Opinion
H041946
05-24-2017
SJJC AVIATION SERVICES, LLC, Plaintiff and Appellant, v. CITY OF SAN JOSE, et al., Defendant and Respondents; SIGNATURE FLIGHT SUPPORT CORPORATION et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. 1-13-CV-246057; 1-13-CV-246405; 1-13-CV-258162; 1-14-CV-258573)
This case concerns the phased development of the Norman Y. Mineta San Jose International Airport (Airport) under the 1997 Airport Master Plan Update (Airport Master Plan) as amended over the years. Before the Airport Master Plan was adopted, an environmental impact report (EIR) analyzing the proposed plan, the San Jose International Airport Master Plan Update EIR (Master Plan EIR), was prepared for the City of San Jose (City). Over the ensuing years, a supplemental EIR (SEIR) and multiple addenda to the Master Plan EIR were prepared and the Airport Master Plan was amended a number of times.
An airport master plan was adopted for the Airport in 1980.
In 2010, the San Jose City Council (City Council) approved a major amendment of the Airport Master Plan, which, among other things, added "Project G-8" to expand general aviation facilities onto the northwest side of the Airport and deleted certain component projects of the plan involving air cargo facilities planned for the northwest side of the airport. In August 2012, the City formally issued a request for proposals for the development and operation of general aviation facilities (RFP). Signature Flight Support Corporation (Signature) responded, proposing to construct and operate a fixed based operation (FBO) to serve general aviation on the west side of the Airport. The lease and operating agreement was awarded to Signature.
In a number of proceedings, SJJC Aviation Services, LLC, (SJJC) challenged actions taken by the City or the City Council (together respondents) approving or facilitating Signature's proposed FBO development. SJJC is appealing from the judgment against it, which denied SJJC's corrected, second amended, and consolidated petition for peremptory writ of mandate and complaint for injunctive and declaratory relief (petition). SJJC had sought to compel respondents to, among other things, (1) set aside the challenged actions; (2) set aside any executed agreement related to Signature's proposed development entered into with Signature or its prospective subtenant, BCH San Jose, LLC (BCH); and (3) prepare an EIR and comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) before taking any future action to approve Signature's proposed facilities. The challenged actions include three resolutions adopted by the City Council (San Jose Res. Nos. 76602, 76605, and 76869), two ordinances (San Jose Ord. Nos. 29281 and 29348), and a resolution of the City's planning commission (Planning Commission) approving a site development permit for construction of Signature's proposed FBO development (San Jose Planning Com. Res. No. 14-006).
The administrative record discloses that the law firm representing SJJC informed the City Council that SJJC operates an existing FBO at the airport under the name Atlantic Aviation. The petition alleged that SJJC was a wholly owned subsidiary of Atlantic Aviation FBO, Inc.
Signature and BCH are the real parties in interest. In 2013 memoranda, the Director of Aviation explained that "Signature propose[d] to construct a full service, world-class fixed base operation in partnership with Blue City Holdings San Jose, LLC . . . , a corporation representing the personal aircraft of the principals at Google, headquartered in Mountain View, CA."
All statutory references are to the Public Resources Code unless otherwise stated.
In this case, the City proceeded under CEQA's subsequent review provisions governing CEQA review where a project already has been subject to initial CEQA review. (See § 21166; Guidelines, §§ 15162-15164.) The City ultimately prepared a tenth addendum to the Master Plan EIR addressing Signature's proposed FBO development, but it did so only after (1) the City Council adopted resolutions unconditionally authorizing the city manager to negotiate and execute a 50-year lease and operating agreement with Signature for the construction and operation of FBO facilities on approximately 29 acres on the Airport's west side and related agreements and (2) the City Council enacted a zoning law increasing the maximum building height on Airport property within the City's jurisdiction, which facilitated Signature's proposed FBO development.
All references to "Guidelines" are to the state regulatory guidelines that implement CEQA and are set forth in the California Code of Regulations, title 14, section 15000 et seq. (See § 21083.) "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous. [Citations.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5 (Vineyard Area Citizens for Responsible Growth).)
SJJC makes multiple claims under CEQA, arguing, among other things, that Signature's proposed FBO development was subject to CEQA's provisions that apply to a new project that has not previously received environmental review, rather than to CEQA's subsequent review provisions, and that a "project-level" EIR should have been prepared and considered before respondents granted any approvals related to Signature's proposed FBO development. SJJC alternatively maintains that, even assuming that no EIR was required to be prepared before respondents granted any approval of the proposed development, the tenth addendum was untimely prepared and substantively inadequate.
SJJC also raises non-CEQA challenges, contending, among other things, that approvals of Signature's proposed FBO development were void ab initio because respondents' approvals were not consistent with the Airport Master Plan and, therefore, those approvals violated the City's local consistency requirement that precluded the undertaking of a capital improvement project at the Airport unless the project was consistent with the plan (San Jose Mun. Code, § 25.04.210). SJJC alleges trial court errors as well.
We conclude that, by not timely preparing and considering an addendum to the Master Plan EIR before the City Council initially decided in April 2013 to award the lease and operating agreement for development of general aviation facilities to Signature as the successful responder to the City's RFP, respondents failed to proceed in a manner required by law and thereby abused their discretion under CEQA. (§ 21168.5.) Consequently, SJJC is entitled to have the City Council's April 2013 resolutions (San Jose Res. Nos. 76602, 76605) set aside.
Although the City's RFP used the term "respondent" to refer to a party that submitted a proposal in response to the RFP, we will use the term "responder" to avoid confussion with the respondents on appeal.
Although the City Council subsequently adopted an ordinance amending the City's zoning ordinance that was necessary to facilitate Signature's proposed development without considering an addendum to the Master Plan EIR, we conclude that no further CEQA relief is warranted. A substantively adequate tenth addendum to the Master Plan EIR was ultimately prepared, and the City Council considered the addendum in connection with (1) its adoption of a fresh resolution authorizing the city manager to execute a ground lease and operating agreement with Signature and a related agreement and (2) its enactment of a superseding ordinance amending the zoning law's height restrictions on Airport property within the City's jurisdiction.
We find no other reversible error. Accordingly, we will direct the trial court to issue a limited writ of mandate, directing respondents to set aside San Jose Resolution Nos. 76602 and 76605. We conclude, however, that it is unnecessary to set aside San Jose Resolution No. 76869, San Jose Ordinance Nos. 29281 and 29348, and San Jose Planning Commission Resolution No. 14-006.
I
CEQA Background
"To ensure that governmental agencies and the public are adequately informed about the environmental impact of public decisions, [CEQA] (Pub. Resources Code, § 2100 et seq.) requires a lead agency (id., § 21067) to prepare an [EIR] before approving a new project that 'may have a significant effect on the environment' (id., § 21151, subd. (a))." (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 943 (Friends of College of San Mateo Gardens).) "Under CEQA, 'approval' of a project is 'the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.' ([Guidelines], § 15352, subd. (a); see Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 128-129.)" (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505-506.)
" 'Project' means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is" an activity subject to CEQA. (Guidelines, § 15378, subd. (a); see § 21065.) "The term 'project' refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term 'project' does not mean each separate governmental approval." (Guidelines, § 15378, subd. (c).)
"Under CEQA and its implementing guidelines, an agency generally conducts an initial study to determine 'if the project may have a significant effect on the environment.' ([Guidelines], § 15063, subd. (a).) If there is substantial evidence that the project may have a significant effect on the environment, then the agency must prepare and certify an EIR before approving the project. (No Oil [Inc. v. City of Lost Angeles (1974)] 13 Cal.3d [68,] 85; see also Pub. Resources Code, §§ 21100 [state agencies], 21151 [local agencies].)" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 945; see §§ 21080, subd. (d), 21082.2, subds. (a), (d).) Stated differently, in terms of a fair argument test, "if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency [must] prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68)." (Guidelines, § 15064, subd. (f)(1).)
"Initial study" generally "means a preliminary analysis prepared by the lead agency to determine whether an EIR or a negative declaration must be prepared or to identify the significant environmental effects to be analyzed in an EIR." (Guidelines, § 15365.)
On the other hand, "[w]hen changes are proposed to a project for which an EIR has already been prepared, the agency must prepare a subsequent or supplemental EIR only if the changes are '[s]ubstantial' and require 'major revisions' of the previous EIR. [Citation.]" (Friends of the College of San Mateo Gardens, supra, 1 Cal.5th at p. 943.) Section 21166 prohibits preparation of an additional EIR "[w]hen an environmental impact report has been prepared for a project . . . unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available." Even new, previously unknown information does not necessarily require a subsequent or supplemental EIR under section 21166 as implemented by the Guidelines.
Under the Guidelines, a lead agency does not prepare a subsequent EIR due to new information unless it determines based on substantial evidence that "[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete . . . , shows any of the following: [¶] (A) The project will have one or more significant effects not discussed in the previous EIR . . . ; [¶] (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; [¶] (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or [¶] (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative." (Guidelines, § 15162, subd. (a)(3).)
In other words, "[o]nce a project has been subject to environmental review and received approval, section 21166 and CEQA Guidelines section 15162 limit the circumstances under which a subsequent or supplemental EIR must be prepared." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 949.) "[S]ection 21166 and CEQA Guidelines section 15162 provide that an agency that proposes changes to a previously approved project must determine whether the changes are '[s]ubstantial' and 'will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.' ([Guidelines], § 15162, subd. (a)(1).) If the proposed changes meet that standard, then a subsequent or supplemental EIR is required." (Id. at p. 950.) But "[w]hen there is a proposal to modify a project originally approved through EIR, no 'major revision' to the initial EIR is required if the initial EIR already adequately addresses any additional environmental effects that may be caused by the proposed modification." (Id. at p. 958.)
Under the Guidelines, a lead agency may choose to prepare a supplement to an EIR rather than a subsequent EIR if "[o]nly minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation." (Guidelines, § 15163, subd. (a)(2).)
The Guidelines require a lead agency to "prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guidelines] [s]ection 15162 calling for preparation of a subsequent EIR have occurred." (Guidelines, § 15164, subd. (a).) The decision-making body of the agency must "consider the addendum with the final EIR . . . prior to making a decision on the project." (Guidelines, § 15164, subd. (d).)
"The provisions of [Guidelines] sections 15162, 15163, and 15164 apply when the project being analyzed is a change to, or further approval for, a project for which an EIR or negative declaration was previously certified or adopted (e.g. a tentative subdivision, conditional use permit). Under case law, the fair argument standard does not apply to determinations of significance pursuant to sections 15162, 15163, and 15164." (Guidelines, § 15064, subd. (f)(7).) Where an agency determines that it may proceed under CEQA's subsequent review provisions and further determines that project changes will not require a subsequent EIR (or a supplemental EIR), a reviewing court determines whether both decisions were supported by substantial evidence. (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at pp. 952-953.) This is a more deferential standard than the standard applied to new projects that have not previously received environmental review.
In contrast, "a reviewing court may not uphold an agency's decision [not to prepare an initial EIR under the fair argument test] 'merely because substantial evidence was presented that the project would not have [a significant environmental] impact. The [reviewing] court's function is to determine whether substantial evidence support[s] the agency's conclusion as to whether the prescribed "fair argument" could be made. If there [is] substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration, because it [can] be "fairly argued" that the project might have a significant environmental impact. Stated another way, if the [reviewing] court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency's action is to be set aside because the agency abused its discretion by failing to proceed "in a manner required by law." ' [Citation.]" (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112 (Berkeley Hillside Preservation).)
Where there is no substantial evidence that a project subject to CEQA may have a significant environmental effect, the agency prepares a negative declaration rather than an EIR. (Guidelines, §§ 15002, subd. (f)(2), 15070, subd. (a), 15371; see § 21064.) Where potentially significant effects have been identified in an initial study but the project is revised so that there is no substantial evidence that the project as revised may have a significant effect on the environment, the agency prepares a mitigated negative declaration. (Guidelines, §§ 15070, subd. (b), 15369.5; see § 21064.5.)
It is noteworthy, however, that "[a]lthough CEQA distinguishes 'subsequent EIRs (§ 21166) from initial EIR's (see § 21151), both types of EIRs are subject to the same general procedural and substantive requirements. (See generally Pub. Resources Code, § 21061 [defining environmental impact report]; see also id., §§ 21100, 21100.1 [information to be included], 21104, 21153 [consultation requirements], 21091-21092 [public notice and comment].)" (Friends of College of San Mateo Gardens, supra, 1 5thCal. at p. 952, fn. 3.)
II
Factual and Procedural Background
As proposed, the Airport Master Plan (referred to as the "project case" in the Master Plan EIR) provided for three phases of facility improvements through the year 2010. It specified approximately 70 component projects to serve, fully or in part, passenger, air cargo, and general aviation demands as projected for the horizon year of 2010. The proposed plan anticipated that the forecast annual air carrier demand and the air cargo demand would be fully accommodated by the year 2010, but general aviation activity would be constrained. The proposed plan provided for expansion of cargo airline facilities in phases two and three of the improvements (projects C-3 and C-6) onto a total of 43 acres on the Airport's west side. The proposed plan specified the square footage of those improvements, but not the specific height of such facilities.
The Master Plan EIR contained an extensive analysis of the potential significant environmental impacts, including noise impacts produced by all aircraft. The proposed Airport Master Plan was expected to accommodate approximately 372,500 annual aircraft operations in 2010. It was anticipated that implementation of the plan would result in significant aircraft-related noise impacts by 2010. Mitigation measures for such aircraft noise impacts were included in the plan, including continued implementation of time-of-day restrictions on aircraft operations (curfew).
In June 1997, the City Council made findings regarding the significant environmental effects of the proposed Airport Master Plan and issued a statement of overriding considerations. It adopted the proposed Airport Master Plan.
A 2003 SEIR updated the noise analysis for the Airport Master Plan with respect to aircraft-generated noise impacts in response to new information. It also considered a proposed amendment to the Airport Master Plan to allow for the construction of an automated people mover between the Airport and a light rail transit station.
Multiple addenda to the Master Plan EIR were prepared. The 2006 sixth addendum considered, among other things, a proposed amendment of the Airport Master Plan to shift its horizon year from 2010 to 2017. It appears that this change to the Airport Master Plan was approved in June 2006.
The eighth addendum to the Master Plan EIR, dated February 10, 2010, considered a proposed major amendment of the Airport Master Plan to shift the horizon year from 2017 to 2027 and modify the air cargo and general aviation facilities due to the decreases in both the projected annual air cargo volume and the projected number of general aviation aircraft based at the Airport in 2027. The eighth addendum specifically considered the deletion of future air cargo facilities planned for the northwest side of the Airport and their replacement with approximately 44 acres of general aviation facilities that would accommodate forecast demand for a general aviation fleet composed mostly of large corporate jet aircraft (Project G-8). It also considered extensions of two taxiways to provide improved access for corporate jets to the expanded general aviation facilities. On June 8, 2010, the City Council approved the proposed amendments to the Airport Master Plan.
In Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 812 (Citizens Against Airport Pollution), this court found "substantial evidence in the administrative record showing that the amendments to the Airport Master Plan that are addressed in the eighth addendum will not result in any new significant impacts on noise, air quality, and the burrowing owl habitat that are substantially different from those described in the 1997 EIR and the 2003 SEIR. [Citations.]" Consequently, we determined that "the amendments (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) [did] not constitute a new project and [did] not require a SEIR under section 21166." (Ibid.)
In 2012, the City's RFP set forth detailed terms and conditions for submitting proposals for the development and operation of facilities to serve general aviation activities at the Airport. The RFP required each responder to "submit with its proposal, a Proposal Bond in the amount of Twenty Five Thousand Dollars ($25,000.00), payable to the 'City of San Jose' in the form of a cashier's or certified bank check or surety bond in substantially the same form as the sample Proposal Bond Form attached as EXHBIT L this RFP." The sample Proposal Bond Form provided that the obligation would be null and void if, after the agreement was presented for signature to the selected responder, that responder timely "enter[ed] into a written Agreement in the prescribed form, in accordance with the proposal and file[d] all documents required to be filed with the City upon execution of the Agreement."
The RFP defined "general aviation" to "mean any aeronautical activity other than commercial passenger, cargo or military aeronautical activities."
The RFP contained an exemplar ground lease and operating agreement as an exhibit. The RFP specified: "By submitting a proposal, each Responde[r] agrees to execute the City's Exemplar Agreement in substantially the form attached to this RFP, as revised to incorporate the pertinent criteria contained in the successful Responde[r]'s submittal." The RFP further stated that "[i]f any language in this RFP conflicts or is inconsistent with the language of the [Exemplar] Agreement, the terms of the Agreement will govern." An admonishment on the exemplar agreement advised: "PROVISIONS IN THIS EXEMPLAR THAT ARE SUBJECT TO THE TERMS OF THE SUCCESSFUL PROPOSAL(S) ARE SET OFF IN [BRACKETS] THROUGHOUT THIS DOCUMENT."
The exemplar agreement contained a compliance-with-law provision stating in part: "Lessee shall, at its sole cost and expense, promptly and faithfully observe and comply with all requirements of all Laws now in force or which may hereafter be in force, pertaining to the Premises and Lessee's operations and activities thereon." It did not contain a provision conditioning approval of Signature's FBO development on CEQA compliance.
The RFP explained the City's Airport Noise Control Program and its Curfew Ordinance, and a copy of the ordinance was attached to it as an exhibit. The RFP stated that it was "the responsibility of each Responde[r] to determine the current specific federal, state and local development requirements, standards and/or restrictions for any proposed facility and use of these sites, including but not limited to building height and setback that fully meet FAA [Federal Aviation Administration] criteria . . . ."
Regarding height limitations, section 27.14 of the exemplar agreement provided: "Lessee, by accepting this Lease expressly agrees for itself, its successors and assigns, that it will not erect nor permit the erection of any structure or object, nor permit the growth of any tree on the Premises to a height above the mean sea level that would exceed Part 77 standards or elevations affecting the Airport navigable airspace. . . . "
The RFP stated that "[a]n Agreement may be awarded to the Responde[r](s) whose proposal most closely satisfies the needs of the City and is deemed to be most advantageous to the City." The RFP specified that the City "reserves the right to reject any and all proposals or portions thereof received in response to this RFP and thereafter reissue the RFP," that it reserved the right to waive any informality or irregularity in any proposal, and that "the City may, for any reason, decide not to award a Lease Agreement as a result of this RFP." In addition, the RFP stated that the agreement "shall not be binding or valid with the City unless and until it is approved by City Council and properly executed by the City and the Responde[r] [to the RFP]." The RFP did not make an award of an agreement conditional upon CEQA compliance or further environmental review.
In response to the City's RFP, Signature submitted its proposal to develop and operate FBO facilities providing general aviation services on 29 acres of Airport land. The FBO complex would be accessed directly from Martin Avenue on the west side of the Airport. The proposal described the facilities in some detail, including potential materials and signage, and it included renderings, site plans, floor plans, and elevations. It indicated that it was targeting LEED Gold certification for this complex. Signature's proposal included a construction budget and a four-phase development schedule.
The tenth addendum explained: "The Leadership in Energy and Environmental Design (LEED) Program was established by the U.S. Green Building City Council to support the development of environmentally responsible and resource-efficient projects. Projects that received LEED certification are typically more energy-efficient and have fewer environmental effects (e.g., emissions) than those projects that simply meet the minimum standards of most building codes."
Signature's proposed facilities included 240,000 square feet of hangar space, an aircraft parking apron (also called a ramp) of at least 18.5 acres, two taxiway connectors, a 10,000-square-foot terminal, a 7,500-square-foot outdoor seating area, a 6,200-square- foot fuel farm, a 3,600-square-foot ground support equipment facility, and parking for approximately 300 cars. The proposed hangar space consisted of six 30,000-square-foot hangars (each with an additional 3,000 square feet of office/shop space) and a 60,000-square-foot hanger designed to accommodate larger jets (with an additional 6,000 of office/shop space) An airside elevation indicated that the largest hangar would have a "55 foot clear height hangar door" while the other hangars would have a "28 foot clear height hangar door."
Signature's proposal stated that the fuel farm would be designed to contain a minimum of 15,000 gallons of Av Gas with one pumping system and four 20,000-gallon Jet A tanks (total storage capacity of 80,000 gallons) with two pumping systems. All tanks would be above ground. The proposal also included two independent spill pads, one for loading of fuel and one for offloading of fuel.
In a February 7, 2013 memorandum to the City Council, the Director of Aviation indicated that City staff would be returning to the City Council in early spring with its recommendation to award a ground lease and operating permit to Signature. A February 5, 2013 memorandum from the director to the Airport Competitiveness Committee (attached to the February 7, 2013 memorandum) was deemed to constitute the City's notice of intended award. The RFP restricted normal business contact between prospective responders to the RFP and City staff, elected officials, or consultants between the RFP's deadline and the completion of the formal protest period that followed the City's issuance of a notice of intended award of an agreement.
The Director of Aviation stated in the February 5, 2013 memorandum that three proposals had been received by the RFP's deadline, but that two of the proposals, including one from Atlantic Aviation (see ante, fn. 2), were determined to be nonresponsive, and a notice of disqualification had been sent to both of those responders on December 19, 2012. The memorandum advised that both of the disqualified responders had appealed.
By resolution adopted April 9, 2013, the City Council found that city staff had properly determined Atlantic Aviation's proposal had been nonresponsive to the RFP, and it denied Atlantic Aviation's appeal. A separate challenge to the RFP process is at issue in another appeal before this court in case SJJC Aviation Services, LLC v. City of San Jose, et al. (H041035).
A March 2013 document, entitled "Determination of Consistency with a Final EIR, as Supplemented and Addended, for the San Jose International Airport Master Plan Update," stated the City's determination under the CEQA Guidelines section 15162 that Signature's proposal would not involve new significant effects beyond those analyzed in the EIR or otherwise trigger the need to prepare a subsequent or supplemental EIR. In a March 18, 2013 memorandum to the City Council, the Director of Aviation recommended delegating authority to "award a ground lease and operating agreement to Signature . . . with a 50 year term."
In a memorandum to the City Council, dated an April 5, 2013 and prepared for the April 9, 2013 council meeting, the Director of Aviation disclosed that an issue had arisen with respect to the addition of a curfew enforcement provision to the lease and operating agreement with Signature. The memorandum explained: "[T]he existing leases with Atlantic Aviation, AvBase and ACM contain additional curfew provisions applicable to the [fixed based operators] and their subtenants requiring a degree of compliance that exceeds the Curfew Ordinance. These additional provisions require compliance with the curfew hours at all times during the term of the lease—even if the Curfew Ordinance is subsequently terminated. In addition, the provisions give the City the right to evict FBO subtenants for any violation of the curfew. These additional curfew provisions were amended into the three existing west side tenant agreements at a time when the curfew was transitioning from a weight-based program to a noise-based program and, at the time, City Council was concerned that the curfew could be invalidated through legal challenge. Since that time, however, the curfew has remained in place and has been steadily enforced through general lease provisions requiring compliance with all applicable laws."
The memorandum pointed out: "All Airport leases include a general provision requiring compliance with all applicable federal, state and local laws. Although this general provision does not specifically refer to the Curfew Ordinance, the Curfew Ordinance is a local law and is therefore covered under the general compliance with law provision. Any violations of the Curfew Ordinance are subject to a $2,500 fine."
The April 5, 2013 memorandum further explained: "[T]he existing FBO leases provide that the provisions requiring [tenant] and subtenant compliance with these additional curfew compliance provisions (compliance with the curfew hours whether or not the Curfew Ordinance is still in effect as well as the authority of the City to evict FBO subtenants for curfew violations) only apply if identical provisions are included in all FBO leases at the Airport. Therefore, the additional curfew provisions in the current FBO leases with Atlantic, AvBase and ACM would continue to be enforceable only if they were included in the proposed lease with Signature. It is important to note that since these additional provisions were added to the FBO leases in 2004, the City has not found it necessary to take action to evict any FBO subtenants for curfew violations."
The April 5, 2013 memorandum indicated that Signature and BCH were unwilling to accept a curfew enforcement provision: "Signature and its major subtenant, [BCH], believe the substantial investment of capital and commitment to the community they are prepared to make should be a consideration in the negotiation of lease terms relating to the additional curfew provisions. As a major contributor to the financing of the Signature project, BCH is concerned that the City would have the ability to evict it from the Airport after a single violation of the curfew. Given BCH's concerns as major financial investor, Signature has indicated that it is not willing to move forward with the proposed development and lease if the lease contains the additional curfew requirements that exceed compliance beyond the Curfew Ordinance."
The award of the ground lease and operating Agreement to Signature (agenda item 6.1) came before the City Council in April 2013. At the April 9, 2013 council meeting, the City Council considered a recommendation that it approve a resolution authorizing the city manager to negotiate and execute a ground lease and operating agreement with Signature for the construction and operation of a FBO on approximately 29 acres at the west side of the Airport for a 50-year term and related agreements. The City's Director of Aviation explained to the City Council that Signature and BCH had objected to a lease containing a curfew provision like the ones contained in the leases of other FBO tenants, but they had no problem with a general compliance-with-law-provision. The Director of Aviation acknowledged that a curfew enforcement provision had been left out of the RFP's exemplar agreement. To allow further discussion of contract language concerning the City's curfew, the City Council authorized the city manager to negotiate the agreements (San Jose Res. No. 76602) (see ante, fn. 16), but it did not give authority to execute them.
City staff specifically recommended that the City Council "adopt a resolution authorizing the City Manager to: [¶] (1) Negotiate and execute a ground lease and operating agreement with Signature Flight Support for the construction and operation of a Fixed Based Operation (FBO) on approximately 29 acres at the west side of the Airport for a fifty (50) year term from the date of execution by the City and with interim construction ground rent commencing upon the date of execution by the City, in the amount of $1,319,084 until the earlier of the twenty-fifth (25th) month from the date of execution by the City or the date a certificate of occupancy is issued for the use and occupancy of the leasehold improvements, and subsequent annual ground rent in the amount of $2,638,168, subject to annual Consumer Price Index increases, and subject to increase by appraisal every five (5) years during the term of the lease;" "(2) Negotiate and execute amendments to the ground lease and operating agreement at any time during the first five (5) years of the term to modify the lease boundaries of the site, and to expand or contract the lease size as necessary to maximize the use of available land on the west side of the Airport for any land included in the scope of the RFP; and [¶] (3) Negotiate and execute a Non-Disturbance, Consent, Estoppel and Subordination Agreement with Signature Flight Support Corporation and BCH San Jose LLC to provide for the continued use and occupancy of approximately nineteen (19) acres of the leasehold by BCH San Jose LLC pursuant to the terms of a new ground lease and operating agreement between the City and BCH San Jose LLC on the same terms and conditions as the ground lease and operating agreement with Signature Flight Support Corporation, in the event that the lease with Signature is rejected in bankruptcy, terminated or otherwise cancelled at any time prior to the end of its fifty (50) year term."
In a memorandum prepared for the April 16, 2013 council meeting, the Director of Aviation explained: "Lease negotiations with Signature Flight Support are ongoing and while Signature has not asked for any material deviations from the provisions included in the exemplar agreement of the RFP, Signature has stated that it will not agree to curfew provisions consistent with those contained in the existing leases with Atlantic Aviation, AvBase and ACM Aviation. The additional curfew provision was not included in the exemplar agreement contained in the RFP, but was subsequently presented to Signature Flight Support in the draft ground lease and operating agreement." The memorandum concluded: "[G]iven Signature's concern and refusal to sign the specific curfew provision, staff recommends the general language currently used in existing airline leases be used in the Signature agreement. This language requires compliance with all laws and staff believes it is sufficient to enforce the curfew ordinance."
On April 16, 2013, the City Council unconditionally authorized the city manager to execute the ground lease and operating agreement and related agreements, without mandating that the ground lease and operating agreement contain a specific curfew provision like those in existing FBO leases (San Jose Res. No. 76605).
In a July 15, 2013 memorandum to the Planning Commission, Joseph Horwedel, the Director of the Department of Planning, Building and Code Enforcement (hereafter Department of Planning), recommended that the Planning Commission recommend to the City Council that it approve an ordinance to amend section 20.85.020 of the San Jose Municipal Code to establish that the maximum allowable building height on the Airport's property within the City's jurisdiction be defined by the Airport's airspace requirements as determined by the FAA. The memorandum explained in part that "[m]ost of the northern half of the Airport property is in the H1-Heavy Industrial Zoning District" and that "[c]urrently, the Zoning Ordinance defines the maximum allowable Building Height for privately-operated development at 50 feet above finished grade for the northern HI-Heavy Industrial zoned half of the Airport property." It stated: "The northwest portion of the Airport along Martin Avenue, currently subject to the zoning height limit of 50 feet, includes sites to be developed for new general aviation facilities under the adopted Airport Master Plan. Because corporate general aviation aircraft can be as large as commercial airline aircraft, there is a need to allow structures, particularly hangar buildings, to be taller than 50 feet in order to accommodate the storage and maintenance of such aircraft."
In a July 25, 2013 memorandum from the Planning Commission, Horwedel advised the City Council that the Planning Commission had voted 5-2 to recommend that the City Council approve an ordinance amending section 20.85.020 of the San Jose Municipal Code to establish that the maximum allowable building height on the Airport's property within the City's jurisdiction be defined by the Airport's airspace requirements as determined by the FAA. The memorandum stated that "[t]he subject ordinance would change the maximum allowable height for privately-operated development on the [Airport] property in the City of San José to be defined by the airspace requirements of the [Airport] as determined by the [FAA] and would make minor clarifying changes to the applicable section of the Zoning Ordinance."
In August 2013, the City Council adopted an ordinance amending its zoning ordinance (San Jose Mun. Code, § 20.85.020) to make the maximum allowable building height on the Airport's property within the jurisdiction of the City the Airport's airspace requirements as determined by the FAA (San Jose Ord. No. 29281).
In October 2013, the City completed its preparation of a tenth addendum to the Master Plan EIR. It analyzed the environmental impacts of Signature's proposed FBO development, which necessarily involved the following actions: (1) the City entering into a long-term ground lease and operating agreement with Signature, (2) the City's amendment of its zoning ordinance to allow for building heights at the Airport up to the maximum allowed by the FAA to accommodate the development, and (3) the City's approval of a site development permit to construct it.
On December 3, 2013, after the tenth addendum had been prepared, the City Council freshly considered a new, proposed resolution (San Jose Res. No. 76869) to authorize the city manager to execute a ground lease and operating agreement with Signature for the construction and operation of an FBO development on approximately 29 acres at the west side of the Airport for a 50-year term from the date of execution by the City and a related agreement. Also in December 2013, the City Council adopted a new, superseding ordinance (San Jose Ord. No. 29348), amending section 20.85.020 of the San Jose Municipal Code to make the maximum allowable building height on the Airport's property within the City's jurisdiction the Airport's airspace requirements as determined by the FAA. (San Jose Mun. Code, § 20.85.020, subd. C.7.) The language of the December 2013 ordinance differed slightly from the language of the ordinance enacted in August 2013.
It appears from the respondents and real parties in interest's appellate appendix that they filed a joint motion to augment the administrative record with the "Ground Lease and Operating Agreement between the City of San Jose and Signature Flight Support Corporation" that was signed on December 11, 2013. But the parties have not cited to any judicial ruling on that motion or to the agreement itself in the administrative record.
On February 12, 2014, the Planning Commission adopted a resolution granting a site development permit to Signature (San Jose Planning Com. Res. No. 14-006).
III
Trial Court's Decision and Judgment
On October 29, 2014, the trial court issued an order rejecting SJJC's petition. In its ruling, the trial court first addressed the parties' requests for judicial notice.
The court granted respondents' request to take judicial notice of two letters from the FAA, one dated June 5, 2014 and the other dated April 15, 2014, even though the letters were "extra-record evidence." It found that the letters "clearly rebut" SJJC's claim that the FAA might find the approved project design unsafe.
The trial court rejected all of SJJC's CEQA challenges. It concluded that the City's RFP could not reasonably be interpreted as a binding commitment by the City under Save Tara v. City of West Hollywood, supra, 45 Cal.4th 116 (Save Tara) and Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150, which applied Save Tara. The trial court found that, since multiple EIR's and addenda had been previously prepared with respect the Airport Master Plan, the City's obligation to prepare a further EIR was expressly limited by section 21166 and Guidelines section 15162, and that the City's determination that no further EIR was required was subject to the substantial evidence standard of review. The trial court concluded that SJJC had failed to meet its burden of showing that the determination was not supported by substantial evidence in the record and that an EIR (rather than an addendum) was required to analyze "the subsequent change to the City's zoning to allow building heights on the project site up to the height already allowed by the FAA . . . ."
In Save Tara, the Supreme Court recognized, with respect to a project not previously reviewed under CEQA, "the general principle that before conducting CEQA review, agencies must not 'take any action' that significantly furthers a project 'in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.' [Citations.]" (Save Tara, supra, 45 Cal.4th at p. 138.) It stated: "In applying this principle to conditional development agreements, courts should look not only to the terms of the agreement but to the surrounding circumstances to determine whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. (See [Guidelines], § 15126.6, subd. (e).) In this analysis, the contract's conditioning of final approval on CEQA compliance is relevant but not determinative." (Id. at p. 139.) It also stated: "A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review." (Id. at p. 132.)
The trial court further concluded that SJJC had failed to show that the amendment to the City's zoning at the Airport to allow greater building height was evidence of piecemeal review. It reasoned: "[W]hen the Notice of Determination was issued on April 17, 2013 Respondents did not realize that any further CEQA documentation would be necessary. . . . While the need for a change in zoning to allow greater building heights became evident during the review of the design for the project, it is not a consequence of the project. The City would have made the zoning change (which it believed had already occurred) whenever it learned it had not already taken place."
As to the adequacy of the tenth addendum, the trial court found that "[e]ach of the analysis categories attacked by [SJJC] (safety, noise, etc.) cite to substantial evidence (usually in the appendices) supporting the conclusion reached" that the proposed development would have no further or greater significant environmental impacts than previously analyzed. It concluded that substantial evidence in the record supported the tenth addendum's conclusion that "Signature's FBO facility will not have any significant impacts on air safety, noise transportation, etc. that were not already adequately analyzed under prior CEQA documents."
The trial court rejected SJJC's non-CEQA arguments as well. It was unconvinced that respondents' failure to conduct environmental review before approving the project violated the City's municipal code (San Jose Mun. Code, § 25.04.330 D.3.) because the eighth addendum was prepared even before the RFP issued and the tenth addendum was prepared "before a contract was awarded." It also rejected SJJC's contention that approval of Signature's proposed development was inconsistent with the Airport Master Plan because its project G-8 involved expanding general aviation facilities to the Airport's northwest side "upon implementation of Projects T-7 and T-8," two parking facilities. The court determined that "implementation" did not "necessarily require total completion" and that SJJC had conceded that work had begun on T-7. The court also concluded that the City's interpretation of the plan "as allowing the phased implementation of [T-8] while general aviation is expanded onto the Project site" was "neither arbitrary nor capricious" and it was not "based on evidence from which no reasonable person could have reached such a conclusion."
San Jose Municipal Code section 25.04.330, subdivision D.3., states: "No contract for the construction of new terminal, west side cargo, or general aviation facilities shall be awarded without additional environmental analysis, if the updated review and information indicate that circumstances have materially changed from the analyses and forecasts provided in the 1997 Airport Master Plan and related environmental analysis."
A judgment in favor of respondents and the real parties in interest was entered on December 23, 2014. SJJC subsequently filed a timely notice of appeal.
IV
Discussion
A. Statute of Limitations
Respondents now suggest that SJJC's CEQA claims are time barred because the 30-day statute of limitation under section 21167, subdivision (e), was triggered, at the latest, when a Notice of Determination (NOD) was filed on June 18, 2010. That NOD related to the City Council's June 8, 2010 resolution (San Jose Res. No. 75399) approving a major amendment to the Airport Master Plan that, among other things, added Project G-8 to the plan.
Section 21167, subdivision (e), provides: "An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152."
" 'Notice of determination' means a brief notice to be filed by a public agency after it approves or determines to carry out a project which is subject to the requirements of CEQA." (Guidelines, § 15373.) "For projects with more than one phase, the lead agency shall file a notice of determination for each phase requiring a discretionary approval." (Guidelines, § 15075, subd. (a).) An agency may use a NOD to trigger a 30-day statute of limitations under section 21167, subdivision (e), for any challenge to the agency's determination that a subsequent activity is within the scope of a program EIR and requires no further environmental review. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 56 (Committee for Green Foothills).)
SJJC contends that respondents waived any statute of limitations defense. While respondents generally asserted in their answer a statute of limitations defense under section 21167, SJJC points out that the joint briefs of respondents and the real parties in interest in the court below did not pursue such statute of limitations defense, and the trial court did not rule on any such defense. We conclude that respondents forfeited any statute of limitation defense by failing to pursue such defense before the trial court and, consequently, that issue was not preserved for review on appeal. (See Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 306; RRLH, Inc. v. Saddleback Valley Unified School Dist. (1990) 222 Cal.App.3d 1602, 1605-1606, fn. 2; Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 745; see also Code Civ. Proc., § 458.)
Respondents nevertheless urge us to affirm the judgment based upon the CEQA statute of limitations, invoking the principle that allows a reviewing court to uphold a trial court's ruling if correct upon any applicable legal theory regardless of the trial court's reasoning. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) "An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: the appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]" (Vineyard Area Citizens for Responsible Growth, supra, 40 Cal.4th at p. 427.)
In any event, we would find the statute of limitations defense meritless. In Committee for Green Foothills, one of the cases cited by respondents, a county board of supervisors authorized the county to enter a trails agreement that had been negotiated with a university, and the county subsequently filed a revised NOD that included both trails at issue in its description of the project. (Committee for Green Foothills, supra, 48 Cal.4th at pp. 40-41.) The trails agreement was "not a project but a subsequent activity encompassed within the Permit EIR and the Trails Master Plan SEIR" previously prepared (id. at p. 46), and the agreement set "guidelines for the future construction and maintenance of certain trails." (Id. at p. 44.) The county had also prepared an SEIR for the S1 trail, but, as to a second trail (the C1 trail), the board found that no CEQA review was then required, implicitly determining that aspect of the agreement did not constitute a new project subject to independent CEQA review. (Id. at pp. 40-41.)
The Supreme Court held in Committee for Green Foothills that "the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice." (Committee for Green Foothills, supra, 48 Cal.4th at p. 39.) Consequently, it concluded that the petition for writ of mandamus challenging the county's approval of the trails agreement, which was filed 171 days after the revised NOD was filed and posted, was time barred under section 21167, subdivision (e). (Id. at pp. 41-42, 52.)
This case is different. SJJC is not challenging the City's action announced in its June 18, 2010 NOD. SJJC is challenging subsequent approvals/actions related to Signature's proposed FBO development, which was not even proposed until late 2012. Therefore, the filing and posting of the June 18, 2010 NOD did not trigger any statute of limitations applicable to the CEQA challenges raised by SJJC in these proceedings. B. Determination to Proceed Under CEQA's Subsequent Review Provisions
SJJC maintains that Signature's proposed development was a new project, which made it subject to the rigorous standards of section 21151 governing CEQA review of new projects. It argues that the proposed development was a project different from, and not essentially the same as, the project described in the Airport Master Plan.
SJJC is "correct that the subsequent review provisions can apply only if the project has been subject to initial review; they can have no application if the agency has proposed a new project that has not previously been subject to review." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 950.) But SJJC incorrectly contends that the issue of whether Signature's proposed FBO development was a new project was a question of law to be independently decided by the courts under de novo review, without deference to the City.
In the recent decision of Friends of College of San Mateo Gardens, the California Supreme Court rejected the suggestion that the courts must independently decide whether a proposal constitutes a new project in the abstract where an agency has proceeded under CEQA's subsequent review provisions. (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 950.) It stated: "[T]o ask whether an agency proposal constitutes a ' "new project" ' in the abstract 'does not provide an objective or useful framework. Drastic changes to a project might be viewed by some as transforming the project to a new project, while others may characterize the same drastic changes in a project as resulting in a dramatically modified project. Such labeling entails no specific guidelines and simply is not helpful to our analysis.' [Citation.]" (Id. at p. 951.)
The Supreme Court clarified that "for purposes of determining whether an agency may proceed under CEQA's subsequent review provisions, the question is not whether an agency's proposed changes render a project new in an abstract sense." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 951.) "Under the statutory scheme, the agency's environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on any abstract characterization of the project as 'new' or 'old.' " (Id. at p. 944.)
The Supreme Court explained: "[CEQA's] subsequent review provisions . . . are . . . designed to ensure that an agency that proposes changes to a previously approved project 'explore[s] environmental impacts not considered in the original environmental document.' [Citation.] This assumes that at least some of the environmental impacts of the modified project were considered in the original environmental document, such that the original document retains some relevance to the ongoing decisionmaking process. A decision to proceed under CEQA's subsequent review provisions must thus necessarily rest on a determination—whether implicit or explicit—that the original environmental document retains some informational value. If the proposed changes render the previous environmental document wholly irrelevant to the decisionmaking process, then it is only logical that the agency start from the beginning under section 21151 by conducting an initial study to determine whether the project may have substantial effects on the environment." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 951.)
The determination whether an agency may proceed under CEQA's subsequent review provisions does not "turn on the identity of the project proponent, the provenance of the drawings, or other matters unrelated to the environmental consequences associated with the project. [Citation.]" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 951.) "Rather, under CEQA, when there is a change in plans, circumstances, or available information after a project has received initial approval, the agency's environmental review obligations 'turn[ ] on the value of the new information to the still pending decisionmaking process.' [Citation.]" (Id. at pp. 951-952, fn. omitted.)
"If the original environmental document retains some informational value despite the proposed changes, then the agency proceeds to decide under CEQA's subsequent review provisions whether project changes will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 952, fn. omitted.) "An agency that proposes project changes thus must determine whether the previous environmental document retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence." (Id. at p. 944.)
"[W]hether an initial environmental document remains relevant despite changed plans or circumstances—like the question whether an initial environmental document requires major revisions due to changed plans or circumstances—is a predominantly factual question. It is thus a question for the agency to answer in the first instance, drawing on its particular expertise. (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 215.) A court's task on review is then to decide whether the agency's determination is supported by substantial evidence; the court's job ' " 'is not to weigh conflicting evidence and determine who has the better argument.' " ' (Ibid.)" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at pp. 952-953.)
"CEQA does not authorize courts to invalidate the agency's action based solely on their own abstract evaluation of whether the agency's proposal is a new project, rather than a modified version of an old one." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at 944.) The determination whether a proposal qualifies as a new project rests with the lead agency, not the reviewing court. (See id. at pp. 952-953.) It is error for a reviewing court to treat "the new project inquiry as a question for the court's independent determination under a de novo standard." (Id. at p. 952.)
In Friends of College of San Mateo Gardens, the California Supreme Court stated: "We expect occasions when a court finds no substantial evidence to support an agency's decision to proceed under CEQA's subsequent review provisions will be rare, and rightly so; 'a court should tread with extraordinary care' before reversing an agency's determination, whether implicit or explicit, that its initial environmental document retains some relevance to the decisionmaking process. [Citation.]" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 953, fn. omitted.) An agency is not required to make an explicit finding that the original environmental document retains at least some degree of relevance. (Id. at p. 953, fn. 4.)
The City's determination of consistency issued in March 2016 reflects a decision to proceed under CEQA's subsequent review provisions. We reject SJJC's argument that the City's determination of consistency was meaningless under CEQA because the term "consistency" is a planning concept. Although the document was entitled "Determination of Consistency with a Final EIR, as Supplemented and Addended, for the San Jose International Airport Master Plan Update," the City was clearly relying on Guidelines section 15162, which implements section 21166. The document clearly indicated the City's determination that the project did not involve new significant effects beyond those analyzed in the Master Plan EIR or "otherwise trigger the need for the preparation of a subsequent or supplemental environmental document."
In this case, SJJC never squarely argues that substantial evidence did not support the City's determination to proceed under CEQA's subsequent review provisions. We are not convinced that the previous Master Plan EIR and associated environmental documents have been rendered wholly irrelevant to respondents' decisions concerning or related to Signature's proposed general aviation facilities.
The Master Plan EIR comprehensively evaluated the potential, large scale environmental impacts of all project components of the plan, including planned facility improvements and projected aircraft operations serving passenger air carriers, air cargo, and general aviation, through the original horizon year of 2010, when those improvements were originally expected to be completed. The eighth addendum to the Master Plan EIR, which addressed, inter alia, the proposed expansion of general aviation facilities on the Airport's northwest side and the proposed shift of the horizon year from 2017 to 2027, concluded that the proposed modifications to the Airport Master Plan would not increase the Airport's capacity or aircraft operations or intensify the potential environmental impacts beyond those that had been previously projected and analyzed.
The administrative record discloses substantial evidence supporting the City's implicit determination that the Master Plan EIR and associated environmental documents retain some relevance to respondents' decision-making process. Accordingly, respondents could properly decide to proceed under CEQA's subsequent review provisions. C. Initial Study Not Required under CEQA's Subsequent Review Provisions
Insofar as SJJC is claiming that the City was required to conduct an initial study to determine the necessity of preparing an EIR before respondents approved Signature's proposed FBO development, we reject the claim. We have found that substantial evidence supported respondents' determination to proceed under CEQA's subsequent review provisions. CEQA does not require an agency to prepare an initial study before deciding whether and how to proceed under the subsequent review provisions. (See Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1256; Friends of College of San Mateo Gardens, supra, 1 Cal.5th at pp. 951, 961; American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 1083; cf. § 21094, subds. (b)(3) [§ 21094 does not apply to "a later project" that the lead agency determines is subject to § 21166]; (c) [where § 21094 applies, an initial study must be prepared].) "Nothing in CEQA requires an agency to perform an initial study before determining whether a subsequent or supplemental EIR may be required" under CEQA's subsequent review provisions. (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1018 (Friends of Davis).)
In Citizens Against Airport Pollution, this court determined that "even assuming, without deciding, that the 1997 EIR for the Airport Master Plan constitutes a program EIR, as [the appellant] argues, we are not persuaded that the proposed changes to the Airport Master Plan that are addressed in the eighth addendum constitute a new project that requires a new EIR." (Citizens Against Airport Pollution, supra, 227 Cal.App.4th at p. 802.) In this case, SJJC cites our decision and argues that the Master Plan EIR is "in effect a 'program EIR.' " Respondents counter that the Airport Master Plan is a project consisting of "an integrated package of improvements to the Airport facilities" and the "Airport development project" has already received environmental review.
The Master Plan EIR recognized that background conditions might change and thereby require further environmental review of later-phase project components of the Airport Master Plan, but it did not purport to defer analysis of them. The Master Plan EIR expressly stated that it was a project EIR and examined "all phases of the project including planning, construction and operation." While we do not find its characterization determinative (see Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1047-1048 ["courts strive to avoid attaching too much significance to titles in ascertaining whether a legally adequate EIR has been prepared for a particular project"]; California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 271, fn. 25), we have found that substantial evidence supports the City's determination to proceed under CEQA's subsequent review provisions. The requirement of an initial study applicable to new projects does not apply.
Insofar as SJJC might be suggesting that an initial study was required under Guidelines section 15153, we also reject that claim. Guidelines section 15153 provides that "the lead agency may use an earlier EIR prepared in connection with an earlier project to apply to a later project, if the circumstances of the projects are essentially the same." (Guidelines, § 15153, subd. (a).) It mandates that, "[w]hen a lead agency proposes to use an EIR from an earlier project as the EIR for a separate, later project," the lead agency must "review the proposed project with an initial study, using incorporation by reference if necessary, to determine" the adequacy of the EIR from the earlier project. (Guidelines, § 15153, subd. (b)(1).) Guidelines section 15153 has no application where, as here, the agency made a decision, supported by substantial evidence, to proceed under CEQA's subsequent review provisions. (See Friends of College of San Mateo Gardens, supra, 1 Cal.5th at pp. 951-953.) D. Deciding whether a Subsequent EIR Must be Prepared
"Once a court determines that substantial evidence supports an agency's decision to proceed under CEQA's subsequent review provisions (see § 21166; CEQA Guidelines, § 15162), the next—and critical—step is to determine whether the agency has properly determined how to comply with its obligations under those provisions." (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 953.) Ordinarily, "where . . . the agency has determined that project changes will not require 'major revisions' to its initial environmental document, such that no subsequent or supplemental EIR is required, the reviewing court must then proceed to ask whether substantial evidence supports that determination." (Ibid.) "[T]he test is whether the record as a whole contains substantial evidence to support a determination that the changes in the project were not so 'substantial' as to require 'major' modifications to the EIR." (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1075, fn. omitted.)
SJJC concedes that its petition primarily challenged respondents' alleged failure to comply with CEQA's legal requirements and procedures rather than their factual determinations. SJJC has never, either in the court below or on appeal, squarely argued that the record lacks substantial evidence to support respondents' determination that preparation of a subsequent EIR was unnecessary and set forth all material evidence relevant to the issue. Consequently, such a substantial evidence challenge was forfeited. (See Citizens For a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 112-113 (Megaplex-Free Alameda); People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882 (Foreman & Clark Corp.).)
Rather, SJJC contends that the trial court erred in placing the burden on it to show a lack of substantial evidence. But the burden of demonstrating a lack of substantial evidence did indeed rest upon SJJC. (See Megaplex-Free Alameda, supra, 149 Cal.App.4th at pp. 112-113; see also Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 206.)
When challenging the sufficiency of the evidence to support a lead agency's decision that no further EIR is required under CEQA's subsequent review provisions, "an appellant must set forth in its brief all the material evidence on the point, not merely its own evidence. [Citation.]" (Megaplex-Free Alameda, supra, 149 Cal.App.4th at pp. 112-113; see Foreman & Clark Corp., supra, 3 Cal.3d at pp. 881-882.) "A failure to do so is deemed a concession that the evidence supports the findings. [Citation.] . . . This failure to present all relevant evidence on the point 'is fatal.' (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) 'A reviewing court will not independently review the record to make up for [an] appellant's failure to carry his burden.' (Ibid.)" (Megaplex-Free Alameda, supra, at p. 113.) E. Preparation and Consideration of an Addendum
Guidelines section 15164 mandates that "[t]he lead agency . . . shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred." (Guidelines, § 15164, subd. (a), italics added.) "The decision-making body shall consider the addendum with the final EIR . . . prior to making a decision on the project." (Guidelines, § 15164, subd. (d), italics added; see Guidelines, § 15356 [defining "decision-making body"].) Guidelines section 15164 provides that "[a] brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162 should be included in an addendum to an EIR, the lead agency's required findings on the project, or elsewhere in the record." (Guidelines, § 15164, subd. (e).)
The tenth addendum to the Master Plan EIR explicitly stated that "[t]his Addendum has been prepared to satisfy the requirements of CEQA Guidelines Sections 15164(a), 15164(d), and 15164(e)." Its express purpose was to address Signature's proposed general aviation facilities and the associated environmental impacts. Those facilities substantially corresponded to Signature's original proposal.
The tenth addendum's description of Signature's proposed development stated that it was addressing the construction of a general aviation FBO on a 30-acre site on the west side of the Airport, which would be accessed from Martin Avenue. The FBO was described as including approximately 240,000 square feet of aircraft hangars, an approximately 10,000-square-foot terminal, an approximately 7,500-square-foot outdoor seating area, a 3,600-square-foot ground service equipment shop, approximately 17 acres of aircraft apron, a fuel farm, an automobile parking area containing approximately 288 parking spaces, and two aircraft taxiway connectors. The hangar space included six hangers, each approximately 30,000 square feet (plus approximately 3,000-square feet of office/shop space), and a seventh 60,000 square-foot hanger (plus approximately 6,000 square feet of office/shop space). The fuel storage facility included four approximately 20,000-gallon tanks for jet fuel, one approximately 15,000-gallon tank for aviation gas, one approximately 560-gallon tank for motor gas (i.e., regular unleaded gasoline used in motor vehicles), and one approximately 560-gallon tank for diesel fuel. The addendum stated that "[t]he Project is being designed to be certified as a 'LEED Gold' facility."
SJJC argues that the tenth addendum to the Master Plan EIR was "too little, too late." In their original brief, respondents assert that the tenth addendum was not untimely, "[b]ecause th[e] project [was] already fully analyzed in earlier environmental documents, the Tenth Addendum [was] over and above what CEQA require[d]" and that "[t]he City took the extraordinary step to one more time perform environmental review of this project, and the Tenth Addendum's analysis reaffirm[ed] earlier disclosures." In their original brief, the real parties in interest insist that the City did not commit to Signature's FBO complex until December 2013, when the ground lease and operating agreement between the City and Signature was executed (see ante, fn. 17), and that "substantial evidence in the record shows the City performed the legally appropriate level of CEQA review both before it approved the RFP Award and before it approved the FBO Complex."
In supplemental briefing, respondents contend that an additional addendum was not required "because the environmental review in place at that time, including the Eighth Addendum, already covered this development." They maintain that the tenth addendum was "above and beyond" what CEQA requires. In their supplemental briefing, the real parties in interest similarly argue that "the award of an RFP [lease and operating agreement] was consistent with and within the scope of the Eighth Addendum."
Any argument that the City Council was not making a decision on Signature's proposed FBO development when it unconditionally delegated authority to the city manager to execute a 50-year lease and operating agreement with Signature and related agreements is disingenuous. The award of the lease and operating agreement to Signature was the culmination of a formal and detailed proposal process involving multiple responders to the City's RFP. The City itself believed that it had approved Signature's proposed FBO development. On April 17, 2013, the City posted and filed a notice of determination that it had awarded a ground lease and operating agreement to Signature for the development and operation of expanded general aviation and corporate aviation facilities. (See ante, fn. 21.)
But the required timing of an addendum is a legal question. (Cf. Save Tara, supra, 45 Cal.4th at pp. 131-132.) As the Supreme Court has stated regarding the timing of EIR preparation, "[t]o accord overly deferential review of agencies' timing decisions could allow agencies to evade CEQA's central commands." (Ibid.)
While the eighth addendum reviewed proposed revisions to the Airport Master Plan that included adding "Project G-8: Expand General Aviation facilities onto northwest side of Airport (44 acres, upon implementation of Projects T-7 and T-8)," and the City Council approved those revisions, the plan amendment provided no specifics beyond that very brief, bare-bones description. CEQA and the implementing Guidelines should be interpreted to serve CEQA's core informational purposes. Even if no subsequent or supplemental EIR was necessary, additions or changes to the Master Plan EIR were necessary to adequately describe Project G-8 of the Airport Master Plan as elaborated in Signature's proposed FBO development and to enable the decision-making body to make a fully informed decision. (See Guidelines, § 15164, subd. (d).)
We conclude that respondents failed to proceed in the manner required by law by delegating unconditional authority to the city manager to negotiate and execute the lease and operating agreement with Signature and the related agreements without first preparing and considering an addendum to the Master Plan EIR. (See § 21168.5; Guidelines, § 15164, subds. (a), (d).) F. August 2013 Amendment of the City's Zoning Law
Signature's proposed FBO development included seven hangars, one of which inferably exceeded a height of 50 feet since it would have a "55 foot clear height hangar door." Apparently, the issue of the City's building height restrictions on the Airport's property within the City's jurisdiction came to light only after the City granted authority to the city manager to execute the lease and operating agreement with Signature and more technical planning began.
SJJC asserts that respondents violated CEQA in August 2013 when it adopted San Jose Ordinance No. 29281, which established the maximum height of Airport structures, without any CEQA review. The administrative record indicates, however, that in adopting that ordinance, the City Council concluded, under Guidelines section 15168, that the proposed zoning amendment was within the scope of the program EIR for its Envision San Jose 2040 General Plan (hereafter 2040 General Plan EIR) and the Master Plan EIR "as supplemented" and "as addended" and that the zoning amendment involved "no new effects" and required "no new mitigation measures."
Guidelines section 15168 provides in part: "Subsequent activities in the program must be examined in the light of the program EIR to determine whether an additional environmental document must be prepared." (Guidelines, § 15168, subd. (c)) "If a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration." (Guidelines, § 15168, subd. (c)(1).) "If the agency finds that pursuant to Section 15162, no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required." (Guidelines, § 15168, subd. (c)(2).)
Without any citations to or discussion of the record, SJJC now asserts that the record does not support the City's claim that the environmental impacts of the ordinance were analyzed in the 2040 General Plan EIR. SJJC also claims, without any citation to the record or judicial decision, that the 2040 General Plan EIR was invalidated. But, due to its wholly inadequate briefing of the matter, SJJC has forfeited those contentions. (See Stanley, supra, 10 Cal.4th at p. 793; Cal. Rules of Court, rule 8.204(A)(1)(B) & (C); cf. South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330-331.)
In response to our request for supplemental briefing, SJJC indicates that it is not asking this court to invalidate San Jose Ordinance No. 29281 because the City relied on the 2040 General Plan EIR in adopting that ordinance. SJJC states: "Since Ordinance No. 29281 was effectively superseded by Ordinance No. 29348 in December 2013, and since the City did not purport to rely on the 2040 General Plan EIR in adopting Ordinance No. 29348, the fact that the City improperly relied upon the subsequently-invalidated 2040 General Plan EIR in adopting Ordinance [No.] 29281 is not particularly relevant at this point . . . ."
SJJC also suggests that the City improperly provided "piecemeal" CEQA review of Signature's proposed FBO development when, in August 2013, months after it approved Signature's proposed FBO development, the City Council adopted a zoning ordinance increasing the permissible height of structures at the Airport. "CEQA contemplates consideration of environmental consequences at the ' " 'earliest possible stage, even though more detailed environmental review may be necessary later.' " [Citation.] The requirements of CEQA cannot be avoided by piecemeal review which results from "chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences." ' (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 370)." (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 503.)
The height of Signature's proposed FBO facilities, including the largest hangar, was an aspect of the proposal approved in April 2013. Our conclusion, that an addendum to the Master Plan EIR should have been prepared and considered before the City Council granted the city manager unconditional authority to execute the lease and operating agreement and related agreements in April 2013, answers SJJC's contention regarding piecemeal review.
Our conclusion is buttressed by the tenth addendum to the Master Plan EIR, which recognized that Signature's proposed development included the construction of seven aircraft hangars, one of which would accommodate larger aircraft, such as a Boeing 767 or 757 or similarly sized aircraft, and would have a height of 86 feet above ground level. The addendum recognized that an amendment of the City's zoning ordinance would "allow for building heights at the Airport up to that allowed by the FAA, which will accommodate the Project." G. Adequacy of Tenth Addendum to 1997 Master Plan EIR
The tenth addendum disclosed that the FAA had found that the seventh hanger would penetrate the Part 77 imaginary surface. It explained that Part 77 of the Federal Aviation Regulations "establishes imaginary surfaces for airports and runways as a means to identify objects that are obstructions to air navigation, including buildings. The imaginary surfaces radiate out several miles from the airport and are defined as a certain altitude above mean sea level (msl)." It reported that, "[i]n a series of letters dated September 10, 2013, the FAA concluded that none of the buildings proposed to be constructed by the Project would be a hazard to air navigation." The addendum indicated that the FAA had found that the seventh hanger would not be a hazard to air navigation based on an assumption that standard red obstruction lighting would be installed on the building, which it further indicated would occur.
1. SJJC's Contentions
SJJC claims that the tenth addendum was substantively inadequate with respect to noise, safety, transportation, air quality, climate change, and biological resources. Respondents and the real parties in interest maintain that the tenth addendum was adequate under CEQA.
We requested supplemental briefing discussing, among other issues, whether SJJC had forfeited its substantive challenges to the tenth addendum except as to its specific claims related to noise. In response, SJJC states that it does not expect this court to address the substantive adequacy of the tenth addendum "aside from the problems with the noise analysis set forth in the prior briefing." We address SJJC's specific contentions related to noise impacts, but SJJC's remaining substantive challenges to the tenth addendum are deemed forfeited because they are not supported by specific argument, citation to the tenth addendum, or citation of legal authority. (See Stanley, supra, 10 Cal.4th at p. 793.)
With respect to the potential noise impact of Signature's proposed development, SJJC asserts that the tenth addendum is defective on three grounds: (1) it used an improper baseline, (2) it failed to analyze the effect of its decision not to require a curfew enforcement provision in Signature's lease, and (3) it failed to address "sleep disturbance impacts." As a threshold matter, we observe that there is no legal requirement that an addendum analyze potential environmental impacts as does an EIR. Rather, the Guidelines merely require a "brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162," "supported by substantial evidence." (Guidelines, § 15164, subd. (e).) This explanation should appear somewhere in the record, and placing such explanation in an addendum is one option available under the Guidelines. (Ibid.) Our review of SJJC's noise impact claims is not intended to suggest that addendums must be as detailed as the tenth addendum.
2. Baseline
Citing Guidelines section 15125, SJJC asserts that the proper "baseline" regarding noise was the existing noise levels without Signature's proposed FBO development and that the tenth addendum should have compared projected noise levels with the development to the existing noise levels without the development. Subdivision (a) of Guidelines section 15125 states in part: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant." Guidelines section 15125 applies to EIR's, not to addenda.
An addendum is prepared only when an agency has determined that no subsequent or supplemental EIR is required. (Guidelines, § 15164, subd. (a); see § 21166; Guidelines, §§ 15162-15163.) That determination means that the agency has determined that the change to the project or the underlying circumstances or the new information will not involve new significant environmental effects or substantially increase the severity of previously identified significant effects. (See Guidelines, § 15162.) Thus, the agency impliedly compares the environmental impacts of the project in the changed situation to the environmental impacts of the original project, using the initial baseline for the comparison.
SJJC has cited no authority establishing that an addendum to an EIR must compare the environmental effects of changes to a project against a new baseline of currently existing conditions. A well-respected CEQA treatise states that "if the project under review merely constitutes a modification of a previously approved project, previously subjected to environmental review, the agency may restrict its review to the incremental effects associated with the modification, compared against the anticipated effects of the previously approved project." (Remy et al., Guide to CEQA [(]California Environmental Quality Act[)] (11th ed. 2007) p. 198; see id at pp. 206-207.)
SJJC claims that the tenth addendum to the Master Plan EIR "erroneously compared the anticipated impacts of this FBO development to speculative noise projections from a 2003 document." (Emphasis omitted.) While it seems to criticize the noise analysis in the 2003 SEIR, SJJC has not demonstrated that respondents had new information regarding potential aircraft noise requiring preparation of a subsequent EIR instead of an addendum. (See ante, fn. 8.)
The tenth addendum discussed the noise impacts of Signature's proposed development, including the noise impacts of additional aircraft operations, during and outside of curfew hours. It concluded that the proposed development "will not result in 1) an increase in noise levels at the Airport beyond that identified in the approved Master Plan, or 2) an increase in the capacity of the Airport beyond that identified in the approved Master Plan" and that it "will not result in any new significant noise impacts and/or noise impacts that are substantially different from those described in the Master Plan EIR or subsequent environmental documents."
SJJC has not demonstrated that the tenth addendum used the wrong baseline.
3. Curfew Enforcement
SJJC argues that the tenth addendum was defective because it failed to address or analyze the effect of the City's decision not to include a specific curfew enforcement provision in Signature's lease, which would have the effect of rendering the curfew enforcement provisions in the leases of current FBO tenants unenforceable. SJJC discounts the effectiveness of (1) the City's airport curfew ordinance, which continues in effect and provides remedies for any violation of curfew hour restrictions (San Jose Mun. Code, § 25.03.100 et seq.), and (2) the lease provision requiring compliance with existing and future law, impliedly including any airport curfew ordinance. SJJC's assumption is that the current statutory fine of $2,500 (San Jose Mun. Code, § 25.03.420) will be inadequate to deter violations of curfew hour restrictions.
We granted respondents' request to take judicial notice of the City's Ordinance 27000, which was adopted by the City Council in October 2003 and added a new Chapter 25.03 to Title 25 of the San Jose Municipal Code concerning the Airport's curfew. (See Evid. Code, §§ 452, subd. (b); 459.) The tenth addendum explained that "in 2003, with FAA approval, the City revised the curfew criteria from one that was weight-based to one that is noise-based" because "the correlation between size [of aircraft] and noise level is no longer accurate."
The San Jose Municipal Code also imposes late charges, interest, and collection costs on curfew violators who fail to timely pay the fine when due. (San Jose Mun. Code, §§ 25.03.480, 25.03.490.)
To begin with, SJJC has not argued or shown that the curfew enforcement lease provisions contained in existing FBO leases were a mitigation measure incorporated into the Airport Master Plan, which, if taken away, might increase the potential environmental effects associated with the plan. In addition, the tenth addendum indicated that even without those lease provisions, no different or greater significant noise impacts were expected as the result of Signature's proposed FBO facilities as compared with the previously analyzed Airport Master Plan.
The tenth addendum explained: "The City adopted a Noise Control Program for [the Airport] in 1984, a key component of which are time-of-day restrictions on certain aircraft operations, commonly referred to as the 'curfew.' The Project does not propose to modify the curfew [ordinance]." (Fn. omitted.) The tenth addendum recognized that some general aviation aircraft based at, or served by, Signature's FBO facilities "may operate during the curfew because they meet the 89-decibel noise criterion" and "the frequency of such operations will likely increase under the Project by virtue of the fact that the Project is intended to serve more of the general aviation demand." The lack of a contract eviction remedy is irrelevant to the noise impacts of those aircraft operations because they comply with the curfew ordinance. (See San Jose Mun. Code, § 25.03.300, subd. B.)
As to the lack of a contract eviction remedy, the tenth addendum stated: "[A]ll aircraft operators and pilots associated with the Project will be mandated to comply with the provisions of the Airport's curfew. The Project's lease does not include an eviction remedy for curfew violations and consequently other [fixed based operators] at the Airport will also no longer [be subject to] an eviction remedy. The City will still enforce its curfew through fines as well as other litigation remedies which it has used in the past. The noise analysis assumed compliance with the noise ordinance and compliance is still assumed as the noise ordinance will contain the same restrictions and will be enforced."
Without any citation to the record, SJJC asserts that the tenth addendum's assumption of general compliance with the curfew ordinance was unfounded. The curfew enforcement provision was apparently added to the FBO leases in 2004 just in case the airport curfew ordinance was invalidated, not because the ordinance had no teeth. The City had never found it necessary to evict any subtenant for curfew violations at the Airport. Further, in the addendum, the City expressed its continuing commitment to enforce the airport curfew ordinance. Thus, sufficient evidence in the administrative record supports a reasonable assumption that the airport curfew ordinance will be enforced even without a specific curfew enforcement provision in Signature's lease.
The tenth addendum adequately addressed the absence of a specific curfew enforcement provision in Signature's lease.
4. Sleep Disturbance Impacts
SJJC lastly contends that the tenth addendum was flawed because it failed to address sleep disturbances that will result from Signature's proposed FBO facilities. It argues that the City "irrationally concluded" that aircraft flights during curfew "would not result in a significant noise impact, because it compared noise levels with the Project to demonstrably erroneous past projections, rather than the current baseline." We have already rejected SJJC's baseline argument. SJJC has not pointed to new information in the record regarding sleep disturbances caused by aircraft noise that compelled preparation of a subsequent EIR. (See ante, fn. 8.)
At the December 3, 2013 council meeting, a city staff member addressed a letter received from SJJC's counsel that claimed the tenth addendum was "flawed because it fails to disclose the effects of nighttime noise with regards to sleep disturbance." The staff member responded that "[t]he noise analysis specifically accounts for this issue by weighting each of the nighttime landing or takeoffs using the standard methodologies of the FAA procedures with a nighttime penalty." It was also pointed out that "no changes to the City's curfew or curfew noise standards are being proposed with the project."
Like earlier aircraft noises analyses, the tenth addendum considered the temporal distribution of aircraft arrivals and departures and the types of aircraft operating. The tenth addendum indicated that most of the aircraft associated with Signature's proposed development will be corporate jets, and Signature's proposed development "will focus on serving the business/corporate jet sector of the general aviation demand." The average daily operations of corporate jets, broken down by time of day, was projected to be 80 percent daytime operations (7:00 a.m. to 7:00 p.m.), 10 percent evening operations (7:00 p.m. to 10:00 p.m.), and 10 percent nighttime operations (10:00 p.m. to 7:00 a.m.). The noise model weighted each evening operation as three aircraft operations and each nighttime operation as ten aircraft operations.
The tenth addendum found that, even assuming a projected total of 65,100 annual operations by "based general aviation aircraft" (including those stemming from Signature's development), the number of operations "would still be below the total operations analyzed in the 1997 Master Plan EIR and the Eighth EIR Addendum." The tenth addendum also indicated that general aviation activity, expressed as the number of aircraft based at the Airport, was "projected to be 42 [percent] lower in 2027 than what had been projected for 2010 and subsequently 2017." Even using the higher, more conservative, number of based aircraft as the maximum capacity of the proposed FBO facilities, the total of based general aviation aircraft at the Airport was still projected to "be substantially below the 320 based aircraft analyzed in the 1997 Master Plan EIR and below the 209 based aircraft analyzed in the 2010 Eighth Addendum."
The tenth addendum pointed out: "[T]he revised noise analysis in the Eighth EIR Addendum calculated a substantial decrease in the size of the Airport's noise footprint, as compared to that shown in the 2003 Supplemental EIR, as amended. This decrease was due to the combination of 1) fewer total operations and 2) the greater use of newer/quieter aircraft." The eighth addendum indicated that aircraft-generated noise impacts were "quantified in the 1997 EIR and 2003 [SEIR] using the FAA's Integrated Noise Model (INM)." It observed that older aircraft were "gradually being phased out over time and being replaced with newer and quieter aircraft." Using the FAA's INM, it was determined that "[a]t all locations, aircraft-related noise levels in 2027 will be lower than those projected for 2017, which levels were documented in the 2003 Supplemental EIR." The 2003 SEIR's updated noise analysis did not alter the total number of general aviation based aircraft (320) projected in the horizon year.
The tenth addendum addressed the noise impact of increased nighttime aircraft operations: "It is important to note . . . that some of the corporate jets that currently operate at SJC, which would also be served by the Project, are permitted to operate during SJC's curfew hours (11:30 pm to 6:30 am) because their FAA-certified composite noise level is 89 dB or less . . . . Such operations are accounted for in all of the noise analyses undertaken for the EIR, Supplemental EIR and EIR Addenda. Specifically, curfew operations are input to the noise model as a 'night operation,' wherein each operation is counted/weighted as 10 operations. Such weighting is in accordance with FAA procedures and accounts for the increased sensitivity of noise occurring during such time periods." (Fn. omitted.)
The addendum determined that the increased aircraft operations during curfew hours resulting from Signature's proposed FBO development and "the associated noise impacts are accounted for in the noise analyses undertaken in the 1997 EIR, 2003 Supplemental EIR, and various EIR Addenda." It concluded that Signature's proposed development would not result in any new significant noise impacts or in any greater noise impacts than previously analyzed.
Thus, the tenth addendum clearly took into account the greater noise impact of increased nighttime aircraft operations resulting from Signature's proposed FBO development. It was not defective because it did not specifically discuss nighttime sleep disturbances.
5. Conclusion
SJJC has not shown that the tenth addendum to the Master Plan EIR was substantively deficient with respect to its assessment of potential noise impacts. The addendum provides substantial evidence supporting a decision not to prepare a subsequent or supplemental EIR analyzing noise impacts. (See Guidelines, § 15164, subd. (e).) H. Alleged Trial Court Error with Respect to Judicial Notice
SJJC argues that, in denying SJJC's petition for writ of mandate, the trial court erroneously took judicial notice of evidence outside the administrative record, namely two letters from the FAA to the City's Director of Aviation, and that the court considered inadmissible hearsay contained in those letters. One letter, dated April 15, 2014, indicated that the FAA had reviewed the environmental information submitted for the "Revised Signature Flight Support Fixed Based Operator Facility (Revised Taxiway Alignment)" and that FAA had concluded that it was categorically excluded from the National Environmental Policy Act (NEPA) and that no further federal environmental disclosure documentation was necessary for NEPA purposes. The other letter, dated June 5, 2014, indicated that the FAA had considered the safety, utility, and efficiency of the proposed FBO development on the Airport's Westside, and conditionally approved the updated airport layout plan. The trial court granted respondents' request for judicial notice of the two letters, finding that they constituted official acts by the relevant regulatory authority on the issue of airport safety. The trial court stated that "[w]hile these documents are extra-record evidence they clearly rebut [SJJC's] argument that the approved project design might be found unsafe by the FAA."
"[E]xtra-record evidence is generally not admissible in traditional mandamus actions challenging quasi-legislative administrative decisions on the ground that the agency 'has not proceeded in a manner required by law' within the meaning of Public Resources Code section 21168.5." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576.) In addition, "a court generally may consider only the administrative record in determining whether a quasi-legislative decision was supported by substantial evidence within the meaning of Public Resources Code section 21168.5." (Id. at p. 573, fn. omitted.) "[I]t would never be proper to take judicial notice of evidence that (1) is absent from the administrative record, and (2) was not before the agency at the time it made its decision. This is so because only relevant evidence is subject to judicial notice [citations], and the only evidence that is relevant to the question of whether there was substantial evidence to support a quasi-legislative administrative decision under Public Resources Code section 21168.5 is that which was before the agency at the time it made its decision. [Citation.]" (Id. at p. 574, fn. 4.)
In any event, those 2014 FAA letters are irrelevant to any issue before this court on appeal. We find that the issue of whether the trial court properly took judicial notice of those letters is now moot.
I. Local Consistency Requirement for Implementation of Airport Master Plan
SJJC asserts a non-CEQA claim that the City violated its own local consistency requirement governing airport development under the Airport Master Plan by approving general aviation facilities, namely Signature's proposed FBO development, before completely implementing two parking facilities that were constituents of the plan (Projects T-7 and T-8). T-7 and T-8 are both passenger terminal improvements. Signature's proposed FBO development included on-site parking for employees, customers, and visitors.
The eighth addendum to the Master Plan EIR described proposed changes to the Airport Master Plan, including the modification of future general aviation facilities. The addendum explained that "[t]he general aviation environment has recently changed and it is now forecast that the majority of the general aviation fleet will be comprised [sic] of large corporate jet aircraft" instead of "small, single-engine, aircraft" and that "while the forecast number of based aircraft is lower (209 versus 360), the amount of room needed on a per-aircraft-basis is much larger." One of the proposed modifications of the Airport Master Plan involved "replac[ing] the future air cargo facilities on the northwest side of the Airport . . . , with approximately 44 acres of general aviation facilities in order to accommodate this demand." The eighth addendum also contained a table summarizing the proposed revisions to the plan, including the new general aviation facilities, identified as Project G-8: "Expand General Aviation facilities onto the northwest side of Airport (44 acres) in phases (upon implementation of Project T-7 and T-8)." By resolution adopted on June 8, 2010 (San Jose Res. No. 75399), the City Council approved amendments to the Airport Master Plan, including the addition of "Project G-8: Expand General Aviation facilities onto northwest side of Airport (44 acres, upon implementation of Projects T-7 and T-8)."
In arguing that the approvals of Signature's proposed FBO development were void ab initio because T-7 and T-8 had not been completed beforehand, SJJC relies on case law applying state statutes, not on case law applying a local consistency law like the one at issue here. SJJC is not arguing that the City, which is a charter city, is subject to a particular California state law that precluded approval of Signature's proposed FBO development.
Charter cities are exempt from some state planning and zoning laws. (See e.g. Gov. Code, §§ 65700, subd. (a); 65803.)
San Jose Municipal Code section 25.02.010 provides: "The Airport Master Plan is intended to promote orderly management and development of the airport. The adopted Airport Master Plan shall serve as the basis for development of the airport." San Jose Municipal Code section 25.04.210, subdivision A., states: "No capital improvement project on the airport shall be undertaken unless it is consistent with the Airport Master Plan." As relevant here, the term "consistent" for purposes of the foregoing provision means "such capital improvement project is: [¶] 1. Expressly identified in the Airport Master Plan as a project; or [¶] 2. A necessary and related component of a project which is expressly identified in the Airport Master Plan, such as, but not limited to, utilities, access and roadways, or necessary infrastructure for an identified project . . . ." (San Jose Mun. Code, § 25.04.210, subd. B.)
Component project G-8 is, of course, expressly identified as a project in the Airport Master Plan as amended. The Master Plan EIR described Project T-7 as the phase-two construction of a new four-level employee parking garage with 2,600 spaces on a six-acre site on the west side of the Airport. It observed that "[u]pon completion of Project T-7, all employee parking spaces would be eliminated from the interim lot on the west side, allowing for development of new air cargo facilities (Projects C-3 and C-6)." The Master Plan EIR described Project T-8 as the phase-three construction of a new eight-level public parking garage with 4,600 space, which would eliminate interim public parking from the rental car garage and lot.
Over the years, a series of addenda to the Master Plan EIR have been prepared and various amendments have been made to the Airport Master Plan. The time horizon for full implementation of the Airport's multi-phase development has been twice extended, and as stated, the horizon year is now 2027.
The April 2011 Update of the Airport Master Plan described the plan as consisting of a "program of facility improvements designed to adequately accommodate projected aviation demand (passenger, cargo, and general aviation) with development phased as demand warrants and as determined to be financially feasible." It described Project T-7 as a terminal project to "[r]elocate/expand employee parking (up to 2,600 spaces) to terminal area parking facilities or to former FMC site on west side of Coleman Ave.," and it stated that the improvement was "underway." The April 2011 Update to the Airport Master Plan described Project T-8 as a terminal project to "[c]onstruct new public long-term parking garage . . . on former interim rental car ready/return parking lot site, including interim surface parking at site prior to garage construction, second 2-lane bridge accessing site from Airport Blvd. and removal of public parking from interim west side lot," and it indicated that this improvement would occur in the "future."
A letter to SJJC's counsel from the Office of the City Attorney, dated April 15, 2013, responded to SJJC's claim that Signature's proposed FBO development was inconsistent with the Airport Master Plan. It indicated that the City had completed T-7 and T-8 to the extent necessary to meet current parking demand. As to T-7, it explained that "[i]n 2011, employee parking was moved from the west side of the Airport to the terminal area." As to T-8, it explained: "In 2011, long-term parking was moved from the west side of the Airport to an interim surface lot on the former rental car ready/return parking lot site. This lot is currently providing sufficient capacity to meet the long-term parking demand. Similar to other facilities (e.g., the passenger terminals), future expansion (i.e. the parking garage) will be constructed in phases commensurate with increases in airport activity."
Respondents assert that "[b]ecause the City's implementation of the parking projects is correlated with parking demand, the City reasonably concluded that projects T-7 and T-8 were correctly implemented before proceeding with the Signature project." It is their position that the Airport Master Plan "does not require building a long-term parking garage if current demand is satisfied with interim surface parking." SJJC insists that Project G-8 makes implementation of T-7 and T-8 a mandatory prerequisite to any expansion of general aviation facilities onto the northwest side of the Airport and that such expansion of general aviation is contingent upon the "prior implementation" of those two parking facilities.
"The construction of an ordinance is a pure question of law for the court, and the rules applying to construction of statutes apply equally to ordinances. (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 497; County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668.) 'Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so, we look first to the words of the statute, giving them their usual and ordinary meaning.' (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501.)" (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 12.) "In construing statutes and ordinances our task is to ascertain and give effect to the legislative intent. (People v. Murphy (2001) 25 Cal.4th 136, 142.)" (Eel River Disposal & Resource Recovery, Inc. v. County of Humboldt (2013) 221 Cal.App.4th 209, 225; see Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187.)
"We must give due consideration to the public entity's view of the meaning of its ordinance. (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021.) However, we are not bound by the public entity's views, as interpretation of laws is ultimately a judicial function. (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 951; Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 578.)" (Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109, 114; see Friends of Davis, supra, 83 Cal.App.4th at p. 1015 [A city's "view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized"].)
The critical phrase in the language adding G-8 to the Airport Master Plan is the parenthetical language, "(44 acres, upon implementation of Projects T-7 and T-8)." The word "upon" means the same as the preposition "on." (Merriam-Webster's Collegiate Dict. (11th ed. 2009) p. 1375.) The word "on" has many meanings and is sometimes used "as a function word to indicate a time frame during which something takes place . . . or instant, action, or occurrence when something begins or is done . . . ." (Id. at p. 865.) "Implementation" means "the act of implementing or the state of being implemented." (Webster's 3d New Internat. Dict. (1993) p. 1135.) The verb "implement" means to carry out or accomplish, especially "to give practical effect to and ensure of actual fulfillment by concrete measures." (Merriam-Webster's Collegiate Dict., supra, at p. 624.)
There is no suggestion in the record that the current status of T-7 or T-8 impairs the implementation of G-8. The tenth addendum to the Master Plan EIR explained that the site for Signature's development was "an unused asphalt surface parking lot," which "was formerly used for employee and public parking on an interim basis while new facilities were being constructed on the east side of the Airport." The construction of the parenthetical language urged by SJJC would result in the absurd consequence of either blocking or delaying G-8, which is anticipated to serve current general aviation needs, while compelling expenditures to complete the construction of parking facilities that are not yet needed to meet demand and are unnecessary to facilitate implementation of G-8. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 113 [" ' "It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." '[Citations.]"].)
The City reasonably construed the "upon implementation" language of Project G-8 as referring to general time frames and requiring sufficient implementation of T-7 and T-8 to permit the G-8 improvements to go forward. We think that is the correct construction. We construe the parenthetical "upon implementation" language as an explanatory phrase requiring coordinated implementation, rather than strict sequencing, of the parking and general aviation improvements. J. CEQA Remedies
We have concluded that the City failed to timely prepare and consider an addendum to the Master Plan EIR before adopting its April 2013 resolutions implementing an RFP award to Signature. But we have rejected SJJC's substantive challenges to the tenth addendum.
SJJC accuses the City of conducting "a sham 'reapproval' for the project in December 2013." In response to our request for supplemental briefing, SJJC argues that the appropriate remedy is to order the City to set aside all approvals, regardless of when they occurred, including Resolution No. 76869 and Ordinance No. 29348 and the City's approval of the site development permit, "so that the City can reconsider whether to approve the Project based on a clean slate . . . ." Although the tenth addendum to the Master Plan EIR was completed in October 2013, SJJC insists that all later actions related to Signature's proposed FBO development must be vacated because the City failed to rescind its pre-addendum actions before reconsidering its RFP award and zoning change and that respondent must provide "unencumbered reconsideration" of those actions in light of an adequate addendum.
Respondents maintain that their actions taken subsequent to the preparation of the tenth addendum need not be set aside because, assuming that the environmental review conducted before April 2013 was inadequate, preparation of the tenth addendum is "exactly the remedy [that] the [c]ourt would have mandated" "to cure the defect." They suggest that Save Tara, supra, 45 Cal.4th at p. 143, which SJJC invokes, may be distinguished because respondents' post-addendum actions were taken in light of a legally adequate addendum.
The real parties in interest agree that any writ of mandate should not compel respondents to set aside the San Jose Resolution No. 76869, San Jose Ordinance No. 29348, or the Planning Commission's Resolution No. 14-006. They argue that the City did reconsider its pre-addendum actions related to Signature's proposed FBO development in light of the tenth addendum.
"[N]oncompliance with the information disclosure provisions of [CEQA] which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion within the meaning of [s]ections . . . 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions." (§ 21005, subd. (a).) Nevertheless, courts must "continue to follow the established principle that there is no presumption that error is prejudicial." (§ 21005, subd. (b).) "Insubstantial or merely technical omissions are not grounds for relief. [Citation.]" (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463.)
"Section 21168.9 specifically addresses the available remedies for CEQA violations. As here relevant, subdivision (a) provides that, upon finding that a public agency's decision violates CEQA, a court should enter an order that includes (1) a mandate that the decision be voided in whole or in part, and/or (2) a mandate that the agency 'take specific action as may be necessary to bring the . . . decision into compliance with' CEQA. (§ 21168.9, subd. (a)(1), (3).) Subdivision (b) states that any such order 'shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with [CEQA].' (§ 21168.9, subd. (b), italics added.)" (Berkeley Hillside Preservation, supra, 60 Cal.4th at pp. 1121-1122.)
We agree that, to achieve compliance with CEQA, respondents must vacate the April 2013 resolutions (San Jose Res. Nos. 76602 and 76605) because they unconditionally implemented an RFP award of a ground lease and operating agreement to Signature without first considering an addendum as required by the Guidelines. (See § 21168.9, subds. (a), (b); Guidelines, § 15164, subd. (d); cf. Save Tara, supra, 45 Cal.4th at pp. 127-128 [where agreements approved without prior preparation and consideration of an EIR, the city was required to void its approvals and "reconsider those decisions, informed this time by an EIR of the full environmental consequences"].) As we will explain, SJJC is not entitled to any further relief under CEQA.
Throughout this appeal, the parties have treated the April 2013 resolutions as a unitary decision, impliedly indicating that they stand or fall together.
While courts must order the issuance of a writ of mandate to remedy a failure to comply with CEQA, section 21168.9 does not require issuance of a writ to void actions taken in compliance with CEQA. In this case, respondents independently, before the issuance of any writ of mandate, took steps to remedy any failure to comply with CEQA by preparing the tenth addendum and then considering anew a proposed resolution to grant authority to the city manager to execute a lease and operating agreement and a related agreement (San Jose Res. No. 76869) and a newly proposed ordinance amending section 20.85.020 of the San Jose Municipal Code (San Jose Ord. No. 29348). In a memorandum to the City Council prepared for the December 3, 2013 council meeting, the Director of Aviation presented the policy alternative of not awarding the ground lease and operating agreement to Signature. At its December 3, 2013 meeting, the City Council did not reapprove its prior resolutions and ordinance, but, rather, it took new actions in light of the tenth addendum. Thus, the City Council effectively reconsidered its prior actions in light of a legally adequate addendum. The site development permit was granted (San Jose Planning Com. Res. No 14-006) subsequent to such reconsideration.
"The central purpose of CEQA is to ensure that agencies and the public are adequately informed of the environmental effects of proposed agency action. The subsequent review provisions . . . are accordingly designed to ensure that an agency that proposes changes to a previously approved project 'explore[s] environmental impacts not considered in the original environmental document.' [Citation.]" (Friends of College of San Mateo Gardens, supra, 1 Cal.5th at p. 951.) Respondents' actions taken in light of the tenth addendum accomplished that purpose.
In completely discounting the City Council's consideration of a new resolution and a new ordinance in light of the tenth addendum in December 2013, SJJC elevates form over substance. As indicated, CEQA has served its informational purposes with respect to the resolution and the ordinance adopted by the City Council in December 2013. "The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind." (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283.)
Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256 (Ukiah Citizens), which SJJC cites, is distinguishable. In that case, the city considered an EIR in adopting rezoning legislation, but the EIR certified by the city was deficient. (Id. at pp. 259-260, 264-265.) After recognizing the EIR's deficiencies, the city adopted an addendum to the EIR to clarify and provide additional discussion. (Id. at p. 265.) The appellate court agreed "that the EIR fail[ed] to sufficiently analyze potential energy impacts and that the adoption of an addendum to the EIR subsequent to approval of the EIR and of the project failed to comply with CEQA requirements." (Id. at p. 259.) It determined that "the addendum is not a part of the administrative record and cannot be considered in deciding whether the city abused its discretion in certifying the EIR." (Id. at p. 265.) It further found that "the city's subsequent approval of the addendum does not cure the prior approval of an inadequate EIR." (Ibid.) The appellate court concluded that "[b]ecause the EIR, as certified, inadequately describes and discusses the energy impacts of the project, we must reverse the denial of the petition for a writ of mandate and remand the case for issuance of a writ, directing the city to set aside its certification of the final EIR, and approval of the project and to bring the energy section of the EIR into compliance with CEQA before redetermining whether to approve the project. (See § 21168.9.)" (Id. at p. 266.)
Unlike Ukiah Citizens, this case does not involve a challenge to a deficient EIR. Moreover, we have concluded that the tenth addendum was substantively adequate. There is no dispute that the addendum was prepared before respondents determined anew, in light of the addendum, whether to approve Signature's proposed FBO development and to enact an ordinance governing the building height of Airport structures.
Finally, as indicated, San Jose Ordinance No. 29281, which was adopted in August 2013, was entirely superseded by San Jose Ordinance No. 29348, which was adopted in December 2013 in light of the tenth addendum. We asked the parties to submit supplemental briefing addressing whether SJJC's CEQA challenge to the earlier ordinance was rendered moot. In response, SJJC stated: "To the extent the Court is asking whether the validity of Ordinance No. 29281 would be moot if the Court were to reject [its] claims as to the other [p]roject approvals and leave Ordinance No. 29348 in place, the answer is yes. Vacating Ordinance No. 29281, but not Ordinance No. 29348, would not provide any practical relief." It is our conclusion that any challenge to Ordinance No. 29281 has been rendered moot because there is no effective relief that this court may provide. (See Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.)
DISPOSITION
The judgment is reversed. Upon remand, the trial court is directed to issue a writ of mandate directing respondents to aside San Jose City Council Resolution Nos. 76602 and 76605. The parties shall bear their own costs on appeal.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P.J. /s/_________
PREMO, J.