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

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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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