Failure of a county to send a copy of a mitigated negative declaration to the state Department of Fish & Game is a big enough oversight to require setting aside the mitigated negative declaration and a subsequent rezoning, the Third District Court of Appeal has ruled.
In interpreting Public Resources Code §21005, the unanimous three-judge panel ruled that the lack of notice given to a trustee agency "deprived the county of information necessary to informed decision making and informed public participation," and improperly prejudiced Shasta County's decision on a proposed rezoning and residential development.
Shasta County in 1987 approved an application from Fall River Ranches to develop 14 residential sites along Fall River. After acquiring an additional 150 acres, Fall River Ranches applied for another rezoning and more residential units. The county solicited comments from interested and affected agencies in 1995, and published a public hearing notice on Dec. 19, 1996. The county, however, did not send a copy of the mitigated negative declaration to DFG.
The Board of Supervisors in January 1997 approved the mitigated negative declaration and amended the zoning ordinance. Fall River Wild Trout Foundation sued, alleging the county violated the California Environmental Quality Act by not sending the mitigated negative declaration to DFG and to the State Clearinghouse.
Shasta County Superior Court Judge Bradley L. Boeckman initially accepted the county's defense, which was that the trout foundation had failed to exhaust its administrative remedies by not appearing at public hearings conducted by the Planning Commission and Board of Supervisors. But Boeckman vacated his initial order after a hearing for reconsideration. He then set aside the mitigated negative declaration and zoning amendment because of the county's failure to notify DFG. The county appealed the ruling regarding the CEQA process and Boeckman's setting aside of the mitigated negative declaration.
The appellate court said it was unsure whether a person must appear at an administrative proceeding to exhaust an administrative remedy. But even if a person or agency must appear, the county's failure to notify DFG excuses the trout foundation from this requirement in Public Resources Code §21177.
The county argued that §21177 mandates that a lead agency notify the public — but not trustee agencies — of the lead agency's intent to adopt a mitigated negative declaration. The court rejected this argument. CEQA guidelines prepared by the Resources Agency require the lead agency to notify public, responsible and trustee agencies of the lead agency's intent to adopt a mitigated negative declaration, the court said.
"Our broad reading of the statutory language encourages public action to ensure relevant information is considered by local agencies at all stages in the CEQA review process," Justice Connie M. Callahan wrote for the court.
As for setting aside the mitigated negative declaration and the zoning amendment, the appellate court agreed with the trial court's ruling that the county abused its discretion by failing to notify a trustee agency. Not notifying DFG amounted to more than a harmless error, the court said.
Citing Rural Landowners Association v. City Council, 143 Cal.App.3d 1023 (1983), the court ruled "that the error is prejudicial ‘where that failure to comply with the law results in a subversion of the purposes of CEQA by omitting information from the environmental review process.'"
The Case:
Fall River Wild Trout Foundation v. County of Shasta, No. C028650, 99 Daily Journal D.A.R. 1989, 99 C.D.O.S. 1565 (filed February 26, 1999).
The Lawyers:
For Fall River Wild Trout Foundation: William D. McHugh and Cammie W. Chen, McHugh & Chen, (408) 286-2700.
For County of Shasta: Paul N. McCloskey Jr., (650) 851-9700, and Charles E. McClung Jr., McClung & Davis, (949) 499-8424.
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