• County’s Error In Failing To Provide CEQA Notice To Public Agency Was Not Prejudicial
  • October 31, 2011 | Authors: Jeffrey L. Massey; Daniel J. O'Hanlon
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Schenck v. County of Sonoma (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., August 26, 2011), a court of appeal considered whether a county’s failure to give proper notice to a public agency constituted lack of compliance with California Environmental Quality Act (“CEQA”) requirements. The court of appeal held that the county’s failure to send notice to the agency was not prejudicial because even without the notice “the information gathering and presentation mechanisms of CEQA were not subverted or compromised.”

    Facts
    Liquid Investments, Inc., and Mesa Beverage Company, Inc. (“Mesa”) filed an application with the County of Sonoma’s Permit and Resource Management Department (“Department”) to develop and construct a warehouse, beverage distribution facility, and related buildings within an existing airport industrial area of the County of Sonoma (“County”). Due to the location of the project, only design review approval was required from County prior to issuing the building permits. Department recommended site plan changes and Mesa incorporated the suggested changes. The Department issued an initial mitigated negative declaration wherein it concluded “there will be no significant environmental impacts from this project” provided that Mesa incorporates the mitigation measures.

    Notice of a public hearing scheduled before the Design Review Committee (“Committee”) was sent to local, state, and federal governmental agencies including the Bay Area Air Quality Management District (“BAAQMD”). After local residents expressed concerns at the hearing about potential adverse impacts of the project, a revised mitigated negative declaration was prepared. The Planning Commission approved the mitigated negative declaration and granted the design review permit. Beverly Schenck (“Schenck”) appealed to the County Board of Supervisors (“Board”) and requested that County require Mesa to prepare an environmental impact report. Three more mitigated negative declarations were subsequently issued. Evidence was presented at a public hearing, after which Board denied Schenck’s appeal and adopted the fifth mitigated negative declaration and approved the design review.

    Schenck filed a petition for peremptory writ of mandate and injunctive relief. The trial court found that County failed to furnish proper notice of the Board’s intent to adopt the mitigated negative declaration to the BAAQMD. Pursuant to an order of the trial court, County sent notice to the BAAQMD of its intent to adopt a mitigated negative declaration and requested comments within 30 days. The BAAQMD commented, “The air quality analysis provided in the MND/Initial Study appears to meet appropriate standards for impact assessment.” The BAAQMD stated the estimated operational criteria of the project are below the district’s thresholds of significance and that it “supports the adopted mitigation measures as a means to implement all feasible measures to reduce Project’s emissions.” County filed a “Certificate of Compliance” showing that it complied with the order and cured the defects in the notice procedure.

    Decision
    On appeal, Schenck asserted that County failed to give proper notice to the BAAQMD of the final hearing and its intent to adopt the final mitigated negative declaration. Schenck claimed the failure to provide proper notice constituted a lack of compliance with CEQA requirements. The court of appeal found that although County failed to provide proper notice the error was not prejudicial.

    The court found the record shows “that at the inception of the project, the County provided notice of Mesa’s application for design review to the BAAQMD and solicited comments” but the BAAQMD failed to respond. Department, however, in the mitigated negative declaration “noted and adopted the BAAQMD’s published CEQA’s guidelines, air quality plan, and quantitative criteria to assess the impact of the project on air quality.” Department concluded the project did not conflict with the BAAQMD’s plans.

    Toward the end of the review process, County published a revised mitigated negative declaration and sent notice of the scheduled hearing before the Board to consider the revisions and Schenck’s appeal. County gave notice by publication in area newspapers, placed postings on the property where the project was to be constructed and at the civic center, and mailed notice to the owners and occupants of contiguous property. County also sent “the proposed mitigated negative declaration to the State Clearinghouse for distribution and review by the public agencies with jurisdiction by law over natural resources affected by the project.” Although the State Clearinghouse received the notice and subsequently “advised the County of its compliance with the review requirements for draft environmental documents,” it failed to forward the notice to the BAAQMD.

    CEQA provides that before an agency adopts a negative declaration, it must provide notice to the public and provide time for comments. The lead agency must also consult “with any other public agency which has jurisdiction by law over natural resources affected by the project which are held in trust for the people of the State of California.” The Guidelines for the Implementation of CEQA “require the lead agency to send notice of its intent to adopt a negative declaration, together with a copy of a proposed negative declaration, ‘to every . . . Trustee Agency concerned with the project and every other public agency with jurisdiction by law over resources affected by a project.’” Where “one or more trustee agencies, or public agencies with jurisdiction over resources affected by the project, is a state agency, the Guidelines require the lead agency to send the proposed negative declaration to the State Clearinghouse maintained by the Office of Planning and Research, which distributes it to the state agencies.”

    County was required to consult with the BAAQMD and provide it with notice of County’s intent to adopt a mitigated negative declaration because the BAAQMD has jurisdiction over resources that will be affected by the project. Although County consulted informally with the BAAQMD, it failed to give notice to the BAAQMD of its intent to adopt the revised mitigated negative declaration. The court found County’s published and posted notices were insufficient to provide notice to the BAAQMD because “[t]he Guidelines do not provide for alternative means of notice instead of direct mailing to public agencies.” The BAAQMD did not receive notice of the hearing or the intent to adopt the final mitigated negative declaration from either the State Clearinghouse or County.

    The court found that the flaw in the notice procedure constituted noncompliance with CEQA but opined that “noncompliance does not necessarily compel reversal.” The court noted that “[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.” An error is prejudicial if it “results in a ‘subversion of the purposes of CEQA by omitting information from the environmental review process.’” A failure to comply “subverts the purposes of CEQA if it omits material necessary to informed decisionmaking and informed public participation.”

    Here, the court found that County’s failure to send subsequent notice to the BAAQMD was not prejudicial because the BAAQMD initially received notice of the application for design review but did not offer any input. County subsequently assumed the BAAQMD’s role “by implementing the published CEQA quantitative criteria in the initial study to determine that the project had far fewer vehicle trips per day than the threshold level of cumulative significance.” Further the traffic studies “did not alter the conclusion of no significant impact on air quality under the established the BAAQMD criteria, which was repeatedly articulated and explained in the series of revised mitigated negative declarations.” County’s failure to provide notice did not result in relevant information being omitted from the decisionmaking process. Also, the BAAQMD later confirmed that the project’s emissions would be below the district’s existing thresholds of significance. Therefore, the court found the failure to provide notice was not prejudicial.

    The court of appeal also held that trial court did not violate CEQA by issuing an order that directed County to provide notice to the BAAQMD. The court held the trial court “fashioned a remedy appropriate to the perceived violation.”

    Schenck also challenged the notice given by County to the Regional Water Board and Caltrans. Both agencies received the proposed fourth mitigated declaration through the State Clearinghouse. However, Schenck claimed “that once those two agencies responded with comments the County was obligated to notify them of the scheduled public hearing on the project pursuant to Guidelines section 15072.” Section 15073, subdivision (e) of the Guidelines provides that a “lead agency shall notify in writing any public agency which comments on a proposed negative declaration or mitigated negative declaration of any public hearing to be held for the project for which the document was prepared. A notice provided to a public agency pursuant to Section 15072 satisfies this requirement.” Section 15072 provides in part “the lead agency must provide notice of intent to adopt a negative declaration or mitigated negative declaration to the public, responsible agencies, and trustee agencies, sufficiently prior to adoption by the lead agency of the negative declaration or mitigated negative declaration to allow the public and agencies an adequate review period.” Section 15072 further provides a lead agency “must mail a notice of intent to adopt a negative declaration or mitigated negative declaration to the last known name and address of all organizations and individuals who have previously requested such notice in writing, and shall also give notice of intent to adopt a negative declaration or mitigated negative declaration by publication or posting.”

    The court found County’s notice was adequate. County provided the Regional Water Board and Caltrans with notice through the State Clearinghouse of County’s intent to adopt a revised mitigated negative declaration. Caltrans and the Regional Water Board were the only agencies that offered comments and those comments were addressed in later revisions of the mitigated negative declaration. “Section 15073, subdivision (e) of the Guidelines unambiguously states that a notice sent pursuant to section 15072 satisfies the requirement for notice of the public hearing to be held for the project.” Subsequent notice was provided through publication and posting. The court found that “[h]aving furnished notice to the Regional Water Board and Caltrans pursuant to Guidelines, section 15072, the County satisfied Guidelines, section 15073, subdivision (c).”