AVIATION NOISE LAW
Burbank-Glendale-Pasadena Airport Authority
v. City of Burbank et al.
Unpublished opinion


CALIFORNIA COURT OF APPEAL, SECOND DISTRICT, DIVISION 7

NOT CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS

BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Plaintiff and Respondent,
v.
CITY OF BURBANK, et al., Defendants and Appellants

B123635
Filed May 5, 1999

(Appeal from Superior Court of Los Angeles County, No. FC004248, Carl West,Judge.)


COUNSEL:

Dennis A. Barlow, Burbank City Attorney, Terry B. Stevenson, Senior Assistant City Attorney, Cutler & Stanfield, Perry M. Rosen, and W. Eric Pilsk, pro hac vice, for Defendant and Appellant City of Burbank.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick Walston, Chief Assistant Attorney General, Theodora P. Berger, Senior Assistant Attorney General, Richard Frank, Senior Assistant Attorney General, and Susan L. Durbin, Deputy Attorney General, for Plaintiff in Intervention, Cross-defendant and Appellant State of California.

McDermott, Will & Emery, Richard K. Simon, Thomas A. Ryan and Michael L. Meeks for Plaintiff and Respondent.


The trial court granted a petition for writ of mandate, based solely upon a conclusion of law which we found erroneous in a companion case. We reverse the judgment, and reject respondent's contention that there are alternate grounds upon which it may be affirmed.


PROCEDURAL AND FACTUAL BACKGROUND

In 1977, the Cities of Burbank, Glendale, and Pasadena, created the Burbank- Glendale-Pasadena Airport Authority ("the Authority"), by means of a joint powers agreement, in order to acquire and operate the Burbank Airport, which had been privately owned and operated for many years before that. The agreement and Government Code section 6546.1 enabled the Authority, among other things, to acquire, operate, repair, maintain, improve, and administer the airport.

On December 23, 1996, the Authority filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5, or in the alternative, pursuant to Code of Civil Procedure section 1085. The petition alleged that the Authority intended to acquire title to approximately 130 acres of land adjacent to the airport, in order to relocate the existing passenger terminal to meet the safety standards of the Federal Aviation Administration (FAA); regarding the distance between runways and physical structures. The Authority prepared a plan of the new facility, and obtained certification of a final environmental impact statement (FEIS) by the FAA. [FN 1]

[FN 1] The City challenged the FEIS in federal court, but its challenge was ultimately unsuccessful. See City of Los Angeles v. FAA (9th Cir.1998) 138 F.3d 806.
The petition further alleges that in March, 1996, the Authority delivered a copy of its plan and FEIS to the City of Burbank, which proceeded to review the plan, and to hold a public hearing pursuant to Public Utilities Code section 21661.6. [FN 2] On October 15, 1996, by Resolution No 24,878, the Burbank City Council rejected the plan without prejudice to the Authority's submission of a new plan consistent with, among other things, the City's objective of minimizing excessive noise and safety hazards.
[FN 2] Public Utilities Code section 21661.6 provides that in addition to any other requirement of law relating to the construction or expansion of airports, a political subdivision intending to expand or enlarge an existing publicly owned airport, must first submit a plan, upon which the city council shall conduct a public hearing. If the council approves the plan, the proposed acquisition of property may begin, and the use of property must then conform to the approved plan.
The petition sought to void Resolution No.24,878, on two grounds: (1) it was enacted in violation of the Authority's right to due process, because the city council was biased and predisposed to reject the Plan; and (2) the City's rejection of the plan was an abuse of discretion because the City made no findings and its rejection was not supported by substantial evidence.

The trial court granted the Authority's writ petition by minute order on February 18, 1998. The court found that the City had acted in excess of its jurisdiction in adopting Resolution No.24,878, but not for any of the reasons set forth in the Authority's petition. Instead, the court based its ruling entirely upon its finding in Superior Court case number EC022341, which had proceeded nearly simultaneously in the same department. [FN 3] In that case, the trial court found that the City had delegated to the Authority all its powers of review under Public Utilities Code section 21661.6, reserving no such powers to itself.

[FN 3] Case number EC022341 had been filed by the City on May 1, 1997, while this case was pending. The City sought to enjoin the Authority from acquiring or using the 130-acre property for airport expansion without its approval, and to affirm the validity and applicability of Public Utilities Code section 21661.6. The Authority cross-complained for declaratory and injunctive relief, and all parties filed motions for summary judgment. Judgment was entered in favor of the Authority on March 10, 1998, the same date judgment was entered in this case.
The judgment contained additional findings, which had not been set forth in the minute order of February 18, 1998. The court found the evidence did not establish prejudgment or bias in violation of the Authority's right to procedural due process. It also found that the City was not prejudiced by the failure of the petition to allege an excess of jurisdiction, because the City had had an opportunity, in case number EC02234 1, to litigate fully the issue of whether it had delegated to the Authority its rights under Public Utilities Code section 21661.6.

The City filed separate timely notices of appeal from the judgments in both cases on April 20, 1998. We denied the City's motion to consolidate this appeal with the appeal in case number EC022341 (appeal number B123632), but have agreed to consider the two appeals concurrently.


DISCUSSION

In appeal number B123632, we reversed the Authority's summary judgment; after having determined that the trial court erred as a matter of law in that case, when it found that the City had delegated its land-use powers to the Authority. A judgment granting a petition for writ of mandate must be reversed if it is based on an erroneous conclusion of law. (Suzuki v. City of Los Angeles (1996)44 Cal.App.4th 263, 269, citing Magit v. Bd. of Medical Examiners (1961) 57 Cal.2d 74, 87.) The Authority contends that we may nevertheless affirm the judgment in this case, because the evidence presented below established that it was denied a fair hearing, due to the City Council's bias and prejudgment.

Relying on Clark V. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, the Authority contends that we should undertake a de novo review of the entire administrative record, and that we may affirm the judgment based upon our review of the evidence, without regard to the findings of the trial court. Clark summarized the scope of review when an appellant challenges a trial court ruling on an alleged denial of a fair hearing due to bias: "'[F]oundational factual findings must be sustained if supported by substantial evidence; however, the ultimate determination of whether the administrative proceedings were fundamentally fair is a question of law to be decided on appeal.' [Citation.]" (Id. at p.1169.)

While we accept (his summary of the scope of review, we observe that the trial court's finding on the issue of bias was against the Authority. Thus, Authority does not seek "'to save the judgment but to overthrow it,"' and since it did not appeal from the judgment, it may not attack it now. (Hutchinson v. City of Sacramento (1993)17 Cal.App.4th 791, 798-799.) A nonappealing party may seek review of a trial-court decision only for the purpose of determining whether or not the appellant was prejudiced by any asserted errors, not to reverse the decision. (Code Civ. Proc., s. 906.)

The Authority also contends that we may affirm the judgment on the ground that the City's Resolution 24,878 was adopted in excess of its jurisdiction, because the City attempted to condition approval of the Authority's acquisition of land on the imposition of a curfew on flights at the airport. [FN 4] However, Resolution 24,878 does not condition approval on the imposition of a curfew. Since the Resolution does not, on its face, impose a prohibited condition, a review of the issue would involve a question of fact. However, the Authority does not refer to any evidence of such a condition in the record on appeal, and its petition did not put this contention into issue,. or allege any facts regarding it.

[FN 4] In Burbank v. Lockheed Air Terminal, Inc. (1973) 411 U.S. 624, the Supreme Court struck down a Burbank municipal ordinance which placed a curfew on jets in order to abate noise, on the ground that the Noise Control Act of 1972 preempted state and local control of aircraft noise through regulation of aircraft flight. Now, see generally, the Airport and Airway Safety, Capacity, Noise Improvement, and Intermodal Transportation Act of 1992 (Pub.L. 102-581, Oct.31, 1992, 106 Stat. 4872,49 U.S.C, Subtitle VII.)
"[A] change in theory is permitted on appeal when 'a question of law only is presented on the facts appearing in the record....' [Citation.] The general rule confining the parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.' [Citation.]" (Ward v. Taggart (1959) 51 Cal.2d 736, 742.)

Our review of the record reveals that the Authority brought the issue up in oral argument, just before the cause was submitted to the trial court for decision. The Authority asserted that past policy statements established an intent on the part of the City Council to condition its approval on flight and runway restrictions. The court responded that "the City did not condition their approval on any specific areas related to noise," but that it would be concerned about federal preemption if there was evidence the City had in fact conditioned approval of the plan on impermissible factors. [FN 5] The City asked to brief the issue, and the parties filed simultaneous briefs after the matter was argued, and five days prior to the court's granting the petition. The City denied that it had any intent to condition its approval of the project on criteria subject to federal preemption.

[FN 5] The City's planning department had recommended the denial in its report dated October 15, 1996, so that a new plan might be submitted with the guidance of the planning staff.
The Authority acknowledged to the trial court that the issue had not been raised by its petition, and offered to file an amended petition to conform to proof. The record before us contains no amended petition, and no ruling by the trial court on the Authority's request to file one. The issue is not mentioned in the minute order of February 18, 1998, or in the judgment. [FN 6] A mere request to amend to conform to proof cannot be deemed an amendment. (See People ex rel. Dept. of Public. Works v. Vallejos (1967) 251 Cal.App.2d 414, 416.) No formal amendment is required where parties have tried a case as though the omitted issue had been properly pleaded; however, this rule is inapplicable where the amendment is offered at the end of the trial, as it was here. (Conroy v. Perez (1964) 64 Cal.App.2d 217, 228.)
[FN 6] Given the speculative nature of the Authority's assertion that the City intended to impose unlawful conditions, even though it did not do so, we are moved to note that it is hardly surprising the trial court disregarded the offer to amend.
Given the timing of the Authority's request to amend, its failure to obtain a ruling on its request, and the lack of a formal amendment, we cannot find that impermissible conditions of approval were put in issue in the trial court. Thus we reject the Authority's alternate theories, and because we reverse the judgment on the ground that it was based upon an erroneous conclusion of law, we do not reach the other arguments put forth by the City.


DISPOSITION

The judgment is reversed and the writ of mandate is vacated. The cause is remanded to the superior court with directions to enter a new and different judgment denying the writ petition. The City of Burbank shall recover its costs on appeal.

LILLIE, P.J.

We concur:

JOHNSON, J.
NEAL, J.