Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.

The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."

Although previous cases have addressed the 90-day deadline, the court said its decision marked the first time a published opinion made clear "that a ‘request for a hearing' required by subdivision (a) of [Public Resources Code] § 21167.4 must be a writing filed with the court."

In May 2008, Sacramento County approved "The Landing," an entertainment and retail project proposed by Syufy Enterprises, Sywest Development and others on property located in Del Paso Heights, just north of Interstate 80. Forster-Gill owns an adjacent industrial property and challenged The Landing developers' access and other aspects of the project. Forster-Gill filed a lawsuit on June 12, 2008, alleging the county violated the California Environmental Quality Act (CEQA) and the general plan. Forster-Gill also sought to resolve who owned an access road.

Under CEQA, the county had until August 19 to complete the administrative record. The county needed more time, and attorneys for all parties in early September signed a stipulation giving the county until October 20. A second stipulation signed in October gave the county until November 7 for the administrative record.

At a March 20, 2009, status conference, the Sacramento County Superior Court determined Forster-Gill's CEQA claims should be litigated first. Four days later, the county and the developers asked the court to dismiss the CEQA claims because Forster-Gill did not request a hearing within 90 days of filing its lawsuit in June 2008. Forster-Gill's attorney countered that he had called the court clerk on September 10 to reserve a January 9, 2009, hearing date, which the attorney and a county lawyer later agreed was premature because of troubles with the administrative record. The trial court declined to dismiss the CEQA claims. The county and the developers appealed and won a reversal.

At issue was interpretation of Public Resources Code § 21167.4. Subdivision (a) gives a petitioner 90 days to file a request but does not specify the form of the request. Subdivisions (b) and (c), which were added during the 1990s, speak to filing a request and serving a notice of request upon all parties.

"Subdivision (a) … cannot be read in isolation from the remainder of § 21167.4," Justice Ronald Robie wrote for the unanimous three-judge Third District panel. "[S]ubdivisions (b) and (c) of § 21167.4 do … clarify that the request for a hearing required by the statute is to be a writing that can be filed with the court, not simply an oral request."

Forster-Gill argued it would have been futile to serve notice of a hearing while the parties were negotiating over preparation of the administrative record. But the court ruled, "[A]ll Forster-Gill had to do was ‘request a hearing' and serve notice of the request. The setting of the actual hearing date, and the briefing schedule to proceed the hearing, could have come later."

Forster-Gill pointed to the two stipulations, the second of which stated the hearing date would be moved from January 9 to March 6. The court, however, said the stipulation did not supplant the statutory deadline. The court also rejected the argument that the county baited Forster-Gill into missing the deadline by signing the stipulations.

The Third District did not consider anything other than the CEQA portion of Forster-Gill's lawsuit.

The Case:
County of Sacramento v. Superior Court, No. C062025, 2009 DJDAR 18022. Filed December 29, 2009.
The Lawyers:
For Sacramento County: Krista Whitman, county counsel's office, (916) 874-5544.
For Forster-Gill: John Belsher, Belsher & Becker, (805) 542-9900.