B. Ripeness

The Authority argues Burbank's case is not ripe. It cites allegations in the first amended complaint which it characterizes as an admission that the applicable noise level is measured by a 70 decibel contour, rather than by a 65 decibel contour. The Authority cites the language of section 6546.1 prohibiting action which "results" in an increased noise impact area to argue: "Since Burbank previously admitted that there will be no 'result' violating Section 6546.1, if ever, until 2010, Burbank's claim is premature." It also invokes authority for the proposition that an injunction may not issue to enjoin a violation of the law which plaintiff alleges will occur in the future.

Burbank responds that the event triggering its claim is the authorization of action which will result in an increase in the noise impact area, not the actual increase of the size. It explains: "As alleged in the Complaint, the Airport Authority already has violated this provision by taking action to permit activities that have already caused, as of 1996, the size of the Noise Impact Area to exceed the ceiling. Second Amended Complaint at Paras. 44-60, CT at 959-960. Accordingly, under the Airport Authority's argument relating to ripeness and Burbank's ripeness argument, Burbank has pled a ripe claim." Burbank continues:

"Because Burbank has pled, in reliance on data in the quarterly monitoring reports submitted by the Airport Authority to Los Angeles County and Caltrans, that the Airport Authority already has violated Section 6546.1, the Airport Authority's arguments regarding the presumption that a public entity will obey the law are inapposite."

"The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. On the other hand, the requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. [Citations.]"

The Pacific Legal Foundation court applied the two-prong federal test set out in Abbot Laboratories v. Gardner (1967) 387 U.S. 136, 148-149.

"'The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy "ripe" for judicia1 resolution.. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.' (Fn. omitted; italics added.)"

We are satisfied Burbank has met the first prong of the ripeness test, establishing that the issues are fit for judicial decision. There is a genuine controversy between the parties concerning whether the proposed airport expansion would violate the noise standards established by section 6546.1 and the regulations.

It is important to recognize that we are reviewing the propriety of sustaining a demurrer without leave to amend and must therefore treat the material factual allegations of the complaint as true. We do not weigh conflicting factual arguments. In its second amended complaint, Burbank alleged:

"59. The Airport Authority has taken actions essential to the construction of the Expansion Plan by, inter alia: initiating a condemnation proceeding to acquire land necessary for the Expansion Plan; accepting from the FAA Airport Improvement Program No. AIP 3-06-0031-19 in the amount of approximately $8.6 million for acquisition of land for the terminal and applying for and accepting authorization to use passenger facility charges (ticket taxes) for land acquisition and related projects related to the Expansion Plan.

"60. The Airport Authority has authorized or permitted and will authorize or permit activities both related and unrelated to the Expansion Plan which have resulted and will result in a noise impact area larger in size than the maximum allowable noise impact area under Section 6546.1 of the JEP Act and in violation of the law. Unless enjoined by this Court, the Airport Authority will operate the Airport in a manner that results in creation [of] a noise impact area larger in size than the maximum allowable noise impact area under Section 6546.1 of the JEP Act."

In this case, Burbank has alleged a current controversy over the impact of the specific expansion plans on the noise regulations. We recognize that the actual increase in noise levels would not occur until the expansion is underway or complete. That brings us to the second prong of the ripeness test -- the hardship to the parties of withholding court consideration.

The hardship to the Authority (and to the taxpayers and passengers providing funding) if the expansion project is completed without resolution of the noise issue is apparent. The public interest would not be served by deferring a decision on the alleged noise violation until the Authority has gone to the expense and disruption of completing expanded facilities. These concerns are sufficient to compel an immediate resolution of the merits of Burbank's claims. We turn to the question of law presented: the proper interpretation of section 6546.1.

C. Section 6546.1

"[T]he fundamental rule of construing a statute or regulation is to ascertain the intent of the regulation so as to effectuate the purpose of the law. [Citations.] The first step in analyzing legislative intent is to examine the actual words, and to try to give them a plain and commonsense meaning. [Citation.] When examining the language, we seek to give meaning to every word and phrase to reach a result consistent with the legislative purpose. (Ibid.) If the language is clear and unambiguous, there is ordinarily no need for statutory construction. (Ibid.) 'A statute is regarded as ambiguous if it is capable of two constructions, both of which are reasonable.' [Citation.] If a regulation is ambiguous, we must select the construction that comports most closely with the Legislature's apparent intent, with the goal of promoting rather than defeating the general purpose of the regulation, and avoiding an interpretation which would lead to absurd consequences. [Citation.]" (Morillion v. Royal Packing Co. (1998) 66 Cal.App.4th 49, 58.)

As we read it, the statute imposes two noise requirements. The Authority must satisfy both, or obtain a variance, in order to operate.

The first is stated in spatial terms. The Authority is prohibited from allowing any activity that results in an increase of the size of the noise-impact area beyond what it was based on a CNEL of 70 decibels. For example, if the noise impact area using the 70 decibel level was 350 acres, the statute would be violated if Airport activity resulted in expanding that area to 375 acres. And this would be true even if the reason for the expanded area was application of the reduced regulatory standard of 65 decibels.

The second requirement (set off by the statutory phrase "shall further comply," and referred to in that fashion by the parties) is more absolute. The Authority is required to comply with any future noise equivalent levels established by lawful authority. The regulatory level is now 65 decibels, as it has been for over ten years. The Authority may not authorize activity that results in a decibel measure over that level, whether or not the noise level results in an enlargement of the noise contour.

Of course, the two parts of the statute complement each other: the lower the permitted decibel level, the larger the contour required to describe it.

The Authority acknowledges that the CNEL based on a 65 decibel contour always has contained more than the 370 acres of incompatible land identified by applying a contour of 70 decibels. According to section 5012, if the Authority cannot meet the requirements imposed by the 65 decibel level, it must obtain a variance in order to operate. There is nothing else in the statute or the regulatory scheme to exempt the Authority from complying with this standard. The Authority has tacitly acknowledged as much by seeking and obtaining variances from the standard each year since it became operative in 1986.

The Authority argues that the language of section 6546.1 requiring it to "further comply with the future community noise equivalent levels prescribed by such title as it now exists or is hereafter amended" refers only to a change in the formula by which CNEL is calculated, rather than a change in airport noise standards codified in regulation section 5012. (Cal. Code Regs., tit. 21, s. 5001, subd. (f).) As the Authority reads it, the quoted language does not require it to comply with the 65 decibel standard set out in regulation section 5012, or with any future amendment of that standard. The Authority attempts to support this strained construction by arguing that the reference to compliance with future noise equivalent levels does not make reference to decibels. As we have discussed, the airport noise standard set out at section 5012 of the regulations is set in decibels. The Authority also urges us to adopt its argument that section 6546.1 refers only to some future change in calculating CNEL rather than to the noise standard in section 5012 because of this omission.

We do not agree. Section 6546.1 admonishes the Authority to comply with future community noise equivalent levels. This is a term of art, defined in the regulations by reference to decibel measurements of noise in the incompatible land use area surrounding the airport. As we have discussed, section 5001, subdivision (f) defines Daily Community Noise Equivalent Level (CNEL):

"Community noise equivalent level, in decibels, represents the average daytime noise level during a 24-hour day" as adjusted for noise during evening and night time periods. The logarithmic formula for calculating CNEL (see fn. 3, supra) uses hourly noise levels measured over a 24 hour day in day, evening and nighttime periods. Each measurement uses the hourly noise level, another term of art defined in the regulations in terms of decibels: "The hourly noise level, in decibels, is the average (on an energy basis) noise level during a particular hour. Hourly noise level is determined by subtracting 35.6 decibels (equal to 10 log¹⁰ 3600) from the noise exposure level measured during the particular hour, integrating for those periods during which the noise level exceeds a threshold noise level."

It is significant that this portion of the regulations sets a threshold noise level which is tied to the noise standard set in section 5012: "For implementation in this subchapter of these regulations, the threshold noise level shall be a noise level which is 10 decibels below the numerical value of the appropriate Community Noise Equivalent Level (CNEL) standard specified in Section 5012." (Ibid.)

If we were to adopt the interpretation urged by the Authority, we would violate the maxim that provisions of a statute are to be harmonized and read as a whole. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) We cannot separate noise impact area from the community noise equivalent level or from the airport noise standard in interpreting section 6546.1. We are satisfied that section 6546.1 requires the Authority to comply with future amendments to the noise standards set out in section 5012 of the regulations.

This interpretation of section 6546.1 is consistent with the expressed legislative and regulatory intent to reduce the impact of airport noise while recognizing the technological limitations which may make full compliance with the regulations difficult or impossible to achieve. (See Cal. Code Regs., tit 21, ss. 5002, 5006, 5010.) The Authority's construction would contradict that intent. It would effectively negate the 65 decibel level so long as the CNEL contour described by a 70 decibel level was not enlarged.

At oral argument, counsel for Burbank pointed to language of section 6546.1 which requires the authority to comply with future noise equivalent levels "prescribed by such title as it now exists or is hereafter amended." Burbank argued that when section 6546.1 was enacted, section 5012 of the regulations had two noise standards: one, 70 decibels, which would apply until December 31, 1985, and the other, 65 decibels, which would apply thereafter. The regulations did not contain any proposed modifications to the formula for calculation of CNEL at that time. It is plain, as Burbank argues, that the legislature was making reference to the two standards already set out in section 5012 in writing section 6546.1.

Usually, discussions of statutory construction begin with a brief or detailed recitation of maxims and legislative history. We conclude with brief comments on the subject. We are given very little by way of legislative history. We have cited all that has been provided to us, and which applies. The plain language of the statute leads to the conclusions we have reached: that the Authority must comply with the 65 decibel and contour requirements, or obtain waivers from doing so. Any other reading would strain the language, or go beyond it by effectively nullifying some of its terms. It would also run counter to the expressed legislative and regulatory intent of reducing incompatible noise levels around airports.

In its second amended complaint, Burbank alleges only that the expansion plans would violate "the maximum allowable noise impact area under Section 6546.1 of the JEP Act." The pleading does not specify whether the 65 or 70 decibel standard is violated. We are satisfied that at the pleading stage, this is sufficient to overcome the demurrer. The question of whether the proposed expansion of the airport would violate section 6546.1 is a factual issue for the trial court. The trial court erred in sustaining the demurrer.

The judgment in favor of the Burbank-Glendale-Pasadena Airport Authority is reversed. Burbank is to have its costs on appeal.

EPSTEIN, Acting P.J.

We concur:

HASTINGS, J.
CURRY, J.