Rominger v. County of Colusa (229 Cal. App. 4th 690, 2014)

Opinion

ROBIE, J.

In this mandamus action under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), plaintiffs Elaine and Gerald Rominger challenged a mitigated negative declaration approved by defendant Colusa County with respect to a subdivision proposed by real party in interest Adams Group Inc. The trial court denied the Romingers’ petition based on the conclusion that, notwithstanding the county’s approval of a mitigated negative declaration, the county’s “action in approving the subdivision map was not a project for CEQA purposes and [thus] no review beyond the preliminary review stage was required.”

On the Romingers’ appeal, we conclude the trial court erred in determining the proposed subdivision was not a CEQA project, even though the proposal did not include any specific plans for development. On our independent review of the Romingers’ other complaints, however, we find merit in only one. Specifically, we conclude that the Romingers adequately showed there is substantial evidence in the record that the subdivision may have a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, on that basis only, we will reverse and remand for the preparation of an environmental impact report (EIR).

FACTUAL AND PROCEDURAL BACKGROUND

The present action pertains to four adjacent parcels in Colusa County consisting of a total of just over 159 acres that are bordered by County Line Road to the south, Grevie Road to the east, the Southern Pacific Railroad right-of-way to the west, and agricultural land to the north. (We will refer to the four parcels jointly as the Adams subdivision or the project site.) County Line Road intersects Interstate 5 just to the west of the property.

In 2001, the county approved an amendment to its general plan changing the general plan’s land use designation for the Adams subdivision from agricultural-industrial to industrial and an amendment to its zoning ordinance changing the zoning designation from exclusive agriculture to industrial. In connection with that action, the county certified a mitigated negative declaration. Gerald Rominger challenged the county’s action under CEQA, and the parties eventually settled that lawsuit while it was on appeal, with the county agreeing to prepare, circulate, and adopt a revised initial study/mitigated negative declaration incorporating supplemental mitigation.

On May 26, 2009, real party in interest Adams Group Inc. filed an application for approval of a tentative subdivision map to divide the four existing parcels into 16 parcels ranging in size, from 1.19 acres to 30.80 acres “for future expansion where separate financing may be needed.” At the time of the application, 93 acres were in agricultural production with the remaining 66 acres of the site occupied by agricultural-related light industrial uses and ancillary undeveloped land, including a 11.44-acre detention pond at the northeast comer of the site. The existing agricultural-related light industrial operations were accessed by a paved road extending into the site from Grevie Road.

The subdivision application indicated that no specific plan for future expansion was then available and that the intention was to continue the existing use of the property at that time. An attachment to the application described the property as “currently devoted [to] agriculture related industry,” with “a portion of said property devoted to agriculture production,” and the surrounding properties as “devoted to agriculture production with one home-site and shop to the north and Interstate 5 to the west.”

In January 2010, the county hired a consultant to prepare an initial study. The initial study was completed in June 2010 and recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have a significant environmental impact on cultural resources, but that impact could be mitigated to less than significant through mitigation measures.

In July 2010, the county noticed a public hearing for September 13 regarding adoption of the mitigated negative declaration, following a public comment period from July 12 to August 11. During the public comment period, the Romingers submitted comments requesting that the county proceed by way of an EIR rather than a mitigated negative declaration. The Romingers contended the mitigated negative declaration was “legally deficient in a number of areas, including an inadequate project description, a failure to recognize conflicts with the County’s General Plan, and a failure to properly analyze and mitigate for impacts to areas such as agricultural resources, traffic, odor, noise, and water supply.” Among other things, the Romingers complained that “no future use [wa]s analyzed” and “even if the exact use is yet to be determined, the County must analyze the potential impacts of the operations based on the most reasonable significant impacts. [Citation.] Since the types of permissible uses in the Industrial zoning designation have been specified in the County’s Municipal Code, it is both reasonable and feasible for the County to analyze environmental impacts from these activities.” The Romingers further argued that the county’s “fail[ure] to consider the environmental effect of the foreseeable future industrial use and development” would result in the improper “ ‘piecemeal[ing]’ ” of the project.

As a result of the Romingers’ comments, the county determined that a water supply assessment was needed. Accordingly, the county cancelled the public hearing on the original mitigated negative declaration. Thereafter, in September 2010, the Romingers submitted additional comments on the proposed mitigated negative declaration, asserting that it “failed to adequately analyze air quality, odors, greenhouse gas emissions, and noise.”

A revised initial study was completed by August 2011. Like the original study, the revised initial study recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have significant environmental impacts on air quality, cultural resources, and hydrology/water quality, but those impacts could be mitigated to less than significant through mitigation measures.

On August 1, 2011, the county noticed a public hearing before the planning commission on the proposed revised mitigated negative declaration for “September 12, 2011, at 9:00 a.m. in the Board of Supervisors Chambers in the Historic Courthouse, located at 547 Market Street, Colusa.” The notice stated that the public comment period would be “from August 7, 2011 to September 5, 2011 at 5:00 p.m.”

As later explained in an agenda report for the board of supervisors, the revised initial study and mitigated negative declaration “evaluate[d] the impacts of potential development that m[ight] be triggered by the subdivision]], including development to facilitate access to and drainage for the newly created parcels, and potential future development of a reasonable development scenario.” The report took the position that because “[t]he future development scenario [wa]s presented for analysis only, and [wa]s not currently proposed,” “the analysis . . . completed by the County . . . actually [wa]s not required by CEQA.” The report further explained as follows: “Based upon available building permit evidence, grading permit record, and visual evidence along the 1-5 corridor, it is reasonable to expect that agriculture-related industries will develop on the project site. This projection is based on: a) existing industrial development on the project site is agriculturally related; [and] b) County Planning staff performed a records search, zoning map review, and field survey of properties along the 1-5 corridor, and found that development on industrially zoned properties consists of agriculture-related industries. Although a range of non-agriculture industrial uses are permitted in the M zone, the establishment of these uses is considered unlikely due to the geographical location of Colusa County, the building permit history and pattern, the location of natural resources, and market locations. For each of these reasons, a reasonable future development scenario that assumes agriculturally-related industrial development is analyzed in the County’s [mitigated negative declaration].”

During the public comment period, the Romingers submitted a letter that reiterated the concerns they had previously expressed, asserted defects in the notices of the public hearing and in the close of public comment period, and also detailed additional complaints about the proposed mitigated negative declaration.

Notwithstanding the Romingers’ complaints, the planning commission voted to approve the revised mitigated negative declaration for the project. The Romingers appealed that determination to the board of supervisors. The board of supervisors heard the Romingers’ appeal in February 2012. The board denied the appeal and in March 2012 adopted a resolution approving the project and the revised mitigated negative declaration.

In April 2012, the Romingers commenced the present action by filing a petition for writ of mandate asserting that the county had violated CEQA by “failing to prepare an [EIR] for the Project, preparing a deficient mitigated negative declaration ... for the Project, adopting insufficient mitigation measures, providing inadequate public review of the [mitigated negative declaration], and approving the Project on the basis of findings that are not supported by substantial evidence.” In response, the county and the real party in interest argued (among other things) that the county “actually exceeded the requirements of CEQA by preparing a [mitigated negative declaration] for a Project that has no potential to result in any physical change in the environment.”

The trial court determined that even though the county had treated the activity as a project for purposes of CEQA by preparing a mitigated negative declaration, that did not preclude the court from determining that the project was not a project for purposes of CEQA. The court then proceeded to make that determination, as follows:

“Here, the same tract was previously the subject of a general plan revision and rezoning. At the time those actions were taken the [Romingers] brought legal action under CEQA to challenge the agency process. That prior dispute resolved by formal agreement between the parties after which time the current zoning and general plan provisions were put in place.

“Now, [the Romingers] challenge the partition of that same property on the basis that the partition will negatively impact the environment by rendering more likely the ultimate development of the tract in question. The record provides no substantial evidentiary support for such a conclusion. [The Romingers’] position that reduced parcel size will lead to accelerated development and development of a more intensive character is sheer speculation. One could as easily posit that a larger industrial tract would be more attractive to development since industrial complexes often require substantial acreage to accommodate their purposes.

“Accordingly, this court finds that County’s action in approving the subdivision map was not a project for CEQA purposes and that no review beyond the preliminary review stage was required.”

From the resulting judgment denying their mandamus petition in March 2013, the Romingers timely appealed.

DISCUSSION

I

The County Is Not Barred from Asserting That the Adams Subdivision Is Not a CEQA Project or Is Subject to the Commonsense Exemption from CEQA

The Romingers argue that because the county treated the Adams subdivision as a CEQA project at the administrative level—approving a mitigated negative declaration that identified potential environmental impacts—the county should be “barred” from asserting in court that the subdivision is not a CEQA project or is subject to the commonsense exemption from CEQA. We disagree because the Romingers’ argument is based on a false premise.

Although the county, in approving a mitigated negative declaration for the subdivision, acted under the provisions of CEQA, the county always took the position that what it was doing was not required by CEQA. Specifically, the board of supervisors found that “[t]he environmental analysis was conducted to provide public information about impacts that could occur if a reasonable development scenario were to be pursued,” but “[t]he analysis is informational and not required pursuant to CEQA or local statute.” Thus, it was the county’s position that it was gratuitously conducting a CEQA analysis of the subdivision when the law did not actually require it, because the subdivision either did not qualify as a CEQA project or was subject to the commonsense exemption from CEQA. When the county’s arguments are viewed in this light, it can be seen that the county is not arguing that what it did at the administrative level was wrong, just that it was not legally required by CEQA.

The Romingers have offered us no persuasive reason why the county should be barred from asserting that the environmental review it conducted was more than what was legally mandated. In fact, if the county were correct on this point, it would serve no purpose for the courts to spend valuable time and resources reviewing whether a purely voluntary environmental review complied with legal provisions that did not actually mandate that review. The task of the courts under CEQA is “ ‘to review the agency’s actions to determine whether the agency complied with procedures required by law.’ ” (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113 [62 Cal.Rptr.2d 612], italics added.) The county’s argument here is that its actions complied with procedures required by law because the law required no procedures, and thus everything the county did went “above and beyond the requirements of law.” We conclude the county is not barred from making this argument. Thus, notwithstanding its preparation of a mitigated negative declaration, the county is entitled to argue before this court that the Adams subdivision either did not qualify as a CEQA project or was subject to the commonsense exemption from CEQA. As will be seen, however, those arguments are to no avail.

II

The Adams Subdivision Qualifies as a CEQA Project

“CEQA and its implementing administrative regulations . . . establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. [Citations.] An activity that is not a ‘project’ as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see § 15378) is not subject to CEQA.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380 [60 Cal.Rptr.3d 247, 160 P.3d 116], fn. omitted (Muzzy Ranch).)

“Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact. Thus, for CEQA’s purposes, ‘ “[p]roject” means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [j[] (a) An activity directly undertaken by any public agency. [j[] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [][] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.’ [Citation.] Whether an activity is a project is an issue of law that can be decided on undisputed data in the record on appeal.” (Muzzy Ranch, supra, 41 Cal.4th at pp. 381-382.)

Here, the Romingers contend the trial court erred in finding the Adams subdivision was not a CEQA project. In a CEQA case, however, “we review the agency’s action, not the trial court’s decision.” (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) Thus, the question for us is not whether the trial court erred, but rather whether the subdivision qualifies as a CEQA project as a matter of law, such that the county’s environmental review of the subdivision was mandatory under CEQA, rather than voluntary as the county asserts. We conclude the subdivision does qualify as a CEQA project.

The Romingers contend the Adams subdivision qualifies as a CEQA project because section 21080 specifically provides that CEQA applies to “the approval of tentative subdivision maps.” (Id., subd. (a).) We agree.

Subdivision (a) of section 21080 provides that “[ejxcept as otherwise provided in [CEQA], [CEQA] shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits, and the approval of tentative subdivision maps unless the project is exempt from this division.” (Italics added.) According to the Romingers, this statute makes the approval of a tentative subdivision map a CEQA project categorically. The county responds that “[t]his ignores the facts and elevates form over substance” because “[a]ll subdivisions are not born alike,” and “[t]he fact remains that the [Adams] Subdivision . . . will not directly or indirectly result in significant impacts to the environment.”

The answer to the county’s response largely lies in the Supreme Court’s recognition in Muzzy Ranch that “[w]hether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.” (Muzzy Ranch, supra, 41 Cal.4th at p. 381, italics added.) In essence, by enacting subdivision (a) of section 21080 the Legislature has determined that certain activities, including the approval of tentative subdivision maps, always have at least the potential to cause a direct physical change or a reasonably foreseeable indirect physical change in the environment. This makes sense. It virtually goes without saying that the purpose of subdividing property is to facilitate its use and development. (See Gov. Code, § 66424 [defining “subdivision” for purposes of the Subdivision Map Act (Gov. Code, § 66410 et seq.) as “the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future” (italics added)].) Presumably no one goes to the trouble of subdividing property just for the sake of the process; the goal of subdividing property is to make that property more useable. And with the potential for greater or different use comes the potential for environmental impacts from that use. Thus, the Romingers are correct that under subdivision (a) of section 21080, the approval of a tentative subdivision map is categorically a CEQA project.

This conclusion is supported by our Supreme Court’s analysis in Muzzy Ranch. There, the court determined that the adoption of a land use compatibility plan for the area around Travis Air Force Base qualified as a CEQA project because it was “the sort of activity that may cause a direct physical change or a reasonably foreseeable indirect physical change in the environment.” (Muzzy Ranch, supra, 41 Cal.4th at pp. 378, 382.) Specifically, the court found that “by freezing residential densities in Compatibility Zone C,” the plan might “have the consequence, notwithstanding existing zoning or land use planning, of displacing development to other areas of the jurisdiction.” (Id. at pp. 382, 383.) The court then determined, however, that the adoption of the plan was nonetheless exempt from CEQA under the commonsense exemption (which we will discuss further hereafter) because the plan “simply incorporate^] existing general plan and zoning law restrictions on residential housing density” and thus “any potential displacement the [plan] might otherwise have effected already ha[d] been caused by the existing land use policies and zoning regulations .. . .” (41 Cal.4th at p. 389.) Accordingly, while the adoption of the plan qualified as a CEQA project because it was the type of activity that might cause a physical change to the environment in that it might cause displacement of residential development to other areas, the adoption of the plan was exempt from CEQA because in fact any such displacement would not be caused by the plan but instead by the existing land use policies and zoning regulations the plan incorporated.

Our Supreme Court’s conclusion in Muzzy Ranch that an activity can qualify as a CEQA project because it is of the sort that may cause environmental effects but can, in turn, be exempt from CEQA because, in fact, it will not cause any such effects supports our conclusion here that whether the approval of the Adams subdivision qualifies as a CEQA project must be determined by looking at the activity categorically. Because the Legislature has determined in section 21080 that the approval of a tentative subdivision map is the sort of activity that may cause physical changes to the environment, the Adams subdivision qualifies as a CEQA project.

Ill

The Commonsense Exemption Does Not Apply

“The second tier [of the CEQA process] concerns exemptions from CEQA review. The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. [Citations.] In addition, pursuant to the Legislature’s command [citation], the CEQA Guidelines list categorical exemptions or ‘classes of projects’ that the resources agency has determined to be exempt per se because they do not have a significant effect on the environment. [Citations.]

“A project that qualifies for neither a statutory nor a categorical exemption may nonetheless be found exempt under what is sometimes called the ‘commonsense’ exemption, which applies ‘[wjhere it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment’ ” (Muzzy Ranch, supra, 41 Cal.4th at p. 380.) “[Wjhether a particular activity qualifies for the commonsense exemption presents an issue of fact, and that the agency invoking the exemption has the burden of demonstrating it applies. [Citation.] An agency’s duty to provide such factual support ‘is all the more important where the record shows, as it does here, that opponents of the project have raised arguments regarding possible significant environmental impacts.’ ” (Id. at p. 386.)

Here, the county contends the Adams subdivision is exempt from CEQA under the commonsense exemption because it is “a map approval that merely establishes new parcel lines” and therefore there is an “absence of any possible effect on the environment.” We disagree.

In applying for approval of the tentative subdivision map, the Adams Group stated that its objective was to “[d]ivide [the] existing parcels into 16 separate parcels for future expansion where separate financing may be needed.” Thereafter, in response to comments by the Romingers, the county itself explained that “[t]he purpose of the project is to separate the existing uses on the project site and create lots for lease or sale.” (Italics added.) Thus, the record establishes that the purpose of the subdivision was to make the property more amenable to development by creating smaller parcels on which it would be easier to obtain financing than the existing, larger parcels.

For the commonsense exemption to apply, the county would have to show as a factual matter, based on the evidence in the record, that there is no possibility that the approval of the Adams subdivision may result in a significant effect on the environment, i.e., that despite the subdivision of the property into smaller parcels to facilitate lease or sale, there is no possibility that purpose will be achieved and the creation of the smaller parcels will not lead to the development of those parcels and to resulting significant environmental effects. The county did not make that showing. On the record before us, it remains an eminently reasonable possibility that the creation of smaller parcels that are easier to finance will lead to development that might not otherwise occur, and to attendant significant effects on the environment. Thus, the commonsense exemption does not apply.

IV

The County Abused Its Discretion in Failing to Provide a Full 30-day Public Review Period for the Mitigated Negative Declaration, but No Prejudice Has Been Shown

The Romingers contend the county failed to provide the mandatory 30-day public review period for the mitigated negative declaration and this failure constituted a prejudicial abuse of discretion. We agree the county failed to comply with CEQA in this regard, but we also conclude that no prejudice from the noncompliance has been shown and therefore the noncompliance provides no basis for overturning the county’s decision.

“The public review period for a proposed negative declaration or proposed mitigated negative declaration may not be less than 20 days. If the proposed negative declaration or proposed mitigated negative declaration is submitted to the State Clearinghouse for review, the review period shall be at least 30 days . . . .” (CEQA, § 21091, subd. (b).) The Romingers assert that, pursuant to this provision, the public review period required here was 30 days, and the county does not disagree.

“A notice of intent to adopt a negative declaration or mitigated negative declaration shall specify ... [1] ... [Tl (2) [t]he starting and ending dates for the review period during which the lead agency will receive comments on the proposed negative declaration or mitigated negative declaration. This shall include starting and ending dates for the review period.” (Cal. Code Regs., tit. 14, § 15072, subd. (g).)

On August 1, 2011, the county issued a notice of public hearing and intent to adopt a mitigated negative declaration for the Adams subdivision that stated the public comment period would be “from August 7, 2011 to September 5, 2011 at 5:00 p.m.” The notice was posted on a bulletin board at the Colusa County Courthouse on August 5 and published in the local newspaper on August 6. On August 4, the county issued a public notice of availability/notice of intent identifying the same public comment period. That notice was mailed to various interested parties on August 5.

The Romingers complain that the public review period the county specified in its notices was only 29 days long, not the 30 days required by CEQA, because the last day of the period—September 5, 2011—was the Labor Day holiday, and under section 12 of the Code of Civil Procedure that day is excluded. The Romingers rely on Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4th 1154 [127 Cal.Rptr.3d 469] to support the proposition that Code of Civil Procedure section 12 applies to the calculation of the public review period. The Romingers further argue that the review period was “effectively truncated . . . three additional days” because of the three-day Labor Day weekend, during which the county offices were closed.

The county questions the authority for applying section 12 of the Code of Civil Procedure here and contends that notwithstanding the public review period specified in its notices of intent—August 7 to September 5—it complied with CEQA because “both notices indicating the [mitigated negative declaration] was available for review were published more than 30 days before the identified close of the comment period on September 5, 2011” and “the public review remained open through the close of the Planning Commission hearing on September 12, 2011.”

We begin with the question of whether Code of Civil Procedure section 12 governs the calculation of the required 30-day public review period. As noted, the Romingers rely on Latinos Unidos to support their affirmative answer to that question. We find Latinos Unidos distinguishable.

Latinos Unidos involved the CEQA requirement that “[a] notice of determination [NOD] filed with the county clerk shall be available for public inspection and shall be posted within 24 hours of receipt for a period of at least 30 days.” (Guidelines, § 15094, subd. (e).) In that case there was “substantial evidence that the NOD . . . was posted over the course of 31 consecutive days, from 10:00 a.m. on June 17, 2009, until at least 10:00 a.m. on July 17, 2009.” (Latinos Unidos de Napa v. City of Napa, supra, 196 Cal.App.4th at p. 1160.) The plaintiff contended that period was insufficient to comply with the 30-day requirement because the period of posting should be calculated pursuant to Code of Civil Procedure section 12. (Latinos Unidos, at p. 1160.) The appellate court agreed, noting that “Code of Civil Procedure section 12 sets forth ‘the ordinary rule of computation of time’ ” and that “ ‘[a]bsent a compelling reason for a departure, this rule [(Code Civ. Proc., § 12)] governs the calculation of all statutorily prescribed time periods.’ ” (Latinos Unidos, at p. 1161.)

It is true the statutory command at issue here (“the review period shall be at least 30 days . . .” (CEQA, § 21091, subd. (b))) is similar to the command of the Guidelines at issue in Latinos Unidos (“[a] notice of determination . . . shall be posted ... for a period of at least 30 days”). (Guidelines, § 15094, subd. (e).) There is a critical difference between the two situations, however. That difference is that here, with respect to the public review period, the Guidelines specifically provide that “[a] notice of intent to adopt a negative declaration or mitigated negative declaration shall specify ... [f] ... [f] (2) [t]he starting and ending dates for the review period during which the lead agency will receive comments on the proposed negative declaration or mitigated negative declaration. This shall include starting and ending dates for the review period.” (Guidelines, § 15072, subd. (g).) This provision essentially serves the same purpose that Code of Civil Procedure section 12 would otherwise serve, which is to provide certainty, “so that the method of computing time not be a source of doubt or confusion.” (In re Anthony B. (2002) 104 Cal.App.4th 677, 682 [128 Cal.Rptr.2d 349].)

In a case like Latinos Unidos, where the time period in question runs from the performance of a specific act—i.e., posting a notice—Code of Civil Procedure section 12 provides certainty by letting the public know that the 30-day posting period begins the day after the notice was first posted and ends 30 days later, unless that day is a holiday, in which case it ends 31 days later. In a case like the one before us, however, that same certainty is provided by the specific dates set forth in the notice that is made available to the public by letting the public know the exact 30-day period during which “copies of the proposed negative declaration or mitigated negative declaration . . . and all documents referenced in the proposed negative declaration or mitigated negative declaration [will be] available for review” (Guidelines, § 15072, subd. (g)(4)) and during which the lead agency will receive comments on the proposed negative declaration or mitigated negative declaration. Where, as here, the public notice has actually been provided before the commencement of the public review period, there is no need to invoke Code of Civil Procedure section 12 to avoid doubt or confusion because the notice gives the public advance notice of the 30-day period during which the pertinent documents will be available for review and during which the lead agency will receive comments. Accordingly, we conclude that Code of Civil Procedure section 12 did not apply here.

That does not mean, however, that the county complied with CEQA, because it remains true that the last three days of the 30-day public review period of which the county gave notice fell on the Labor Day weekend. Because the county offices were closed on those three days, the Romingers are correct that the county effectively truncated the public review period by three days. No one could have gone to the county offices on September 3, 4, or 5 to review the pertinent documents or to submit comments on the proposed mitigated declaration. Thus, under the circumstances here, the county effectively provided only a 27-day public review period, which did not comply with CEQA.

Obviously, we are not concluding that the lead agency’s offices must be open, so that inspection may occur or comments may be submitted, each and every day of the 30-day public review period. Weekends and other holidays falling in the middle of the public review period still count toward the 30 days required. However, the end of the public review period cannot fall on a day when the lead agency’s offices are closed without effectively making the period shorter than CEQA requires. Thus, while the counting begins with the starting date described in the notice pursuant to section 15072, subdivision (g) of the CEQA Guidelines, if the ending date described in the notice falls on a weekend or other legal holiday, when the lead agency’s offices are closed, then the noticed public review period is legally insufficient if that ending date is, as here, the 30th day of the period. For the noticed public review period to comply with CEQA, if the ending date is the 30th day, that date must be a date when the lead agency’s offices are open.

The county’s arguments that it complied with CEQA because “both notices indicating the [mitigated negative declaration] was available for review were published more than 30 days before the identified close of the comment period on September 5, 2011” and “the public review remained open through the close of the Planning Commission hearing on September 12, 2011” are to no avail because section 15072 of the CEQA Guidelines requires the lead agency to specify the exact dates of the public review period in its notice. Here, the county identified a period from August 7 to September 5—a period we have concluded was three days too short because the last three days did not count. The county cannot now claim that it actually provided a legally sufficient 30-day public review period because its notices were published prior to August 7 and because it would have continued to accept comments from the public up through the hearing on September 12. The period that must comply with CEQA is the period specified in the notice given to the public. Here, as we have said, that period did not comply with CEQA.

In a CEQA case, our review extends “only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (CEQA, § 21168.5.) By failing to provide a full 30-day public review period, the county did not proceed in the manner required by law and thereby abused its discretion. The question that remains is whether that abuse of discretion was prejudicial.

“ ‘Noncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.’ ” (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1384-1385 [119 Cal.Rptr.3d 481].) “[N]oncompliance with the information disclosure provisions of [CEQA] which precludes relevant information from being presented to the public agency . . . may constitute a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions.” (CEQA, § 21005, subd. (a).) However, “[insubstantial or merely technical omissions are not grounds for relief.” (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463 [160 Cal.Rptr.3d 1, 304 P.3d 499].)

Under the foregoing authorities, the Romingers are correct in asserting that traditional “ ‘harmless error analysis is inapplicable’ ” here. They are incorrect, however, in asserting that just “[b]ecause the County failed to comply with a mandatory requirement of CEQA, . . . ‘the error is prejudicial’ as a failure to proceed as required by law.” Saying that traditional harmless error analysis does not apply means only that the Romingers do not have to show that the county would have reached a different conclusion regarding the project if the county had provided a 30-day public review period rather than the 27-day review period actually provided. At the same time, however, it is clear that because “there is no presumption that error is prejudicial” (CEQA, § 21005, subd. (b)), we cannot conclude that the Romingers are entitled to relief simply because the county failed to comply with CEQA. Thus, the Romingers’ reliance on Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 898 [236 Cal.Rptr. 794] for the principle that “[fjailure to comply with the CEQA procedures is necessarily prejudicial” is misplaced as that statement does not comport with either CEQA section 21005 or with the Supreme Court’s decision in Neighbors for Smart Rail. Instead, we must look at the nature of the county’s noncompliance to determine if it was of the sort that “ ‘preclude[d] informed decisionmaking and informed public participation.’ ” (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, supra, 57 Cal.4th at p. 463.)

On the record here, we conclude no prejudice has been shown from the truncated public review period. The Romingers point to no evidence in the record that anyone who wanted to was prevented from reviewing the pertinent documents or from submitting comments on those documents because the last three days of the public review period coincided with the Labor Day weekend. Certainly no one appeared at the public hearing to complain that this coincidence prevented them from participating in the review and comment process. At best, the Romingers assert that they “have no idea what would have occurred had the County provided the required notice.” This necessarily means it is possible that nothing different would have occurred if the county had noticed the end of the public review period for September 6—the day after Labor Day—rather than for September 5. To conclude under these circumstances that the county’s error justifies overturning the county’s decision would amount to presuming prejudice, which we cannot do.

On the record before us, we conclude that the county’s error in setting the public review period for the proposed mitigated negative declaration was not prejudicial and does not provide a basis for relief in this action.

V

The Romingers Have Failed to Show That Any Other Defects in the County’s Notices Were Prejudicial

The Romingers contend the county’s notices were defective because they were confusing, misleading, and contained incorrect hearing times, and these defects were prejudicial as a matter of law. We conclude that even if the county abused its discretion in any of these regards, the Romingers have failed to show prejudice and therefore are not entitled to any relief as a result of any such defects.

The notice of public hearing and intent to adopt a mitigated negative declaration for the Adams subdivision that the county issued on August 1, 2011, and that was published in the local newspaper on August 7 specified that “Colusa County Planning Commission will conduct a public hearing on September 12, 2011, at 9:00 a.m. in the Board of Supervisors Chambers in the Historic Courthouse, located at 547 Market Street, Colusa, and will make a recommendation to the Board of Supervisors.” (Boldface omitted.) The public notice of availability/notice of intent the county issued on August 4 and mailed to various interested parties on August 5 specified that the time of the hearing was 1:30 p.m. On September 6, however, the county mailed a corrected public notice of availability/notice of intent showing the time of the hearing as 9:00 a.m.

The Romingers complain that the August 1 notice was “misleading” because the planning commission did not actually make a recommendation to the board of supervisors but instead “took action to approve the [mitigated negative declaration] and the Project,” requiring the Romingers “to affirmatively appeal the Planning Commission decision to the Board of Supervisors, pay an appeal fee, and seek to overturn a decision, rather than argue against a non-final recommendation.” They further complain that the August 4 notice listed an incorrect hearing time and the corrected notice mailed on September 6 was not mailed sufficiently prior to the hearing.

We need not determine whether the “defects” the Romingers have purported to identify in the two notices amounted to an abuse of discretion by the county, because even if they did, we conclude the Romingers have failed to show that any such abuse of discretion was prejudicial. We have explained already that noncompliance with CEQA’s information disclosure requirements is not presumed prejudicial. The authorities the Romingers cite for the contrary proposition are not persuasive here. Plaggmier v. City of San Jose (1980) 101 Cal.App.3d 842 [161 Cal.Rptr. 886], in which the appellate court treated an error in the direct mailing of notice as prejudicial without directly discussing the issue of prejudice (see id. at pp. 856-857), predates the enactment of CEQA section 21005 and is inconsistent with that statute (discussed above). Sounhein v. City of San Dimas (1992) 11 Cal.App.4th 1255 [14 Cal.Rptr.2d 656] involved “the complete omission of any public notice or hearings,” which the appellate court concluded “was not a mere minor technical defect” but instead constituted a fundamental flaw in the process of adopting a zoning ordinance. (Id. at p. 1260.) Here, by contrast, there was at most a misidentification of the hearing time in one of two notices and an inaccurate description of the planning commission’s role in the process. The Romingers fail to show why these are not most reasonably characterized as insubstantial or merely technical errors under Neighbors for Smart Rail.

Finally, the Romingers cite Horn v. County of Ventura (1979) 24 Cal.3d 605, 617 [156 Cal.Rptr. 718, 596 P.2d 1134], which (as relevant in this case) holds only that “where, as here, prior notice of a potentially adverse decision is constitutionally required, that notice must, at a minimum, be reasonably calculated to afford affected persons the realistic opportunity to protect their interests.” The Romingers fail to show how the minor “defects” they have identified in the two notices issued here deprived any affected persons the realistic opportunity to protect their interests. The closest the Romingers come to making such a showing is their argument that “at least one member of the public . . . missed the Planning Commission meeting by appearing at 1:30 p.m., when the meeting had already started at 9:00 a.m. and concluded that morning.” The evidence the Romingers cite, however, shows that this individual communicated to the board of supervisors, in advance of the hearing on the Romingers’ appeal, the information he indicated he would have presented to the planning commission. The Romingers assert that “[t]here is no way to know what impact [this individual]’s testimony might have had on the Planning Commission or what would have occurred had the County provided proper notice,” but this assertion achieves nothing for two reasons. First, it implicitly concedes that there might have been no impact from the individual’s testimony, which means the Romingers are again in the position of arguing a presumption of prejudice, which the law does not permit. And second, because the Romingers appealed the planning commission’s decision to the board of supervisors, and because this individual was able to express his views to the board during that process, it is not material what the planning commission might have done. Under the circumstances here, the Romingers have failed to show that the “defects” in the county’s notices precluded informed decisionmaking and informed public participation. Accordingly, any abuse of discretion was not prejudicial.

VI

The Mitigated Negative Declaration Did Not Fail to Analyze the “Whole ” of the Project

The Romingers contend that by failing to consider various reasonably foreseeable activities that could occur as a result of the development of the subdivided property, the county improperly failed to analyze the “whole” of the project. We disagree. The mitigated negative declaration analyzed the reasonable scenario that agriculturally related industrial development will occur on the subdivided property. To the extent the Romingers complain that certain specific “permitted uses”—including “food or plastic processing plants or truck terminals”—“could develop on the newly subdivided land without any environmental review” and thus the county’s failure to analyze those particular uses amounted to a prejudicial abuse of discretion, we find no merit in that complaint. The question is whether the unanalyzed uses are a “ ‘reasonably foreseeable consequence’ ” of the Adams subdivision and whether “ ‘the future . . . action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.’ ” (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1360 [111 Cal.Rptr.2d 598].) But the Romingers do not point to any evidence in the record that these particular uses are a reasonably foreseeable consequence of the subdivision, nor do they show how the impacts of these uses would vary significantly from the general agriculturally related industrial development the mitigated negative declaration analyzed. Under these circumstances, no impermissible piecemealing of the project has been shown.

vn

A Mitigated Negative Declaration Was Inappropriate Here Because There Is Substantial Evidence in the Record to Support a Fair Argument That the Project May Have Significant Unmitigated Impacts on Traffic

“CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment. [Citation.]

“If the initial study identifies potentially significant effects on the environment but revisions in the project plans ‘would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur’ and there is no substantial evidence that the project as revised may have a significant effect on the environment, a mitigated negative declaration may be used. [Citation.] As the state Office of Planning and Research discussion following Guidelines section 15070 explains: ‘A Mitigated Negative Declaration is not intended to be a new kind of document. . . . [f] [It] provides efficiencies in the process where the applicant can modify his project to avoid all potential significant effects. The applicant can avoid the time and costs involved in preparing an EIR and qualify for a Negative Declaration instead. The public is still given an opportunity to review the proposal to determine whether the changes are sufficient to eliminate the significance of the effects.’ ” (San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 389-390 [83 Cal.Rptr.2d 836].)

“ ‘A trial court . . . reviews an agency’s decision to adopt a negative declaration using the “fair argument” test. Under this test, the agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment. [Citations.] “If such evidence is found, it cannot be overcome by substantial evidence to the contrary.” ’ [Citation.] ‘ “ ‘Stated another way, the question is one of law, i.e., “the sufficiency of the evidence to support a fair argument.” [Citation.] Under this standard, deference to the agency’s determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary. . . .’ Thus, the applicable standard of review appears to involve a question of law requiring a certain degree of independent review of the record, rather than the typical substantial evidence standard which usually results in great deference being given to the factual determinations of an agency.” ’ [Citation.] Thus, we conduct our review independent of the trial court’s findings.” (Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 841-842 [83 Cal.Rptr.2d 178].)

Here, the Romingers contend the county prejudicially abused its discretion in failing to prepare an EIR rather than a mitigated negative declaration because the record contains substantial evidence supporting a fair argument that the Adams subdivision may have significant environmental impacts in a number of areas notwithstanding the mitigation measures contained in the mitigated negative declaration. According to the Romingers, the areas in which those significant impacts may occur are (1) agriculture, (2) traffic, (3) odor, (4) noise, (5) air quality, (6) greenhouse gas emissions, and (7) water supply. Addressing each area in turn, we conclude the Romingers’ arguments have merit only in the area of traffic.

A

Agriculture

In determining that the Adams subdivision will not have a significant impact on agricultural farmland, the county applied the following standard of significance:

“The loss or conversion of agricultural land within Colusa County shall be determined to be significant if the following conditions are met:

“• The land is designated as Prime Farmland, Unique Farmland, or Farmland of Statewide Importance AND is designated by the Colusa County General Plan OR Colusa County Zoning Ordinance as Agricultural land.

“• The land is under an active Williamson Act Contract.”

The county explained that “[although a portion of the proposed project site is designated as Prime Farmland by the California Department of Conservation it is not designated by the Colusa County General Plan or Colusa County Zoning Ordinance for agricultural use. The County previously analyzed the impacts of designating the project site and surrounding vicinity from Exclusive Agriculture (E-A) to Industrial (M) in the Mitigated Negative Declaration prepared for the project, ‘Ratification of Amendments to the Colusa County General Plan (#00-10-1) and Zoning Ordinance. (#00-10-1)’, State Clearinghouse #2004129037. In the previously adopted document, the County determined the impacts of redesignating the land to industrial uses as less than significant because the redesignation resulted in a loss of 0.00016 percent of the Prime Farmland in Colusa County. Additionally the proposed project site is not under an active Williamson Act Contract.” The county then concluded as follows: “Although the proposed project site is partially designated as Prime Farmland, it is not under a Williamson Act Contract, or designated by the Colusa County General Plan or Colusa County Zoning Ordinance for agricultural use. According to Colusa County’s standard of significance the proposed project will have a less than significant impact on agricultural re[s]our[c]es.”

The Romingers’ challenge to this aspect of the mitigated negative declaration has two aspects. First, they question the county’s right to apply a standard of significance different from the standards found in the sample checklist for an initial study contained in appendix G of the Guidelines. Second, they contend the county cannot rely on its prior analysis as part of the 2004 general plan amendment and rezoning. Essentially they contend that notwithstanding the application of what they characterize as the county’s “artificially low threshold” of significance, and notwithstanding the county’s earlier analysis in the mitigated negative declaration for the general plan amendment and rezoning, the Adams subdivision may have a significant impact on agricultural resources because the development of the property will “likely result in the conversion of up to 113 acres of Prime Farmland to non-agricultural use.”

We begin with the Romingers’ challenge to the county’s standard of significance. Effectively, the county’s standard treats the loss or conversion of agricultural land within the county as significant only if the land is designated as prime farmland, unique farmland, or farmland of statewide importance and is designated by the Colusa County general plan or the Colusa County zoning ordinance as agricultural land, or the land is under an active Williamson Act (Gov. Code, § 51200 et seq.) contract. Because the land at issue here is not under an active Williamson Act contract and is zoned for industrial use, the county considers the loss of this farmland less than significant.

The Romingers effectively contend that the county abused its discretion by using its own standard of significance because that standard is (in the Romingers’ eyes) inconsistent with the standard of significance on the same subject contained in appendix G of the Guidelines. “[A]ppendix G of the Guidelines, ‘Environmental Checklist Form’ . . . , along with appendix H ‘Environmental Information Form,’ is designed to be used as an initial study to determine if a project may have a significant effect on the environment. (See Guidelines, § 15063, subds. (a) & (f).) The checklist consists of sample questions divided into categories of potential physical impacts a project may have . . . .” (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1110 [11 Cal.Rptr.3d 104].) The first question in the checklist under the heading “Agricultural Resources” (some capitalization omitted) asks whether the project would “Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use.”

According to the Romingers, under this standard of significance from appendix G, “a project has a significant environmental effect if it converts Prime Farmland to non-agricultural use,” which the Adams subdivision would do. But since the county’s standard of significance also requires the land in question to be designated by the Colusa County general plan or the Colusa County zoning ordinance as agricultural land, which the land in question is not, the county’s use of its own standard of significance—again, in the Romingers’ view—allows the county to avoid a finding of significant effect. Thus, the Romingers contend the county’s reliance on its own standard of significance is improper.

The Romingers’ argument is flawed for several reasons. First, the Guidelines make clear that the checklist form in appendix G is “only suggested, and public agencies are free to devise their own format for an initial study.” (Guidelines, § 15063, subd. (f).) Furthermore, “CEQA grants agencies discretion to develop their own thresholds of significance (CEQA Guidelines, § 15064, subd. (d)).” (Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1068 [153 Cal.Rptr.3d 534].) “To require any deviation from [the standards of significance in appendix G] to be documented and justified ... is to elevate Appendix G from a suggested threshold to the presumptive threshold. This flatly contradicts both CEQA’s description of Appendix G as only suggested and CEQA’s mandate that agencies have the power to devise their own thresholds.” (Save Cuyama Valley, at p. 1068.)

The Romingers try to discount Save Cuyama Valley by asserting that “[t]he question addressed in th[at] case[] was whether the EIR’s conclusions were supported by substantial evidence, not whether there was substantial evidence of a fair argument of an impact in the context of a negative declaration.” In other words, the Romingers suggest that a lead agency’s discretion to adopt its own standards of significance is more restricted if the agency uses its own standard “to support a decision not to prepare an EIR”—at least when application of a corresponding standard of significance from appendix G would mandate the contrary decision. But the Romingers offer no authority, or even any reasoning, supporting their assertion that the county’s right to adopt its own standard of significance was more limited here because of the context in which the county used that standard. Absent such support, the Romingers’ assertion is unpersuasive.

Moreover, the Romingers’ argument rests on a fundamental misunderstanding of appendix G and the sample questions set forth in the checklist therein. “The person filling out the form [in appendix G] can check one of four boxes in response to each question: potentially significant impact, potentially significant unless mitigation incorporated, less than significant impact, and no impact.” (Protect the Historic Amador Waterways v. Amador Water Agency, supra, 116 Cal.App.4th at p. 1110.) Thus, contrary to the Romingers’ argument, even under appendix G, a project does not necessarily have a significant environmental effect just because “it converts Prime Farmland to non-agricultural use.” The sample questions in appendix G are not simply yes-or-no propositions. “ ‘ “Potentially Significant Impact” is [the] appropriate [answer] if there is substantial evidence that an effect may be significant.’ ” (Amador Waterways, at p. 1110.) Thus, even using the checklist in appendix G, a lead agency would have to evaluate the evidence to determine whether the conversion of prime farmland to nonagricultural use might constitute a significant effect on the environment; such conversion is not ipso facto a significant effect, as the Romingers contend. To that extent, the Romingers’ challenge to the county’s use of its own standard of significance here is without merit because that challenge rests on a misunderstanding and misapplication of the standards in appendix G of the Guidelines.

As for the Romingers’ argument that the county cannot rely on its prior analysis of this land as part of the 2004 general plan amendment and rezoning, we do not perceive that the county’s mention of this prior analysis was material to its conclusion that the Adams subdivision would not have a significant effect on agricultural resources because applying its standard of significance as it did, the county would have found no significant effect regardless of the prior analysis.

The Romingers contend that “even if a lead agency has discretion in setting thresholds of significance, if evidence is presented tending to show an actual environmental impact, despite the adopted significance] standard, the agency cannot ignore the impact.” In this regard, the Romingers are correct. (See Protect the Historic Amador Waterways v. Amador Water Agency, supra, 116 Cal.App.4th at pp. 1109-1111.) A lead agency cannot avoid finding a potentially significant effect on the environment by rotely applying standards of sign