Company Is Allowed to Contest Review Of A Competitor's Project
A garbage company can challenge the environmental review of a competitor's proposed trash processing facility because the garbage company was enforcing a public duty of a local government, the Fourth District Court of Appeal has ruled.
The case involved Burrtec Waste Industries' challenge of Taormina Industries' project in Colton. Taormina sought to amend a conditional use permit for a recycling facility so that it could also process solid waste. Colton approved the amended permit and a mitigated negative declaration in October 2000.
The appellate court distinguished the Burrtec case from a decision two years ago in Waste Management of Alameda County, Inc., v. County of Alameda, 79 Cal.App.4th 1223 (see CP&DR Legal Digest, May 2000). In that case, Waste Management argued that Alameda County should have required a competitor to complete an environmental impact report before accepting certain types of waste at a landfill. But the Third District ruled that Waste Management did not have standing to file the lawsuit because Waste Management's only interest was financial, which is not an interest the California Environmental Quality Act protects.
In the case at hand, Burrtec argued that Colton did not post a notice of intention to adopt a mitigated negative declaration as required by CEQA in Public Resources Code § 21092.3. Posting of a legal notice is a genuine public concern that is "not confined to any commercial interest" of Burrtec, the court ruled, citing San Bernardino County Superior Court Judge Bob Krug's decision, which was upheld.
"CEQA litigants often may be characterized as having competing economic interests," Justice Barton Gaut wrote for the unanimous three-judge appellate panel. "But, under CEQA, a corporation is a person entitled to receive notice and to bring a suit for non-compliance. Furthermore, as noted by the trial court, the interest asserted by Burrtec in its writ petition is not a commercial one but an issue involving the adequacy of the public notice required by CEQA. Where a plaintiff seeks by mandamus to enforce a public duty, especially under CEQA, standing is properly conferred."
After deciding that Burrtec could pursue its lawsuit, the court moved on to the merits of the case. The court ruled that Colton had failed to post at the county clerk's office the required notice of intention 20 days prior to a public hearing, at which the city considered the mitigated negative declaration.
Taormina presented testimony from a Colton planner and a clerk in the San Bernardino County Board of Supervisor's office. The planner said she remembered sending the Board of Supervisors a notice, and the clerk explained the procedure for posting such notices.
However, the court noted that their testimony was not part of the administrative record, so the court did not have to consider it. Moreover, the court held, the employees did not state when the notice was mailed and posted.
"The only reference to ‘posting' appears on a ‘Notice of Public Hearing' dated September 28, 2000, and announcing a hearing on October 10, 2000, concerning the MND [mitigated negative declaration]," Gaut wrote. "There is no indication in the administrative record that either the NOI [notice of intention] or the notice of public hearing was ever delivered to the clerk of the Board of Supervisors for posting."
Burrtec Waste Industries v. City of Colton, No. E030046, 02 C.D.O.S. 3559, 2002 DJDAR 4479. Filed April 8, 2002. Certified for publication April 24, 2002.
For Burrtec: John C. Nolan, Gresham, Savage, Nolan & Tilden, (909) 884-2171.
For Taormina Industries: Edward Casey, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000.