CALIFORNIA COURT OF APPEALS, SECOND DISTRICT, DIVISION 4
NOT CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS
CITY OF BURBANK, Plaintiff and Appellant,
BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Defendant and Respondent
Filed November 12, 1998
(Appeal from Superior Court of Los Angeles County, No. BC151804, Emilie H. Elias, Court Commissioner.)
Dennis A. Barlow, Terry B. Stevenson, Cutler & Stanfield, Peter J. Kirsch, Sheila D. Jones, and John E. Putnam for Plaintiff and Appellant.
McDermott, Will & Emery, Richard K. Simon, Thomas A. Ryan, and Michael Meeks for Defendant and Respondent.
In this action, the City of Burbank (Burbank) seeks to prevent the BurbankGlendale-Pasadena Airport Authority (Authority) from taking or authorizing any action which would increase the size of the Burbank-Glendale-Pasadena Airport's noise impact area in violation of Government Code section 6546.1. [FN 1] Burbank argues the trial court erred in sustaining the Authority's demurrer to its second amended complaint because the court misinterpreted section 6546.1 in concluding that the Authority has not violated the noise statutes and regulations. It also challenges the trial court's conclusion that Burbank's claim is not ripe.
The Burbank-Glendale-Pasadena Airport (Airport) is located in the northwest section of the City of Burbank, with a portion extending into the City of Los Angeles. Lockheed Air Terminal, Inc. operated the Airport until 1976 when it announced plans to close the facility. In response, the Legislature enacted section 6546.1, which authorized the creation of a joint powers agency to own and operate the Airport. Section 6546.1 was enacted as urgency legislation and became effective on September 14, 1976. On June 14, 1977 the cities of Burbank, Glendale and Pasadena entered into a joint powers agreement to operate the Airport. This agreement has been amended four times.
The Airport is surrounded by densely populated residential neighborhoods, primarily within the City of Burbank. Because the noise control provisions of section 6546.1 are central to this appeal, we set them out at this point:
According to the allegations of the second amended complaint, the charging pleading, the Authority has a two-phase plan to expand the Airport. A new passenger terminal complex would be built with 27 aircraft gates and parking spaces for 12,300 vehicles, accommodating 5 million passengers annually. This expansion represents a doubling of aircraft gates, tripling of passenger capacity, and quadrupling of parking spaces. On March 15, 1996, the Federal Aviation Administration gave its final approval to the expansion plan.
In June 12, 1996, Burbank sued the cities of Glendale and Pasadena, seeking a declaration that a recent amendment to the joint powers agreement must be stricken as void because it conflicts with section 6546.1. Burbank alleged that the effect of the amendment was to provide a means for authorizing actions which would illegally increase the statutorily defined noise impact area surrounding the airport. Glendale and Pasadena successfully demurred to the complaint and Burbank was given leave to amend.
Burbank's first amended complaint added the Authority as a defendant and sought injunctive relief to prevent a violation of section 6546.1. Demurrers brought by each of the three defendants were sustained with leave to amend.
In March 1997, Burbank filed its second amended complaint. In the first cause of action, Burbank seeks declaratory relief from Glendale and Pasadena. The second cause of action, against the Authority only, alleges a violation of section 6546.1 and seeks injunctive relief. The complaint alleges that the Authority has initiated eminent domain proceedings to acquire the land for the expansion of the airport, and has accepted federal grant finds for land acquisition. The complaint also alleges that the Authority has sought and received authorization to use passenger facility charges to pay for costs of the expansion.
According to the allegations of the complaint, since at least the first six months of 1996, the Airport's noise impact area has been larger than the maximum area allowed under section 6546.1. Burbank alleges that this is because the Authority has permitted changes in airline schedules, runway use patterns, and leases and contracts with aircraft operators. Citing data from the environmental documents produced as part of the expansion plan, Burbank alleges that the Airport's noise impact area will be' larger than that allowed by section 6546.1 after the completion of each phase of the expansion plan.
Each defendant demurred to the second amended complaint. Because Burbank did not appeal the judgment in favor of the cities of Pasadena and Glendale after the trial court sustained their demurrers without leave to amend, we confine our discussion to the arguments raised by the Authority.
The Authority pointed out that in its first amended complaint, Burbank had admitted that the noise impact area does not currently exceed the permissible size under section 6546.1. Paragraph 32 of the first amended complaint reads:
The Authority also argued that section 6546.1 sets a constant, unvarying noise standard at 70 decibels and that the Airport had consistently been operated under variances from the noise provisions allowed by the regulatory scheme. Finally, the Authority argued in the alternative that Burbank's claim is time-barred if the 65 decibel standard adopted in 1986 was applied by the court.
Burbank opposed the Authority's demurrer. It explained that it modified its allegations regarding the current noise impact area based on an analysis of new airport noise data generated between January 1, 1996 through June 30, 1996. Burbank also argued that the Authority misstated its interpretation of section 6546.1:
In response, the Authority argued that Burbank had based its second amended complaint not on new data, but on a new interpretation of section 6546.1. Burbank responded that it had not changed its interpretation, but that the new 1996 data established that the noise impact area had grown.
The trial court sustained the Authority's demurrer without leave to amend. It found that the cause of action for declaratory relief was premature "on the grounds that it's premature with regard to the noise, with the understanding the statute says 70 decibels, that there's been no pleading allegation that it has violated the 70 decibels, that the rest of it is premature,..." The trial court also ruled that there was no case in controversy regarding the cause of action for injunctive relief. Burbank filed a timely appeal from the entry of judgment in favor of the Authority.
When reviewing a trial court order sustaining a demurrer without leave to amend, we give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985)39 Cal.3d 311, 318.) We do not assume the truth of contentions, deductions or conclusions of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' .... However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Aubry v. Tn-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
A. The Regulatory Scheme
We first examine section 6546.1 and the regulations regarding airport noise.
As originally enacted in 1976, section 6546.1 provided: "In operating the airport, the [Authority] shall not permit or authorize any activity in conjunction with the airport which results in an increase of the size of the noise impact area based on a community noise equivalent level of 70 decibels as established pursuant to Title 4, California Administrative Code, Chapter 9, Subchapter 6, and shall further comply with the future community noise equivalent levels prescribed by such title as it now exists or is hereafter amended.". (Stats. 1976, ch. 919, s. 1, pp.2103-2104, emphasis added.) The interpretation of the italicized language is the subject of significant disagreement between the parties, which we discuss below. The statute also provides that the Authority is to implement noise monitoring requirements in accordance with administrative regulations. The Authority is admonished: "the entity shall diligently pursue all reasonable avenues available to insure that the adverse affects of noise are being mitigated to the greatest extent reasonably possible." [FN 2] (Ibid)
When section 6546.1 was enacted in 1976, title 4, California Administrative Code, section 50l2, already was in place, setting the community noise equivalent level (CNEL) at 70 decibels for existing airports until December 31, 1985 and at 65 decibels thereafter. Section 5012 of former title 4 provided:
Section 5001 of the regulations defines relevant terms. "Noise impact area" is defined as: "[T]he area within the noise impact boundary that is composed of incompatible land use." (Cal. Code Regs., tit. 21, s. 5001, subd. (k).) "Noise Impact Boundary" is defined as: "[T]he locus of points around an airport for which the annual CNEL is equal to the airport noise standard established in Section 5012." (Cal. Code Regs., tit. 21, s. 5001, subd. (1).) "CNEL" is the acronym for "Daily Community Noise Equivalent Level," which is defined in section 5001, subdivision (f) of the regulations as the adjusted average daytime noise level according to a specified formula which takes into account noise over a 24 hour period. [FN 3] Section 5014 of the regulations provides that incompatible land uses include residences, schools, hospitals and convalescent homes, and places of worship.
Article 5 of title 21 of the Code of Regulations provides that a proprietor of an airport may obtain a variance from the requirements of section 5012. The Authority acknowledges that the Airport has been operated under a series of such variances since it acquired the Airport in 1978.