by William W. Abbott

1. Describe and consider all project components, including offsite improvements (road work, utilities).

– Failure to look at offsite improvements invalidates negative declaration Santiago Water District v. County of Orange (1981) 118 Cal.App.3d 818. San Joaquin Raptor v. County of Stanislaus (SJR1) (1994) 27 Cal.App.4th 713.

– Description of related water diversion facilities held to be sufficient, although not designed or engineered. Dry Creek Citizens v. Tulare County (1999) 70 Cal.App.4th 20.

2. Use of the “naked checklist” for the initial study (e.g., conclusions without the supporting analysis) puts a negative declaration at risk.

– Appendix G (CEQA Guidelines)

Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151.

3. When referring to independent documents, be specific in the references (e.g., page, section or code reference). Guidelines § 15063. The initial study (IS) should recite where these documents can be viewed by the public (preferably in the office of the preparer of the IS).

4. When referring to information received from other departments, it is highly preferable that this information be in writing.

5. Maintain written documentation of consultation with responsible agencies and trustee agencies responsible for resources affected by the project. For projects of statewide, regional or areawide significance, this includes transportation planning agencies. Guidelines § 15063(g).

6. Do not rely on vague standards as mitigation or failure to explain how existing regulations operate as mitigation. The use of performance standards is acceptable. Guidelines § 15064, Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

7. Do not bank on future studies to provide the critical environmental analysis and mitigation. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

8. The de minimis finding (Guidelines § 15064(i)(4)) to avoid an EIR based upon cumulative impacts is invalid. Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

9. Inadequate tiering off of an earlier environmental document. The correct approach to tiering requires recognition and disclosure of the reliance upon the earlier environmental document at the front end of the process, not as an after-the-fact thought. Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359. Cumulative strategies include: § 15167 (staged EIR), § 15168 (program), § 15175 (Master EIR), § 15179.5 (residential less than 100 units, commercial less than 100K square feet, based upon prior EIR less than 5 years old), § 15180 (redevelopment), § 15181 (housing, neighborhood commercial in urbanized areas), § 15182 (residential projects pursuant to a specific plan), § 15183 (projects consistent with general plans, community plans or zoning); § 15332 (infill less than 5 acres); Gov. Code, § 66457 (residential projects consistent with specific plan). The ability to tier to a negative declaration is now limited by Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

10. Obtain the applicant’s sign off on agency added mitigation measures before the document is sent out for public review. Guidelines § 15070 (b)(1).

11. Notify (the Notice of Intent (“NOI”) with a copy of negative declaration) all trustee and responsible agencies of the intent to adopt a negative declaration. §§ 15072 and 15073. Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482. Maintain written records of distribution of NOI and proposed negative declaration (county clerk, agencies, individuals, organizations who request copies).

12. The NOI must include a brief description of the project including its location, the review period, the date, time and, place of any scheduled public meetings or hearings (when known), the address where the Negative Declaration can be reviewed, including all documents referenced in the negative declaration, and the presence, on site of hazardous materials. Guidelines § 15072(f)(2).Proof of posting of the NOI is critical. Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133.

13. When adopting a negative declaration, specify the location and custodian of the documents which constitute the record of proceedings. Guidelines § 15074(c).

14. Make a de minimis finding, or require payment of Fish and Game fees. Fish and Game Code, § 711.4.

15. File and post the NOD locally and with the state as appropriate. Remember, an NOD which does not “substantially comply” is an invalid NOD.

Bill Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.