How many mitigated negative declarations are required for a lead agency to avoid preparing an EIR? In Sonoma County the answer is five. While the portion of Schenck v. County of Sonoma devoted to the "fair argument" analysis remains unpublished, the court's published ruling that certain procedural errors are not prejudicial is helpful, as well as the appellate court's affirmation that the trial court can fashion a tailored remedy to cure a California Environmental Quality Act error and is not compelled to set aside the approval.

The basic facts are not unusual. In processing a negative declaration as the CEQA document for a 116,000-square-foot warehouse and beverage distribution center, the county and developer labored through four additional mitigated negative declarations before the Board of Supervisors ultimately accepted the negative declaration and approved the project. In the ensuing litigation, the trial court concluded that the county, as lead agency, failed to send a required notice to the Bay Area AQMD (BAAQMD), but otherwise upheld the substantive analysis contained in the negative declaration. The trial court fashioned a remedy specific to the one notice error it determined to be prejudicial. The county complied with the court's directive, documented to the court that it had fulfilled the court's order, and final judgment was entered. 

Schenck, the project's opponent, appealed.

The appellate court addressed three principle issues. First, the court concluded that notice to BAAQMD of the intent to approve the negative declaration was mandatory, and that the county had not complied with the notice requirements for the revised negative declaration. However, the appellate court, unlike the trial court, concluded that the error was not prejudicial. The lead agency had provided a notice of the application to BAAQMD, and had used the district's standards and mitigation requirements in the negative declaration. That, coupled with substantial notice to the public, led the appellate court conclude that the error was not prejudicial.

The appellate court next addressed the trial court's surgical fashioning of a remedy which left the approval in place, while directing the lead agency to provide notice to BAAQMD and take appropriate action. The appellants argued that the trial court was obligated to set aside the approval. Not so, according to the appellate court. Citing Public Resources Code section 21168.9 the appellate court held that this code section grants trial courts discretion in fashioning an appropriate remedy.

The appellants then argued that the lead agency erred by failing to give Caltrans and the Regional Water Board notice of the hearing on the project (Guidelines Section 15072). The appellate court again disagreed, concluding that the notice provided to the State Clearinghouse and the other notices meant that the county "substantially complied" with the required notice steps. Given that the public and the county had received the agency comments based upon the fourth negative declaration, the failure to give notice in conjunction with the fifth negative declaration was not prejudicial.

The remainder of the decision, which deals with the fair argument test, remains unpublished by order of the appellate court.

The Case: 

Schenck v. County of Sonoma (August 26, 2011, SCV-244017) A129646. Cal.App.4th, Filed August 26, 2011. 

The Attorneys: 

Bruce D. Goldstein, County Counsel, Sue A. Gallagher, Deputy County Counsel, For Defendant and Respondent County of Sonoma.

Clement, Fitzpatrick & Kenworthy, Clayton E. Clement, Esq., Anthony Cohen, Esq., For Real Parties in Interest and Respondents Liquid Investments, Inc., and Mesa Beverage Co., Inc.

William W. Abbott is a partner in the law firm of Abbott & Kindermann, LLP, of Sacramento.