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AIRPORT, INC., Plaintiff and Respondent,
COUNTY OF SACRAMENTO, Defendant and Appellant; DEPARTMENT OF TRANSPORTATION,
Real Party in Interest and Respondent.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
142 Cal. App. 4th 323; 47 Cal. Rptr. 3d 609; 2006 Cal. App. LEXIS 1305; 2006
Cal. Daily Op. Service 8053; 2006 Daily Journal DAR 11499
July 27, 2006, Filed
Publication Status of this Document has been Changed
by the Court from Unpublished to Published August 28, 2006.
HISTORY: Superior Court of Sacramento County, No. 04CS00597, Judy Hersher, Judge.
COUNSEL: Robert A. Ryan, Jr., County Counsel, and Krista C. Whitman, Deputy
County Counsel, for Defendant and Appellant.
Wagner Kirkman Blaine Klomparens & Youmans, Douglas E. Kirkman, and
Roy R. Girard for Plaintiff and Respondent.
Bruce A. Behrens, Thomas
C. Fellenz, Ronald W. Beals,
Manuel Alvarado and Raiyn Bain for Real Party in
Interest and Respondent.
JUDGES: Raye, Acting P. J., with
Morrison, and Hull, JJ.,
OPINION BY: Raye
OPINION: RAYE, Acting P. J.--In these mandamus
proceedings to compel the County of Sacramento (County) to trim or remove its
trees from an airport "clear zone," County would like us to weigh the
fate of the Swainson's hawk and the valley elderberry
longhorn beetle against the convenience of passengers to land at the Rancho Murieta Airport at night. The trial court refused to be
drawn into a battle of the species unwarranted by the straightforward petition
by plaintiff Rancho Murieta Airport, Inc. (Airport),
and County's failure to initiate any other action.
The court granted Airport's petition to
compel County to trim or remove those trees on its property that obstructed
navigable airspace along the south side of the runway or to obtain a permit to
maintain the offending trees pursuant to its ministerial duties defined by
Public Utilities Code section 21659 and its municipal ordinance No. 301-24. The
court did not decide the parties' responsibilities, if any, under the
California Environmental Quality Act (CEQA; Pub. Resources
Code, § 21000 et seq.) or who ultimately should pay for the costs of
trimming and removal since those issues were not raised by the petition. We
I. LEGAL CONTEXT
This is a simple case resolved by the
application of one state statute and one county ordinance. Public Utilities
Code section 21659, pertaining to airport obstructions, states: "No person
shall construct or alter any structure or permit any natural growth to grow at
a height which exceeds the obstruction standards set forth in the regulations
of the Federal Aviation Administration relating to objects affecting navigable
airspace contained in Title 14 of the Code of Federal Regulations, Part 77,
Subpart C, unless a permit allowing the construction, alteration, or growth is
issued by the department." (Pub. Util. Code, § 21659, subd.
Similarly, Sacramento County Ordinance No.
301-24 provides that "no tree or other object of natural growth shall be
allowed to grow and no building or appurtenance thereon, tower or other
structure shall be erected or maintained to exceed the height limits developed
for aircraft approach and take-off areas which are designated on the
Comprehensive Zoning Plans ... ."
Despite the plain language of the statute
and the ordinance, more than 65 trees on County property exceed the height
limits developed for safe aircraft approach and departure paths and encroach on
the navigable airspace at the airport. County offers an assortment of legal and
equitable arguments to justify its recalcitrance. But sorely missing is any
authority to support its untenable position that it can evade its statutory and
municipal duty to maintain its property so as not to endanger the health and
safety of the public. Our review is de novo. ( People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th
415, 432 [101 Cal. Rptr. 2d
200, 11 P.3d 956].)
II. THE BARE FACTS
Both sides provide us with a long chronology
of events largely irrelevant to the straightforward issue presented. Simply
stated, County acquired property adjacent to the airport. A variance, obtained
about 10 years earlier, permitted the offending trees to intrude on the
navigable airspace during day operations. Three years later, night operations
began. Thirteen years later, the Federal Aviation Administration (FAA)
completed an aeronautical study concluding that many of County's trees needed
to be removed or topped, or lighting had to be installed. The California
Department of Transportation (Caltrans) recommended
removal of the trees rather than the installation of lights. Airport obtained a
number of variances from Caltrans to allow nighttime
operations to continue while Airport attempted to resolve the issue with
Five more years passed. There was a flurry
of activity in 2001, but finally in 2002 Caltrans
notified Airport that its permit for both day and night operations would be
suspended on May 31, 2002. County thereafter trimmed or removed the trees at
the west end of the runway, and Airport was allowed to resume daytime
In 2003 Caltrans
again notified County that section 21659 of the Public Utilities Code
prohibited the tree obstructions located on County land south of the airport's
runway, and that County was obligated to trim or remove the trees. The
Sacramento County Board of Supervisors disagreed because the trees were present
at the time the airport was first permitted. In response, Caltrans
insisted it did not "grandfather a natural growth nor does it grandfather
a known dangerous condition."
County contends it has no obligation to
trim or remove the offending trees and Airport must seek an encroachment permit
or easement to trim or remove the trees on County property. Moreover, in
County's view, the approval of such an application is a
"discretionary" project subject to environmental review under CEQA
and, perhaps, a take permit pursuant to the Endangered Species Act. (16 U.S.C.
§§ 1538, 1539.) In February 2005 the trial court granted Airport's petition for
a writ of mandate as to County.
(1) A trial court may issue a writ of mandamus to a
public body "to compel the performance of an act which the law specially
enjoins." (Code Civ. Proc., § 1085, subd. (a).) There are only two requirements for the
issuance of the writ: a respondent's clear, present, and usually ministerial
duty and a petitioner's clear, present, and beneficial right to performance of
the duty. ( California Correctional Supervisors Organization,
Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 827 [117 Cal. Rptr. 2d
County resists the obvious import of the
statute and ordinance set forth above with the dubious contention that neither
identifies the "person" responsible for maintaining navigable
airspace, and "logically," County could not be the correct entity.
County's logic is predicated on its notion that County does not benefit from
the operation of the airport, and therefore it should not be required to incur
the expense of maintaining its property so as not to obstruct navigable
County's self-serving definition of logic
and fairness simply ignores any fair reading of the language of the statute or
the ordinance. The statute states plainly that "[n]o person shall ...
permit any natural growth to grow at a height which exceeds the obstruction
standards set forth in the regulations of the Federal Aviation
Administration." Obviously, the landowner is a person who would permit the
(2) Similarly, the county ordinance provides that
"no tree or other object of natural growth shall be allowed to grow and no
building or appurtenance thereon, tower or other structure shall be erected or
maintained to exceed the height limits developed for aircraft approach and
take-off areas which are designated on the Comprehensive Zoning Plans ...
." The party who would allow the offending growth, once again, would be
the landowner. Thus, County's duty to trim or remove the offending trees is
clearly articulated in both the statute and the ordinance, notwithstanding
County's distaste for the obligation it assumed as a landowner adjacent to an
airport. There is nothing in either the statute or the ordinance to exempt any
landowner who does not benefit from clearing the navigable airspace.
County insists its duty to remove the
obstructions was abrogated by the variances issued by Caltrans
in 1970 and 1990. The trial court found otherwise. "[S]ince
at least 1995, Caltrans has notified Airport that the
variance shall be applicable only to day operations, and not night operations.
[Citation.] Since 1995, Caltrans has consistently
told Airport that the trees penetrating the 7:1 transitional surface are
hazards to night operations at the airport and that for night operations to be
permitted at the airport, the trees will have to be removed, trimmed, or
permanently obstruction lighted. [Citation.] Caltrans'
April 2, 2001, letter specifically notified Airport that if no action was taken
to correct the problem, night operations at the Airport would be suspended
effective April 30, 2001. [Citation.] And again on April 29, 2002, Caltrans notified Airport of the obstructing trees and
informed Airport that '[t]he Department is required to suspend night operating
privileges until the south side obstructions (trees) which penetrate the FAR
Part 7:1 Transitional Surface are removed or trimmed/lighted. ... [P] In
accordance with Public Utilities Code Section 21668.2, the airport permit will
be suspended as of May 31, 2002.' [Citation.] The letter further informed
Airport that '[i]f the south side obstructions are
removed/trimmed/lighted, you will be able to resume night operations.'
[Citation.] Although the precise date of the suspension is the subject of some
uncertainty, at some point Caltrans suspended
Airport's permit for night operations because the tree obstructions were not
trimmed/removed or lighted. Accordingly, any claim that Caltrans
has granted a variance for the obstructing trees must fail. The evidence overwhelmingly
establishes that Caltrans has not permitted, and will
not permit, night operations at the Airport unless and until the obstructing
trees are removed, trimmed, or lighted."
County asks us to ignore the court's
factual findings, ignore the evidence, ignore Caltrans's
statutory authority to suspend or revoke a permit at any time where the site
may no longer be safely used by the general public because of a change in
physical conditions (Pub. Util. Code, §§ 21668, 21668.2), and to find as a matter
of law that the variances allow the trees to obstruct the navigable airspace.
At the same time, County insists it is not asking us to "grandfather"
in the trees that were on the property at the time the original and corrected
permits were issued even though it relies on evidence that an arborist
concluded the trees must have exceeded the height restrictions in 1970, and
undoubtedly by 1990.
County cites no authority, and we have
found none, to support its dangerous proposition that because Caltrans initially granted a variance, the variance lasts
in perpetuity. Additionally, County offers no explanation how it could obtain
any vested right to allow the trees to obstruct the airspace in derogation of
public safety. Thus, in light of County's failure to provide relevant authority
or a plausible rationale for evading the explicit terms of the statute and
ordinance, we affirm the court's sound conclusion that Airport's dated
variances do not allow County's trees to continue to jeopardize public safety.
Even if we were to assume that, as County
maintains, the 1970 permit and the 1990 corrected permit granted Airport a
variance for both day and night operations, County does not suggest that it
ever applied for or obtained a similar variance. Rather, County seems to
suggest that its trees were covered by Airport's variance, a position at odds
with its initial determination that it was obligated to comply with Public
Utilities Code section 21659. Although the Sacramento County Board of
Supervisors had directed staff to investigate obtaining a permit to save some
of the trees, County reversed course, claiming it did not have the duty to
comply with section 21659 or its own ordinance. Apparently, County still has
not sought its own variance to permit some of its trees to intrude on the
navigable airspace despite admonitions from Caltrans,
the FAA, and the trial court.
Instead, County wages a fruitless battle in
the wrong lawsuit. The trial court properly limited the issues to those raised
by Airport's petition for a writ of mandate. County's desire to save trees,
hawks, or beetles; to minimize costs; or to restrict night operations at the
airport does not alter its duty to follow the law. If, as County fears, its
duty to trim or remove trees conflicts with its duty to protect endangered
species, then it must seek the appropriate variance or initiate an appropriate
action. The trial court, however, properly found that Airport's variance did
not entitle County to obstruct navigable airspace in perpetuity.
V. THE AMENDED PERMIT
In a similar vein, County contends
Airport's 1990 permit is invalid because the application was not circulated and
it did not have the opportunity to object to the commencement of night
operations. The trial court politely characterized the issue as a "red
County failed to object at any time during
the 12 years of night operations allowed by the corrected permit. As the trial
court aptly pointed out, County could have challenged the validity of the
permit by filing its own writ petition. It did not. Nor does it provide any
authority for its bald assertion that Airport had a duty to circulate the
application. Thus, the validity of the permit was not properly raised before
the trial court and is of no merit on appeal.
The judgment is affirmed.
Morrison, J., and Hull, J., concurred.