Several years ago, we persuaded Santa Clara County to end a practice of sharing preliminary versions of EIRs with developers while denying access to the rest of us - a practice that skewed the EIRs and gave developers a chance to argue their case behind closed doors while the community at large was excluded.
I put together some notes below on the issue that might help people elsewhere who encounter the same problem.
-Brian
(Click "Read More" for full post.)
Notes on Public Records Act and ADEIR disclosures:
County took action 2.8.05:
http://www.sccgov.org/SCC/docs%2FSCC%20Public%20Portal%2Fattachments%2FBOS%20Summarys%2F2005%2F809083SummaryRevised020805.pdf
" 60. Accepted report relating to process for public viewing of preliminary draft
Environmental Impact Reports (EIR).
.
Referred to Administration for report on date uncertain: Preparation of report
regarding options to share preliminary draft EIR with applicant and public."
Same 2.8.05 meeting, county counsel Ann Ravel recommends disclosure to the public any doc shared with applicant:
http://www.sccgov.org/SCC/docs%2FSCC%20Public%20Portal%2Fattachments%2FBOS%20Minutes%2F2005%2F02_08_2005_BOSMinutes.pdf
" Ms Ravel comments that while the staff position on allowing the
public to view the EIRs is legally defensible, she recommends any
documents provided to the applicant also be provided to the public."
Also:
" In response to an inquiry by Supervisor Gage, Ms Ravel clarifies that
the County complies with CEQA requirements; however, there is a
possibility that County compliance with Public Records Act
requirements could be challenged since the documents are provided to
one member of the public, the applicant, and not provided to the
public in general.
.
Supervisor Gage expresses concern for the impact on the public if
incorrect information is distributed early in the process.
.
On motion of Supervisor Alvarado, seconded by Supervisor McHugh,
it is unanimously ordered on roll call vote that report be accepted
relating to process for public viewing of preliminary draft
Environmental Impact Reports (EIRs).
.
Further, on motion of Supervisor Alvarado, seconded by Supervisor
McHugh, it is unanimously ordered on roll call vote that preparation
of options to share preliminary draft EIR with applicant and public, or
to not allow applicant or public to view preliminary draft EIR until
later in the process, be referred to the Administration for report on
date uncertain."
3. Took actual action on 4.5.05, Item 48:
http://www.sccgov.org/portal/site/scc/boardagenda?contentId=3017e9b32e454010VgnVCM10000048dc4a92____&agendaType=BOS%20Agenda
Option chosen by supes:
http://www.sccgov.org/SCC/docs/SCC%20Public%20Portal/attachments/keyboard/842069KeyboardTransmittal-0015435.PDF
staff report says (antagonistically):
" Option 4: Partial Outside Review of ADEIR
Under this option, early versions of the ADEIR would not be made available to anyone except County staff but later
versions of the ADEIR would be provided to both the owner/applicant and any member of the public who requests a
copy.
Benefits:
(1) There would be no threat of a lawsuit for an alleged violation of the Public Records Act as the ADEIR would be
equally available to the public and owner/applicant
(2) If the owner/applicant was shown the project description section of the ADEIR, they could still validate the accuracy
of this section of the document and take steps to modify the project to avoid or mitigate identified significant impacts.
Drawbacks:
(1) Disclosure of erroneous information. While later drafts of the ADEIR would likely be more accurate in describing
the project characteristics and County procedures, it may still include misleading information thereby resulting in
confusion and an increase in the time needed to review the ADEIR.
(2) No established protocol for receipt of comments. Similar to Option 3, there would be no formal procedures for
responding to comments received from the public or project applicant / owner.
(3) Less meaning assigned to the Draft EIR. To a lesser degree than under Option 3, there may be less value placed on
the DEIR as there may be a perception that the public review has already occurred.
(4) Delay in project modification by owner: While the owner may still respond to identified benefits by modifying the
project to avoid environmental impacts, this will occur later in the process and could necessitate additional review times."
Verified in Minutes:
http://www.sccgov.org/SCC/docs%2FSCC%20Public%20Portal%2Fattachments%2FBOS%20Minutes%2F2005%2F04_05_2005_BOSMinutes.pdf
"Further, on motion of Supervisor Gage, seconded by Supervisor Beall,
it is unanimously ordered on roll call vote of three to one, with
Supervisor McHugh voting no and Supervisor Alvarado absent, that
staff be directed to allow applicant and general public to view an
ADEIR once staff determines that the ADEIR is suitable for outside
review."
