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Beverly Schenck v. County of Sonoma

August 26, 2011

BEVERLY SCHENCK, PLAINTIFF AND APPELLANT,
v.
COUNTY OF SONOMA, DEFENDANT AND RESPONDENT; LIQUID INVESTMENTS, INC., ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.



(Sonoma County Super. Ct. No. SCV-244017)

The opinion of the court was delivered by: Dondero, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

This is an appeal from a judgment in an action challenging the approval of a project for development of a beverage distribution facility on grounds that the County of Sonoma failed to comply with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)*fn2 before issuing a mitigated negative declaration. Plaintiff Beverly Schenck claims proper notice of the administrative proceedings was not given to public agencies and the findings of no significant impact on the environment are contrary to the evidence. We conclude that a single error in the notice procedure was not prejudicial, and the substantial evidence does not support a fair argument that a proposed project may have a significant effect on the environment. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On July 19, 2006, the real parties in interest, Liquid Investments, Inc. and Mesa Beverage Company, Inc., (Mesa) filed an application with the Permit and Resource Management Department (the Department) of defendant County of Sonoma for approval to develop and construct a 155,149-square-foot warehouse and beverage distribution facility, along with an associated office, maintenance building, and paved parking area, on a vacant 12.5-acre parcel located north of Santa Rosa near Highway 101 on the east side of North Laughlin Road, adjacent to Mark West Creek.*fn3 The proposed project was intended to replace an existing facility operated by Mesa nearby at 205 Concourse Boulevard. As proposed by Mesa, the new facility would operate continuously from Sunday to Friday evenings, employing a total of 116 employees, including office and warehouse workers, truck drivers and loaders. The proposed development project lies within the existing airport industrial area of the County, which is zoned MP and designated for industrial use, so only design review approval from the County was required prior to issuance of building permits.

Following an initial design study and evaluation by the Department staff of traffic impacts, environmental noise, biological impacts, cultural resources and hydrology, along with a preliminary design review hearing on October 18, 2006, design changes were recommended. A traffic study completed by an independent consulting firm, TJKM Transportation Consultants (TJKM), in November of 2006, identified five intersections that would be impacted by proposed development, three of them on Airport Boulevard, and recommended improvements to reduce future cumulative traffic impacts to less-than-significant levels. Mesa incorporated the recommended changes into the site plan.

The Department staff thereafter prepared an initial mitigated negative declaration which concluded that with incorporated mitigation measures "there will be no significant environmental impacts resulting from this project." A public hearing before the Design Review Committee (the Committee) was scheduled for June 6, 2007. Notice of the hearing was sent to specified federal, state and local government agencies, including the Regional Water Quality Control Board and the Bay Area Air Pollution Control District.

At the public hearing local residents expressed concerns with adverse impacts of the project on traffic, noise, lighting, aesthetics, and biological resources. Mesa subsequently provided further information to the Department staff and made minor modifications to the project design. A revised mitigated negative declaration was then prepared and a final public design review hearing was held on September 19, 2007. The Committee voted to approve the modified design with additional conditions related to landscaping, lighting, road improvements, driveway restrictions, storm-water and adjacent wetlands protection, and construction of sound walls.

The decision of the Committee was appealed to the Planning Commission. After a public hearing, the Planning Commission denied the appeal and adopted Resolution No. 08-004, which approved the mitigated negative declaration as completed in compliance with CEQA, and granted the design review permit.

Review of the project application then proceeded by way of an appeal by plaintiff Beverly Schenck to the County Board of Supervisors (the Board) on February 15, 2008. Schenck requested that the County require Mesa to provide an environmental impact report (EIR), with analysis of traffic, noise and biological impacts, as well as an assessment of project alternatives.

In March of 2008, Mesa enlisted TJKM to complete and submit an updated traffic study for the project to "estimate daily traffic for the proposed Mesa Beverage facility" on North Laughlin Road. The TJKM traffic study assumed the volume of daily product generated at the new "North Laughlin facility" would be the same as that of the existing "Concourse Boulevard facility," so the daily employee traffic and truck operations would also be essentially identical. Traffic counts for the two driveways at the Concourse Boulevard facility were observed and collected, and compared to the trip production rates estimated for the project in the November 2006 traffic impact study. The observed trip totals were significantly lower - approximately 18 percent - than the estimates stated in the prior TJKM study.

A third revised mitigated negative declaration was issued by the County on March 24, 2008, which incorporated the updated statement of traffic impacts. A review of the most recent TJKM study by the County Department of Transportation and Public Works determined that traffic impacts would "be less than previously reported at the five impacted intersections," and would be reduced to less-than-significant levels with the mitigation fees to be paid by the developer upon issuance of building permits. The County set a public hearing before the Board to consider plaintiff's appeal and the revised mitigated negative declaration.

At the hearing before the Board on May 13, 2008, plaintiff offered evidence of reviews of the assessments of impacts on biological resources, noise, and traffic congestion in the revised mitigated negative declaration. The hearing was continued for the limited purpose of receiving written responses from Mesa to the information presented by plaintiff. In June and July of 2008, TJKM then offered additional studies and corrected analyses in response to plaintiff's review of traffic impacts. The TJKM studies acknowledged that while traffic impacts due to the new, relocated facility would shift at some of the five affected intersections, the ultimate result would not be a significant environmental impact.

A fourth mitigated negative declaration issued on July 23, 2008, took the updated TJKM traffic studies into consideration. Before a further hearing, Mesa provided additional information at the request of the Board on biological, greenhouse gas emissions, noise and traffic impacts, and mitigation measures. The fifth mitigated negative declaration, with minor revisions from the previous version and specification of additional minor mitigation measures, was then released and circulated on September 2, 2008.

Following the presentation of evidence at a public hearing on September 23, 2008, the Board adopted Resolution No. 08-0904 that denied plaintiff's appeal, adopted the fifth mitigated negative declaration and mitigation monitoring program, and approved the design review for the project subject to the stated conditions of approval. The resolution articulated the Board's finding "that the Proposed Project will not result in potentially significant adverse environmental impacts that cannot be avoided by the performance of the specified mitigation measures."

Plaintiff challenged the County's compliance with CEQA and approval of the project by way of a petition for peremptory writ of mandate and injunctive relief filed in the trial court on November 18, 2008. After denial of plaintiff's request for a preliminary injunction and the presentation of argument on the petition for writ of mandate, on December 29, 2009, the trial court filed an order that found the County failed to furnish proper notice of the Board's intent to adopt the mitigated negative declaration to the Bay Area Air Quality Management District (the BAAQMD or the District). The court further found that the County failed to "show lack of prejudice" associated with the defective notice, despite the incorporation of the District's "standards" and "thresholds of significance" into the mitigated negative declaration.*fn4 No other violations of the CEQA requirements were found by the court. A writ of mandate was granted to require Mesa to provide adequate notice to the BAAQMD, with the "results of such notice" to determine the "further course of action" needed to "cure the defects and ensure proper CEQA review of this project." The court retained jurisdiction over the matter to ultimately determine the issue of the County's compliance with the notice provisions of CEQA.

On January 11, 2010, the County sent the BAAQMD notice of intent to adopt a mitigated negative declaration, and a request for "comments on both the project and the proposed mitigated negative declaration" within 30 days. Upon review of the notice and the attached mitigated negative declaration, the BAAQMD commented: "The air quality analysis provided in the MND/Initial Study appears to meet appropriate standards for impact assessment. The Project's estimated operational criteria emissions are below the Air District's existing thresholds of significance. The District supports the adopted mitigation measures as a means to implement all feasible measures to reduce the Project's emissions."

Plaintiff filed an appeal from the trial court's order that was dismissed by this court. Thereafter, the County filed a "Certificate of Compliance" with the trial court's order on April 29, 2010, which informed the court "of the County's timely and complete compliance" with the order to provide proper notice to the BAAQMD, and requested dismissal of the petition for writ of mandate with prejudice. The parties subsequently filed a stipulation that the County's Certificate of Compliance served as a return to the writ of mandate (Code Civ. Proc., § 1108), and to entry of the trial court's prior order as a "final, appealable judgment" in the case. Pursuant to the stipulation, on July 19, 2010, the trial court issued a final judgment in the terms of the prior order. This appeal followed.

DISCUSSION

I. The Notice to the BAAQMD.

We first examine plaintiff's contention that the County failed to give proper notice to the BAAQMD of the hearing and intent to adopt the final mitigated negative declaration. Examination of the record reveals that at the inception of the project the County provided notice of Mesa's application for design review to the BAAQMD and solicited comments on the project. The BAAQMD did not respond, but in the mitigated negative declaration the Department noted and adopted the BAAQMD's published CEQA guidelines, air quality plan, and quantitative criteria to assess the impact of the project on air quality. Upon doing so, the Department stated that the project had no features that would conflict with the BAAQMD's plans, and would not generate pollutants at levels above the threshold of cumulative quantitative significance set by the BAAQMD - that is, less than 2,000 vehicles per day.*fn5 Toward the close of the lengthy design review process in the present case, on July 23, 2008, the County published a revised mitigated negative declaration, and sent notice of the scheduled hearing before the Board to consider the revisions and plaintiff's appeal. The County provided public notice by publication in newspapers of general circulation in the area, postings on the property where the project was located and the civic center, and direct mailings to the owners and occupants of property contiguous to the project. (Guidelines, § 15072.) As required, the County also submitted 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. (Guidelines, §§ 15072, 15073.) The State Clearinghouse received the notice, and advised the County of its compliance with the review requirements for draft environmental documents, but did not forward the notice to the BAAQMD.

Plaintiff complains that the failure of the County to provide notice to the BAAQMD as a responsible state agency constitutes a lack of compliance with CEQA requirements. She further argues that the error violated the "public participation policies of ...


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