Opposing v. Cnty. of Kern

• Citation: 174 Cal.Rptr.3d 683,228 Cal.App.4th 360
• Decision Date: 30 June 2014
• Docket Number: F067567
• Court: California Court of Appeals
• Parties: CITIZENS OPPOSING A DANGEROUS ENVIRONMENT, Plaintiff and Appellant, v. COUNTY OF KERN et al., Defendants and Respondents; North Sky River Energy, LLC et al., Real Parties in Interest and Respondents; Jawbone Wind Energy, LLC et al., Real Parties in Interest and Respondents.

228 Cal.App.4th 360

174 Cal.Rptr.3d 683

CITIZENS OPPOSING A DANGEROUS ENVIRONMENT, Plaintiff and Appellant,

v. COUNTY OF KERN et al., Defendants and Respondents;North Sky River Energy, LLC et al., Real Parties in Interest and Respondents;Jawbone Wind Energy, LLC et al., Real Parties in Interest and Respondents.

F067567

Court of Appeal, Fifth District, California.

Filed June 30, 2014

Certified for Partial Publication.^*

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 832 et seq.

APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. (Super. Ct. No. CV–275009)

Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.

Theresa A. Goldner, County Counsel, and Charles F. Collins, Deputy County Counsel, for Defendants and Respondents.

SSL Law Firm, Zachary R. Walton, Christine R. Wade, Elizabeth L. Bridges, and Corinne I. Calfee; Drinker Biddle & Reath, George T. Caplan and Kristopher S. Davis for Real Parties in Interest and Respondents North Sky River Energy, LLC and North Sky River Land Holdings, LLC.

Law Offices of Philip Rudnick and Philip R. Rudnick for Real Parties in Interest and Respondents Jawbone Wind Energy, LLC and Philip Rudnick.

OPINION

DETJEN, J.

This is an appeal from an order of the Superior Court of Kern County denying a petition for a writ of mandamus in favor of respondents County of Kern (the County) and Kern County Board of Supervisors (the Board).

Real parties in interest North Sky River Energy, LLC (North Sky River), and Jawbone Wind Energy, LLC (Jawbone),¹ applied for rezoning and a conditional use permit for mobile concrete batch plants in order to build and operate a wind farm in the Tehachapi Wind Resource Area. Pursuant to the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq.) ² and its Guidelines,³ the County conducted an initial study, determined that the project might impose a significant impact on the environment, and prepared a draft environmental impact report (EIR). The draft EIR, inter alia, indicated that the project's wind turbine generators (WTG's) might pose a significant safety hazard to aircraft and gliders using Kelso Valley Airport (KVA), and described Mitigation Measure 4.8–8 (MM 4.8–8) which required North Sky River and Jawbone to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each WTG prior to issuance of building permits. After the County circulated the draft EIR for public review and prepared a final EIR responding to comments, the Board concluded that MM 4.8–8 minimized the WTG's potential adverse effects on aviation safety, certified the final EIR, and approved North Sky River and Jawbone's rezoning and conditional use permit requests.

On October 19, 2011, appellant Citizens Opposing A Dangerous Environment (CODE) ⁴ timely petitioned for a writ of mandamus to set aside EIR certification and project approval on the grounds that MM 4.8–8 was ineffective and respondents failed to comply with CEQA's requirements. ⁵ The superior court tentatively denied the petition on February 19, 2013, affirmed its ruling on April 9, 2013, and signed its order on May 20, 2013. Respondents served and filed a notice of entry of the court's order on May 30, 2013, and CODE filed a notice of appeal on June 18, 2013. ⁶

On appeal, CODE presents the following issues:

“[ (1) ] Whether federal aviation law preempted the County from identifying and imposing feasible alternatives and/or mitigation measures on the Project to avoid or eliminate the Project's admitted potentially hazardous impacts on KVA; [¶] ... [¶] “[ (2) ] Whether the County's responses to CODE's comments on the EIR and the Project complied with CEQA and the Guidelines;

“[ (3) ] Whether substantial evidence in the [administrative record] supports the County's finding that MM 4.8–8 reduces the Project's admitted potentially hazardous aviation impacts on KVA to a level of insignificance;[⁷

“[ (4) ] Whether the County improperly rejected CODE's proffered feasible alternatives and mitigation measures to eliminate the Project's admitted potential impact on aviation at KVA; and

“[ (5) ] Whether substantial evidence in the [administrative record] supports the County's rejection of the EIR's environmentally superior alternative.”

We conclude: (1) as a matter of law, the County's EIR described a legally feasible mitigation measure; (2) as a matter of law, the County was not required to respond to late comments; (3) substantial evidence supported the Board's conclusion that MM 4.8–8 mitigated significant impacts on aviation safety; and (4) the Board was not required to consider either CODE's proffered mitigation measure or the EIR's “environmentally superior alternative.” Therefore, we affirm the superior court's order denying CODE's petition for a writ of mandamus.

FACTUAL HISTORY⁸

North Sky River and Jawbone proposed the construction and operation of a 339–megawatt wind farm, consisting of 116 WTG's, ancillary facilities, and supporting infrastructure, on a 13,535–acre site in the Tehachapi Wind Resource Area.⁹ They requested the rezoning of 2,442 acres from exclusive agriculture districts to wind energy combining districts and a conditional use permit for mobile concrete batch plants.¹⁰ The County conducted an initial study, determined the project might impose a significant environmental impact, prepared a draft EIR, and circulated the document for public review from May 6, 2011, to June 20, 2011. The comment period closed June 20, 2011.

The draft EIR enumerated the following project objectives:

“[North Sky River's] objectives for the project are to:

“1. Make a significant contribution toward achieving the California Renewable Portfolio Standard ... goal that 33 percent of electricity be generated by renewable energy by 2020; “2. Maximize energy production and economic viability by locating the project in an area with optimal wind and solar resources and terrain characteristics;

“3. Optimize the use of underused and undeveloped land within the Tehachapi Wind Resource[ ] Area;

“4. Increase local short-term and long-term employment opportunities;

“5. Reduce greenhouse gas emissions by providing a long-term alternative means of energy to conventional fossil fuels;

“6. Use state-of-the-art WTG technology to achieve increased performance, lower cost, higher reliability, and longer service life; and

“7. Produce electricity without the need for large amounts of water in relation to conventional means (approximately 1/600 as much water per unit of electricity produced compared with nuclear and approximately 1/500 as much as coal).

“[Jawbone's] objectives for the project are to:

“1. Provide an approximately 39–[megawatt] project generating approximately 100,000 [megawatt hours] per year of electricity, in California, through optimization of renewable energy sources;

“2. Supply renewable energy that will help the State of California meet its goals by reducing reliance on energy generated from fossil fuels;

“3. Provide property tax revenues to [the] County;

“4. Assist [the] County in promoting its role as the State's leading renewable energy producer;

“5. Provide green jobs to [the] County and the State of California;

“6. Realize the full potential of the wind resource;

“7. Result in an economically feasible renewable energy project that would be developed through commercially available financing;

“8. Supply clean, safe, renewable energy for approximately 9,000 homes; and “9. Support California's goal of 33 percent renewable energy generation by 2020.”

Concerning the project's potential adverse effects on aviation safety and the mitigation of these effects, the draft EIR detailed:

“Impact 4.8–4: For a Project Within the Vicinity of a Private Airstrip, Would the Project Result in a Safety Hazard for People Residing or Working in the Project Area[?]

“The project could pose a navigation hazard to private aircraft and high performance gliders using nearby private airstrips due to the height of the WTG structures (maximum height of 500 feet above ground surface). The proposed project is located near one unpermitted private airstrip [KVA], which is located 1.2 miles northwest or west of the project site boundary. MM 4.8–8 would ensure that the proposed project complies with all FAA regulations regarding structures located within proximity to airstrips.

“Mitigation Measures[:] [¶] Implement [MM] 4.8–8.

“Level of Significance after Mitigation[:] [¶] Impacts would be less than significant.”

“MM 4.8–8[:] Prior to issuance of building permits, the project proponents shall submit Form 7460–1 (Noti[ce] of Proposed Construction or Alteration) to the [FAA], in the form and manner prescribed in 14 Code of Federal Regulation[s] [part 77.7]. The project proponents shall also provide documentation to the [County's] Planning and Community Development Department demonstrating that the [FAA] has issued a ‘Determination of No Hazard to Air Navigation.’ This documentation shall include: (1) written concurrence from the military authority responsible for operations in the flight area depicted in [the County's] Zoning Ordinance Figure 19.08.160 that all project components would create no significant military mission impacts; (2) a wind turbine generator lighting plan; and (3) a helicopter lift plan demonstrating compliance with all requirements set forth by the [FAA] and [the] County. Documentation shall also be furnished to the [County's] Planning and Community Development Department demonstrating that a copy of the approved form(s) has been provided to the operators of [KVA], California City Municipal Airport, Tehachapi Municipal Airport, Edwards Air Force Base, China Lake Naval Air Weapons Station, and Fort Irwin/National Training Center.”

“The FAA regulates aviation at regional, public, private, and military airports.... The FAA regulates objects affecting navigable airspace and structures...