Zack v. Marin Emergency Radio Authority (118 Cal. App. 4th 617, 2004)

Opinion

KLINE, P. J.

Marin Emergency Radio Authority (MERA), a “joint powers agency” (Gov. Code, § 6500 et seq.) made up of 25 local public agencies situated in Marin County, including the County itself, appeals from an order of the Marin County Superior Court granting petitions for peremptory writs of mandamus sought in consolidated actions by Citizens for Open Process in Antenna Siting (COPAS) and Russ and Joni Pratt (collectively, the Pratt plaintiffs), and Howard and Diane Zack (the Zack plaintiffs), and denying MERA’s cross-petition against the Town of Tiburón, identified in both actions as the real party in interest.

The court barred MERA from placing a radio antenna in Tiburón without first complying with that town’s land use ordinances and preparing a supplemental or subsequent environmental impact report (SEIR) pursuant to the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.)

As we conclude that MERA is not subject to local zoning law, that the circumstances of this case do not require preparation of an SEIR, and that plaintiffs’ related claims are also without merit, we shall reverse the judgment.

FACTS AND PROCEEDINGS BELOW

The Joint Powers Agreement entered into by MERA’s members on February 28, 1998, recites that Marin County’s public safety and emergency radio system is “obsolete and not dependable” and that the purpose of the agreement “is to establish a public entity separate from the County, Special Districts, Cities and Towns, . . . [f] . . . which will plan, finance, implement, manage, own and operate a multijurisdictional and county-wide Public Safety and Emergency Radio System with the attendant facilities.”

It is undisputed that the public safety radio system serving fire, police and public works agencies in Marin County is outmoded and ineffective. Among other problems, the system relies on bandwidths that are increasingly unavailable, which often results in unintelligible communications due to multiple users attempting to simultaneously broadcast on a shared radio channel. As a result, police, fire and other public agencies are unable to communicate directly with one another rapidly, as is necessary to effectively respond to a natural disaster or other emergency situation. To solve the problem, MERA proposes to construct a network of microwave dishes, radio antennas and radio equipment located at 17 interlinked sites throughout the county.

One of the sites MERA selected is a 1.1-acre parcel located at 99 1/2 Mt. Tiburon Drive in the Town of Tiburon (the Mt. Tiburon site). The site, which is owned by the Marin Municipal Water District (MMWD), contains a water storage tank and pumping facility. It is also the location of existing telecommunications facilities: a Southern Marin Dispatch transmitter and an antenna mounted on top of the water tank. Until recently, a 20-foot-high cable television monopole and microwave dish were also located on the Mt. Tiburón site. Tiburón’s General Plan designates this area a “Government Facility” and it is zoned for “Public/Quasi Public” land use. On three sides, the site is adjacent to a single-family residential development. The closest residential property line is about 10 feet from the western property line, on the other side of an open space easement.

MERA’s engineering consultant specified installation on the Mt. Tiburón site of two microwave dishes mounted on support poles 13 and 20 feet in height and three two-way radio antennas mounted on a 60-foot high monopole on the same location as the previous cable television monopole.

On September 16, 1999, after completion of an initial study to determine whether an Environmental Impact Report (EIR) was necessary or a “negative declaration” would suffice (Cal. Code Regs., tit. 14, §§ 15000 et seq., 15365 (The CEQA Guidelines)), MERA decided to prepare an EIR. The next day, MERA issued a “Notice of Preparation” (NOP) identifying all 17 proposed antenna sites, including that at the Mt. Tiburón site, and invited “[pjublic comments on the scope of the issues to be evaluated in the EIR.” MERA sent the NOP to local governments and agencies and published it in the Marin Independent Journal, a countywide newspaper of general circulation. The NOP requested interested parties to submit written comments by October 20, 1999. MERA received numerous responses, but none from plaintiffs or the Town of Tiburón.

On November 15, 1999, when the draft EIR (DEIR) was completed, MERA issued a Notice of Completion and Notice of Public Hearing. The notice identified the Mt. Tiburón site as a proposed antenna location, announced the availability of the DEIR, stated that a public hearing would be held on December 9, 1999, and declared that the 45-day public review period would conclude on December 29, 1999. Also on November 15, the Notice of Completion and Notice of Public Hearing were published in the Marin Independent Journal. On the same day, the Notice of Completion, Notice of Public Hearing and a copy of the DEIR were sent to MERA members, one of which was the Town of Tiburón.

Although several local agencies, organizations and individuals submitted written comments on the DEIR, and MERA heard public testimony at the hearing on December 9, 1999, neither plaintiffs nor the Town of Tiburón appeared at the hearing or objected to the DEIR.

The DEIR concluded that, with respect to visual changes, biological resources, and radio frequency exposure, the impact of the proposed use of the Mt. Tiburón site would be “less than significant.” It also noted that although the site is close to single-family residential development on three sides, it is lower in elevation and dense tree growth “effectively screens the location from off-site views”; that design features were incorporated into the project to protect significant natural resources, including scenic views, in compliance with local land-use policies; and that the radio frequency exposure at ground level resulting from the proposed operation would be “negligible,” and significantly less than that permitted by the Federal Communications Commission (FCC).

The DEIR also evaluated a site at 145 Sugarloaf Drive, also a water tank site owned by the MMWD, as an alternative to the Mt. Tiburón site. “After comparing the predicted site coverage area, microwave path, visibility, impact on surrounding neighborhoods and cost,” the DEIR concluded that “the Mt. Tiburón Tank site was a better system choice for the proposed project and achieved the same or better project performance goals than the Sugarloaf site.”

On February. 3, 2000, MERA issued a Notice of Public Meeting for consideration of the Final EIR (FEIR), providing the same notice as that given in connection with the DEIR. Again, neither plaintiffs nor the Town of Tiburón appeared at the hearing or submitted written comments. On February 24, 2000, MERA’s Board adopted a resolution certifying the FEIR as complete and implementing a “Mitigation Monitoring and Reporting Program.” Nineteen of MERA’s 25 members voted in favor of the resolution, one voted no, and five, including the Town of Tiburón, were absent. The next day, MERA issued a Notice of Determination approving the “Marin Public Safety and Emergency Communication System” project. No action or proceeding challenging the project on the ground of noncompliance with CEQA was commenced within the applicable 30-day limitation period. (Pub. Resources Code, § 21167, subd. (c).)

On April 7, 2000, MERA applied to the Town of Tiburón for a conditional use permit and for design review. The 12-page Staff Report of the Tiburón Planning Commission concluded that MERA’s application appeared to “substantially meet the Interim Standards and Criteria adopted by the Town.” As material, the report stated as follows: “The proposed location utilizes a publicly used site and contains an existing water tank structure. The antenna panels and equipment cabinets have been sited and finished in colors and materials to generally blend in with the surrounding area. Noise and traffic generated by the facility appear to be minimal. The proposed facility would be visible from certain residences, and from the adjacent Tiburón Ridge Trail, but would not significantly impact the primary views of any homes or from the Tiburón Ridge Trail. The proposed project would be an integral part of a critical emergency radio system that would benefit Marin County and the entire Tiburón Peninsula in times of emergency.” Noting that some owners of neighboring residential properties objected to the project due to “health concerns” and urged that it be relocated to an open space area, the Staff ■Report responded that the proposed project complied with FCC health standards and the Planning Commission therefore could not consider health concerns absent substantial evidence to the contrary, and that the Tiburón Zoning Ordinance prohibits new structures on open space lands.

Despite the favorable report of its staff, the Tiburón Planning Commission denied MERA’s application for a conditional use permit on June 28, 2000. The Commission found that (1) the proposed project would be inconsistent with provisions of the Tiburón Zoning Ordinance requiring that the use be “ ‘properly related to the development of the neighborhood as a whole’ ” and “ ‘reasonably compatible with the types and uses normally permitted in the surrounding area’ (2) the project “would be inconsistent with Goal LU-B of the Land Use Element of the Tiburón General Plan, which directs the Town ‘to ensure that all land uses, by type, amount, design, and arrangement, serve to protect and enhance the low-density residential and village character and image of the community’ and ,(3) the project “would be inconsistent with Section IV.A. of the Town’s Interim Standards and Criteria for Wireless Communications Facilities, which states that ‘applications for new wireless communications facilities should avoid sites located within or near residential areas’ ” and which also require the applicant for a permit for a wireless communication facility to submit an alternate site plan, which may include the “potential use of appropriate open space locations.”

MERA never rescinded the FEIR, but during the next year it studied 17 potential alternatives to the Mt. Tiburón site, including some not previously considered and rejected. Finally, on May 13, 2002, after concluding there was no feasible alternative site, MERA proceeded to condemn the Mt. Tiburón site by enacting three resolutions. The first declared that the public interest and necessity require acquisition of the Mt. Tiburón site and directed the filing of eminent domain proceedings; the second overrode the resolution of the Tiburón Planning Commission denying MERA a conditional use permit; and the third found that environmental review of the Mt. Tiburón site required by CEQA had been completed and “additional environmental review is not required because the physical conditions at the Mt. Tiburón site have not changed since MERA’s February 24, 2000, certification of the FEIR, and MERA has not altered its plans for the use of the site.”

On May 15, 2002, the Mt. Tiburón site was condemned pursuant to a final order of the Marin County Superior Court. MMWD, the owner of the site and a member of MERA, did not oppose condemnation.

On July 31, 2002, when it knew MERA was preparing to physically develop the Mt. Tiburón site, the Tiburón Town Council initiated and adopted a resolution approving the location of a “Southern Marin Emergency Radio Facility” on the Sugarloaf site that had been rejected in the FEIR. The resolution exempted the project from all provisions of the Tiburón Zoning Ordinance and found that, as conditioned by the Town, placement at the Sugarloaf site would be consistent with the Tiburón General Plan. The resolution found that “a subsequent or supplemental EIR is not appropriate for this project,” primarily because use of the Sugarloaf site instead of the Mt. Tiburón site “does not involve new significant environmental effects, not discussed in the MERA EIR, or a substantial increase in severity of previously identified significant effects.”

On August 1, 2002, the day after passage of the Town Council’s resolution, a group of Tiburón residents opposed to the use of the Sugarloaf site— Tiburón Residents Against Unfair MERA Antenna Siting, or TRAUMAS— commenced an action in the Marin County Superior Court (TRAUMAS v. Town Council of Tiburón (Superior Ct. Marin County, 2002, No. CV023926)) seeking mandamus commanding the Council to set aside its approval of the Sugarloaf site. The superior court granted such relief on October 2, 2002, ruling that the “Town committed a prejudicial abuse of discretion in its failure to require a supplemental or subsequent EIR before approving the Sugarloaf location.” The Town of Tiburón did not appeal and the propriety of the ruling in that case is not before us.

When contractors engaged by MERA arrived at the Mt. Tiburón site on September 13, 2002, to commence construction of the project, they found a “Stop Work” notice had been placed on the site that day by the Tiburón Building Department. Confronted by Tiburón Police Officers, the construction team left the site.

On September 30, 2002, the Pratt plaintiffs filed a petition for writ of mandamus (Code Civ. Proc., §§ 1085, 1094.5), asking the court to direct MERA to vacate and set aside its actions of May 13, 2002, recertifying the FEIR for the Mt. Tiburón site, overriding the Town of Tiburón’s denial of a conditional use permit, and determining that a subsequent or supplemental EIR was unnecessary. The Town of Tiburón was identified as the real party in interest. A similar action had been filed by the Zack plaintiffs on September 27, 2002, although they also sought declaratory and injunctive relief, and alleged public and private nuisance. On October 28, 2002, MERA filed a cross-petition for writ of mandate in the latter action. On November 1, 2002, the two actions were consolidated.

On January 27, 2003, the court issued a tentative ruling and proposed order granting plaintiffs the mandamus relief they sought. The court heard oral argument the next day, and adopted the tentative ruling and order on January 30, 2003. The trial court found that (1) MERA’s condemnation of the Mt. Tiburón site was subject to and failed to comply with Tiburón’s zoning ordinance and general plan, and (2) the availability of new information regarding the feasibility of alternate sites required MERA to prepare and circulate an SEIR concerning its proposed use of the Mt. Tiburón site.

DISCUSSION

I.

MERA is Not Subject to Tiburon’s Land Use Regulations

The determination that MERA is subject to local land use regulations was based solely on the trial court’s interpretation of provisions of the Joint Exercise of Powers Act. (§ 6500 et seq. (the Act).) “The interpretation of statutes and ordinances ‘is ultimately a judicial function.’ ” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219 [130 Cal.Rptr.2d 564], quoting Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290 [82 Cal.Rptr.2d 569].) As the issues resolved by the trial court present pure questions of law, our review is independent; we are not bound by the conclusions of the trial court. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1442-1444 [282 Cal.Rptr. 819].)

“Originally, the Act merely authorized counties and municipalities to do jointly anything they each could do separately. [Citation.] ... In 1947, however, the Legislature added a section to the Act that allowed ‘contracting parties’—that is, the local governmental entities that enter into a joint powers agreement—to create a separate board or commission (a joint powers agency) to exercise on their behalf powers they hold in common. The section also provided that the agency administering the agreement—whether one of the contracting parties or a separate joint powers agency—need not comply with all the possibly conflicting procedural restrictions that apply to the various contracting parties. Rather, the agency need only comply with the procedural restrictions that apply to one of the contracting parties. [Citation.] This principle now appears in Government Code section 6509 (section 6509), which provides that the ‘common power’ (Gov. Code, § 6508) specified in the joint powers agreement ‘is subject to the restrictions upon the manner of exercising the power of one of the contracting parties, which party shall be designated by the agreement.’ ” (Rider v. City of San Diego (1998) 18 Cal.4th 1035, 1050 [77 Cal.Rptr.2d 189, 959 P.2d 347]; see also The City of Oakland v. Williams (1940) 15 Cal.2d 542 [103 P.2d 168].)

The contracting party designated by the joint powers agreement creating MERA to be its “section 6509 agency” is the County of Marin. While “local agencies” are subject to “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated” (§ 53091, subd. (a)), cities and counties are explicitly excluded from the statutory definition of a “local agency” (§ 53090, subd. (a)), and therefore exempt from each other’s building and zoning ordinances when acting within their own territory. (Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 783 [9 Cal.Rptr.2d 392].) Relying on Cooper v. Mountains Recreation & Conservation Authority (1998) 61 Cal.App.4th 1115, 1118 [71 Cal.Rptr.2d 858], MERA argued that, because the County of Marin is exempt from the building and zoning ordinances of the Town of Tiburón, which is in Marin County, MERA is similarly exempt, and it is entirely beside the point that other members of MERA, acting individually, would not be exempt because they are “local agencies.”

The trial court rejected this argument. Acknowledging that under section 6509 MERA was subject only to those restrictions applicable to the County, and that the County was exempt from Tiburón’s land use regulations, the court found section 6509 inapplicable. The court reasoned that section 6509 applies only to exercises of power that arise from the “common powers” of the parties to the joint powers agreement, and that MERA’s power to construct and operate an emergency communications system instead arises under section 6546 of the Act. The court additionally concluded that the power MERA sought to exercise was not a “common power” because four of MERA’s members lacked the power to construct and operate an emergency communications system. As we shall explain, these determinations were erroneous.

A. MERA ’s Power to Construct and Operate an Emergency Communications System Does Not Arise Under Section 6546

Section 6546 of the Act authorizes joint powers agencies to issue bonds for the purpose of paying “the cost and expenses of acquiring or constructing a project or conducting a program” for, among numerous other purposes, “[telecommunication systems or service, including, but not limited to, the installation, provision, or maintenance of that system or service.” (§ 6546, subd. (u).) The trial court reasoned that the “the power to actually install, provide and maintain [telecommunications] systems is implicit in the power to raise funds for those purposes. In other words, it would not make sense for a joint powers authority to raise money for construction of a facility if it could not then construct the facility.” Based on its determination that the power to construct and operate facilities financed through the issuance of bonds derived from section 6546, not from the “common powers” of MERA’s members, the Court concluded that section 6509 did not apply and MERA must therefore comply with Tiburón’s land use regulations.

The trial court unjustifiably inflated the limited purpose of section 6546, which does no more than authorize a joint powers agency to issue revenue bonds to finance public projects for specified purposes. The statute makes clear that it confers the power to issue bonds only “if the joint powers entity, or its individual parties . . . have the power to acquire, construct, maintain, or operate one or more of the projects specified in this section.” (§ 6546, italics added.) The power to construct and operate the project or program sought to be financed through the issuance of bonds must, in other words, already exist. It seems to us fanciful to think that, because section 6546 authorizes joint powers agencies to issue bonds to finance “streets, roads, and bridges,” “mass transit facilities,” “police or fire stations,” and “criminal justice facilities” (§ 6546, subds. (h), (j), (1), (