1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 HELICOPTERS FOR AGRICULTURE; No. C 18-06124 WHA JAMES BARRETT; HEIDI BARRETT; 11 and BARRETT AND BARRETT VINEYARDS, LP, 12 ORDER DENYING MOTION Plaintiffs, FOR SUMMARY JUDGMENT 13 AND MOTION FOR v. JUDGMENT ON THE 14 PLEADINGS COUNTY OF NAPA and NAPA COUNTY 15 BOARD OF SUPERVISORS, 16 Defendants. / 17 18 INTRODUCTION 19 In this action challenging a county ordinance regulating the use of helicopters for 20 agricultural purposes, plaintiffs move for summary judgment and defendants move for judgment 21 on the pleadings. Both motions are DENIED. 22 STATEMENT 23 A prior order has set forth the background of this case (Dkt. No. 49). In brief, in June 24 2018, Napa County passed an initiative measure, called “Measure D,” that restricted the use of 25 helicopters for agricultural operations. The measure was adopted as Napa County Ordinance 26 No. 2018-02 with the stated purpose of preserving Napa County’s “rural, agricultural and 27 peaceful character” by “prohibit[ing] any new personal use airports or heliports” and 28 “clarif[ying] the limited circumstances under which helicopters may take-off and land in the 1 The ordinance specifically modified Section 18.120.010 of the Napa County Code, 2 which listed exceptions to use limitations. Before the enactment of the ordinance, Section 3 18.120.010 explicitly allowed “[h]elicopter takeoffs and landings solely in support of direct 4 agricultural production activities such as aerial spraying and frost protection” without a user 5 permit in any zoning district (Dkt. No. 58 at 7). The ordinance modified that section to allow 6 (id. at 7–8 (emphasis added)): 7 [h]elicopter takeoffs and landings at locations other than public airports, in support of direct agricultural activities, but only if the takeoffs and 8 landings comply with all of the following conditions: (a) they are solely in support of direct aerial agricultural activities and applications such as 9 aerial spraying, aerial frost protection, or aerial mapping; (b) they do not transport persons other than those essential to the conduct of such aerial 10 activities; and (c) they are unavoidable. 11 The ordinance further required that within forty-eight hours of any takeoff or landing in 12 support of direct agricultural activities, the helicopter operator must submit a written report 13 stating the date, time, duration, and aerial activity of the operation, the people who participated 14 in the activity, and the reason why the operation was unavoidable. Violation of the ordinance 15 could result in civil and criminal penalties (First Amd. Compl. ¶¶ 1, 33–38). 16 Plaintiffs James and Heidi Barrett are residents of Napa County and own plaintiff 17 Barrett and Barrett Vineyards, LP, a California limited partnership that operates a vineyard in 18 northern Napa County. Since 2010, the Barretts have owned and used a helicopter for 19 agricultural activities on their vineyards and offered similar services to clients that own 20 vineyards in neighboring counties. According to plaintiffs, helicopters are critical to 21 agricultural management and production and are used for distribution of seed for crop cover, 22 frost protection, aerial spraying, grape drying, and vineyard inspection. These operations, they 23 say, involve on-site take offs and landings for refueling, reloading seeds or spray tanks, and 24 consulting with ground-based personnel. They argue that continued helicopter use may subject 25 them to civil and criminal liability under the ordinance (id. ¶¶ 12–13, 17–19, 23–24). 26 In October 2018, plaintiffs filed the instant action for declaratory and injunctive relief 27 against defendants County of Napa and its Board of Supervisors to protect their own interests 28 and those of other owners and operators of farms and vineyards in Napa County. They asserted 1 three claims: (1) facial void for vagueness, (2) facial preemption by Federal Aviation 2 Administration regulations, and (3) deprivation of the Barretts’ vested rights (id. ¶¶ 1–7, 10–24 3 41, 51–53, 61). 4 A prior order dated April 18 granted in part and denied in part defendants’ motion to 5 dismiss (Dkt. No. 49). That order dismissed plaintiffs’ complaint save for one aspect of the 6 void-for-vagueness claim. Now all that remains in this case is the sole issue of whether the 7 term “unavoidable” in the ordinance is unconstitutionally vague (see id. at 4). Specifically, the 8 order dated April 18 found the term unduly vague at the motion to dismiss stage, where the term 9 lacked any meaningful context and was thus susceptible to multiple interpretations, as follows 10 (ibid.): 11 Does it mean that the crop will fail without that particular aerial spraying? Does it mean that ground-based spraying — as in hand 12 spraying — would not suffice? Does it mean that the flight is barred if it is physically possible to take off and land from a municipal 13 airport? Or does it simply mean that if aerial spraying is used, the task must be accomplished in the fewest number of flights possible 14 Defendants have since tried to clarify the meaning of “unavoidable.” On September 17, 15 the County’s Department of Planning, Building & Environmental Services issued “FAQs 16 provid[ing] guidance to private landowners, helicopter operators, and members of the public 17 about Measure D requirements and enforcement” (Dkt. No. 58 at 26). Relevant here, the 18 answer to the fifth FAQ provided that (id. at 27): 19 [A] helicopter takeoff or landing on private property qualified as 20 unavoidable only when [1] the aerial agricultural activity cannot be accomplished by taking off or landing at a public airport, or [2] using 21 a public airport would create a health or safety risk. 22 It reiterated that “[e]mergency takeoffs and landings for health or safety reasons are always 23 deemed to be unavoidable events” (ibid.). The FAQ 5 answer further clarified that takeoffs or 24 landings “are not considered unavoidable when, for example, they are made for convenience, to 25 avoid standard airport fees, or to minimize costs” (ibid.). It also offered the following four 26 “[e]xamples of circumstances in which a takeoff or landing on private property may be 27 considered unavoidable” (ibid.): 28 • The distance from a public airport would prevent the helicopter from reserving sufficient fuel to conduct the agricultural activity. 1 • The necessary supplies or support services cannot be provided at the 2 public airport. 3 • Using the public airport would require transporting exposed chemical tanks over densely populated areas, posing public health risks from a 4 possible spill. 5 • The agricultural activity must be undertaken or completed during severe weather that negatively impacts flight safety 6 The answer to the seventh FAQ then provided that violation of Measure D would 7 subject the owner of the private property on which such violation occurred to “administrative 8 and/or civil enforcement process and penalties set forth in Chapter 1.20 of the Napa County 9 Code” (with no mention of criminal penalties) (id. at 28). 10 Both parties now move on the question of whether “unavoidable” is unconstitutionally 11 vague. Plaintiffs move for summary judgment on their claim that the term is void for vagueness 12 under the due process clause of the Fourteenth Amendment of the United States Constitution 13 and Article 1, Section 7(a) of the California Constitution (Dkt. No. 55; First Amd. Compl. ¶ 40). 14 Defendants move for judgment on the pleadings, arguing that plaintiffs failed to state a claim in 15 light of the alleged interpretive guidance provided by the recently-issued FAQs (Dkt. No. 57). 16 This order follows full briefing and oral argument. 17 ANALYSIS 18 1. REQUESTS FOR JUDICIAL NOTICE. 19 Defendants request judicial notice of the Napa County Ordinance No.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 HELICOPTERS FOR AGRICULTURE; No. C 18-06124 WHA JAMES BARRETT; HEIDI BARRETT; 11 and BARRETT AND BARRETT VINEYARDS, LP, 12 ORDER DENYING MOTION Plaintiffs, FOR SUMMARY JUDGMENT 13 AND MOTION FOR v. JUDGMENT ON THE 14 PLEADINGS COUNTY OF NAPA and NAPA COUNTY 15 BOARD OF SUPERVISORS, 16 Defendants. / 17 18 INTRODUCTION 19 In this action challenging a county ordinance regulating the use of helicopters for 20 agricultural purposes, plaintiffs move for summary judgment and defendants move for judgment 21 on the pleadings. Both motions are DENIED. 22 STATEMENT 23 A prior order has set forth the background of this case (Dkt. No. 49). In brief, in June 24 2018, Napa County passed an initiative measure, called “Measure D,” that restricted the use of 25 helicopters for agricultural operations. The measure was adopted as Napa County Ordinance 26 No. 2018-02 with the stated purpose of preserving Napa County’s “rural, agricultural and 27 peaceful character” by “prohibit[ing] any new personal use airports or heliports” and 28 “clarif[ying] the limited circumstances under which helicopters may take-off and land in the 1 The ordinance specifically modified Section 18.120.010 of the Napa County Code, 2 which listed exceptions to use limitations. Before the enactment of the ordinance, Section 3 18.120.010 explicitly allowed “[h]elicopter takeoffs and landings solely in support of direct 4 agricultural production activities such as aerial spraying and frost protection” without a user 5 permit in any zoning district (Dkt. No. 58 at 7). The ordinance modified that section to allow 6 (id. at 7–8 (emphasis added)): 7 [h]elicopter takeoffs and landings at locations other than public airports, in support of direct agricultural activities, but only if the takeoffs and 8 landings comply with all of the following conditions: (a) they are solely in support of direct aerial agricultural activities and applications such as 9 aerial spraying, aerial frost protection, or aerial mapping; (b) they do not transport persons other than those essential to the conduct of such aerial 10 activities; and (c) they are unavoidable. 11 The ordinance further required that within forty-eight hours of any takeoff or landing in 12 support of direct agricultural activities, the helicopter operator must submit a written report 13 stating the date, time, duration, and aerial activity of the operation, the people who participated 14 in the activity, and the reason why the operation was unavoidable. Violation of the ordinance 15 could result in civil and criminal penalties (First Amd. Compl. ¶¶ 1, 33–38). 16 Plaintiffs James and Heidi Barrett are residents of Napa County and own plaintiff 17 Barrett and Barrett Vineyards, LP, a California limited partnership that operates a vineyard in 18 northern Napa County. Since 2010, the Barretts have owned and used a helicopter for 19 agricultural activities on their vineyards and offered similar services to clients that own 20 vineyards in neighboring counties. According to plaintiffs, helicopters are critical to 21 agricultural management and production and are used for distribution of seed for crop cover, 22 frost protection, aerial spraying, grape drying, and vineyard inspection. These operations, they 23 say, involve on-site take offs and landings for refueling, reloading seeds or spray tanks, and 24 consulting with ground-based personnel. They argue that continued helicopter use may subject 25 them to civil and criminal liability under the ordinance (id. ¶¶ 12–13, 17–19, 23–24). 26 In October 2018, plaintiffs filed the instant action for declaratory and injunctive relief 27 against defendants County of Napa and its Board of Supervisors to protect their own interests 28 and those of other owners and operators of farms and vineyards in Napa County. They asserted 1 three claims: (1) facial void for vagueness, (2) facial preemption by Federal Aviation 2 Administration regulations, and (3) deprivation of the Barretts’ vested rights (id. ¶¶ 1–7, 10–24 3 41, 51–53, 61). 4 A prior order dated April 18 granted in part and denied in part defendants’ motion to 5 dismiss (Dkt. No. 49). That order dismissed plaintiffs’ complaint save for one aspect of the 6 void-for-vagueness claim. Now all that remains in this case is the sole issue of whether the 7 term “unavoidable” in the ordinance is unconstitutionally vague (see id. at 4). Specifically, the 8 order dated April 18 found the term unduly vague at the motion to dismiss stage, where the term 9 lacked any meaningful context and was thus susceptible to multiple interpretations, as follows 10 (ibid.): 11 Does it mean that the crop will fail without that particular aerial spraying? Does it mean that ground-based spraying — as in hand 12 spraying — would not suffice? Does it mean that the flight is barred if it is physically possible to take off and land from a municipal 13 airport? Or does it simply mean that if aerial spraying is used, the task must be accomplished in the fewest number of flights possible 14 Defendants have since tried to clarify the meaning of “unavoidable.” On September 17, 15 the County’s Department of Planning, Building & Environmental Services issued “FAQs 16 provid[ing] guidance to private landowners, helicopter operators, and members of the public 17 about Measure D requirements and enforcement” (Dkt. No. 58 at 26). Relevant here, the 18 answer to the fifth FAQ provided that (id. at 27): 19 [A] helicopter takeoff or landing on private property qualified as 20 unavoidable only when [1] the aerial agricultural activity cannot be accomplished by taking off or landing at a public airport, or [2] using 21 a public airport would create a health or safety risk. 22 It reiterated that “[e]mergency takeoffs and landings for health or safety reasons are always 23 deemed to be unavoidable events” (ibid.). The FAQ 5 answer further clarified that takeoffs or 24 landings “are not considered unavoidable when, for example, they are made for convenience, to 25 avoid standard airport fees, or to minimize costs” (ibid.). It also offered the following four 26 “[e]xamples of circumstances in which a takeoff or landing on private property may be 27 considered unavoidable” (ibid.): 28 • The distance from a public airport would prevent the helicopter from reserving sufficient fuel to conduct the agricultural activity. 1 • The necessary supplies or support services cannot be provided at the 2 public airport. 3 • Using the public airport would require transporting exposed chemical tanks over densely populated areas, posing public health risks from a 4 possible spill. 5 • The agricultural activity must be undertaken or completed during severe weather that negatively impacts flight safety 6 The answer to the seventh FAQ then provided that violation of Measure D would 7 subject the owner of the private property on which such violation occurred to “administrative 8 and/or civil enforcement process and penalties set forth in Chapter 1.20 of the Napa County 9 Code” (with no mention of criminal penalties) (id. at 28). 10 Both parties now move on the question of whether “unavoidable” is unconstitutionally 11 vague. Plaintiffs move for summary judgment on their claim that the term is void for vagueness 12 under the due process clause of the Fourteenth Amendment of the United States Constitution 13 and Article 1, Section 7(a) of the California Constitution (Dkt. No. 55; First Amd. Compl. ¶ 40). 14 Defendants move for judgment on the pleadings, arguing that plaintiffs failed to state a claim in 15 light of the alleged interpretive guidance provided by the recently-issued FAQs (Dkt. No. 57). 16 This order follows full briefing and oral argument. 17 ANALYSIS 18 1. REQUESTS FOR JUDICIAL NOTICE. 19 Defendants request judicial notice of the Napa County Ordinance No. 2018-02 (Measure 20 D), Measure D ballot materials, Measure D Frequently Asked Questions, and excerpts of the 21 Napa County Code of Ordinances (Dkt. Nos. 58, 60). A court may judicially notice a fact that 22 is “not subject to reasonable dispute” because it “can be accurately and readily determined from 23 sources whose accuracy cannot reasonably be questioned.” FED. R. CIV. P. 201(b). Courts may 24 take judicial notice of matters of public record, including municipal ordinances. Santa Monica 25 Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006). As such, 26 defendants’ request for judicial notice of Exhibits A–D is GRANTED. 27 Plaintiffs’ request for judicial notice of excerpts of the Napa County General Plan (Dkt. 28 No. 64, Exh. C) is GRANTED. All other requests for judicial notice by plaintiffs are DENIED AS 1 MOOT, as those requests are either duplicative of already judicially noticed documents or are 2 not necessary for resolving the instant motions. 3 2. MOTIONS FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS. 4 “To avoid unconstitutional vagueness, an ordinance must (1) define the offense with 5 sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) 6 establish standards to permit [enforcement of] the law in a non-arbitrary, non-discriminatory 7 manner.” McCormack v. Herzog, 788 F.3d 1017, 1031 (9th Cir. 2015) (internal quotation 8 marks and citations omitted). “[A]n agency-issued instruction manual, even if lacking the force 9 of law itself, can clarify what conduct is expected of a person subject to a particular regulation 10 and thus mitigate against vagueness.” Cal. Pac. Bank v. Fed. Deposit Ins. Corp., 885 F.3d 560, 11 571 (9th Cir. 2018). 12 The prior order dated April 18 found the term “unavoidable” unduly vague because, in 13 essence, the ordinance “failed to define the[] word[] or provide other context” (Dkt. No. 49). 14 Defendants now argue that the interpretive guidance issued on September 18 addressed the prior 15 order’s concern by providing further context for the term. They thus contend that plaintiff’s 16 facial vagueness claim fails as a matter of law because the ordinance now gives sufficient fair 17 notice as to what is prohibited helicopter use and allows for non-arbitrary enforcement (Dkt. 18 No. 57 at 7, 12). 19 Plaintiffs do not attack the ordinance for failure to provide fair notice. Rather, they 20 contend that “the interpretation must be reasonable and consistent with the language and 21 purpose of the measure” (Dkt. No. 61 at 6). See Hubbard v. Cal. Coastal Comm’n, 38 Cal. 22 App. 5th 119, 135 (2019) (statutory language “must be construed in context and in light of the 23 statute’s obvious nature and purpose, and must be given a reasonable and commonsense 24 interpretation that is consistent with the Legislature’s apparent purpose and intention.”). And, 25 the FAQs’ interpretation (1) is not reasonable; (2) conflicts with the ordinance’s purpose; and 26 (3) renders the ordinance inconsistent with the General Plan, they say (Dkt. No. 61 at 7). 27 Plaintiffs assert, for example, that the FAQs’ interpretation is unreasonable because it amounts 28 to a “de facto ban on on-site takeoffs and landings” and “conflicts with one of the core 1 || purposes” of the ordinance — namely, to protect residential neighborhoods from helicopter noise (Dkt. No. 61 at 13, 15). That is, according to plaintiffs, the practical effect of the interpretative guidance would be “to require the same helicopters to fly back and forth from a 4}| public airport, over homes and businesses” during agricultural operations, thereby creating even 5 || greater disruption to those residential areas (id. at 16). 6 This order finds that factual questions exist on this record as to whether the interpretive guidance is reasonable. While plaintiffs argue, for example, that it would lead to even more 8 || disruption to the “peaceful character” of Napa County, defendants counter that this alleged 9 || consequence is speculative. Another possible effect may be a decrease usage of helicopters, 10 || defendants say, as multiple trips over residential areas may affect the cost-benefit calculus of 11 || choosing aerial versus ground-based operations. And, significant operations such as aerial spraying that require multiple takeoffs and landings per day that involve chemical loads would 3 13 || also constitute an “unavoidable” circumstance in any event. 14 The questions the parties raise in the instant motions cannot be resolved as a matter of 5 15 || law on this record. More facts are needed to determine, for example, the net effect of the 16 || FAQs’ interpretation and whether or not the result would defeat the purpose of the ordinance. 17 || Accordingly, both parties’ motions are DENIED. A trial will follow. 18 CONCLUSION 19 For the foregoing reasons, plaintiffs’ motion for summary judgment and defendants’ 20 |} motion for judgment on the pleadings are DENIED. 21 22 IT IS SO ORDERED. 23 Dated: November 22, 2019. f i re □□ bene WILLIAM ALSUP 25 UNITED STATES DISTRICT JUDGE 26 27 28