AVIATION NOISE LAW
City of Burbank v. Burbank-Glendale-Pasadena Airport Authority [I]
Unpublished opinion


CALIFORNIA COURT OF APPEALS, SECOND DISTRICT, DIVISION 4

NOT CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS

CITY OF BURBANK, Plaintiff and Appellant,
v.
BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Defendant and Respondent

B116971
Filed November 12, 1998

(Appeal from Superior Court of Los Angeles County, No. BC151804, Emilie H. Elias, Court Commissioner.)


COUNSEL:

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.

[FN 1] All further statutory references are to the Government Code unless otherwise indicated.
We conclude that the case is ripe and that the trial court erred in sustaining the demurrer.


FACTUAL AND PROCEDURAL SUMMARY

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:

"In operating the airport, the separate public entity... shall not, permit or authorize any activity in conjunction with the airport which results in an increase in the size of the noise impact area based on a community noise equivalent level of 70 decibels as established pursuant to Title 21, California Administrative Code, Chapter 2.5, 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. (Emphasis added.)
Section 6546.1 requires the Authority to comply with airport noise regulations now codified in title 21, California Code of Regulations, section 5000 et seq. These regulations, which we shall examine in more detail, provide formulae for controlling and reducing noise in communities in the vicinity of airports. (See title 21, Cal. Code Regs., s. 5000.)

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:

"Because of an evolution since 1976 in the type of aircraft that use the airport, the noise impact area of the Airport is smaller today than the noise impact area defined by the currently applicable CNEL (Community Noise Equivalent Level). It is possible today, therefore, for an Airport Authority action to result in an increase in the size of the noise impact area as of the date of that action, while still producing a noise impact area which is smaller than the maximum allowable noise impact area under Section 6546.1."
The Authority argued that Burbank should not be allowed to allege a current violation in its second amended complaint, contradicting the allegations of paragraph 32.

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:

"Burbank agrees with the Authority that in order to determine the maximum permissible Noise Impact Area under Section 6546.1, one must determine the number of acres of incompatible land within the 70 dB [decibel] contour or noise impact boundary on the effective date of the statute, i.e., September 14, 1976. The size of the September 14, 1976 Noise Impact Area is the benchmark against which future Noise Impact Areas are judged. Burbank does not allege in its complaint, as the Authority contends, that the maximum permissible Noise Impact Area is defined by the Airport's 65 dB contour. Burbank does allege that the Airport's 65 dB contour defines the Airport's current Noise Impact Area and will continue to do so until the applicable regulations are changed." (Fn. omitted.)
It argued that the Authority violated section 6546.1 when it authorized the proposed expansion of the airport. Finally, Burbank argued its suit was timely. Counsel for Burbank explained the complaint is not based on the point in time that the airport's noise impact area grew to a size which violates section 6546.1, but rather is a challenge to the specific action taken in August 1996 to authorize acquisition of additional land for expansion of the airport. Since Burbank alleges that the airport's noise impact area was already too large as of the first six months of 1996, the further expansion approved in August 1996 would necessarily result in even greater noise violations. Burbank argued that the 1996 data establishes that the noise impact area was larger at that time than it had been in 1976.

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.


DISCUSSION

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)

[FN 2] The statute was amended in 1978. The amendment did not alter the language regarding noise compliance.

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:

"Limitations on airport noise in residential communities are hereby established. [Para.] (b) Giving due consideration to economic and technological feasibility, the criterion community noise equivalent level (CNEL) for existing civilian' airports... is 70 dB until December 31, 1985 and 65 dB thereafter."
(Cal. Admin. Notice Register, tit. 4, Register 70, No. 48 (Nov. 28, 1970) s. 5012, p.396.) These regulations are now codified at title 21, California Code of Regulations, section 5000 et seq. The current version of section 5012 provides:

"The standard for the acceptable level of aircraft noise for persons living in the vicinity of airports is hereby established to be a community noise equivalent level of 65 decibels. This standard forms the basis for the following limitation. [Para.] No airport proprietor of a noise problem airport shall operate an airport with a noise impact area based on the standard of 65 dB CNEL unless the operator has applied for or received a variance as prescribed in Article 5 of this subchapter."
(Cal. Code Regs., tit. 21, s. 5012.)

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.

[FN 3] "Daily Community Noise Equivalent Level (CNEL): Community noise equivalent level, in decibels, represents the average daytime noise level during a 24-hour day, adjusted to an equivalent level to account for the lower tolerance of people to noise during evening and night time periods relative to the daytime period. Community noise equivalent level is calculated from the hourly noise levels by the following: [Para.] CNEL = 10 log (1/24) [summation antilog (HNLD/10) + 3 summation antilog [Para.] (HNLE/10) + 10 summation antilog (HNLN/10)] [Para.] Where [Para.] HNLD are the hourly noise levels for the period 0700-1900 hours; [Para.] HNLE are the hourly noise levels for the period 1900-2200 hours; [Para.] HNLN are the hourly noise levels for the period 2200-0700 hours; and [Para.] summation means summation." (Cal. Code of Regs., tit. 21, s. 5001, subd. (f).)
Section 5602 provides for liberal construction of the regulations: "This subchapter shall be liberally construed and applied to promote its underlying purposes which are to protect the public from noise and to resolve incompatibilities between airports and their surrounding neighbors." The purpose of the regulations is explained in section 5010:

"The purpose of these regulations is to provide a positive basis to accomplish resolution of existing noise problems in communities surrounding airports and to prevent the development of new noise problems. To accomplish this purpose, these regulations establish a quantitative framework within which the various interested parties (i.e., airport proprietors, aircraft operators, local communities, counties and the state) can work together cooperatively to reduce and prevent airport noise problems."
The regulations are based on findings set forth in section 5006:

"Citizens residing in the vicinity, of airports are exposed to the noise of aircraft operations. There have been numerous instances wherein individual citizens or organized citizen, groups have complained about airport noise to various authorities. The severity of these complaints has ranged from a few telephone calls to organized legal action. Many of these cases have been studied by acoustics research workers under sponsorship of governmental and private organizations. These studies have generally shown that the severity of the complaint is principally associated with a combination of the following factors: [Para.] (a) Magnitude and duration of the noise from aircraft operations; [Para.] (b) Number of aircraft operations; and [Para.] (c) Time of occurrence during the day (daytime, evening or night). [Para.] There are many reasons given by residents for their complaints; however, those most often cited are interference with speech communication, TV, and sleep. Numerous studies have been related to speech interference and hearing damage, and some studies have been made related to sleep disturbance and other physiological effects. These studies provide substantial evidence for the relationship between noise level and its interference with speech communication and its effect relative to hearing loss. Significantly less information is available from the results of sleep and physiological studies. [Para.] In order to provide a systematic method for evaluating and eventually reducing noise incompatibilities in the vicinity of airports, it is necessary to quantify the noise problem. For this purpose, these regulations establish a procedure for defining a noise impact area surrounding an individual airport. The criteria and noise levels utilized to define the boundaries of the noise impact area have been based on existing evidence from studies of community noise reaction, noise interference with speech and sleep, and noise induced hearing loss. [Para.] One of the fundamental philosophies underlying the procedures in these regulations is that any noise quantity specified by these regulations be measurable by relatively simple means.... [Para.] The level of noise acceptable to a reasonable person residing in the vicinity of an airport is established as a community noise equivalent level (CNEL) value of 65 dB for purposes of these regulations. This criterion level has been chosen for reasonable persons residing in urban residential areas where houses are of typical California construction and may have windows partially open. It has been selected with reference to speech, sleep and community reaction. [Para.] It is recognized that there is a considerable individual variability in the reaction to noise. Further, there are several factors that undoubtedly influence this variability and which are not thoroughly understood. Therefore, this criterion level does hot have a degree of precision which is often associated with engineering criteria for a physical phenomenon (e.g.; the strength of a bridge, building, et cetera). For this reason, the state will review the criterion periodically, taking into account any new information that might become available."
(Emphasis added.)

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.

Continued in Part Two