Fear Not Law Articles: GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY Part II

GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY

Filed 6/22/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

GILROY CITIZENS FOR RESPONSIBLE PLANNING et al.,

Plaintiffs and Appellants,

CITY OF GILROY,

Defendant and Respondent;

WAL-MART STORES, INC., et al.,

Real Parties in Interest and Respondents.

H028539

(Santa Clara County

Super. Ct. No. CV019110)

Story continue from Part I â€¦â€¦

There is no evidence in the record that other parties who were mailed the NOA did not also receive it in a timely fashion. The Water District and other agencies on the mailing list responded in a timely fashion[1] and 37 individuals testified before the planning commission. After the comment period, 86 individuals testified at the City Council hearings. There was no evidence in the record showing that any individual or agency who wished to comment failed to receive notice in a timely fashion and therefore lost the opportunity to comment, nor do Citizens assert so. These facts and Durkin's testimony that the planning department sent out the NOA when the draft EIR was prepared supports the inference that the notices were mailed in time to give the recipients the required 45 days in which to comment. This circumstantial evidence, the absence of evidence to the contrary, plus the presumption that official duty was regularly performed (Evid. Code, § 664) support our conclusion that City timely mailed the NOA to the entities and individuals who previously requested notice (§ 21092, subd. (b)(3)) and timely mailed notice to the owners and occupants of contiguous property shown on the latest equalized assessment roll. (Id., subd. (b)(3)(C).)

3. Response to Comments. Next, Citizens contend that despite the finding in the resolution certifying the EIR that public agencies received copies of the EIR in response to their comments on February 4, 2004, there is no evidence that City did so. Citizens correctly state that City, as the lead agency, had to provide any agency that commented on the EIR with a written response 10 days before certification. (§ 21092.5, subd. (a); Guidelines, § 15088.)

Local agencies may comply with section 21092.5, subdivision (a), by providing â€

Description	Citizens objecting to environmental impact report for proposed retail supercenter on ground that it failed to notify the public it tiered from EIR for earlier project for site on which the center would be located failed to exhaust administrative remedies where draft EIR identified the earlier EIR and several studies antecedent to it as connected to its preparation. Citizens did not object to the adequacy of disclosure during administrative proceedings when any notice error could easily have been corrected. Draft EIR is subject to 45-day notice requirement under CEQA rather than reasonable notice requirement applicable to final EIRs. Requirement of a 45-day comment period for draft EIRs is absolute. Finding that 45-day notice of availability of draft EIR was given by mail to persons entitled to such notice was supported by circumstantial evidence. Paticuarly pertaining to date of mailing, identities of recipients, absence of evidence to the contrary and presumption that official duty was regularly performed. City was entitled to conclude that urban decay impact of project had been adequately studied where record established that additional formal studies would not add information not already available to the city council when it voted to approve the project. Air quality impact did not preclude approval of project where EIR concluded that air pollution was a significant and unavoidable impact, but city approved the project on the basis of a statement of overriding considerations and all mitigation measures recommended in EIR were adopted.
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