CEQA Doesn’t Require The Killing of Mice With Missiles: Non-Prejudicial Notice Errors Do Not Require Project Set-Aside


CEQA’s information disclosure provisions are so integral to its statutory scheme that conventional harmless error analysis does not apply. It is the rare violation of CEQA that will not be found a prejudicial and reversible abuse of discretion. Public Resources Code section 21005(a) declares state policy “that non-compliance with the information disclosure provisions of this division which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion … regardless of whether a different outcome would have resulted if the public agency had complied ….” Case law teaches that CEQA violations resulting in omission of “material necessary to informed [agency] decision-making and informed public participation” are prejudicial errors. (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1392.)

A recent decision illustrates that CEQA error can still be found non-prejudicial, and development project approvals can survive, even under this exacting standard. (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949.) In Schenck, after a series of administrative hearings, two administrative appeals, and five iterations of a mitigated native declaration (MND), Sonoma County adopted an MND and approved a large warehouse and distribution facility project. The development was a relocation of an existing facility of the applicant, beverage company Mesa, to a parcel within County’s airport industrial area adjacent to a creek.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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