Bakman v. Department of Transportation

• Decision Date: 12 December 1979
• Citation: 99 Cal.App.3d 665,160 Cal.Rptr. 583
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest J. BAKMAN et al., Plaintiffs and Appellants, v. STATE of California, DEPARTMENT OF TRANSPORTATION, Defendant and Respondent, CITY OF FRESNO, Real Party in Interest and Respondent. Civ. 17946.

Page 583

160 Cal.Rptr. 583

99 Cal.App.3d 665

Ernest J. BAKMAN et al., Plaintiffs and Appellants, v. STATE of California, DEPARTMENT OF TRANSPORTATION, Defendant and Respondent CITY OF FRESNO, Real Party in Interest and Respondent.

Civ. 17946.

Court of Appeal, Third District, California.

Dec. 12, 1979.

Rehearing Denied Jan. 9, 1980.

Hearing Denied Feb. 7, 1980.

Fadem, Berger & Norton, Santa Monica, and Lerrigo, Thuesen, Walters, Fresno, Nibler & Hendrick, William Stocker, Santa Monica, for plaintiffs and appellants.

Richard G. Rypinski, John B. Matheny, Edward J. Connor, Jr., Mark F. Mispagel, Sacramento, for defendant and respondent.

James McKelvey, City Atty., and Hoge, Fenton, Jones & Appel, Inc., H. R. Lloyd, Jr., San Jose, for real party in interest and respondent.

WARREN, Associate Justice. ^*

Bakman et al., Fresno homeowners (homeowners), appeal from the superior court's judgment denying their petition for writ of mandate requesting a new administrative hearing on an amended airport permit granted to Fresno Air Terminal (FAT).

Facts

Fresno (City) began operating FAT in 1948. FAT received a state airport permit in 1949, and also operates under a Federal Aviation Administration (FAA) permit. In 1949 only United and TWA served Fresno. Hughes Airwest began serving Fresno in 1962; PSA replaced TWA in 1972. All three carriers presently serving FAT use DC-8, 727 and 737 jets. Jet operations at the airport were initially itinerant military operations. From 1949 to 1964, certain tenants of FAT serviced military planes and jets, and during that period the commercial carriers' transition to jets involved frequent training flights. The National Guard has flown jets in and out since 1954.

There are two parallel runways at FAT. Commercial carriers land on Runway 29-Right, 11-Left (29R-11L), and general aviation vehicles land on Runway 29-Left, 11-Right (29L-11R). The general aviation runway is 2,967 feet long and 75 feet wide. The commercial runway was originally 7,200 feet in length, but was extended approximately 2,000 feet in 1961, partially to safely accommodate jet traffic. Prevailing winds in the area are northwest-southeast, and 95% Of all takeoffs and landings are conducted toward the northwest.

A federal commission report in the early 1950's recommended that a clear zone a length of one-half mile by a width of 1,000 feet be purchased at the end of each runway. In 1969 the City executed a grant agreement with the FAA for taxiway construction and lighting. As a condition of the grant, the City agreed to purchase all property within the clear zone to Runway 29R-11L before June 30, 1974, without federal participation. This included 22 residences in Parcel B which lies some distance away from the end of the runways. The agreement provided that the City would receive federal assistance in the future if it became eligible.

In 1972 the City engaged the firm of Peat, Marwick, Mitchell & Co. (PMM), an airport consulting firm, to prepare a twenty-year master plan for FAT and the Fresno Chandler Downtown Airport. The final plan was contained in nine volumes and covered the six-county area served by FAT. PMM conferred with all users of the airport in order to predict the effects of the proposed improvements over the next 20 years. The resulting master plan recommended that the City purchase several parcels of real estate in the airport area, and that it relocate the general aviation runway.

These recommendations were in accordance with existing FAA recommendations, which included a clear zone with a length of one mile and a width of one-half mile on either end of the runway. Parcel B was partially within the proposed clear zone, Parcel C was 50% Within the approach zone, and Parcel E was 60% Within the approach zone. It was further suggested that Parcel D be acquired to prevent development of an incompatible land use in the vicinity of the airport.

Under then existing FAA air traffic management criteria, the center lines of the two runways had to be 700 feet apart in order to have simultaneous takeoffs and landings. Since the center lines of the runways were 662.5 feet apart at the time of the hearing, the general aviation runway was to be moved 37.5 feet to the southwest. The plan also recommended that it be extended 1,500 feet to the southeast for a total length of approximately 4,800 feet for safety purposes. Aircraft would thus be taking off 1,500 feet farther away from the residences northwest of the airport so as to create less objectionable noise.

In regard to this particular phase of the master plan, namely, the acquisition of property in the clear zone and the relocation and extension of the general aviation runway, the City entered into a planning grant agreement with the FAA in September of 1972.

PMM prepared an environmental impact statement (EIS) as a condition of the grant agreement. The EIS covered the entire twenty-year master plan.

On July 26, 1973, the City adopted the master plan and authorized the hiring of two independent appraisers to estimate the market value of 88 lots and homes in Parcel B which were proposed to be purchased pursuant to the master plan. Between August 1973 and June 1974, the City purchased 32 of those parcels. Between March 1973 and March 1974, it also purchased Parcel E with funds advanced by a flood control district and Parcel E was later leased to the district.

The city council authorized a public hearing for August 28, 1973, on the environmental aspects of the master plan pertaining to the proposed improvements. Public notice of the hearing was given July 29, 1973, 30 days before the hearing.

Three documents were prepared for the hearing: the natural environmental study, the preliminary environmental impact statement, and the community environmental study. The public notice specified where these documents could be reviewed.

After the public hearing, the preliminary impact statement was modified to include letters and comments received as a result of the hearing and it then became the draft environmental impact statement. This statement was subsequently submitted to the Division of Aeronautics, State Department of Transportation (DOT).

By a letter dated July 3, 1974, DOT advised that the report was deficient with respect to coverage of (1) " 'mitigation measures proposed to minimize the impact' " and (2) " 'the growth-inducing impact of the proposed action.' " The California Environmental Quality Act (CEQA) required these two items which were not required under the federal environmental quality act. By a letter dated December 24, 1974, the City Department of Transportation replied, explaining that the various documents which had been submitted, when considered together, satisfied these requirements, and sent a draft environmental impact statement with the letter. At the date of the hearing DOT was considering whether these documents satisfied its objections.

The Fresno Department of Transportation, with the help of the FAA, prepared an environmental impact assessment report with respect to the proposed property acquisition only. It was dated December 1974. Some of the contents were taken from the PMM master plan with the rest having been obtained from various city agencies.

Since some of the properties the City intended to acquire were outside the city limits, the City sought and received on December 30, 1974, the approval of the Fresno County Board of Supervisors for such acquisitions. The Fresno County Airport Land Use Commission adopted the master plan for FAT and Fresno Chandler Downtown Airport as the official plan of the commission.

FAT had received a letter in July of 1973 from DOT informing it that an amended airport permit was needed in regard to certain aspects of the master plan, and the FAA had indicated prior to that date that it also thought an amended permit was needed. The City filed for the permit on April 23, 1974. DOT then sent a letter to the FAA stating it would be inappropriate to allocate funds to the project until an amended permit had been obtained from the Division of Aeronautics. In November of 1974, FAT requested a hearing on the amended permit application because the federal grant money would expire June 30, 1975. In order to get reimbursement for the 22 residential properties in the clear zone portion of Parcel B, FAT had to submit its application to the FAA by March 1, 1975.

A hearing was set on the ground that interested persons had so requested. Appellant homeowners moved to intervene as parties and their motion was granted. However, the homeowners' motions to continue the hearing to a later date were denied. The hearing was held January 13-15, 1975. At the hearing the homeowners requested that conditions be imposed on the amended permit requiring FAT to comply with alleged violations of state law. On February 28, 1975, the hearing officer rendered a proposed decision recommending that the amended permit be granted and DOT adopted that recommendation as its decision.

The homeowners then filed a petition for writ of mandate in the superior court, which was denied on the ground that they had not exhausted their administrative remedies. A hearing before the state Aeronautics Board was subsequently held on August 9, 1976, and the homeowners' request for a new administrative hearing was denied. They filed another petition for a writ of mandate in the superior court on September 8, 1976. This petition was heard and denied on March 7, 1978 and the homeowners appeal from that decision. (Code Civ.Proc., § 1094.5(f).)

On this appeal our review is limited to a determination whether there is any substantial evidence to support the trial court's findings and judgment. (Mueller v. MacBan (1976) 62 Cal.App.3d 258, 273, 132 Cal.Rptr. 222.)

The homeowners contend that DOT's decision is invalid because:

(1) It refused to consider FAT's alleged illegal operations;

(2) It has not prepared an EIR for FAT's permit application...