Environmental Defense Project of Sierra County v. County of Sierra, et al. (January 9, 2008, C055448) __Cal. App. 4th

In a victory for public participation advocacy groups and a defeat to efforts to increase efficiency in the planning and development process, the California Court of Appeals for the Third District struck down Sierra County’s “streamlined zoning process,” which had permitted the county to provide notice of a legislative public hearing on a zoning ordinance or zoning ordinance amendment before the legislative body received a planning commission recommendation. The court held that, under California Government Code sections 65854, 65856, 65090, and 65094, the local agency must give notice of the legislative body’s public hearing on a zoning ordinance or zoning ordinance amendment only after the planning commission has submitted its recommendation to the legislative body, and the public notice must contain the planning commission’s recommendation.

Plaintiff moved for summary judgment on its complaint for declaratory relief against the county. The county had filed a notice of public hearing on a subdivider’s application for a tentative map and an amendment to the county zoning ordinance more than the required 10 days before the board of supervisors’ public hearing, but without having received the recommendation of the planning commission. The planning commission delivered their recommendation to the board of supervisors four days (2 business days) before the public hearing before the board of supervisors.

The court first dismissed the county’s argument that there was no “actual controversy” between the parties and therefore declaratory relief could not be granted. As the county declared its intention to continue the “streamlined zoning process” as a lawful procedure, and the plaintiff believed such a procedure to violate California Government Code section 65856 and 65090, the court ruled that this disagreement itself constituted an “actual controversy.”

California Government Code section 65856 provides that the legislative body of a local agency must hold a public hearing when it receives a recommendation of the planning commission, and that the notice of public hearing is governed by section 65090. Section 65090 provides for the publication of notice in a “newspaper of general circulation within the jurisdiction of the local agency which is conducting the proceeding at least 10 days prior to the hearing. . .”and that notice “shall include the information specified in section 65094.” In turn, section 65094 requires such notice to include, among other things, “a general explanation of the matter to be considered. . .”

County argued that the Code was “plain and unambiguous” in its absence of language tying the notice timing requirement to the planning commission’s recommendation and that the legislature could have easily included such an express requirement, but had evidently chosen not to do so. The court observed, however, that the Code’s silence on the timing of the notice, in fact, raised an ambiguity, because of the requirement that the notice include “a general explanation of the matter to be considered. . .

The court determined the scope of the “general explanation of the matter to be considered” from the legislative purpose of the statute provided in California Government Code section 65033 that “the public be afforded the opportunity to respond to clearly defined alternative objectives, policies, and actions.” According to the court, this need to provide “clearly defined alternative objectives, policies, and actions” in the notice, necessitated an inclusion in the notice of the planning commission’s recommendation. The court reasoned that “[i]f notice could be given before the planning commission made its recommendation and, therefore, without inclusion of what that recommendation was, the purpose behind the notice provision would be ill-served, as the notice would not inform the public to what ‘clearly defined alternative objectives, policies, and actions’ they would be responding.” The court found that the timing of public notice corresponds to the substantive requirements of giving notice; if the purpose of the public notice requirement is to give the public a chance to respond to the alternatives that will be before the legislative body, then the court argued the notice must contain the planning commission’s recommendation and, therefore, cannot be circulated until the planning commission makes a recommendation.

In short, the holding of the court, in ruling on the timing of notice for the legislative body’s public hearing considering zoning ordinances and amendments to zoning ordinances, created two requirements: (1) the notice of a public hearing must contain the planning commission’s recommendation, and, consequently, (2) the notice of a public hearing must be given after the planning commission makes a recommendation.