• Missing a 90-day Deadline for a Hearing Request in a CEQA Case is Found Excusable
  • November 7, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • After a city approved the expansion of a solid waste facility and a new solid waste transfer station, a community group sued, claiming the siting of the project violated state law by exposing the largely Latino population of the area to a disproportionate amount of pollution. The group also claimed that the project approval violated the California Environmental Quality Act (“CEQA”). The trial court dismissed both claims, finding that the antidiscrimination law did not apply because no state funding went to the city’s program, and that the CEQA claim was barred because the community group’s attorney missed a 90-day deadline to request a hearing. The court of appeal upheld the trial court finding on the discrimination claim, but reversed the dismissal of the CEQA claim. The court found that the attorney’s delay was an isolated, excusable mistake that he rapidly acted to remedy. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116).

    In reviewing the Government Code antidiscrimination claim, the appellate court rejected Comunidad's argument that state funding received by the City’s waste local enforcement agency (“LEA”) meant that the City’s waste management program received state funds and so was subject to the antidiscrimination law. The court found “that funding to the LEA did not constitute funding to the City” because the LEA issues its own waste facility permits, investigates violations, and reports to a state agency, CalRecycle, rather than the City.

    Turning to Comunidad's CEQA challenge to the waste facilities project, Public Resources Code section 21167.4 requires, “[i]n any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.” However, the appellate court here granted relief for the attorney’s failure to comply with the statute under Code of Civil Procedure section 473. The appellate court held that missing this deadline could be excused when a party shows the error was one that “‘a reasonably prudent person under the same or similar circumstances’ might have made . . . In other words, . . . mistakes anyone could have made.”

    The appellate court noted that in this case, the attorney stated he mistakenly omitted the deadline from his calendaring system and then was out of state due to a family illness. Despite this oversight, the attorney had made an “otherwise vigorous and thorough presentation” of the case, and acted swiftly to remedy his mistake by requesting a hearing and filing a motion for relief as soon as he discovered the mistake the following week. Additionally, the court found the Respondents could not have been prejudiced by the delay, because the Respondents themselves had requested multiple extensions of time to prepare the administrative record, which was not ready at the time the attorney requested a hearing.