Supreme Court of California Justia
Citation 47 Cal. 4th 902, 220 P.3d 905, 102 Cal. Rptr. 3d 894

Sunset Sky Ranch Pilots v. County of Sac.

Filed 12/28/09

IN THE SUPREME COURT OF CALIFORNIA

SUNSET SKY RANCH PILOTS
ASSOCIATION, et al.,
Plaintiffs and Appellants,
S165861
v.
Ct.App. 3 C055224
COUNTY OF SACRAMENTO, et al.,
Sacramento County
Defendants and Respondents; )
Super. Ct. No. 06CS00265
JOHN M. TAYLOR, et al.,
Real Parties in Interest and
Respondents.

The County of Sacramento declined to renew a conditional use permit for a
privately owned airport. A mandamus petition seeking to prevent the airport‟s
closure was denied. The Court of Appeal reversed, holding that the county‟s
action amounted to a “project” subject to the requirements of the California
Environmental Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA).)1
The Court of Appeal erred because it misconstrued the nature of the project
at issue. Declining to renew the conditional use permit was not a public project
under CEQA, because the county did not “directly undertake[]” to close the
airport. (§ 21065, subd. (a).) Instead, it decided not to reauthorize a private

1
Further statutory references are to the Public Resources Code.
1


activity that required “the issuance . . . of a . . . permit.” (§ 21065, subd. (c).) The
airport operation was the “project” in question, and projects rejected by a public
agency are specifically exempted from CEQA requirements. (§ 21080, subd.
(b)(5).)
I. BACKGROUND2
This litigation pits the owner and users of the Sunset Sky Ranch Airport
against nearby property owners and Sacramento County. Appellants are Daniel
Lang, the airport owner, and the Sunset Sky Ranch Pilots Association
(collectively, the Airport). Real parties in interest, John Taylor and the law firm of
Taylor and Wiley, represent the neighboring property owners. They are aligned as
respondents with Sacramento County and its board of supervisors (the County).
An airstrip began operating in 1934, when there were no applicable zoning
regulations. Since 1968 a zoning ordinance has allowed airports in the area, if the
operator obtains a conditional use permit (CUP). Lang acquired the property in
1971 and was granted a two-year CUP to operate a private airport, which was then
used mainly for agricultural flights. In 1972, the Sacramento County General Plan
was amended to allow a public use airport at the location, and Lang acquired a
state airport permit for that purpose. The CUP expired in 1973. Lang did not
apply for renewal, but continued operating the airport.
In 1989, Lang lost his business license because he was out of compliance
with the zoning code. He appealed the denial and applied for a certificate of
nonconforming use. The County upheld the license denial and refused to certify a
nonconforming use, citing “considerable expansion” of the airport. (See Hansen
Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 552.) It
recommended that Lang obtain a CUP. Lang sued, and the County prevailed.

2
We accept the Court of Appeal‟s statement of the facts, which are
undisputed. (Cal. Rules of Court, rule 8.500(c)(2).)
2



In 1999, the Airport applied for a 10-year CUP. The County, however,
granted only a 5-year permit, anticipating that an East Elk Grove Specific Plan
approved in 1996 might lead to urbanization of the area. The CUP required that
“[t]he airport operator shall inform all airplane owners with tie-downs who intend
to install or improve airport hangars on the property of the terms of this use
permit, including the expiration date.” The County approved a negative
declaration under CEQA, finding that the CUP would have no significant effect on
the environment. (See § 21064.) A challenge to the negative declaration was
unsuccessful. (See Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270.)
In September 2004, two weeks before the 1999 CUP expired, the Sunset
Sky Ranch Pilots Association applied for renewal. The County Project Planning
Commission voted to approve a renewed CUP for two years, with no further
extension. Real parties in interest filed an administrative appeal with the County
Board of Supervisors (the Board). The Board upheld the appeal and denied
renewal of the CUP. Its findings stated: “The action taken by the Board of
Supervisors is not a revocation of an existing use permit but, rather, merely a
decision not to renew a use that has already expired. It accordingly reflects a
decision to not re-grant a permit for a use that has been determined to no longer be
compatible with its surroundings. Furthermore, [CEQA] does not require that
environmental analysis be conducted before an agency denies a project since a
denial does not constitute a project for the purposes of CEQA.”
The Board noted the development of new residential neighborhoods in the
area, the local school district‟s difficulty in finding a suitable school site due to the
airport‟s overflight zone, and the existence of other airport facilities at more
appropriate locations. It declared that the denial of a CUP did not amount to
action on any future developments that might be feasible with the elimination of
the airport. The Board observed that such developments would themselves require
environmental review before they could be approved.
3

The Airport sought a writ of mandate, injunctive relief, and monetary
damages. Among other claims, it contended the County had failed to comply with
CEQA because it had not analyzed the environmental impacts of closing the
airport. The trial court denied relief. The Court of Appeal reversed, reasoning
that the CUP denial was part of a County plan to enforce its zoning code by
closing the airport and transferring pilots to other airports. Accordingly, the court
concluded that the County‟s action amounted to a project requiring environmental
review under CEQA.
We granted respondents‟ petition for review of the CEQA issue.
II. DISCUSSION
Whether an activity is regulated by CEQA is a question of law that may be
decided on undisputed facts. (Muzzy Ranch Co. v. Solano County Airport Land
Use Com. (2007) 41 Cal.4th 372, 382.) When it enacted CEQA, the Legislature
imposed certain limitations on its scope. CEQA applies only to activities that
meet the definition of a “project” under the statute and its implementing
administrative regulations.3 (Muzzy Ranch, at p. 380.) In addition, the Legislature
specifically exempted certain activities from environmental review. (Ibid.;
§ 21080, subd. (b).) These exemptions reflect legislative policy decisions.
Although we construe CEQA broadly “ „to afford the fullest possible protection to
the environment within the reasonable scope of the statutory language,‟ ” we do
not balance the policies served by the statutory exemptions against the goal of
environmental protection. (Napa Valley Wine Train, Inc. v. Public Utilities Com.
(1990) 50 Cal.3d 370, 376.) Indeed, the purposes of the various exemptions are

3
Hereafter, we refer to these regulations, found in title 14 of the California
Code of Regulations, section 15000 et seq., as CEQA Guidelines. “In interpreting
CEQA, we accord the CEQA Guidelines great weight except where they are
clearly unauthorized or erroneous. (Citizens of Goleta Valley v. Board of
Supervisors
(1990) 52 Cal.3d 553, 564, fn. 3.)” (Muzzy Ranch Co. v. Solano
County Airport Land Use Com.
, supra, 41 Cal.4th at p. 380, fn. 2.)
4


not necessarily consistent with CEQA‟s general purposes. (Napa Valley Wine
Train, at pp. 381-382.)
A CEQA “project” falls into one of three categories of “activity which may
cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment . . . .” (§ 21065.)
Generally, the statute applies to actions that a public agency undertakes, funds, or
approves.4 Respondents contend the only applicable category here is the one for
activities requiring governmental approval. (§ 21065, subd. (c).) Because the
County refused to issue a CUP for continued airport operations, respondents claim
this case falls squarely within the statutory exemption provided by CEQA for
“[p]rojects which a public agency rejects or disapproves.” (§ 21080, subd. (b)(5);
see Main San Gabriel Basin Watermaster v. State Water Resources Control Bd.
(1993) 12 Cal.App.4th 1371, 1380.)
The Airport, on the other hand, argues that the cessation of operations
resulting from denial of a CUP was itself a “project,” because it was in effect “[a]n
activity directly undertaken by any public agency” as contemplated by
section 21065, subdivision (a). The Airport emphasizes that “ „[p]roject‟ means
the whole of an action, which has a potential for resulting in either a direct
physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment . . . .” (CEQA Guidelines, § 15378, subd. (a).) It urges
us to follow the reasoning of the Court of Appeal, which decided that the “whole
of the action” in this case included not just the denial of a CUP, but also a broader
County decision to close the airport, shift its operations elsewhere, and enforce the
zoning code. This approach, however, blurs the statutory distinction between

4
The statutory categories are: “(a) An activity directly undertaken by any
public agency. [¶] (b) An activity undertaken by a person which is supported, in
whole or in part, through contracts, grants, subsidies, loans, or other forms of
assistance from one or more public agencies. [¶] (c) An activity that involves the
issuance to a person of a lease, permit, license, certificate, or other entitlement for
use by one or more public agencies.” (§ 21065.)
5


projects “directly undertaken by [a] public agency” (§ 21065, subd. (a)) and
projects submitted to an agency for approval (§ 21065, subd. (c)). It also conflicts
with the statutory exemption of rejected projects from CEQA review.
As the Court of Appeal recognized, the fact that the airport is privately
owned and operated distinguishes this case from those in which closures of public
facilities have been deemed “projects” for CEQA purposes. (See San Lorenzo
Valley Community Advocates for Responsible Education v. San Lorenzo Valley
Unified School Dist. (2006) 139 Cal.App.4th 1356, 1380; Association for a
Cleaner Environment v. Yosemite Community College Dist. (2004) 116
Cal.App.4th 629, 639.) The CEQA Guidelines make it clear that “[p]rivate action
is not subject to CEQA unless the action involves governmental participation,
financing, or approval.” (CEQA Guidelines, § 15002, subd. (c).) “The term
„project‟ refers to the activity which is being approved and which may be subject
to several discretionary approvals by governmental agencies. The term „project‟
does not mean each separate governmental approval.” (Id., § 15378, subd. (c).)
Thus, the County‟s action on the Airport‟s application for a CUP renewal was not
part of the “project,” and closing the airport was not an “activity directly
undertaken” by the County within the meaning of section 21065, subdivision (a).
Instead, as respondents argue, the relevant “activity” for CEQA purposes
was the proposed continued operation of the airport. That activity required the
issuance of a permit, making it a private “project” under section 21065,
subdivision (c). Notably, if the Airport had decided on its own to go out of
business and allow the CUP to expire, there would have been no occasion for
CEQA review by the County. The Airport‟s application for a renewal of the CUP
did not place the County in the position of proceeding with a project, even though
the County may have rejected the application as part of a plan to bring
development in the area into conformity with the zoning code. It was the Airport
that sought a new approval for its operations, and the County‟s denial of that
6
project application was statutorily exempt from CEQA review under section
21080, subdivision (b)(5).
The Court of Appeal erred by deeming the consequences of a project denial
to be part of the project itself. Its reasoning would effectively abrogate the
statutory exemption for projects disapproved by a public agency. (§ 21080, subd.
(b)(5).)5 In many cases, disapproval of a proposed project could have possible
environmental impacts associated with alternative courses of action. “Yet the
Legislature has determined for reasons of policy to exempt project disapprovals
from environmental review under CEQA. Our state legislators evidently
concluded that public agencies should not be forced to commit their resources to
the costly and time-consuming environmental review process for proposed private
development projects slated for rejection, whatever the reason for agency
disapproval. This court does not sit in judgment of the Legislature‟s wisdom in
balancing such competing public policies. (Napa Valley Wine Train, Inc. v. Public
Utilities Com. [supra,] 50 Cal.3d 370, 376.)” (Main San Gabriel Basin
Watermaster v. State Water Resources Control Bd., supra, 12 Cal.App.4th at pp.
1383-1384.) As we noted in Napa Valley Wine Train, the very purpose of the
statutory CEQA exemptions is to avoid the burden of the environmental review
process for an entire class of projects, even if there might be significant
environmental effects. (Napa Valley Wine Train, supra, 50 Cal.3d at p. 381.)
The Airport argues that a CUP renewal presents a special situation because
there is already an existing project, so that denying a permit will result in
alteration of the environmental status quo. However, the denial of a permit for a
new project may also have foreseeable environmental effects, in that the same

5
“This division does not apply to any of the following activities: [¶] . . . [¶]
(5) Projects which a public agency rejects or disapproves.” (§ 21080, subd. (b).)
In Main San Gabriel Basin Watermaster v. State Water Resources Control Bd.,
supra, 12 Cal.App.4th at pages 1381-1382, the court reviewed the legislative
history of this exemption, which is not extensive, and concluded there was nothing
to indicate that the Legislature did not mean what it said.
7


kind of development may be diverted to a different site. In any event, neither
CEQA nor the CEQA Guidelines make any special provision for CUP denials.
Furthermore, requiring CEQA review in such circumstances could be burdensome
for applicants. “A lead agency may charge and collect a reasonable fee from any
person proposing a project subject to this division in order to recover the estimated
costs incurred by the lead agency in preparing a negative declaration or an
environmental impact report for the project and for procedures necessary to
comply with this division on the project.” (§ 21089, subd. (a).) If review were
required whenever the status quo is altered by the denial of a CUP, unsuccessful
applicants would not only have to cease operations but also pay for environmental
review of that undesired outcome. There is no reason to believe the Legislature
intended to impose that cost on everyone who fails to obtain a CUP renewal.6

6
An applicant may be required to pay for necessary preliminary review of a
project before an agency acts on an application to renew a CUP. The exemption
for rejected or disapproved projects does “not relieve an applicant from paying the
costs for an EIR [Environmental Impact Report] or negative declaration prepared
for his project prior to the lead agency‟s disapproval of the project after normal
evaluation and processing.” (CEQA Guidelines, § 15270, subd. (c).) Such review
may include discussion of a “no project” alternative. (Id., § 15126.6, subd. (e).)

However, the rule urged by the Airport would require routine review of the
environmental effects of CUP denials, opening the door to the imposition of costs
on applicants even where, as here, the agency has the information it needs to
evaluate a renewal request. The exemption “is intended to allow an initial
screening of projects on the merits for quick disapprovals prior to the initiation of
the CEQA process where the agency can determine that the project cannot be
approved.” (CEQA Guidelines, § 15270, subd. (b); see Main San Gabriel Basin
Watermaster v. State Water Resources Control Bd.
, supra, 12 Cal.App.4th at pp.
1380-1381.)
8



III. DISPOSITION
The Court of Appeal‟s judgment is reversed.
CORRIGAN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

9


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sunset Skyranch Pilots Association v. County of Sacramento
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 164 Cal.App.4th 671
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S165861
Date Filed: December 28, 2009
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Jack Sapunor

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Lanny T. Winberry and Lanny T. Winberry for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Robert A. Ryan, County Counsel, and Krista C. Whitman, Deputy County Counsel, for Defendants and
Respondents.

Edmund G. Brown, Jr., Attorney General, Gordon Burns, Deputy State Solicitor General, J. Matthew
Rodgiquez, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Denise
Ferkich Hoffman and Bruce Reeves, Deputy Attorneys General, for State Water Resources Control Board,
Natural Resources Agency, California Environmental Protection Agency, California Integrated Waste
Management Board, Santa Monica Mountains Conservancy and Department of Parks and Recreation as
Amici Curiae on behalf of Defendants and Respondents.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendants and Respondents.

Taylor & Wiley, John M. Taylor, Kate Leary Wheatley and Matthew S. Keasling for Real Parties in
Interest and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Lanny T. Winberry
Law Office of Lanny T. Winberry
8001 Folsom Boulevard, Suite 100
Sacramento, CA 95826
(916) 386-4423

Krista C. Whitman
Deputy County Counsel
700 H Street, Suite 2650
Sacramento, CA 95814
(916) 874-5100


Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case presents the following issues: (1) Is a county's denial of an application to renew a conditional use permit a "project" subject to the California Environmental Quality Act (Pub. Resources Code, ? 21000 et seq.)? (2) If the denial of such an application is a project, is it nonetheless exempt from the Act?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 12/28/200947 Cal. 4th 902, 220 P.3d 905, 102 Cal. Rptr. 3d 894S165861Review - Civil Appealsubmitted/opinion due

Parties
1Sunset Skyranch Pilots Association (Plaintiff and Appellant)
Represented by Lanny Thalbert Winberry
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, CA

2County of Sacramento (Defendant and Respondent)
Represented by Robert Arthur Ryan
Office of Sacramento County Counsel
700 "H" Street, Suite 2650
Sacramento, CA

3County of Sacramento (Defendant and Respondent)
Represented by Krista Castlebary Whitman
Office of the County Counsel
700 "H" Street, Suite 2650
Sacramento, CA

4Taylor, John M. (Real Party in Interest and Respondent)
Represented by John Michael Taylor
Taylor & Wiley
2870 Gateway Oaks Drive, Suite 200
Sacramento, CA

5Taylor & Wiley (Real Party in Interest and Respondent)
Represented by John Michael Taylor
Taylor & Wiley
2870 Gateway Oaks Drive, Suite 200
Sacramento, CA

6California State Association of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA

7League of California Cities (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA

8State Water Resources Control Board (Amicus curiae)
Represented by Bruce F. Reeves
Office of the Attorney General/Public Rghts Division
1300 "I" Street, 15th Floor
Sacramento, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Dockets
Aug 11 2008Petition for review filed
  County of Sacramento, defendant and respondent, by Krista C. Whitman, Supervising deputy, county counsel
Aug 11 20082nd petition for review filed
  Sunset Skyranch Pilots Association, appellants, by Lanny T. Winberry, Counsel
Aug 11 20083rd petition for review filed
  John Taylor, et al. RPIs and respondents John Taylor, counsel
Aug 12 2008Received Court of Appeal record
  one doghouse
Sep 2 2008Answer to petition for review filed
  counsel for resps. Co. of Sacramento
Sep 2 2008Answer to petition for review filed
  counsel for RPI, John Taylor, et al.
Oct 1 2008Petition for review granted (civil case)
  Respondents' John Taylor, Taylor & Wiley, and County of Sacramento's petitions for review are granted. Appellants' Sunset Sky Ranch Pilots Association's petition for review is denied. Kennard, J., was absent and did not participate. Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Oct 10 2008Certification of interested entities or persons filed
  real party in interest, John Michael Taylor
Oct 30 2008Opening brief on the merits filed
  County of Sacramento, Respondent by Krista C. Whitman, counsel
Oct 31 2008Opening brief on the merits filed
  counsel for rpi/resps. John Taylor, Taylor & Wiley
Dec 1 2008Answer brief on the merits filed
  counsel for aplts. Sunset Sky Ranch Pilots Assoc.
Dec 22 2008Reply brief filed (case fully briefed)
  counsel for rpi and resps.
Jan 21 2009Application to file amicus curiae brief filed
  State Water Resources Ctrl. Board, et al., in support of defts. and resps. (non-party)
Jan 21 2009Received application to file Amicus Curiae Brief
  California State Assoc. of Counties, et al. in support of respondent.
Jan 30 2009Permission to file amicus curiae brief granted
  The application of California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 30 2009Amicus curiae brief filed
  California State Association of Counties and League of California Cities in support of respondent, by Jennifer B. Henning, counsel
Feb 5 2009Permission to file amicus curiae brief granted
  The application of State Water Resources Control Board, et al., for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 5 2009Amicus curiae brief filed
Amicus curiae: State Water Resources Control BoardAttorney: Bruce F. Reeves   State Water Resources Control Board, et. al. in support of respondents.
Feb 20 2009Response to amicus curiae brief filed
  Sunset Sky Ranch Pilots Assn., appellants Lanny Winberry, counsel
Feb 26 2009Response to amicus curiae brief filed
  counsel for aplts. to a/c brief of State Water Resources Ctrl. Brd., et al. (8.25(b)
Jun 10 2009Received:
  9 Volumes of Administrative Record from Superior Court of Sacramento County.
Oct 1 2009Case ordered on calendar
  to be argued Wednesday, November 4, 2009, at 9:00 a.m., in San Francisco
Oct 13 2009Supplemental brief filed
Real Party in Interest and Respondent: Taylor & WileyAttorney: John Michael Taylor  
Nov 4 2009Cause argued and submitted
 
Dec 21 2009Returned record
  9 volumes returned to Sacramento County Superior Court
Dec 24 2009Notice of forthcoming opinion posted
  To be filed Monday, December 28, 2009 at 10 a.m.

Briefs
Oct 30 2008Opening brief on the merits filed
 
Oct 31 2008Opening brief on the merits filed
 
Dec 1 2008Answer brief on the merits filed
 
Dec 22 2008Reply brief filed (case fully briefed)
 
Jan 30 2009Amicus curiae brief filed
 
Feb 5 2009Amicus curiae brief filed
Amicus curiae: State Water Resources Control BoardAttorney: Bruce F. Reeves  
Feb 20 2009Response to amicus curiae brief filed
 
Feb 26 2009Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
s165861_-_petition_for_review.pdf (2656683 bytes) - Petition for Review
application/pdf icon
s165861_-_2nd_petition_for_review.pdf (2888215 bytes) - 2nd Petition for Review
application/pdf icon
s165861_-_3rd_petition_for_review.pdf (2622826 bytes) - 3rd Petition for Review
application/pdf icon
s165861_-_answer_to_petition_for_review.pdf (1650503 bytes) - Answer to Petition for Review
application/pdf icon
s165861_-_opening_brief_on_the_merits.pdf (1541038 bytes) - Opening Brief on the Merits
application/pdf icon
s165861_-_opening_brief_on_the_merits_county_of_sacramento.pdf (1227177 bytes) - Opening Brief on the Merits (County of Sacramento)
application/pdf icon
s165861_-_answer_brief_on_the_merits_of_appellants.pdf (1664466 bytes) - Answer Brief on the Merits
application/pdf icon
s165861_-_reply_brief_on_the_merits.pdf (863441 bytes) - Reply Brief on the Merits
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s165861_-_reply_brief_on_the_merits_county_of_sacramento.pdf (383147 bytes) - Reply Brief on the Merits (County of Sacramento)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 1, 2010
Annotated by aronson7

Tags: Airports, California Environmental Quality Act, CEQA, conditional use permits, environment, land use

Summary:
A unanimous California Supreme Court ruled that Sacramento County’s decision not to renew an airport’s conditional use permit did not amount to a “project” under the California Environmental Quality Act (CEQA), and that CEQA review of the decision was therefore unnecessary. The decision reversed a ruling by the California Court of Appeal, Third Appellate District, which found that county’s decision qualified as a project requiring CEQA review. The California Supreme Court held that the Court of Appeal erred by deeming the consequences of the county’s decision to be part of the action itself, misconstruing the statute’s definition of a “project” and effectively abrogating an explicit CEQA exemption for projects disapproved by a public agency.

Facts:
Since 1968 a local zoning ordinance has allowed airports to exist in the area subject to the operator’s obtaining a conditional use permit (CUP). Airport owner Daniel Lang acquired the Sunset Skyranch Airport in 1971 and was granted a two-year CUP to operate the Airport. Lang did not apply for a renewal upon its expiration in 1973, but continued to operate the airport. In 1999, the Airport applied for a 10-year CUP, but was only granted a 5-year permit due to the likelihood of urbanization in the area following the approval of an East Elk Grove Specific Plan in 1996.

In 2004 the Sacramento County Board of Supervisors determined that the airport was no longer compatible with its surroundings and denied a renewal of the CUP, stating that its decision was “not a revocation of an existing use permit but, rather, merely a decision not to renew a use that has already expired. . . Furthermore, [CEQA] does not require that environmental analysis be conducted before an agency denies a project since denial does not constitute a project for the purposes of CEQA” The Airport filed a lawsuit claiming that the County’s decision failed to comply with CEQA because it did not analyze the environmental impact of the airport’s closure.

Procedural Posture:
After the County declined to renew a conditional use permit (CUP) for a privately owned airport, Plaintiffs, the owner and users of the airport, petitioned for a writ of mandate to prevent the airport’s closure. The trial court denied the petition. The Court of Appeal reversed, holding that the county’s decision not to renew the permit constituted a “project” under CEQA that required review. The county petitioned for review by the California Supreme Court.

Arguments:
Plaintiffs argued that the County had failed to comply with CEQA because it had not analyzed the environmental impacts of closing the airport. They argued that review was required under CEQA because the cessation of airport operations resulting from the county’s decision was itself a “project” because it was “an activity directly undertaken by any public agency” as defined by § 21065(a). The Court of Appeal agreed, finding that the County’s CUP denial was part of a broader plan to enforce its zoning code, and that therefore it should be considered a project requiring environmental review under CEQA.

The County argued that the decision not to renew the Airport’s CUP did not qualify as a project under CEQA because CEQA generally applies only to projects that a public agency undertakes, funds, or approves. Furthermore, the County argued that its decision not to renew the CUP fell squarely within the CEQA exemption for “projects which a public agency rejects or disapproves.” §21080, subd. (b)(5).

Issues:
Did Sacramento County’s decision not to renew the airport’s CUP amount to a CEQA “project” requiring review under Pub. Resrouces Code, § 21065? If the denial of such an application is a project, is it nonetheless exempt from the Act?

Holding:
No, Yes. The decision not to renew the conditional use permit was not a public project under CEQA “because the county did not ‘directly undertake[]’ to close the airport. (§ 21065, subd. (a).) Instead, it decided not to reauthorize a private activity that required ‘the issuance . . . of a . . . permit.’ (§ 21065, subd. (c).) The airport operation was the “project” in question, and projects rejected by a pubic agency are specifically exempted from CEQA requirements. (§ 21080, subd. (b)(5).)”

Reasoning:
The Court relied on the CEQA Guidelines, § 15002, subd. (c), to reject the Court of Appeal’s broader definition of what may be deemed a project under CEQA. The California Supreme Court concluded that “project” refers to the underlying activity that is being approved, not the governmental approval itself. The relevant activity for CEQA purposes would thus be the continued operation of the airport, a project under § 21065 subd. (c), which would require governmental approval.

However, the county’s decision not to approve the airport’s CUP renewal was not a project under CEQA, even though the County may made this decision as part of a broader plan. The Court noted that if the Airport had decided to go out of business on its own, there would have been no occasion for CEQA review by the County. The Court of Appeals therefore erred by deeming the consequences the county’s decision to be part of a project itself. However, the court did note that if the airport had been a public rather than a private one, then its closure would appropriately be considered a project under CEQA because it would involve action taken directly by a public agency, thus falling within § 21065, subd. (a).

The Court also relied on the legislature’s explicit exemption of project disapprovals from CEQA review, noting that although disapproval of a project could have possible environmental impacts that conflict with the overall goals of CEQA, it is not the role of the court to question the legislature’s balancing of competing public policies.

Annotation by Alex Aronson, SLS '12