Court Holds that Agencies Violate CEQA by Setting Notice Periods that End on Holidays
by Derek P. Cole on December 9, 2014
posted in CEQA,
Agencies should make sure the notices they give under the California Environmental Quality Act (“CEQA”) do not end on a holiday. So ruled a court in a recent case challenging the approval of a tentative map.
In Rominger v. County of Colusa, the Third District Court of Appeal held that a county had failed to give the full 30 days of required notice for a mitigated negative declaration prepared for a proposed subdivision. Because the 30th day of the notice period fell on Labor Day, the court found that the public had effectively received three fewer days of notice than required. The court observed that county offices were not open that Monday or on the preceding Saturday or Sunday, giving the public only 27 days of notice.
This result did not automatically require that the tentative map approval be reversed, however. Although the court found that the county had “abused its discretion” in failing to give the full 30-day notice period CEQA required, it also found that violation was not “prejudicial.” Under CEQA, it noted, courts may not overturn project approvals when “insubstantial or merely technical omissions” have occurred in the CEQA process. In the case before it, the court found the petitioners had made no showing that anything other than such a minor violation had occurred because of the three fewer days of notice that were provided. (The court did overturn the project approval on other grounds not covered in this post.)
The Takeaways for Local Agencies
The Rominger case provides some goods lessons for how agencies should handle their public-notice responsibilities under CEQA.
- The most obvious lesson is not to schedule any CEQA notice period to end on a legal holiday. This was the direct holding of the case.
- Another lesson is not to schedule a CEQA notice period to start on a legal holiday. The Rominger court was concerned that, because of the closure of county offices on the last day of the notice period, the public could not review the project documentation, effectively depriving the public of notice on that day. If agency offices are closed on the first day of a public-notice period, it is hard to see how this same concern would not exist.
- The “one day ahead” rule in civil litigation does not apply to CEQA notices in which the specific dates must be stated. In civil litigation, Code of Civil Procedure section 12 extends deadlines to the next day that falls after a legal holiday. The court observed that the purpose of this rule is to provide certainty in situations in which certain deadlines refer only to a number of days (e.g., 30) and the last day in a particular instance falls on a holiday. Since a notice of a negative declaration must specify both the starting and end dates of the public-notice period, there should be no ambiguity as to when that period ends, so the need for the rule does not exist.
- Finally, do not automatically rely on the requirement that a party show “prejudice” if an agency fails to give the full number of days of notice under CEQA. Although prejudice was not shown in Rominger, the court’s decision was based on the unique facts of that case. When and if a CEQA mistake may be excused is a gray and evolving area of CEQA litigation. Local agencies would do best to try to avoid this uncertain area of the law by re-noticing or extending a notice period if they make a mistake.