The California Court of Appeal (3rd Dist.) ruled a county’s “streamlined zoning process,” in which notice of the legislative body’s hearing on a proposed zoning change issues before the planning commission has made its recommendation, is inconsistent with the state’s planning and zoning law.
On Oct. 25, 2004, Mark LaRoque applied for approval to subdivide his 31-acre parcel of land into two smaller parcels. He also needed a zoning ordinance amendment because the land was subject to a zoning overlay that prohibited subdivision of the land. On Jan. 13, 2005, the county gave notice that the planning commission would be holding a public hearing on the subdivision request and zoning ordinance amendment Jan. 27th. On Jan. 20th, the county gave notice that the board of supervisors would hold a public hearing on the subdivision and zoning ordinance amendment Feb. 1.
A representative of Environmental Defense Project (EDP) testified at the planning commission hearing. In addition to substantive comments, she objected to the hearing process, in which the board of supervisors’ hearing was scheduled before the commission had made its determination. The commission modified the proposal and recommended approval. The commission’s recommendation was delivered to the board of supervisors late on Jan. 28th. At the board of supervisors’ meeting Feb. 1st , an EDP representative again appeared and raised objections to the approval process. She pointed out that the group had only one full business day to respond to the planning commission’s recommendations. The board of supervisors approved the zoning amendment and the subdivision. EDP sued, charging the county’s process violated the state planning and zoning law. The trial court granted EDP’s motion for summary judgment.
Resolution of this dispute required the court of appeals to interpret and harmonize three sections of the state planning and zoning law. Section 65856 states that upon receipt of the recommendation of the planning commission, the legislative body shall hold a public hearing. Notice of the hearing shall be given pursuant to § 65090. Section 65090 provides, in part, that the notice shall include the information specified in § 65094. Section 65094 provides that a notice must include, inter alia, “a general explanation of the matter to be considered.” Section 65856 is silent on when, in relation to the planning commission’s recommendation, the notice of the supervisors’ meeting must be given, the court noted. It therefore creates an ambiguity whether the notice may be given before or after the board of supervisors receives the planning commission’s recommendation. The notice must include the information specified in §65094, including a general explanation of the matter to be considered, the court continued. So, the question when the notice of the supervisors’ hearing must be given is inextricably bound up with the content of the general explanation, the court said.
The content of that explanation can be clarified by examining the planning and zoning law as a whole, the court said. The law establishes a two-stage process for a proposed zoning change. First, the planning commission examines it and makes a recommendation. Then, the legislative body approves, modifies or disapproves the commission’s recommendation. The law’s stated policy is to involve the public at every level of the planning process. Keeping that broader perspective in mind, the court said there could be little doubt that the purpose of notice in cases like this one is to inform the public so it will have an opportunity to respond to the planning commission’s recommendation before the legislative body approves or disapproves the recommendation. If the supervisors could give notice before the planning commission delivers its recommendation and thus without including what that recommendation was, the purposes of the notice provision would not be served because the notice would not inform the public as to what proposed action the supervisors would be contemplating. The facts in this case illustrated the problem, with EDP having only a very limited time to respond to the commission’s recommendations, the court pointed out. Such situations would become all too common if streamlined zoning were permissible under the law, it said.
Environmental Defense Project of Sierra County v. County of Sierra, 158 Cal.App.4th 877, 70 Cal.Rptr.3d 474 (Ca. App. 3 Dist. 1/9/2008).
The opinion can also be accessed at: http://www.courtinfo.ca.gov/opinions/documents/C055448.PDF
Special thanks to James Lawlor for this abstract which appeaes in the January 18, 2008 issue of the Land Use Legal Report. For more information about this publication, contact James Lawlor at landlaw@verizon.net .
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