A city council or board of supervisors must wait until receiving a planning commission's recommendation before the legislative body gives 10-day notice of a public hearing on the matter, the Third District Court of Appeal has ruled. The court also determined that the planning commission's recommendation must be part of the notice.
The decision, which applies to counties and general law cities, has caused consternation among local governments and the development industry because of its potential to slow "fast track" permitting processes.
The decision came in a case from sparsely populated Sierra County. In late 2004, Mark LaRocque applied for permission to subdivide his 31-acre parcel in Sierra Valley, east of the mountain range, into two lots of 21 and 10 acres, respectively. Because of an existing prohibition on subdividing the land, LaRocque needed a zoning ordinance amendment.
On January 13, 2005, the county gave notice that on January 27, the Sierra County Planning Commission would conduct a public hearing on LaRocque's tentative parcel map and a zoning ordinance amendment. On January 20, 2005, a week before the Planning Commission met, the county gave notice that the Board of Supervisors would conduct a public hearing regarding the same matters on February 1.
At the Planning Commission meeting, a local environmental advocate testified about the project's merits and the county's process. The Planning Commission recommended approval of the subdivision with modifications and the zoning ordinance amendment. The Planning Commission sent its recommendation to the board late on January 28, and on February 1 the board considered the matter. The same advocate again questioned the process, complaining that she had received only one business day to prepare a response to the Planning Commission's project modifications and recommendations. Nevertheless, supervisors approved the subdivision and zoning amendment.
The group Environmental Defense Project of Sierra County sued, alleging the county was guilty of numerous improprieties. The county successfully defended all of the allegations except one concerning the public notice requirement. Sierra County Superior Court Judge John Kennelly ruled that the Board of Supervisors had to wait for receipt of the Planning Commission's recommendation before the board could give notice of a public hearing. The county appealed, and a unanimous three-judge panel of the Third District upheld the lower court.
The first question for the appellate court was whether there was an "actual controversy" to decide. The county argued there was no controversy because the environmental group and LaRocque had settled their differences in 2005 when LaRocque agreed not to further subdivide the property and paid money into a Sierra Valley conservation fund. With no actual controversy, there was nothing for the court to decide, the county argued.
But the court noted that the issue was the county's process, not this particular project or zoning amendment. The county's process was part of its "streamlined" zoning, and the county was committed to continued use of the process, the court noted. "Under these circumstances, ï¿½there is a reasonable expectation that the wrong, if any, will be repeated,' and the controversy does not present only an ï¿½academic question,'" Justice Ronald Robie wrote for the court, citing Pittenger v. Home Savings & Loan Assn., (1958) 166 Cal.App.2d 32, 37.
After deciding the case qualified for review, the court turned to interpretation of the Planning and Zoning Law, specifically Government Code ï¿½ï¿½ 65856, 65090 and 65094. The court said that ï¿½ 65856 is "silent" on the timing of the public notice, so that section must be read in context with the other two, which provide for a 10-day public notice that includes "a general explanation of the matter to be considered."
"In our view," Robie wrote, "the question of whether the 10-day notice may be given before receipt of the planning commission's recommendation is inextricably bound with the question of what must be included in a ï¿½general explanation of the matter to be considered.' This is so because if ï¿½a general explanation of the matter to be considered' includes the planning commission's recommendation, then the 10-day notice must be given after the planning commission has made a recommendation on the matter under consideration."
The point of the public notice requirement is "to inform the public of the legislative body's hearing so they will have an opportunity to respond to the planning commission's recommendation," according to the court. Yet in the Sierra County case, the public had only one full business day to prepare comments, which the court suggested was not sufficient time.
"We therefore hold that the 10-day notice of the legislative body's hearing must be given after the planning commission's recommendation has been received and must include the planning commission's recommendation as part of the ï¿½general explanation of the matter to be considered,'" Robie concluded.
Environmental Defense Project of Sierra County v. County of Sierra, No. C055448, 2008 DJDAR 284. Filed January 9, 2009.
For Environment Defense Project: Michael Graf, (510) 525-7222.
For the county: William Abbott, Abbott & Kindermann, (916) 456-9595.