First District Court of Appeal Issues Unpublished Decision Holding Suisun City Complied with the State Aeronautics Act and CEQA in Approving a Proposed Wal-Mart Supercenter

Suisun Alliance v. Suisun City* (Aug. 20, 2010, A125042)
*The opinion has not been certified for publication.

In an unpublished decision, the First District Court of Appeal denied a petition for writ of mandate and complaint for injunctive relief against Suisun City for failure to comply with the State Aeronautics Act (SAA) and CEQA when it approved a proposed commercial development known as the Walters Road West Project. The project consists of 227,019 square-feet of retail development, including a Wal-Mart Supercenter, restaurant, and a gas station. The project site is located in Suisun City, near Travis Air Force Base.

In 2007, the City released a nearly 1,600-page draft EIR for the project. Pursuant to the SAA, the draft EIR also analyzed the project’s consistency with the Travis Air Force Base Land Use Compatibility Plan (TALUCP). The TALUCP established criteria for noise, public safety, and airspace protection in the vicinity of the airport. The TALUCP also established the maximum population site usage intensity for development in the project area. In response to data provided by the City, the Solano County Airport Land Use Commission (ALUC) staff recommended the ALUC find the project was consistent with the TALUCP. The ALUC rejected the recommendation and found the project was partially inconsistent with the TALUCP’s safety criteria.

The City released a final EIR (FEIR) in 2008, for the project. The City also released an addendum to the FEIR to respond to late comments. The City Council overruled the ALUC’s determination, certified the FEIR, and approved the project. To support its decision to overrule the ALUC, the City prepared a resolution of decision and findings, stating the project was consistent with the TALUCP and the public interest purposes of the SAA pursuant to Public Utilities Code section 21670. Suisun Alliance filed suit. The trial court ruled in favor of the City, and Suisun Alliance subsequently filed an appeal.

Suisun Alliance’s first major claim was that the City’s violated the SAA because the project was inconsistent with the purposes and procedural mandates of the SAA in addition to the TALUCP’s population density restrictions. The court disagreed with Suisun Alliance. The City found the project would not pose any unacceptable safety risk from aviation activities at Travis because aircraft do not regularly fly over the project site. Over the past 57 years, there were only five aviation mishaps, none of which occurred in airspace over the project site. The court found these facts to be relevant.

Suisun Alliance also argued that the City’s findings failed to explain how project approval was consistent with the SAA purpose of protecting the public health, safety, and welfare by ensuring the orderly expansion of Travis over the next 20 years. Looking at the City’s findings, the court concluded the City adequately supported its finding that the project was consistent with the stated SAA purpose. The City stated that it would apply the City’s zoning code to regulate airport flight obstruction areas and limit the number of people and development within any aircraft flight pattern. The court also found that the zoning code and general plan included provisions to protect runway approaches and the future development of Travis.

Suisun Alliance next argued that the City violated the SAA’s review and comment procedures because the final resolution of decision and findings included content that was not included in the proposed decision and findings. Generally, the City is required to provide the ALUC and Caltrans’s Division of Aeronautics the proposed decision and findings 45 days before the City’s decision to overrule the ALUC. The ALUC and Caltrans may then provide the City with comments. The City must respond to these comments and include the responses in the final decision. The court concluded that the law does not prohibit the City from revising or expanding its proposed findings and the City was not required to provide another 45-day notice and comment period.

With respect to the City’s finding that the project was consistent with the TALUCP, Suisun Alliance argued the City used an incorrect method to estimate the number of people likely to use the facilities at the project site. The court disagreed with Suisun Alliance and concluded the TALUCP did not mandate the use of any particular methodology. The court held the City adequately supported its rationale for selecting the methodology that it used. Furthermore, the court noted that although the City concluded that its methodology was more appropriate, the City found the project was consistent with the TALUCP under either methodology. The court found that substantial evidence supported this determination.

After addressing the SAA claims, the court turned to Suisun Alliance’s CEQA claims. First, Suisun Alliance argued the City violated CEQA by failing to revise and recirculate the DEIR to include significant new information discovered during the public comment period concerning the presence of an underground jet fuel pipeline beneath a right-of-way north of the project site. The court held the City’s conclusion that the project would not have significant impacts on the pipeline to be supported by substantial evidence. No jet fuel pipelines were actually on the project site and a title search did not reveal any pipeline easements. The City also stated that any construction near the pipeline north of the site would comply with all regulations.

Second, Suisun Alliance argued the City did a “bait-and-switch” with regard to its position on riparian habitat on the project site. By doing so, Suisun Alliance alleged the City violated CEQA’s public participation and informed decision-making mandates. The DEIR stated the project site contained a drainage ditch with vegetative cover for wildlife and classified the ditch as a perennial wetland. The FEIR, however, explained the DEIR incorrectly characterized the ditch and that biological evaluations revealed the low quality vegetation did not qualify as riparian habitat. Nonetheless, the FEIR stated that the loss of the drainage ditch would be mitigated by applying wetland mitigation measures. The Regional Water Quality Control Board submitted letters on the DEIR and FEIR, stating the ditch provided riparian habitat. The court disagreed with Suisun Alliance and concluded the City did not violate the mandates of CEQA because the public still had notice of the loss of the drainage ditch as stated in the FEIR. The court also concluded the City was not required to recirculate a revised EIR. The alleged “new information” that would otherwise require recirculation, i.e., the ditch was more accurately characterized as a wetland rather than riparian habitat, was not truly “new information” or a substantial increase in the severity of an impact.

Finally, Suisun Alliance argued the City’s conclusion that the project will have no economic impacts that may result in urban decay is unsupported. In particular, Suisun Alliance contended the project would adversely impact a Rite Aid store in the city and a Food Maxx store in the City of Fairfield, such that urban decay would result. With respect to the Rite Aid store, the court disagreed. The court found the City’s conclusions were supported in part by the fact that the Rite Aid store was the most convenient general merchandise store for many residents. The shopping center where Rite Aid was located was also well-maintained making it less likely that potential closure of the Rite Aid would lead to urban decay. The court also disagreed with Suisun Alliance’s contention regarding the Food Maxx store. In view of the entire record, the court concluded that the City considered the cumulative impacts of the Wal-Mart Supercenter in Fairfield and the project on Fairfield retailers, including the Food Maxx. Any business closures would be short term and would not result in an urban decay impact.