Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County No. MCV030242. Eric C. Wyatt, Judge.
McCormick, Barstow, Sheppard, Wayte & Carruth, Jeffrey M. Reid and Christopher S. Hall for Plaintiff and Appellant.
Stoel Rives, Michael A. Campos, Barbara A. Brenner and Stacy E. Gillespie for Defendants and Respondents.
OPINION
DAWSON, J.
A nonprofit corporation sued Madera Irrigation District (MID) for violating the California Environmental Quality Act (CEQA) in connection with MID’s approval of a water banking project and certification of the related environmental impact report (EIR). The superior court dismissed the CEQA petition on the ground that the nonprofit corporation, which was suspended during the public review period, failed to meet the standing requirements of section 21177, subdivision (b).
Public Resources Code section 21000 et seq. All further statutory references are to the Public Resources Code unless otherwise indicated.
On appeal, the nonprofit corporation argues that an exception to the requirements of section 21177 applied because MID “failed to give the notice required by law.” (§ 21177, subd. (e).) We conclude that the notice of availability of the draft EIR that was published in a newspaper on June 18, 2005, and stated that the public comment period ended on July 30, 2005, did not provide the public with the required 45 days’ notice. (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 922-923 [“City’s 42-day notice by publication did not comply with section 21091, subdivision (a)”].) As a result, the nonprofit corporation’s CEQA petition should not have been dismissed for failure to comply with section 21177, subdivision (b).
Therefore, the judgment will be reversed and the matter is remanded for further proceedings.
FACTS AND PROCEEDINGS
Appellant Taxpayers Association of Madera County (Association) became incorporated under the laws of California as a nonprofit corporation on November 1, 1968. Association’s third amended petition for writ of mandate alleges that its purpose is to “fight wrongly imposed taxes, charges, fees, and assessments and ill conceived public works and projects in Madera County.”
MID was formed in 1920 for the purpose of supplying water to farmers in its Madera County service area. MID customers use a combination of ground and surface waters. Water has been drawn from the aquifer beneath MID’s service area at a rate greater than the recharge rate, resulting in overdraft. MID undertook a study to evaluate whether a water banking site at property known as Madera Ranch would mitigate the groundwater overdraft. The proposed water banking project entails diverting water from the Fresno and San Joaquin Rivers, storing the water beneath Madera Ranch, and recovering the water when needed. Association is concerned the water banking project may lead to water being exported outside Madera County.
MID’s proposed water banking project is subject to CEQA. To comply with CEQA, MID prepared a draft EIR that analyzed the potential environmental impacts of the project.
The issues that are dispositive of this appeal relate to MID’s notice to the public that the draft EIR was available for review and comment. Therefore, the facts set forth in this opinion will focus on that notice and the related comment period.
MID sent a “Notice of Completion and Environmental Document Transmittal” and copies of the draft EIR to the State Clearinghouse on June 15, 2005. That same date, the State Clearinghouse distributed the draft EIR to a number of state agencies, and the state agency review period began.
This notice used the preprinted form set forth in appendix C of the regulations that implement CEQA and are codified in California Code of Regulations, title 14, section 15000 et seq. (hereafter, Guidelines).
Next, MID faxed a notice of availability to the Madera Tribune on June 16, 2005, and that notice was published in the paper on Saturday, June 18, 2005. The published notice of availability read in part: “COMMENT PERIOD: The 45-day public review period extends from June 15, 2005, to July 30, 2005. In accordance with time limits mandated by State law, responses must be sent at the earliest possible date but no later than 45 days after the date of publication.” The number of days from the date of publication (Saturday, June 18, 2005) to the ending date stated in the notice (Saturday, July 30, 2005) is 42 days.
The notice also stated written comments could be sent to Larry Howard, Assistant Manager-Chief Engineer of MID, and provided his mailing and e-mail addresses.
The notice relating to the public comment period was described subsequently in Larry Howard’s declaration and in a resolution adopted by MID’s board of directors. The declaration stated that the “public comment period commenced on June 15, 2005, and ended on July 29, 2005.” Similarly, resolution No. 22-05 of MID’s board of directors stated that “a 45-day public comment period for the Draft EIR was established pursuant to State law, which commenced on June 15, 2005 and ended on July 29, 2005.” The declaration and resolution also stated that MID accepted public comments through August 3, 2005.
These documents may have given July 29, 2005, as the last day of the comment period because (1) they counted June 15th as the first day of the 45-day period or (2) the 29th was a Friday and the 30th was a Saturday.
Association was a suspended corporation throughout the comment period and remained so until the day before it filed this lawsuit. Specifically, the California Secretary of State suspended Association on August 4, 2004, pursuant to section 2205 of the Corporations Code because Association failed to file a statement of information required by Corporations Code section 1502. Association obtained a certificate of revivor on October 6, 2005.
On July 27, 2005, a law firm representing Association submitted a comment letter to MID. The letter stated, among other things, that Association “requests that MID’s proposed water bank not negatively affect its neighbors” and defined neighbors as those owning land within five miles of the proposed water bank.
On September 6, 2005, MID published the final EIR, completed a notice of determination, approved the proposed water banking project, and certified the final EIR.
On October 7, 2005, Association filed a petition for writ of mandate alleging that MID’s environmental review failed to comply with CEQA. Association’s third amended petition set forth 10 causes of action based on alleged CEQA violations. For example, the eighth cause of action alleged that the proposed project will support future transfers of water outside of Madera County and that such out-of-county transfers are foreseeable because they are the only feasible way to pay for the project. The cause of action further alleged that this foreseeable possibility and its environmental impacts were not adequately disclosed or analyzed during the environmental review process.
Not all of Association’s claims were based on CEQA. The eleventh cause of action alleged that MID violated Government Code section 65401 because it failed to submit the project for review and approval by the County of Madera. The twelfth cause of action alleged that MID violated the planning and zoning law by failing to obtain a conditional use permit and that the project was inconsistent with local planning laws.
The superior court did not reach the merits of Association’s claims; rather, it held that, because the corporate form was suspended, Association’s participation in the CEQA comment period should be regarded as a nullity. Because the superior court held that Association’s comment was a nullity, it dismissed Association’s petition for failing to comply with section 21177, subdivision (b).
The superior court filed a final statement of decision on October 2, 2006. Association filed a timely notice of appeal on October 31, 2006.
DISCUSSION
I. Standard of Review
The issues presented in this appeal concern the meaning and application of provisions in CEQA and the Guidelines. Issues of statutory and regulatory construction as well as the application of that construction to a set of undisputed facts are issues of law subject to independent review on appeal. (Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1513.)
II. Dismissal Pursuant to Section 21177
Section 21177 limits what issues may be raised in a CEQA petition and who has standing to pursue those issues in court. Subdivision (a) of section 21177 sets forth the general rule that a violation of CEQA may be raised in court only if the plaintiff or someone else raised the same issue before the agency in the administrative proceedings. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 711.) The purpose of this statutory requirement is to give the agency an opportunity to respond to specific objections and avoid potential error before those objections become the subject of litigation. (Id. at p. 712.)
Subdivision (b) of section 21177 sets forth the general rule that a CEQA plaintiff must have raised some objection before the agency. If a plaintiff has, then it may litigate any issue raised before the agency by anyone. (Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at p. 711.)
Subdivision (e) of section 21177 sets forth exceptions to the foregoing requirements: “This section does not apply to any alleged grounds for noncompliance with [CEQA] … if the public agency failed to give the notice required by law.”
The superior court dismissed Association’s petition on the ground Association did not comply with section 21177, subdivision (b). Association contends that the exception set forth in subdivision (e) of section 21177 applies because of MID’s failure to give the notice required by law and that, therefore, the dismissal was error.
We, like the parties, interpret the phrase “required by law” in subdivision (e) of section 21177 to include the notice requirements contained in CEQA and in the Guidelines. Accordingly, we turn our examination to the statutory and regulatory provisions governing notice.
III. Notice Required by Law Statutory and Regulatory Text
Section 21091, subdivision (a) creates a public review period for draft EIR’s. When a draft EIR is ready for public review, the “lead agency shall provide public notice of the availability of a draft EIR at the same time as it sends a notice of completion to the Office of Planning and Research.” (Guidelines, § 15087, subd. (a).)
1. Contents of notice
The contents of the public notice are addressed in section 21092, subdivision (b) and Guidelines section 15087, subdivision (c). (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006) § 9.18, p. 480.) Among other things, “[t]he notice shall specify the period during which comments will be received on the draft environmental report … and the address where copies of the draft environmental impact report [and documents referenced therein] are available for review.” (§ 21092, subd. (b)(1).) The Guidelines are more specific regarding what the notice must say about the comment period: “The notice shall disclose … [¶] … [¶] [t]he starting and ending dates for the review period during which the lead agency will receive comments.” (Guidelines, § 15087, subd. (c)(2).)
2. Length of public review period
The length of the period for public review of a draft EIR is derived from section 21091, subdivision (a): “If the draft environmental impact report is submitted to the State Clearinghouse for review, the review period shall be at least 45 days .…” The Guidelines explain the public review period as follows: “When a draft EIR is submitted to the State Clearinghouse for review by state agencies, the public review period shall not be less than 45 days, unless a shorter period, not less than 30 days, is approved by the State Clearinghouse.” (Guidelines, § 15105, subd. (a).) The express rationale for the length of the review period is “to provide sufficient time for public review.” (Id., § 15087, subd. (e).)
Here, the parties agree that the 45-day public review period applied to MID’s draft EIR.
3. Methods of public notification
Section 21092, subdivision (b)(3) provides three methods a lead agency may use to notify the public that a draft EIR is available for public review and comments. One of the authorized methods of providing public notice is to publish the notice in a newspaper of general circulation in the area affected by the proposed project. (§ 21092, subd. (b)(3)(A); Guidelines, § 15087, subd. (a)(1).) This was the method chosen by MID.
4. Relationship between public review and state agency review
Some CEQA projects involve only local review while others include review by state agencies. State agency review is coordinated through the State Clearinghouse. (See generally 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, §§ 9.21 & 9.22, pp. 485-486 [comparing and contrasting local review projects with State Clearinghouse review projects].)
In this case, copies of the draft EIR were submitted to the State Clearinghouse, which then distributed the copies to state agencies. Therefore, the water banking project involved both state agency review and local public review.
CEQA clearly distinguishes the public review period from the state agency review period. For example, former subdivision (c) of section 21091 in effect at the time notice was published stated:
“[I]f a draft environmental impact report … is submitted to the State Clearinghouse for review and the period of review by the State Clearinghouse is longer than the public review period …, the public review period shall be at least as long as the period of review by the State Clearinghouse.”
Similarly, the Guidelines state that the public review period for a draft EIR shall be at least as long as the review period the State Clearinghouse establishes for state agencies. (Guidelines, §§ 15105, subd. (c), 15087, subd. (e).)
During oral argument, counsel for MID belatedly made the argument that MID was placed in a quandary because the 2005 version of CEQA required it to use the same starting and ending dates for both the public review period and the agency review period. We reject this argument because it is an inaccurate statement of the law. The references in CEQA and the Guidelines to a public review period at least as long as the agency review period establish that CEQA clearly contemplated the possibility that the public review period would not end on the exact same date as the agency review period.
IV. Application of Notice Provisions to the Facts of This Case
In this case, the parties agree the 45-day public review period applied, but disagree over whether the notice of availability published in the newspaper complied with the applicable statutory and regulatory provisions.
A. Applicable Law
The relevant statutory text states: “The notice shall specify the period during which comments will be received .…” (§ 21092, subd. (b)(1).) The corresponding provision from the Guidelines states that the notice “shall disclose” the “starting and ending dates for the review period during which the lead agency will receive comments.” (Guidelines, § 15087, subd. (c)(2).)
B. Relevant Text of the Notice
The two relevant sentences from the notice published in the newspaper state: “COMMENT PERIOD: The 45-day public review period extends from June 15, 2005, to July 30, 2005. In accordance with time limits mandated by State law, responses must be sent at the earliest possible date but no later than 45 days after the date of publication.”
C. The Notice Was Defective
These two sentences contained defects that prevented the notice from complying with CEQA and the Guidelines.
1. Defects in the first sentence
The sentence that stated the 45-day public review period extended from June 15, 2005, to July 30, 2005, did not provide the public with the full review period because the notice was published on June 18, 2005. Only 42 days passed from June 18, 2005, through July 30, 2005. (See Code Civ. Proc., § 12 [computation of time].)
Counsel for MID responds to this error by arguing: “The 45-day public review period, beginning on June 15, 2005, and extending to July 30, 2005, pertains to the review period for state agencies and was established by the [Office of Planning and Research]’s receipt of the Draft EIR on June 15, 2005.” This argument is unconvincing because it twists the words actually used in the notice. The phrase “45-day public review period” plainly refers to the public review period and does not inform the reader that the state agency review period is the topic being described. The attempt by counsel for MID to interpret the term “public review period” to mean “state agency review period” is unreasonable. Public review period means public review period and does not mean a different review period. Furthermore, counsel’s interpretation of the notice directly contradicts the description of the public review of the draft EIR set forth on page 2 of chapter 1 of the final EIR: “The [notice of availability] provided notice of the public comment period that began on June 15, 2005, and ended on July 29, 2005.” This also is the way the public comment period was described in (1) the declaration of Larry Howard and (2) the resolution of MID’s board of directors.
Consequently, we conclude as a matter of law that the first sentence after the heading “COMMENT PERIOD” is not ambiguous and it is not reasonably susceptible to the interpretation urged by counsel for MID. (See Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1495 [language susceptible to more than one reasonable interpretation is “ambiguous”].)
Furthermore, regardless of the information the first sentence was trying to convey to the public, it failed to accurately accomplish its goal. Assuming for the sake of argument that the sentence was written for the purpose of informing members of the public about the state agency review period, then the sentence should have used the term “state agency review period” instead of the term “public review period.” Alternatively, if the sentence was written to inform the public about the length of the public review period, it should have stated the period extended to August 2, 2005, so that members of the public would have been informed that they had the full 45 days to submit comments. (See Gilroy Citizens for Responsible Planning v. City of Gilroy, supra, 140 Cal.App.4th at pp. 922-923 [“City’s 42-day notice by publication did not comply with section 21091, subdivision (a)”].) In either situation, the first sentence misinformed the public.
2. Defects in the second sentence
The sentence in the notice that states responses must be sent “no later than 45 days after the date of publication” also contains defects. Assuming, as counsel for MID now claim, that the prior sentence referred to the state agency review period, then this sentence is defective because it does not state the ending date of the public review period.
The Guidelines require the notice to “disclose” the “starting and ending dates for the review period during which the lead agency will receive comments.” (Guidelines, § 15087, subd. (c)(2).) MID argues, in effect, the notice met this requirement because a person could calculate the last day of the public review period by adding 45 days to the date of the newspaper that the person was reading. We disagree with the interpretation of the Guidelines that is inherent in this argument by MID. The Guideline clearly refers to starting and ending “dates.” “The word ‘date’ in its common and accepted statutory meaning refers simply to the day, month and year. [Citations.]” (Anderson v. State Personnel Bd. (1980) 103 Cal.App.3d 242, 248.) Based on this definition of the word “date,” the Guidelines require that the notice set forth the day, month, and year on which the comment period ends. The notice failed to meet this requirement because it did not specify August 2, 2005, or later as the ending date.
In addition, Webster’s Third New International Dictionary (1986) defines the noun “date” to mean “1: a statement … that specifies the time (as day, month, and year) … ….” (Id. at p. 576; see Leavitt v. County of Madera, supra, 123 Cal.App.4th at p. 1514 [courts may derived the ordinary and usual meaning of words from a dictionary].)
Another problem with the sentence in the notice that states responses must be sent “no later than 45 days after the date of publication” is that it is ambiguous as to when the 45-day period begins. It necessarily follows that it also is ambiguous as to when the 45-day period ends. MID assumes that a member of the public reading the notice would know that “the date of publication” is the date of publication of the newspaper the person is reading. This is a possible interpretation, but not the only one. A reasonable person might be unsure about whether “the date of publication” referenced is the date of the newspaper in hand or, instead, refers to an earlier publication of the newspaper. A reasonable person might conclude there was an earlier publication based on (1) the reference to June 15, 2005, in the prior sentence in the notice, (2) the principle that specific expressions usually qualify those that are general (see Civ. Code, § 3534), and (3) the view that the stated date is more specific than the formula provided.
[]In contrast to the notice’s reference to an unspecified publication, the record contains a “Notice of Completion/Availability of a Draft Environmental Impact Report” that states responses to the draft EIR must be sent “no later than 45 days after the date of publication of this notice .…” (Italics added.)
Section 21092, subdivision (b)(3)(A) clearly contemplates the possibility that a lead agency will publish the notice more than once. That provision refers to publication “no fewer times” than the once required by Government Code section 6061.
In any event, the reason the Guidelines require the specific listing of the ending date of the public review period is to provide clarity and certainty to members of the public who read the notice and to avoid the necessity of them performing their own calculations. When a layperson is required to apply a formula and calculate an ending date, uncertainty can arise because the person may not know whether to count the day the paper is published as the first day and may not know whether to shorten or extend the period when the ending date calculated falls on a weekend or holiday.
3. Summary
The notice published in the newspaper cannot be interpreted in a manner that resulted in the public being informed that they could submit comments on the draft EIR for the proposed water banking project through August 2, 2005. Instead, the notice provided the public with 42 days’ notice and, as a result, failed to comply with section 21091, subdivision (a). Consequently, MID “failed to give the notice required by law” for purposes of section 21177, subdivision (e). It follows that the dismissal of Association’s petition for writ of mandate must be reversed. As a result, on remand the superior court should reach the merits of the petition.
During oral argument, counsel for Association expanded the relief previously requested from this court (remand for consideration of the merits) to include the alternative of ordering MID to (1) vacate its approval of the project and final EIR and (2) provide the public with a review period containing 45 days. Because this request was made so late in the appellate process, we will not consider whether such relief is appropriate in this case.
V. Additional Arguments
A. Waiver
MID argues that Association waived the argument that MID failed to give legally sufficient notice to the public because Association failed to allege such failure in its petition.
A waiver is the intentional relinquishment or abandonment of a known right. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) In this case, MID asks this court to infer that Association intended to relinquish the ability to raise the exception stated in section 21177, subdivision (e) based on its failure to allege in its petition that the exception applied. This inference is not reasonable as a matter of fact because Association filed its petition before MID had asserted its suspended corporate status meant its comments were a nullity for purposes of subdivisions (a) and (b) of section 21177.
Furthermore, MID has cited no authority for the proposition that a plaintiff may raise the exception contained in section 21177, subdivision (e) only if the facts supporting that exception have been pled in the petition.
MID recognized in its appellate brief the principle that an appellate court “‘need not consider an argument for which no authority is furnished.’ (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384; accord, People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284.)” Based on this principle and MID’s failure to cite authority to support its position, we reject MID’s argument that Association waived its right to rely on the exception contained in section 21177, subdivision (e).
B. Length of Comment Period
MID’s appellate brief asserts that it “satisfied the statutorily mandated 45-day public review period regarding its Draft EIR” because it accepted a comment letter dated August 3, 2005, and responded to that letter.
The question before us is whether the notice complied with the law, not whether MID actually kept the comment period open for at least 45 days. To the extent that MID’s assertion could be read as an argument that any defect in the notice was cured because the comment period met the statutorily imposed minimum length, we reject that argument.
We conclude that keeping a comment period open longer than stated in the notice does not cure a defect in the notice regarding the ending date of the comment period. Members of the public might forgo presenting comments during the undisclosed extension because they believe the comments would be rejected as untimely. Thus, MID did not cure the defect in the notice of availability published in the newspaper by accepting a comment letter dated August 3, 2005.
DISPOSITION
The judgment is reversed. The matter is remanded to the superior court with directions to vacate its order dismissing Association’s petition for writ of mandate. Association is awarded its costs on appeal.
WE CONCUR: HARRIS, Acting P.J., KANE, J.