Court Strikes Down Streamlined Zoning Approach And Imposes New Public Hearing Notice Requirement

In Environmental Defense Project of Sierra County v. County of Sierra, ___ Cal.Rptr.3d ___, 2008 WL 80757 (Cal. App. Third District, Jan 09, 2008) (NO. C055448), the Court of Appeal struck-down a streamlined zoning approval process in which the 10-day notice for the public hearing before the Board of Supervisors was given before the County Planning Commission made its recommendation to the Board. In so doing, the court imposed a new requirement: the 10-day notice must include the Planning Commission’s recommendation to the legislative body.


In October 2004, a developer (LaRocque) applied for a tentative parcel map and zoning ordinance amendment to subdivide 31 acres into a 21 acre parcel and a 10 acre parcel.

Under Sierra County’s streamlined zoning process, the County’s practice was to give notice of the Board of Supervisor’s hearing on a project before the Planning Commission held its hearing on the same project.

Accordingly, on January 20, 2005, the County gave notice that the Board of Supervisors would hold a hearing on LaRocque’s project on February 1, 2005. This notice was given seven days before the January 27, 2005 Planning Commission hearing.

At its January 27, 2005 hearing, the Planning Commission voted to approve the project. On January 28, 2005, the Planning Commission’s recommendation was transmitted to the Board. The Board approved the project at its February 1, 2005 hearing.

An organization known as the Environmental Defense Project (EDP) filed suit. The trial court entered summary judgment for EDP, ruling that state law required the Board to wait for the Planning Commission’s recommendation before the County could give notice of the Board’s hearing.


The Court of Appeal noted that upon receipt of the planning commission’s recommendation, the legislative body must hold a public hearing. Notice of this hearing must be given at least 10 days before the hearing (Government Code § 65856) and contain a "general explanation of the matter to be considered" (Government Code § 65094). Nothing in these statutes, however, addresses the timing of the legislative body’s notice in relation to the planning commission’s recommendation, the court remarked.

The court explained that under State policy, the public must be involved in the local land use approval process. The purpose of § 65856’s notice requirement is to provide the public with an opportunity to respond to the planning commission’s recommendation. This purpose would be ill served if the legislative body’s notice did not include the planning commission’s recommendation, the court reasoned.

In light of that purpose, the court interpreted the phrase "a general explanation of the matter to be considered," as set forth in § 65094, as requiring the inclusion of the planning commission’s recommendation. The court held that the notice may be given only after the planning commission’s recommendation has been received. The court clarified that this rule applies irrespective of whether the hearing involves a legislative or quasi judicial decision.

The court observed that in this case, EDP did not have sufficient time for meaningful review of the project as recommended by the Planning Commission.

Finally, the court addressed the County’s argument that under Government Code § 65010, a land use decision may not be overturned without (1) prejudice to the plaintiff; (2) substantial injury to the plaintiff; and (3) the probability of a different result. Section 65010 applies only when the plaintiff is seeking to have a land use approval invalidated, the court explained. Here, EDP was not seeking to invalidate the project, but was merely seeking a judicial interpretation of § 65856, according to the court.

Practice Tips

The notices of public hearings for land use decisions before a city council or board of supervisors should not be sent out before the planning commission’s decision is final, and must include the planning commission’s recommendation, if one was made.