Pollution v. City of San Jose
| Decision Date | 06 June 2014 |
| Docket Number | H038781 |
| Citation | 173 Cal.Rptr.3d 794,227 Cal.App.4th 788 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITIZENS AGAINST AIRPORT POLLUTION, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Respondents. |
Susan Brandt–Hawley, Brandt–Hawley Law Group, Glen Ellen, for Appellant Citizens Against Airport Pollution.
Margo Laskowska, Nora Frimann, Office of the City Attorney, San Jose, for Respondents City of San Jose et al.
This CEQA1 case arises from the eighth addendum to the 1997 environmental impact report for respondent City of San Jose's international airport master plan (Airport Master Plan). The eighth addendum concerns the environmental impacts of recent amendments made by the City of San Jose (City) to the Airport Master Plan, which include changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.
Appellant Citizens Against Airport Pollution (CAAP) contends that the trial court erred in denying its petition for writ of mandamus challenging City's approval of the eighth addendum. CAAP argues that the amendments to the Airport Master Plan that are addressed in the eighth addendum constitute a new project as a matter of law, and therefore an environmental impact report (EIR) addendum is barred under CEQA. Alternatively, CAAP contends that an EIR addendum cannot be used to analyze the environmental impacts of the project changes included in the amendments, since those changes are substantial and require major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and the burrowing owl habitat.
For reasons that we will explain, we will affirm the judgment without reaching City's claim that CAAP failed to exhaust its administrative remedies.
In 1988, City began preparation of an update to the 1980 Airport Master Plan for the San Jose international airport in order to accommodate projected growth in passenger and air cargo traffic through a planning horizon year of 2010. In 1995, City issued a notice of preparation of an EIR for the proposed Airport Master Plan update.
The final EIR (FEIR) for the updated Airport Master Plan was approved in 1997. A supplemental EIR (SEIR) was certified in 2003. From 1997 through 2010, eight EIR addenda that addressed the environmental impacts of amendments to the Airport Master Plan were approved. At issue in the present appeal is the eighth addendum.
The eighth addendum to the Airport Master Plan EIR concerns amendments that change the Airport Master Plan by shifting the planning horizon year to 2027 and modifying certain master plan projects for air cargo and general aviation facilities. One reason for the amendments is that the level of air passenger activity that was projected to be reached by the year 2017 is now projected to be reached in 2027, due to a recent decrease in the annual number of passengers. Another reason for the amendments is that the current projections show that the volume of air cargo and the demand for general aviation will be less than originally projected.
Due to these changes in demand forecasts, City proposed amending the Airport Master Plan with the following modifications: (1) changes in the size and location of future air cargo facilities; (2) replacement of previously planned future air cargo facilities with 44 acres of general aviation facilities, in order to accommodate the forecast that large corporate jets will comprise the majority of general aviation; and (3) modification of Taxiway H and Taxiway K by adding new segments to provide better access for corporate jets.
The eighth addendum states that the proposed modifications The City Council approved the eighth addendum in June 2010.
In July 2010 CAAP filed a petition for writ of mandamus challenging City's approval of the eighth addendum. CAAP is an unincorporated association whose members include residents and property owners in San Jose.
In its petition, CAAP argued that City violated CEQA by approving a major amendment to the Airport Master Plan without preparing a supplemental or subsequent EIR. According to CAAP, the eighth addendum failed to adequately assess or analyze the impacts of the taxiway modifications and the construction of general aviation facilities on noise, air pollution, and the burrowing owl habitat. Additionally, CAAP argued that the eighth addendum failed to comply with newly adopted rules mandating review of project impacts on greenhouse gases and climate change.
In its opening brief in support of the petition, CAAP further argued that it was not required to exhaust administrative remedies since there had been no public comment period or noticed public hearing on the eighth addendum. Alternatively, CAAP contended that it had exhausted its administrative remedies by objecting to the eighth addendum in a letter to the City Council and during an informal meeting with airport staff.
CAAP also argued that the eighth addendum violated CEQA because the proposed major amendments to the Airport Master Plan constituted a new project that required preparation of a new environmental document with a public comment period and a noticed public hearing. Alternatively, CAAP asserted that the reconfiguration and expansion of general aviation facilities that were proposed in the amendments constituted substantial project changes and/or changed circumstances, which required a SEIR to assess significant unstudied environmental impacts on noise, greenhouse gas emissions, toxic air contaminants, and the burrowing owl habitat.
The trial court's order denying CAAP's petition for writ of mandamus was filed on August 2, 2012. At the outset, the court rejected City's contention that CAAP had failed to exhaust its administrative remedies. Although the court recognized that exhaustion of administrative remedies is a jurisdictional prerequisite to a CEQA action, the court found that CAAP was excused because there had been no public notice that "a CEQA determination or a CEQA document would be forthcoming or was contemplated."
However, the trial court found no merit in CAAP's CEQA challenge to City's approval of the eighth addendum. Relying primarily on this court's decision in Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689 , 7 Cal.Rptr.3d 868 ( Santa Teresa ), the trial court found that there was substantial evidence to support City's decision that an EIR addendum, rather than a SEIR, was appropriate under CEQA because (1) the noise analysis attached to the eighth addendum showed that noise impacts from the proposed airport modifications would be less than the impacts that were disclosed in the 1997 FEIR and the 2003 SEIR; (2) the effects of greenhouse gases do not constitute new information that could not have been known at the time the 1997 FEIR was certified as complete; (3) the proposed airport modifications would not increase air pollution, since the projections showed that air cargo and general aviation traffic would be less than was originally projected, with a corresponding decrease in associated ground vehicle traffic; and (4) the biological survey attached to the eighth addendum stated that any burrowing owl habitat loss caused by the construction of the taxiway improvements could be mitigated, and therefore the severity of the previously identified impact on the burrowing owls would not be increased.
CAAP filed a timely notice of appeal from the trial court's order. We treat an order denying a petition for writ of mandamus under CEQA as an appealable final judgment. ( Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 831–832 , 29 Cal.Rptr.2d 492.)
The issues raised by CAAP on appeal include the following: (1) the trial court erred in denying its writ petition because the amendments to the Airport Master Plan addressed in the eighth addendum constitute a new project as a matter of law, and therefore CEQA bars the use of an addendum, and (2) alternatively, the trial court erred in denying its writ petition because the amendments to the Airport Master Plan addressed in the eighth addendum constitute substantial project changes that under CEQA require major EIR revisions with respect to noise, greenhouse gas emissions, toxic air contaminants, and the burrowing owl habitat. City contends that we need not reach the issues raised by CAAP on appeal since the CEQA challenge is precluded due to CAAP's failure to exhaust its administrative remedies.
We will begin our analysis with a brief overview of CEQA, the rules that apply to an EIR addendum, and the applicable standard of review.
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