Opinion
In this сase, we consider whether an airport land use commission conducted sufficient environmental review pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) when it adopted a land use compatibility plan that embraces existing restrictions on residential housing development for a large area near an Air Force base. We conclude the commission’s adoption of the plan fell within an exemption from CEQA for projects that have no potential to cause a significant effect on the environment. (See Guidelines for Implementation
BACKGROUND
Solano County Airport Land Use Commission (Commission) was established, pursuant to the State Aeronautics Act (Pub. Util. Code, § 21001 et seq.), for the purposes of ensuring the orderly expansion of airports and promulgating appropriate land use measures in Solano County (id., § 21670, subd. (a)(2)).
The Commission first adopted a land use plan for the Travis Air Force Base area in 1990, amending it in 1994. In 1999, the Commission determined that preparation of a new plan was appropriate owing to “changes in current and reasonably fоreseeable aircraft operations at Travis Air Force Base, as well as development in the surrounding areas.” In 2002, the Commission adopted by resolution the Travis Air Force Base Land Use Compatibility Plan (TALUP) that is the subject of this litigation. The Commission’s resolution stated that “based on advice provided by its legal counsel, the Commission finds that the [TALUP] is not a ‘project’ subject to [CEQA] because it would not cause a direct physical change or a reasonably foreseeable indirect physical change in the environment.”
The TALUP “sets forth land use compatibility policies applicable to future develоpment in the vicinity” of Travis Air Force Base. The policies are designed “to ensure that future land uses in the surrounding area will be compatible with the realistically foreseeable, ultimate potential aircraft activity at the base” and are “intended to be reflected in the general plans and other policy instruments adopted by the entities having jurisdiction over land uses near” the base.
The TALUP also sets forth criteria for determining the compatibility with Travis Air Force Base’s activities and mission of possible future development in several geographic zones. This litigation has centered on the TALUP’s regulation of “Compatibility Zone C,” which the TALUP defines to encompass “locations exposed to potential noise [from the base] in excess of approximately 60 dB CNEL[
The TALUP purports to restrict residential development within Compatibility Zone C to levels currently permitted under existing general plans and zoning regulations. Specifically, the TALUP states that “[n]o amendment of a general plan land use policy or land use map designation and no change of zoning shall be permitted if such amendment or change would allow more dwelling units in the affected area than are allowed under current zoning.”
Five days after adopting the TALUP, the Commission filed with the Clerk of Solano County a “Notice of Exemption,” citing California Cоde of Regulations, title 14, section
Muzzy Ranch Co. (Muzzy Ranch) is a limited partnership holding ownership interests in more than 1,000 acres within the area affected by the TALUP. Following the Commission’s adoption of the TALUP, Muzzy Ranch filed a petition for writ of mandate and complaint for declaratory relief, contending that the adoption of the TALUP violated CEQA. The trial court denied the petition and entered judgment for the Commission. The Court of Appeal reversed, remanding with directions that the trial court issue a writ of mandate ordering the Commission to set aside its adoption of the TALUP. We granted the Commission’s petition for review.
DISCUSSION
In order to “[ejnsure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions” (Pub. Resources Code, § 21001, subd. (d)), CEQA and its implementing
administrative regulations (CEQA Guidelines)
The second tier concerns exemptions from CEQA review. The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. (Pub. Resources Code, § 21080, subd. (b)(1), (2); CEQA Guidelines, §§ 15061, subd. (b)(1), 15260.) In addition, pursuant to the Legislature’s command (see Pub. Resources Code, § 21084, subd. (a)), the CEQA Guidelines list categorical exemptions or “classes of projects” that the resources agency has dеtermined to be exempt per se because they do not have a significant effect on the environment. (CEQA Guidelines, § 15300 et seq.; see § 15061, subd. (b)(2).)
A project that qualifies for neither a statutory nor a categorical exemption may nonetheless be found exempt under what is sometimes called the “commonsense” exemption, which applies “[wjhere it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment” (CEQA Guidelines, § 15061, subd. (b)(3)). (See generally Davidon Homes v. City of San Jose (1997)
If a public agency properly finds that a project is exempt from CEQA, no
CEQA’s third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment. In that event, the agency must ensure that a full environmental impact report is prepared on the proposed project. (CEQA Guidelines, § 15063, subd. (b)(1); see also Pub. Resources Code, §§ 21100, 21151; CEQA Guidelines, § 15080 et seq.)
Muzzy Ranch’s objections to the Commission’s proceedings in this case focus on the first and second tiers of the CEQA process. With respect to the first (jurisdictional) tier, Muzzy Ranch contends that in its resolution adopting the TALUP, the Commission erred in concluding that adopting the TALUP was not subject to CEQA. With respect to the second (exemptions) tier, Muzzy Ranch contends the Commission violated CEQA by failing to examine the potential environmental impacts of its adopting the TALUP before filing its Notice of Exemption claiming the commonsense exemption. (CEQA Guidelines, § 15061, subd. (b)(3).)
Our inquiry into whether the Commission has complied with CEQA extends only to “whether there was a prejudicial abuse of discretion.” (Pub. Resources Code, § 21168.5.) In a CEQA case, as in other mandamus cases, our review of the administrative record for error is the same as the trial court’s; we review the agency’s action, not the trial court’s decision. (County of Amador v. El Dorado County Water Agency (1999)
A. First Tier
Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact. Thus, for CEQA’s purposes, “ ‘[p]roject’ means an activity which may сause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [ft] (a) An activity directly undertaken by any public agency, [ft] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts,
Here, we are concerned only with Public Resources Code section 21065, subdivision (a). That the Commission is a public agency and in adopting the TALUP it engaged in an activity within the meaning of CEQA is undisputed. The question is whether the Commission’s adoption of the TALUP is the sort of activity that may cause a direct physical change or a reasonably foreseeable indirect physical change in the environment (Pub. Resources Code, § 21065) so as to сonstitute a project.
The Commission maintains it is not. The Commission contends that, as a matter of law, it had no duty to consider any displaced development the TALUP might generate by freezing residential densities in Compatibility Zone C, because such displacement is inherently too speculative to be considered a reasonably foreseeable effect of an airport land use compatibility plan. The Commission further argues that because the TALUP merely advises the jurisdictions it affects, it cannot be the legal cause of environmental changes that result if the jurisdictions follow its advice. We disagree on both counts.
1. Displaced development
The population of California is ever increasing. Our Legislature has declared that “[t]he availability of housing is of vital statewide importance, and the early attainment of decent housing and a suitable living environment for every Californian, including farmworkers, is a priority of the highest order.” (Gov. Code, § 65580, subd. (a).) In order to “assure that counties and cities recognize their responsibilities in contributing to the attainment of the state housing goal” (id., § 65581, subd. (a)), the Legislature requires that local jurisdictions in their land use planning “identify adequate sites for housing . . . and . . . make adequate provision for the existing and projected neеds of all economic segments of the community” (id., § 65583), including “the locality’s share of the regional housing need” (id., § 65583, subd. (a)(1)). Thus, no California locality is immune from the legal and practical necessity to expand housing due to increasing population pressures.
Depending on the circumstances, a government agency may reasonably anticipate that its placing a ban on development in one area of a jurisdiction may have the consequence, notwithstanding existing zoning or land use planning, of displacing development to other areas of the jurisdiction. Zoning, as California courts recognize, “is subjеct to change[,] and amendment of a general plan is not a rare occurrence.” (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995)
That further governmental decisions need to be made before a land use
As earlier noted, the definition of project for CEQA purposes is not limited to agency activities that demonstrably will impact the environment. “. . . CEQA does not speak of projects which will have a significant effect, but those which may have such effect.” (No Oil, Inc. v. City of Los Angeles, supra,
2. Nonbinding advice
The Commission repeatedly characterizes the TALUP as containing merely “recommendations,” “requests” or “advice” to the affected jurisdictions. In so doing, the Commission errs. The TALUP speaks in mandatory terms. The TALUP, by its terms, “[djefines the responsibilities of affected jurisdictions to modify their general plans and other policies for consistency with [Commission] policies and to submit certain land use development actions to the [Cоmmission] for review.” It provides that the County of Solano and its affected cities “shall utilize [the TALUP] as the basis for: (a) [mjodifying their respective general plans, zoning ordinances, and other local land use policies to assure that future land use development will be compatible with aircraft operations [and] (b) [m]aking planning decisions regarding specific development proposals involving the lands impacted by aircraft activity.”
Pursuant to the statutory scheme authorizing it, the TALUP carries significant, binding regulatory consequences for local government in Solano County. (See, e.g., Gov. Code, § 65302.3; Pub. Util. Code, § 21676.) Governmеnt Code section 65302.3, subdivision (a) specifies that at all times a county’s or city’s general plan, as well as any applicable specific plans, “shall be consistent” with an airport land use commission’s plan and that every affected county and city must amend its general and specific plans as necessary to keep them consistent with an applicable commission plan (see id., subd. (b)).
As Muzzy Ranch observes, under these statutes an аirport land use compatibility plan can operate like a multijurisdictional general plan to trump the land use planning authority that affected jurisdictions might otherwise exercise through general and specific plans or zoning. The adoption of an airport land use compatibility plan and the amendment of a general plan are analogous to the extent each “embod[ies] fundamental land use decisions that guide the future growth and development of cities and counties” (City of Livermore v. Local Agency Formation Com. (1986)
In sum, the Commission erred in cоncluding that adopting the TALUP was not a project, i.e., was a type of governmental activity not subject to CEQA.
B. Second Tier
Five days after adopting the TALUP, the Commission filed a Notice of Exemption claiming the “commonsense” exemption of the CEQA Guidelines. (CEQA Guidelines, § 15061, subd. (b)(3).) As noted earlier, the commonsense exemption applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. . . .” {Ibid.)
The Commission’s original intention with respect to its Notice of Exemption is unclear. The notice assumes that the Commission’s “Adoption of Travis Air Force Base Land Use Compatibility Plan, March 2002” is a CEQA project, but, as indicated, claims that action is exempt from CEQA. This approach is consistent with the resources agency’s direction that, “[ojnce a lead agency has determined that an activity is a project subject to CEQA, a lead agency shall determine whether the project is exempt from CEQA.” (CEQA Guidelines, § 15061, subd. (a).) But, as seen, the Commission has also argued that its adoption of the TALUP was, as a matter of law, not a project subject to CEQA.
In any event, in connection with its argument its adoption of the TALUP is exеmpt from CEQA, the Commission acknowledges that whether a particular activity qualifies for the commonsense exemption presents an issue of fact, and that the agency invoking the exemption has the burden of demonstrating it applies. (Davidon Homes v. City of San Jose, supra,
When filing its Notice of Exemption, however, the Commission did not cite any evidence. Instead, the Commission’s notice merely invokes section 15061, subdivision (b)(3) of the CEQA Guidelines and states the legal conclusion that “Adoption of an Airport Land Use Plan is not a
Insofar as it failed to consider the record in determining that adopting the TALUP fell within the commonsense exemption, the Commission erred. “[T]he agency’s exemption determination must [rely on] evidence in the record demonstrating that the agency considered possible environmental impacts in reaching its decision.” (Davidon Homes v. City of San Jose, supra,
The Commission, citing a Court of Appeal opinion superseded by ours in Sierra Club v. California Coastal Com. (2005)
In this case, by contrast, no statute (in CEQA or elsewhere) imposes any per se geographical limit on otherwise appropriate CEQA evaluation of a project’s environmental impacts. To the contrary, CEQA broadly defines the relеvant geographical environment as “the area which will be affected by a proposed project.” (Pub. Resources Code, § 21060.5.)
Notwithstanding its errors in this regard, however, the record before us demonstrates that the Commission reached the correct result. Determining
“In addition, it is relevant, although by no means determinative, that future effects will themselves require analysis under CEQA.” (Napa Citizens, supra,91 Cal.App.4th at p. 369 .) And “[t]hat the effects will be felt outside of the project area ... is one of the factors that determines the amount of detail required in any discussion. Less detail, for example, would be required where those effects are more indirect than effects felt within the project area, or where it [would] be difficult to predict them with any accuracy.” (Ibid.\ see also Goleta Union School Dist. v. Regents of University of California (1995)37 Cal.App.4th 1025 , 1032 [44 Cal.Rptr.2d 110 ]; CEQA Guidelines, § 15146, subd. (b).)
Most significantly, the CEQA Guidelines provide for streamlined review of projects that are consistent with existing general plans and zoning. (See CEQA Guidelines, § 15183.)
Considered in light of these principles, the Commission’s adoption of the TALUP falls within the commonsense exemption. (CEQA Guidelines, § 15061, subd. (b)(3).) One objective of the TALUP is to “minimize new residential development within areаs significantly impacted by noise from Travis Air Force Base,” most importantly within Compatibility Zone C, the area immediately surrounding Travis Air Force Base. The record reflects that the TALUP’s provision implementing that objective simply incorporates existing county general plan and zoning provisions concerning the maximum number of permitted dwelling units. The record further reflects that most of the land in the vicinity of the base is in the land use jurisdiction of Solano
Since, as the TALUP points out, “the presently plаnned land uses are, on the whole, compatible with Travis [Air Force Base] operations” and since the TALUP simply incorporates existing general plan and zoning law restrictions on residential housing density, any potential displacement the TALUP might otherwise have effected already has been caused by the existing land use policies and zoning regulations to which the TALUP is keyed. The only possible new effect of the TALUP is to make it more difficult for local agencies to change their policies in the future to permit increased development within Compatibility Zone C. (See Gov. Code, § 65302.3, subd. (a).) But there is no reasоn to assume the agencies will seek to take that step, even in the face of population pressures. The pertinent agencies already have restricted residential development in Compatibility Zone C, to the same extent the TALUP does, because Compatibility Zone C’s location within the noise pattern of an active military base makes it less suitable for new housing than other areas.
In sum, although the Commission erred in failing to reference the factual record in its Notice of Exemption, it was correct in determining that CEQA’s commonsense exemption applied to its adoption of the TALUP. Accordingly, no further environmental review is required.
CONCLUSION
For the foregoing reasons, the judgment of the Court of Appeal is reversed.
George, C. J., Kennard, J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Appellant’s petition for a rehearing was denied September 12, 2007, and the opinion was modified to read as printed above.
Notes
“60 dB CNEL” means 60 decibel community noise equivalent level, which represents the average daytime noise level during a 24-hour day, adjusted to account for the lower tolerance of people to noise during evening and nighttime relative to their daytime tolerance.
The term “CEQA Guidelines” refers to thе regulations for the implementation of CEQA authorized by the Legislature (Pub. Resources Code, § 21083), codified in title 14, section 15000 et seq. of the California Code of Regulations, and “prescribed by the Secretary for Resources to be followed by all state and local agencies in California in the implementation of [CEQA].” (CEQA Guidelines, § 15000.) In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous. (Citizens of Goleta Valley v. Board of Supervisors (1990)
In its entirety, Government Code section 65302.3 provides: “(a) The general plan, and any applicable specific plan prepared pursuant to Article 8 (сommencing with Section 65450), shall be consistent with the plan adopted or amended pursuant to Section 21675 of the Public Utilities Code. [IQ (b) The general plan, and any applicable specific plan, shall be amended, as necessary, within 180 days of any amendment to the plan required under Section 21675 of the Public Utilities Code, [f] (c) If the legislative body does not concur with any provision of the plan required under Section 21675 of the Public Utilities Code, it may satisfy the provisions of this section by adopting findings pursuant to Section 21676 of the Public Utilities Code.”
Section 15378, subdivision (a)(1) of the CEQA Guidelines explains in pertinent part that “project” includes “an activity directly undertaken by a public agency including but not limited to . . . enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof.”
In its entirety, CEQA Guidelines section 15061, subdivision (b)(3) provides: “(b) A project is exempt from CEQA if: [][]... [f] (3) The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”
In its entirety, Public Resources Code section 21060.5 provides: “ ‘Environment’ means the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.”
CEQA Guidelines section 15183 was promulgated on the authority of Public Resources Code section 21083.3, which provides, inter alia, that “[i]f a parcel has been zoned to accommodate a particular density of development or has been designated in a community plan to accommodate a particular density of development and an environmental impact report was certified for that zoning or planning action, the application of this division to the approval of any subdivision map or other project that is consistent with the zoning or community plan shall be limited to effects upon the environment which are peculiar to the parcel or to the project and which were not addressed as significant effects in the prior environmental impact report, or which substantial new information shows will be more significant than described in the prior environmental impact report.” (Pub. Resources Code, § 21083.3, subd. (a).)
Of course, further environmental review may be required should the Commission in the future alter the TALUP to be inconsistent with the Solano County general plan.