Association finally applied to the county for a conditional use permit in October 1997. They said they wanted to secure the long-term right to continue operations, acquire building permits for existing structures, and get permission to build about 24 additional hangars. The county found the project would not have a significant effect on the environment and issued a negative declaration. This time, neighbors Kenneth Fat and Wing Fat challenged the negative declaration during the comment period. They argued the county failed to consider the impact of noise and possible crashes on future residents, and complained that the county did not provide for mitigation. The county Planning Commission and, on appeal, the Board of Supervisors voted for the use permit and the negative declaration.

The Fats filed a lawsuit and won at the Sacramento County Superior Court. Judge James Ford ordered the county not to approve the conditional use permit "until the County conducts a CEQA review that analyzes the environmental impacts resulting from the Airport's past from 1970 to the present." Ford did not rule on any other issues.

The county and the pilots association appealed to the Third District, which reversed the lower court. There is conflicting case law regarding the setting of the baseline for environmental reviews. In Lewis v. Seventeenth Dist. Agricultural Assn., (1985) Cal.App.3d 823, the court set the baseline at a time prior to review of a project. That case involved residents' objections to operation of Ernie Purssell Memorial Speedway at the Nevada County Fairgrounds. The racetrack had been upgraded 12 years earlier without environmental review. The court decided the racetrack was not categorically exempt, as the fairgrounds argued, and the court ordered the fairgrounds to cancel a contact for auto racing until an environmental impact report on the upgrades was completed.

However, the court in Bloom v. McGurk, (1994) 26 Cal.App.4th 1307, took a different approach — one favored by the Third District in the current airport dispute. Bloom involved Integrated Environmental Systems (IES), which transported hazardous waste for years without proper state permits. The Bloom court decided that the baseline for CEQA purposes was the time IES applied to the state for permits, not the time CEQA was enacted.

One of the most recent baseline cases, Riverwatch v. County of San Diego, (1999) 76 Cal.App.4th 1428 (see CP&DR Legal Digest, February 2000), seemed to bolster the Bloom approach. Riverwatch, like the present case, also dealt with prior unpermitted activity. The Riverwatch court ruled that CEQA review was not the proper forum to address the prior activity. Callahan quoted from Riverwatch: "[W]e believe a more prudent method of dealing with alleged prior illegality is to rely in the first instance on direct enforcement by the agencies charged with the responsibility of doing so, and second, to rely on such enforcing agencies to comment in the EIR process on the impact any new project may have on their enforcement activities."

Bloom and Riverwatch supported Sacramento County's decision on the baseline, the court ruled. Further bolstering the county's position was § 15125 subdivision (a) of the CEQA Guidelines, which provides the general rule that "environmental impacts should be examined in light of the environment as it exists when a project is approved."

The area surrounding the airport has remained largely agricultural, the court noted. Plus, the ALUC conducted an environmental review in 1992, and the resulting negative declaration was never challenged, the court added.

The Case:

Fat v. County of Sacramento, No. C037610, 02 C.D.O.S. 3642, 2002 DJDAR 4646. Filed April 2, 2002. Ordered published April 26, 2002.

The Lawyers:

For Fat: John Gabrielli, (530) 753-0869.

For the county: Diane McElhern, county counsel's office, (916) 874-5544.