Schenck v. County of Sonoma (Aug. 26, 2011) __Cal.App.4th__ (Case No. A129646) involves an appeal from a challenge to the County of Sonoma’s adoption of a mitigated negative declaration (MND) for a beverage distribution facility. The trial court held the County failed to furnish proper notice of its intent to adopt the MND to the Bay Area Air Quality Control District (BAAQCD). The trial court did not find any other violations of CEQA, including with respect to the County’s adoption of an MND, rather than an environmental impact report (EIR), for the project. Following the County’s filing of a return to the writ and the trial court’s entry of final judgment, petitioner appealed, arguing the County violated CEQA’s notice requirements and that an EIR should have been prepared for the project. The Court of Appeal rejected petitioner’s claims.

The appellate court first considered petitioner’s claim that the County failed to give the BAAQMD proper notice of the hearing and intent to adopt the MND. As a public agency with jurisdiction over resources affected by the project, CEQA required the County to notify the BAAQMD of the County’s intention to adopt the MND. The County did not. The court explained that although this notice failure was technical in nature, it constituted non-compliance with CEQA.

Nevertheless, explained the court, non-compliance with CEQA’s procedural requirements does not necessarily compel reversal. Rather, prejudice must be shown. In this case, the court found the County’s failure to send notice to the BAAQMD was not prejudicial. First, the County provided the BAAQMD with notice of the project’s application for design review, but the BAAQMD did not offer any input. Second, the County utilized the BAAQMD’s guidelines and criteria in evaluating the project’s air quality impacts. Thus, although the BAAQMD did not receive notice, the information gathering and presentation mechanisms of CEQA were not subverted or compromised as a result of the notice failure. Further, in response to the notice the County sent to the BAAQMD (on remand from the trial court), the BAAQMD confirmed that the project’s estimated criteria emissions were below the BAAQMD’s existing thresholds of significance. Based on these facts, the Court of Appeal concluded the County’s failure to provide notice to the BAAQMD was not prejudicial and therefore upheld the County’s actions in this regard.

Next, the court considered petitioner’s claim that the trial court violated CEQA by issuing an order directing the County to provide notice to the BAAQMD, that specified “[t]he results of such notice will determine what further course, of action, if any, is needed to cure the [notice] defects and ensure proper CEQA review of the project.” According to petitioner, the trial court’s order was “an improper interlocutory remand” and the trial court should have instead required the County to set aside approval of the project. The Court of Appeal disagreed, finding nothing in the trial court’s order that contravened the remedial procedures sanctioned by CEQA. In particular, Public Resources Code section 21168.9 grants the trial court discretion to fashion a remedy appropriate to the perceived violation. Here, the County was directed to provide proper notice to the BAAQMD and the trial court retained jurisdiction to take measures necessary to determine compliance with CEQA. This remedy was consistent with the equitable provisions of Public Resources Code section 21168.9. Further, according to the court, the defect in the notice procedure was not prejudicial even without the subsequent notice and letter of approval from the BAAQMD, so the writ relief was unnecessary. Moreover, petitioner waived her objection to the form of relief by failing to object to the relief at the administrative level or in the trial court.

The court next examined whether the notice given by the County to Caltrans and the Regional Water Board violated CEQA. Petitioner acknowledged that the Regional Water Board and Caltrans received the draft MND through the State Clearinghouse, as required by Public Resources Code section 21092.1, subdivision (c)(4), but asserted that once those two agencies responded with comments, the County was obligated to notify them of the scheduled public hearing on the project. CEQA Guidelines section 15073, subdivision (e)(3) requires a lead agency to notify in writing any public agency which comments on a proposed negative declaration of any public hearing to be held for the project. As the court explained, that section expressly allows compliance with CEQA Guidelines section 15072 to satisfy its requirements. Section 15072, in turn, directs that a lead agency must provide notice of intent to adopt a negative declaration to the public, responsible agencies, and trustee agencies, sufficiently prior to adoption of the negative declaration to allow the public and agencies an adequate review period, and must mail a notice of intent to adopt a negative to the last known name and address of all organizations and individuals who have previously requested such notice in writing, and also give notice of intent to adopt a negative declaration by publication or posting. In this case, the County complied with Public Resources Code section 15072 by providing notice of its intent to adopt the mitigated negative declaration through the State Clearinghouse and through publication and posting of the notice. Thus, held the court, the County substantially complied with the notice requirements.

In any event, explained the court, the County’s notice procedures related to Caltrans and the Water Board did not result in any prejudicial impact on the CEQA process. The comments of Caltrans and the Water Board on the MND were addressed by County staff and specific mitigation measures were included to address traffic, wetlands, riparian corridors, and native vegetation. Information was not omitted from the environmental review and decision-making process.

Lastly, in an unpublished portion of the opinion, the court found that substantial evidence did not support a fair argument that the project would result in water quality or traffic impacts. Therefore, the court found that the County appropriately adopted an MND for the project and was not required to prepare an EIR.