Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. N05-1469
Jones, P.J.
The Brentwood Rod and Gun Club (hereafter the Club) sought approval from Contra Costa County to build an outdoor firing range on a 39-acre parcel of property located near Byron. After a lengthy review process, the County denied the Club’s request, and certified an environmental impact report (EIR) that concluded a firing range at that location would cause significant negative environmental effects. The Club challenged those decisions by filing a petition for writ of mandate. The trial court denied the petition. The Club now appeals contending (1) the administrative review process was fundamentally unfair, and (2) the county erred when it certified the EIR. We will reject these arguments and affirm.
I. FACTUAL AND PRODCEDURAL BACKGROUND
For many years, the Club operated an outdoor firing range in Brentwood. The primary activities at the Club were trap and skeet shooting; however the Club also had rifle, pistol, and air gun shooting ranges. The Club held tournaments periodically, and it offered marksmanship and safety programs for the Boy Scouts.
The Club’s Brentwood facility was in the path of the planned construction of the State Route 4 bypass and was acquired as part of the property acquisition process for the proposed highway improvement project. The Club then acquired and proposed to build a new facility on a 39-acre parcel of property near Byron. The property is zoned for “heavy agricultural” use. That designation allows other activities after the granting of a land use permit. One such permitted use is “commercial recreational facilities when the principal use is not in a building.” An outdoor firing range would qualify under that definition.
Although the site for the proposed firing range is zoned for agricultural use, the area is already being used for mixed purposes. Ten rural residences are located to the east and southeast of the site. A motorcycle park is located to the west and rock quarry operations are located to the north and southeast of the site. Watershed lands of the Los Vaqueros reservoir are located directly south of the site. Those lands, which are owned and operated by the Contra Costa Water District, include hiking and picnicking areas, as well as sensitive wildlife habitat. The Water District plans to construct a hiking trail about 1, 200 feet west of the proposed firing range.
The Club submitted an application for a land use permit in April 1999. Its proposal included a 1, 600 square feet club house, parking for approximately 50 vehicles, a trap and skeet field along with a trap and skeet houses, and pistol and rifle shooting areas. The new facility would have gated access and a full-time range manager would live on the property.
After additional submissions, the Club’s application was deemed complete in September 1999.
The County retained experts to evaluate the Club’s proposal and its effect on wildlife, the area’s archeology, and local biological resources. Other experts evaluated how lead shot and noise generated by the firing range might affect the surrounding area. The noise consulting firm, Illingworth & Rodkin, test-fired guns at the project site and monitored the resulting noise levels at nearby residences. Based on those reports, county staff prepared an initial study that concluded any negative impacts caused by the project could be mitigated to less-than-significant levels, and recommended that a mitigated negative declaration be adopted.
The East County Regional Planning Commission conducted a public hearing on the Club’s permit application on March 6, 2000. Several neighboring property owners criticized the initial study and raised concerns about the project including the noise it would generate, its effect on local health and safety, and the project’s effect on local property values. The planning commission found those concerns to be not persuasive and voted on March 6, 2000, to approve the land use permit and to adopt a mitigated negative declaration.
Two homeowners’ associations appealed the planning commission’s decision to the Contra Costa County Board of Supervisors through letters to the Community Redevelopment Department, detailing alleged deficiencies. Among other points raised, the associations asserted the initial study failed to address the cumulative impacts of adding a gun club to the existing uses in the area.
The County took several steps in an attempt to alleviate the environmental concerns that had been raised. It hired Kramer One, Inc., an architectural consulting firm with expertise in gun club design, to analyze the Club’s plan. Kramer One proposed additional mitigation measures to address safety concerns. The biological consulting firm that had been hired performed additional studies. Illingworth & Rodkin, the noise consulting firm, conducted further tests and measured noise levels at additional locations. County staff revised the initial study, and the new document was circulated for public comment.
A hearing on the appeals was held on August 7, 2001. The project was opposed by experts who testified it could cause significant impacts that had not been evaluated properly. A professor of forensic science testified that the risk of bullets or shot escaping the proposed range could not be eliminated. An acoustical engineer testified that firearm discharges create “impulse” noise that had not been measured correctly. Some neighbors expressed concern over their safety and were worried they might be struck by stray bullets.
The Board continued the hearing to September 18, 2001, and then again to October 16, 2001, to allow board members time to visit the site and for staff to research the questions that had been raised. At the October 16, 2001 hearing, the Board found that a proposed negative declaration was not appropriate and it ordered staff to begin preparing an EIR for the project.
The County retained a consulting firm, Parsons Infrastructure & Technology Group, Inc. to prepare an EIR. Experts working for Parsons drafted an EIR that evaluated the project and its effect on local safety, noise, hydrology and water quality, hazards and hazardous materials, biological resources, soils and geology, and land use. A notice of completion of the draft EIR was filed on December 23, 2002, and a public comment period was held open until February 20, 2003.
After the draft EIR was completed, a field survey performed in March 2003 identified larval California tiger salamander, a “species of special concern” under California Law, on the project site. A draft EIR with a revised biological section was prepared and recirculated. A notice of completion of the recirculated EIR was filed on August 25, 2004.
After public comment, the final EIR was completed in October 2004. It identified measures that would mitigate most of the adverse effects of the project to a less-than-significant level. However the EIR also concluded that gunfire associated with the project would result in significant and unavoidable adverse noise impacts on the surrounding properties.
A resumed hearing on the appeals of the planning commission’s March 2000 decision to issue a land use permit was scheduled for April 26, 2005. The staff report for that hearing recommended that the Board of Supervisors certify the EIR as adequate, and that it sustain the planning commission’s decision to approve the use permit. The Board rejected that recommendation. It unanimously declared its intent to deny the Club’s application for a land use permit. The Board directed staff to prepare new findings for a formal hearing on May 24, 2005.
The May 24, 2005 date was not convenient for the Club. It requested a continuance. The Board accommodated the Club’s request and it continued the hearing to July 12, 2005.
Sometime thereafter, the Club obtained new legal counsel who, on June 24, 2005, asked the Board of Supervisors to continue the July 12, 2005 hearing for an additional 60 to 90 days. Counsel also asked that he be given 15 to 20 minutes to give a PowerPoint presentation. Staff told counsel it was unlikely the Board would continue the hearing, but counsel was granted five minutes, (slightly more than the 3 minutes normally allotted) to present whatever arguments he might have.
On July 11, 2005, the day before the continued hearing, counsel for the Club delivered a large group of documents to the Board of Supervisors. The documents—a 4 page letter, a 27-page legal memorandum, and 111 pages of supporting letters—attempted to convince the Board that it should grant the Club’s application for a land use permit.
At the hearing on July 12, 2005, the Board denied the Club’s request for a continuance. After hearing presentations from the Club’s counsel and others, the Board unanimously certified the EIR, granted the appeals that had been filed, and denied the Club’s application for a land use permit.
The Club filed a petition for writ of administrative mandate challenging the county’s decision to deny the land use permit and certify the EIR. The trial court declined to issue the writ, ruling the County had proceeded in the manner required by law.
This appeal followed.
II. DISCUSSION
A. Were the Administrative Proceedings Fundamentally Unfair?
The Club contends the trial court should have granted its petition for a writ of mandate because the underlying administrative proceedings were fundamentally unfair.
A trial court may issue a writ of administrative mandamus if an agency has deprived the petitioner of a fair hearing. (Code of Civ. Proc. § 1094.5, subd. (b).) A trial court’s ruling on such a petition is evaluated under a mixed standard of review. To the extent the trial court’s determination was based on disputed facts, we must review the record in the light most favorable to the ruling below and affirm all findings that are supported by substantial evidence. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 87.) We then apply a de novo standard to determine whether, under the facts so found, the hearing in question was fair. (Ibid.)
Here the Club points to several factors that allegedly demonstrate the underlying administrative proceedings were unfair. First, the Club notes that a few months before its application for a land use permit was denied, the County issued a use permit to an adjoining property owner that allowed it to conduct quarrying operations. According to the Club, those operations “would inevitably result in the allegedly-present salamanders being crushed by bulldozers, and their mangled remains being scooped up, dumped into trucks along the allegedly-present [salamander] habitat, and carried off site.” The Club argues this was unfair because while the “quarry operators were presumably . . . killing [salamanders] and destroying and removing sensitive habitat with impunity, the County was devising expensive mitigation measures with which the Club would have had to comply had its permit been granted, including the construction and ongoing maintenance of a [salamander] ‘pool.’ ”
We reject this argument because it is based on the assumption that operations on the adjoining quarry would disturb any salamanders or their sensitive habitat. The Club has not cited any portion of the record that demonstrates this is true and we are aware of none. While we understand the Club’s reasoning, the mere fact that salamander larvae were found on the Club’s property does not prove that they exist on the adjacent quarry property. We decline to find the proceedings were unfair based on what is but speculation.
Next, the Club contends the “Board’s refusal to grant [it] a brief continuance was patently unfair in the context of the six years of delay preceding it.” According to the Club the “notion that, after all [it] had endured and after having overcome all manner of obstacles . . . the Board would decide it just and necessary to bring the hearing to an abrupt halt at the eleventh hour when [it] had—for the first time—moved into the lead, reeks of bad faith and bias.”
We review the Board’s decision under an abuse of discretion standard. (Ring v. Smith (1970) 5 Cal.App.3d 197, 201.) We find no abuse here. At the hearing on April 26, 2005, the Board unanimously declared its intent to deny the Club’s application for a land use permit. The Board directed staff to prepare new findings to support that decision and set a formal hearing on May 24, 2005. However that date was not convenient for the Club. It asked for a continuance. The Board granted the request and continued the hearing to July 12, 2005, for final action. Thereafter the Club obtained new legal counsel who, on June 24, 2005, asked the Board to continue the hearing yet again; this time for 60 to 90 days. The Board denied the second request. Thus while the Board denied the Club’s June 24, 2005 request for a continuance, it did so only after granting the Club’s prior continuance request. We conclude the Board did not abuse its discretion when it denied the Club’s second request for yet another continuance. The proceedings were not unfair on this ground.
Next the Club suggests the proceedings were unfair because it was granted only 5 minutes rather than the 15 minutes it had requested to make its final presentation at the July 12, 2005 hearing. The club has not cited any authority that would suggest this type of limitation is unfair and case law is directly to the contrary. (See e.g. Reed v. California Coastal Zone Conservation Com. (1975) 55 Cal.App.3d 889, 895-896.) Furthermore the record indicates that no club member was denied the opportunity to address the Board even with the time limit that was imposed. We conclude the administrative proceedings were not unfair on this ground.
The Club also argues the proceedings were unfair because the Board failed to consider the documents it submitted “late” in the afternoon the day before the hearing. According to the Club, the Board “could not have and did not review the evidence [it] presented.” First, we question whether the Club validly can advance this argument. To the extent it may have been difficult for the Board to consider those documents, this was because the Club submitted them so late. The general rule is that where a party has, by its conduct, induced the commission of error, it is estopped from asserting that error as a ground for reversal on appeal. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) However we need not base our decision on this ground. We note that counsel’s 31-page letter along with the letters of support, 113 pages in total, were provided to the Board members. While the documents the Club submitted were lengthy, they were not so lengthy that it would have been impossible for Board members to consider them prior to the hearing. Indeed, absent evidence to the contrary, we must presume the Board carried out its duty and reviewed all relevant documentation. (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 330.) We conclude the hearing was not unfair on this ground.
In a related argument, the Club challenges a statement the trial court made in its tentative statement of decision when discussing this issue. The court said it would not have been impossible for the Board to consider all the documents submitted “especially when the subject matter was already very familiar to the Board, in light of the six year history.” The Club contends this statement is not supported by the record because one of the Board members admitted at the July 12, 2005 hearing, that he had only been elected recently and that he was “fairly new.” While the Supervisor in question might have been new, the dispute was not. The record indicates various aspects of the Club’s proposal had been before the Board for many years. Even the newly elected Board member could review and gain the benefit of the lengthy administrative record that had been generated. As we have stated, absent evidence to the contrary, we must presume each Board member carried out his or her duty and reviewed all relevant documentation. (Faulkner v. Cal. Toll Bridge Authority, supra, 40 Cal.2d at p. 330.) We conclude the court’s statement is supported.
Next the Club argues that the number of studies it was required to prepare was “facially unfair.” The Club has not cited any authority that suggests administrative proceedings can be deemed unfair on this ground and, indeed, it has not cited any authority at all on this point. We deem the issue waived. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.) The Club’s argument is also unpersuasive. The Club has not articulated a legal argument on this point. Instead, it asks rhetorically, “How many biologists have to declare the [site] unsuitable habitat for various species of concern before such studies are considered final? How many sound engineers have to attest to suitability of the site and the ability to mitigate noise impacts before those studies are considered final?” The simple answer is: as many studies as are required to address environmental concerns that arise during the administrative review process. For example, while initial studies at the site indicated that no protected species were present, a later field report identified the presence of a California tiger salamander, a “species of special concern.” An additional study to evaluate how the project would affect the salamanders and how they could be protected was entirely warranted. (See e.g. Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1146-1147 [“Where new information is added to an EIR between the close of public comment period and certification, recirculation of the EIR for public comment is required where the new information is ‘significant’ ”].) We conclude the proceedings were not unfair on this ground.
The Club also suggests the proceedings were unfair because the Board failed to take into consideration its long history of service to the community. The Club builds this argument around a single comment that was made in the findings that were drafted by staff to explain the Board’s anticipated rejection of the Club’s request for a land use permit. Specifically, the draft findings state that the Club’s project would be inconsistent with one of the goals set forth in the County’s general plan: “To encourage aesthetically and functionally compatible development which reinforces the physical character and desired images of the County.” The draft findings explain the inconsistency as follows: “The placement of the Project in proximity to numerous rural residence and neighbors, the Los Vaqueros and Kellogg Creek watershed and the Cowell Ranch open space areas is neither aesthetically nor functionally compatible with other existing and approved uses in the area. Nor, given the significant noise impacts of the Project, is the Project a use tending to promote a desirable image for the County as a whole. The County derives no benefit from approval of the Project at the Site, yet public recreational and educational facilities will be adversely affected.” (Italics added.) The Club argues that the “no benefit” comment “speaks volumes about the County’s bias against the Club” given its “50 year history of service to the community.” Whatever weight this argument might have is overcome by the fact that the Board addressed this point at the July 12, 2005 hearing. As the Club acknowledges, the Board agreed the statement in question was unwarranted and it deleted it from its findings. In its place, the Board approved the following statement “The County derives insufficient benefit to overcome [the] adverse effects.” In light of the fact that the Board deleted the very statement upon which the Club bases its argument, we conclude the Club’s argument lacks foundation.
Next, the Club argues that the “public policy” behind the Permit Streamlining Act (PSA) (Gov. Code, § 65920 et seq.) and the California Environmental Quality Law (CEQA) (Pub. Resources Code, § 21000 et seq.) demonstrate that the lengthy administrative proceedings in this case were unfair. We fail to see how the PSA is implicated. Under the PSA an administrative agency must approve or disapprove a project within 180 days from the certification of an EIR. (Gov. Code, § 65950, subd. (a)(1).) Here the Board of Supervisors denied the land use permit on the same day that it certified the EIR.
Unless otherwise indicated, all further section references will be to the Public Resources Code.
The time limits set forth in CEQA, by contrast, are relevant. As a general rule an EIR must be completed within one year, (§ 21151.5, subd. (a)(1)(A), ) and the EIR process here was longer than that. However it is also true that this time limit is directory not mandatory and that the failure to satisfy it does not invalidate an EIR. (Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1440-1441.) Indeed, the Club concedes the EIR is not invalid because of the PSA or CEQA violations it has alleged.
Thus refined, the Club’s argument on this point seems to be more subtle. As we understand it, the Club is arguing that the policy that motivates the time limits set forth in the PSA and CEQA demonstrate that administrative proceedings should be conducted as quickly and efficiently as possible. The Club contends the nearly six year proceedings here were “unfair” when measured against those general policies.
While we agree administrative proceedings should be conducted as quickly and efficiently as possible, it is also true that some delays are inevitable. This case is a good illustration. For example, after the EIR was prepared and circulated, the situation changed. Larval California tiger salamander, a species of special concern, was found on the site. The county had to delay the proceedings so this new information could be evaluated and addressed. The way in which the project was evaluated also contributed to the length of the proceedings. County staff originally recommended the project be approved with a mitigated negative declaration. Only later, after substantial environmental concerns were raised, did the County decide that an EIR was required. Finally, it is also true that the Club itself was responsible for some of the delays. While the Club submitted its application for a use permit in April 1999, its application was not deemed complete until the following September. At another point, the proceedings were delayed because the Club refused to pay for environmental evaluations that were required. Still later, the Club delayed a final determination by asking that a critical hearing be continued. After reviewing the entire record, we conclude the proceedings were not unfair because of delay.
The Club’s final argument on this point is the County violated Civil Code section 3482.1, subdivision (d), when it denied its request for a land use permit. As is relevant, that section states, “A sport shooting range that is in operation and not in violation of existing law at the time of the enactment of an ordinance . . . shall be permitted to continue in operation even if the operation of the sport shooting range at a later date does not conform to a new ordinance . . . if there has been no substantial change in the nature or use of the range.” The Club cannot validly raise this argument because it did not assert it in the court below. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422.) The argument is also unpersuasive. The restrictions set forth in Civil Code section 3482.1, subdivision (d), apply only “if there has been no substantial change in the nature or use of the range.” A change in the location of a shooting range, from one community to another, is clearly a “substantial change in the nature or use of the range.”
B. Did the County Err in Certifying the EIR?
The club contends the trial court should have granted its petition for a writ of mandate because the County erred when it certified the EIR.
While this case was being briefed, the County filed a motion that asked this court to take judicial notice of a chapter from a treatise on noise control. We deferred ruling on the request until the merits of the appeal. Having now considered the request, we deny it. An appellate court can, but is not required to, take judicial notice of material that was not presented to the trial court in the first instance. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) The court declines to take judicial notice of the material the County has identified.
The applicable standard of review is well established. In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. (§ 21168.5.) “ ‘Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.’ ” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197.) “Courts are ‘not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence.’ ” (Ibid.) On appeal, an appellate court must review the administrative record independently; the trial court’s conclusions are not binding. (Ibid.)
Here the Club focuses on the manner in which the EIR evaluated the noise that would be generated by the proposed firing range. The EIR evaluated those noise impacts under two standards. The first was a “time-averaged noise criterion.” In essence, the EIR evaluated whether noise generated by guns fired at the site would exceed the sound levels that normally are deemed acceptable in an agricultural area. The EIR concluded that if all proposed mitigation measures were adopted, the project would not have a significant noise impact when measured by time-averaged noise criterion.
However, the EIR also evaluated the Club’s proposal under a “noise perception” criterion. That standard was applied to take into account the fact that people “tend to react more acutely to firearms noise” because they “perceive firearms use as being dangerous.” This criterion measured noise from the firing range against the existing ambient conditions. If the noise was more than 5 decibels higher than the existing conditions, it was deemed to be significant. The criterion was a “relative criterion” because the allowable noise levels would fluctuate depending on the existing conditions. Measured by that standard, the EIR concluded that the Club’s proposal would have a significant negative effect because gun noise “would exceed the ambient noise conditions by as much as 20 [decibels]. Considering that a 10 [decibel] increase is perceived as a doubling in noise level, a 20 [decibel] increase would be a nuisance to nearby residences and hikers at the Walnut Trail in the Los Vaqueros Watershed.” The EIR concluded the adverse noise impacts were so great that some would be noticeable even when a motocross was being conducted at the nearby property: “The gun noise impacts were also compared to the ambient noise levels during the motocross activities. Motorcycle noise would somewhat mask gun noise and at receptor R1, the motorcycle noise would be louder than gun noise. However, noise from gunfire would still exceed the ambient noise at Receptors R4 and R4A by a minimum of 5 [decibels].”
The EIR then summed up its conclusions as follows: “Given the described use of the facilities and data presented, adverse noise impacts using the [time averaged criterion] would be less than significant. This finding confirms the previous conclusion of the Brentwood Rod and Gun Club Initial Study Noise Assessment by Illingworth & Rodkin, Inc. However, the proposed project also needs to meet the perception criterion requirement due to the nature of the gun noise. Using the perception criterion, significant adverse noise impacts are expected from the use of [the] site by the Brentwood Rod and Gun Club.”
The Club now contends the County’s decision to certify the EIR must be reversed because the noise perception criterion “has no scientific basis, and thus cannot be used to provide ‘substantial evidence’ of a significant noise impact.”
The substantial evidence standard applies to a challenge to the methodology used to study an impact, (Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at p. 1198), and here the sound expert who prepared the noise section of the EIR stated that gun noise should be evaluated using a noise perception criterion. The expert’s statement itself is substantial evidence that supports the application of the standard. (See § 21082.2, subd. (c) [“Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Italics added)]; See also Cal. Code Regs., tit. 14, § 15384, subd. (b).) The noise perception criterion is also supported by the noise report prepared by Illingworth & Rodkin, Inc. That report too noted that people are particularly sensitive to noise from firearms and it proposed a framework to take those unique noise characteristics into account. We conclude there is substantial evidence to support the County’s decision to evaluate gun noise using a noise perception criterion.
The Illingworth report cited several texts to support this statement including the following:
In arguing the noise perception criterion lacked an adequate basis, the Club relies primarily on a letter from a sound expert that it submitted to the Board the day before the July 12, 2005 hearing. The expert said he disagreed with the EIR’s use of a noise perception criterion, and that, to his knowledge, that standard had never been “implemented” in any general plan or noise ordinance, nor had it been “codified” by any legislative body. The expert also stated it was “not appropriate to say that a 5 [decibel] increase, which is considered to be noticeable, represents a significant noise impact. There are many noise sources in nature which are 5 [decibels] or more above the ambient level including crickets, birds, barking dogs, screaming children, [and] high heels on a tile floor.”
The EIR first proposed to evaluate noise from the project using a “noise perception criterion” in December 2002. The Club waited more than two and one half years, to submit a contrary opinion from its sound expert.
First while the Club’s sound expert did disagree with the sound expert who prepared the EIR, disagreements among experts do not make an EIR inadequate. (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391.) Second, the Club’s expert states that the noise perception criterion has never been “implemented” in any general plan or ordinance, or “codified” by any jurisdiction. However the Club has not cited any authority that holds an EIR may only be evaluated under standards that have been formally adopted or codified. Indeed, the Club concedes in its reply brief, that the EIR validly could evaluate its proposal under standards that are not set forth in ordinances or the general plan. Third, the Club’s expert mischaracterized how the noise perception standard was being applied. The EIR does not state that all noises that are 5 decibels above the existing ambient noise levels should be deemed significant. Rather, the EIR states that gun noise that is more than 5 decibels above the existing noise levels should be considered significant to account for the fact that “people perceive firearms use as being dangerous, [and] they tend to react more acutely to firearms noise.” The expert’s comparison to noise from crickets, birds, barking dogs, screaming children, and high heels on a tile floor was not relevant. Finally, the Club’s expert failed to note the EIR’s actual conclusions. The EIR said that gun noise from the proposed firing range would be significant under the noise perception standard because those noises would be as much as 20 decibels above the ambient levels. The 5 decibel standard that was articulated in the EIR would be exceeded greatly.
Next, the Club argues that the noise perception criterion is “an unworkable standard whose consistent application would prohibit all development. No airport could ever be built, no train station could ever be constructed, no baseball park could be permitted, and no highway could be completed.” However in making this argument, the Club repeats the error committed by its expert. The EIR did not state that a noise perception criterion should be applied to all projects including airports, train stations, baseball parks, or highways. The EIR only applied that standard to a project that would generate gun noise, a special type of noise that tends to make people anxious.
Finally, the Club argues that if the noise perception criterion is applied, shooting ranges would never be allowed in Contra Costa County. According to the Club, this would be inconsistent with County ordinances that otherwise permit shooting ranges under certain circumstances. This is simply not true. Even if we were to assume that most shooting ranges would have a significant noise impact under a noise perception criterion, that does not mean that shooting ranges could never be approved. A public agency may approve a project even if it would create significant and unmitigatable impacts on the environment. (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242.)
We conclude the county properly certified the EIR.
III. DISPOSITION
The order denying the petition for a writ of mandate is affirmed.
We concur: Gemello, J., Needham, J.
Buchta, Edmond. A Field Survey on Annoyance Caused by Sounds from Small Firearms, Journal of the Acoustical Society of America, September 1990.
Schomer, Wagner, Benson, Buchta, Hirsch, Krahe. Human and Community Response to Military Sounds: Results from Field-Laboratory Tests of Small Arms, Tract Vehicle, and Blast Sounds, Noise Control Engineering Journal, 1994.
Luz, Raspet, and Schomer. An Analysis of Community Complaints to Noise, Journal of the Acoustical Society of America, 1983.