County Process for Discretionary Use Permits: Granting a Use Permit is discretionary; thus, public officials have the legal right to deny the project or approve the project provided the County can make certain findings to back their decision and to comply with the California Environmental Quality Act (CEQA); and the Applicant agrees to implement the “mitigation measures” built into the Use Permit’s Conditions of Approval.
NOTE: Under the Zoning Code an Applicant or Land Owner has two types of rights:
1) List of baseline uses that are allowed by virtue of purchasing the land; and
2) Discretionary Uses – only allowed upon conditions in Use Permit – not a legal right.
STEP I: Get involved Early – Obtain Project documents from County Planner
A: Review the Application, Design Docs and Technical Studies prepared by Applicant’s consultants, and recommend ways to reduce environmental or neighborhood impacts.
B: Submit Comments during Initial Study phase. When the Planner deems the Application complete, the County releases it along with an Environmental Checklist to Responsible Agencies, community groups and residents requesting documents. At this phase, the public is asked to identify areas of potential impact requiring additional Technical Studies (See CEQA Initial Study Tool for the Environmental Checklist questions that need to be answered).
C: Participate or obtain the tape recording from Design Review Hearings.
STEP II: Build the Administrative Record: In order to have legal standing, residents and public advocacy groups must “build the Administrative Record.”
A: To Build the Administrative Record, you must:
1) Analyze and point out deficiencies in the documents (See II B) supporting the decisions,
2) Participate in all Administrative hearings (Planning Commission or Board or Zoning Adjustment and Board of Supervisor) that lead up to the County’s final decision, and
3) Produce peer reviews or new Technical Studies prepared by Experts – The CEQA standard for an EIR is, “…whenever it can be fairly argued on the basis of substantial evidence that a project may have significant environmental impact.” (i.e. Fair argument that one or more potential Environmental, Cultural, Human or Cumulative impacts may occur).
B: Documents and Reports to review and comment on include – Note the County may not provide #3 and #4 until 10 days before the Planning Commission or BZA Hearing:
1) Application for the Project; Design Documents, Design Review Hearing Findings;
2) Technical Reports produced by Applicant’s Experts;
3) Mitigated Negative Declaration – prepared by County Planner (See II. C)
4) Staff Report by the Planning and Resource Management Department (PRMD) – addresses General Plan consistency, land use, zoning code and zoning overlay issues. Proposed Conditions of Approval are attached to Staff Report – the BZA or Planning Commission can modify.
C: Per CEQA, an environmental assessment is required. In Sonoma County a Mitigated Negative Declaration is most often used; and this document must demonstrate with substantive evidence that the project impacts are reduced to less than significant by the Conditions of Approval.
PRMD staff and consultants must answer a list of questions to assess the potential impacts:
- Answers must account for the Whole Action (project – related, cumulative, construction, operational, indirect and direct, on-site and offsite)
- If there is substantial evidence that a Potentially Significant Impact may occur, the answer must identify and require mitigation measures to bring the impact down to less than significant (If it cannot, then a full Environmental Impact Report is required).
- Explanation should identify: 1) the Source used; 2) Significance Criteria or Threshold; and 3) define how mitigation measure(s) reduce the impact to less than significant.
- NOTE: The MND cannot rely on Mitigations that are not implementable or that are defined in the future. (i.e. If the neighbors complain of noise impacts, then the Applicant will conduct additional noise studies or put equipment on their sound system.)
STEP III: Evaluate the documents produced – identify errors and omissions – Submit written letters and technical studies to the PRMD Planner, cc: Planning Commissioners.
Comments must address whether the County can make the Mandatory Findings below:
- Does the Project meet the requirements of the General Plan Elements, Zoning Code and any Land Use Overlays on the parcel? Is it compatible with surrounding land uses?
- Does the Project, as mitigated, have one or more Potential Environmental Impacts?
- The potential to degrade the quality of the biologic environment, or
- The potential to eliminate examples of periods of California history or prehistory, or
- Environmental impacts which will cause substantial adverse effects on human beings, either directly or indirectly.
Can a FAIR ARGUMENT be made that the impact has not been mitigated to less than significant – If Yes: then an Environmental Impact Report (EIR) is required; it’s an abuse of discretion to approve the Project under a Mitigated Negative Declaration.
For purposes of the “fair argument standard” substantive evidence includes, “fact, a reasonable assumption predicated upon fact, or EXPERT OPINION supported by fact.” And, the County or the Court may NOT “weigh” conflicting substantial evidence – if it exists, then an EIR must be prepared.
- Can the Project meet the “Mandatory Finding of Significance?” The finding is: “The Project will not be detrimental to the health, safety, peace, comfort, and general welfare of persons residing or working in the neighborhood, not be detrimental or injurious to property and improvements in the neighborhood, or the general welfare of the area.”
- Cumulative Impact Analysis Required? – Does the project have impacts that are individually limited, but cumulatively considerable, which means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of known future projects.
STEP IV: Appeal the Decision to Board of Sup’v (w/in 10 days/$1,100 Fee): If the Planning Commission approves a Project that is deficient in any of the above Mandatory Findings, and you have Expert Testimony that provides a fair argument,” then Appeal the Decision to the Board of Supervisors (BOS) for a Hearing.
Note: If the Planning Commission denies the project or adds more mitigation measures to the Conditions of Approval with, the Applicant may Appeal. In either case, to have legal standing you must participate in the BOS Hearing(s).