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In Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679, the Court of Appeal for the Fifth District upheld the trial court’s denial of a writ of mandate challenging Kern County’s (the County) approval a wind farm near a private airport east of Tehachapi.

The proposed wind farm would include 116 wind turbine generators (WTGs) and be 1.2 miles away from the Kelso Valley Airport (the Airport).  The airport is often used to land gliders, which lack an engine and require a greater distance than an airplane to properly descend for landing.  Citizens Opposing A Dangerous Environment (CODE) (whose membership included the owner of the Airport) claimed that construction of the 400-foot tall WTGs in such close proximity to the Airport, left glider pilots with only one safe landing route and created a significant risk of collision.

The court first rejected CODE’s argument that the County violated the California Environmental Quality Act (CEQA) by approving mitigation measures in the environmental impact report (EIR) that were not legally feasible.  The EIR mitigated the impacts on air navigation safety by requiring the developer to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each proposed WTG (Mitigation Measure 4.8-8).  However, CODE contended Mitigation Measure 4.8-8 was inadequate because the FAA had no authority to enforce its determinations.  Noting that the FAA is the only government agency with jurisdiction over air safety, the court found that even though the FAA could not directly stop construction of the WTGs, the County only approved building permits for the WTGs if the developer obtained the proper FAA determination.  As a result, Mitigation Measure 4.8-8 was feasible because the County had the necessary authority and means to stop construction and prevent any of the adverse impacts on air navigation safety.

CODE also contended that the County violated CEQA because it did not respond to a comment submitted after the public comment period had ended.  Citing Gray v. County of Madera (2008) 167 Cal.App.4th 1110, the court held that the County “may, but is not required, to respond to late comments.” Because the County had discretion to respond to the late comment, the court found no CEQA violation.

The court also rejected CODE’s argument that Mitigation Measure 4.8-8 would not be effective.  The court emphasized that the burden was on CODE to show that there was no substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.  CODE argued that the FAA investigators did not receive all of the information regarding the Airport, improperly failed to contact the Airport owner, and only conducted a cursory investigation before making its determination. While declining to question the judgment of the County, the court noted that the FAA had received the EIR during its investigation and held that there was substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.

Lastly, the court held that the County was not required to adopt CODE’s proposed mitigation measures or the alternative in the EIR that lessened the impacts on aviation safety by reducing the number of WTGs on the wind farm.  Mitigation Measure 4.8-8 significantly reduced the environmental impacts on air navigation safety and the County was not required to do more even if other, arguably more effective, alternatives were available.

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