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To Avoid Mandatory Dismissal, CEQA Petitioner Must File and Serve Written Request For Hearing Within 90 Days Of Filing Petition

It has long been established that a petitioner challenging a local agency’s compliance with the California Environmental Quality Act (“CEQA”) must “request” a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a hearing must be filed in writing, and that an oral request will not suffice to avoid dismissal.

On June 12, 2008, Forster-Gill, Inc., filed a petition for writ of mandate and complaint for quiet title and other relief in connection with SacramentoCounty’s approval of a development project. The action included a cause of action alleging that environmental review of the project violated CEQA. Under Public Resources Code section 21167.4, this gave Forster-Gill 90 days — until September 10, 2008 — to request a hearing on its CEQA claim.

At a status conference in March 2009, the trial court determined that the CEQA claim should be litigated first. Thereafter, respondents filed a motion to dismiss the CEQA claim, because Forster-Gill had not requested a hearing within 90 days of filing its writ petition. Forster-Gill opposed the motion, asserting that before the September 10 deadline, its attorney had “telephoned the court clerk . . .and reserved a hearing on the merits for January 9, 2009.”

The trial court denied the motion to dismiss, relying on subdivision (a) of section 21176.4, which provides:

In any action or proceeding alleging noncompliance with [CEQA], the petitioner shall request a hearing within 90 days from the date of fling the petition or shall be subject to dismissal…”

The trial court concluded that “subsection (a) of [section 21167.4], which is the portion of the statute that provides for mandatory dismissal, does not require the request for a hearing to be in writing.”

The Court of Appeal reversed, holding that the trial court erred in reading subdivision (a) in isolation. The court noted that subdivision (b) of section 21167.4 requires a petitioner to “serve a notice of the request for a hearing on all the parties at the time that the petitioner files the request for a hearing,” and that subdivision (c) requires the court to establish a briefing schedule and hearing date “upon the filing of a request by the petitioner for a hearing and upon application by any party.” Reading all subdivisions of section 21167.4 together, the court ruled that petitioner’s request for hearing, to be effective in avoiding mandatory dismissal, must be in “writing that can be filed with the court, not simply an oral request.”

The court further held that McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, which was decided after enactment of section 21167.4, subdivision (a), but before enactment of subdivisions (b) and (c), was no longer good law in holding that a petitioner need only “take affirmative steps sufficient to place the matter on the court’s docket for a hearing, either by filing and serving a notice of hearing or utilizing some other method authorized by the local rules of the court in which the matter is pending.” (Emphasis in original.)

Finally, the court observed that a petitioner is not required “to actually set a hearing date and serve notice of the date of that hearing” within 90 days of filing the petition. Rather, the setting of the actual hearing date can come after the filing of a request for hearing under section 21167.4, “upon application of any party.”

For questions regarding the impact this decision may have on your city or any other CEQA issues, contact Peter Hayes.