Applicants for city or county approvals often want to speed up the final hearings – especially after suffering through a prolonged environmental review process. One tactic is to schedule the City Council or Board of Supervisors hearing right after the preliminary Planning Commission hearing. However, a recent court decision warns that this method of saving time may be invalid.

In brief, the California Court of Appeals has ruled that when a Planning Commission recommendation is required, the city or county cannot publish its notice for the Council or Board hearing until the Commission has held its hearing, adopted its recommendation, and formally delivered the recommendation to the Council or Board. (Environmental Defense Project of Sierra County v. County of Sierra (January 9, 2008) C055448 (C.A. Third District). Furthermore, the hearing notice supposedly must include the Commission’s recommendation. The court’s found these requirements necessary to properly inform the public of what would be considered and provide adequate opportunity to prepare and comment on the recommended approval.

This raises practical complications. First, the Council or Board hearing notice must wait until the Commission’s decision has been delivered, rather than the day after the Commission finishes its hearing. In some agencies there can be delays as staff writes out its formal report.

A second issue is determining what information must be provided. State law requires that the notice include a “general explanation of the matter to be considered.” The court simply declared that the Commission’s recommendation must be included, without explaining how much detail is needed. Publishing the full recommendation may result in very lengthy notices, while attempting to summarize may trigger objections and more litigation.

The temptation to streamline the notice and hearing process is strong. However, we advise caution if an application faces the risk of opposition – even if staff is willing to use this shortcut. More time will be lost if the accelerated Council or Board hearing is postponed at the last minute when someone complains about faulty notice. Even more will be at stake if the approval is overturned in court and the city or county is ordered to hold a new hearing.

Unless the court reconsiders its decision, or at least clarifies what detail is needed in the notice, this decision applies to every city and county in the state, and perhaps to other agencies governed by the same noticing and hearing regulations.

For further information, please contact
Edward Shaffer, email Edward Shaffer (925-952-5409)

This information is general and may not be applicable in your particular situation, and so should not be relied on without specific legal advice. This report should not be construed as providing such advice, nor as forming an attorney/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.