A state District Court of Appeal has rejected a property owner’s contention that design review permits for two houses in San Mateo County were “deemed approved” because the county failed to act on his applications within 60 days. The court ruled that the permits could not be deemed approved because neither the county nor the applicant had notified the public that deemed approval was a possibility.
The case involved an interpretation of provisions in the Permit Streamlining Act that give an agency 60 days to approve or deny a project that is exempt from environmental review. The question for the court was whether “a statement that the project shall be deemed approved if the permitting agency has not acted within 60 days” must be included in the public notice. A unanimous three-judge panel of the First District, Division Five, answered affirmatively. And because such a statement did not appear in the county’s public notice, the project could not be deemed approved, the court ruled.
In early 1999, Thomas Mahon applied to San Mateo County for design review to build two houses on adjacent lots on Second Street in the unincorporated beach town of Montara. County planners determined that the projects were exempt from environmental review under the California Environmental Quality Act and conditionally approved the permits within the 60-day period.
However, in October 1999, planners concluded that Mahon’s neighboring property owners did not receive notice of the design review permit applications as required by state law and county policy. The county then mailed notices to property owners within 300 feet of Mahon’s property and posted a notice on the project site. The notices did not state that the permits would be deemed approved if the county failed to act within a certain time period. Soon thereafter, objections came pouring in from neighbors and the Mid-Coast Community Council. Opponents complained that the proposed houses were too large and did not conform to county design standards.
One year later — in October 2000 — county planners conditionally approved one of the houses. Neighbors appealed, and the county Planning Commission upheld the appeal. Mahon then appealed to the Board of Supervisors, which in August 2001 sent the application back to the Planning Commission for consideration of a new design.
Mahon submitted revised plans, but apparently nothing happened until early 2004, when Mahon hired legal counsel. Mahon’s attorney advised the county that the permits were deemed approved because the county had failed to act within 60 days of the Board of Supervisors’ decision to remand the matter, or within 60 days of Mahon’s submission of revised plans in July 2002. The county rejected the “deemed approved” contention, and the Planning Commission then denied design review permits for both houses.
Mahon sued the county, arguing that the permits were deemed approved. San Mateo County Superior Court Judge Robert Foiles ruled for the county, and the First District affirmed the decision.
The First District found no published case that addressed the question at hand. “In sum,” Presiding Justice Barbara Jones wrote for the court, “we are confronted with the following: (1) a project cannot be deemed approved without ‘public notice required by law,’ but [Government Code] § 65956 does not define what ‘public notice required by law’ means; (2) the statute specifies an applicant’s notice must advise that the application will be deemed approved unless acted upon within the statutory time period, but the statute does not specify what is to be included when the agency gives notice.”
Mahon argued that because the agency provided the public notice, the notice need not include a warning about deemed approval. Mahon also contended that he did not have to provide public notice because the county’s notice was adequate.
The court disagreed, holding, “[W]e see no reason why ‘public notice required by law’ would mean one thing if notice is provided by the agency and another if provided by the applicant.”
Mahon argued that if the county was required to provide notice of the possibility of deemed approval, the county could rig the process — and thus avoid the mandate of the Permit Streamlining Act — by never providing such notice.
Again, the court disagreed, noting that the applicant himself had the ability to provide the public notice triggering the deemed approval provision.
“If an applicant wishes to avail himself of deemed approval, the statute requires him initially to advise the agency that he intends to do so,” Justice Jones wrote. “The agency may then be spurred to provide the ‘public notice required by law’ itself, relieving the applicant of this chore. But even if it does not, the applicant can provide the public notice and preserve the potential for deemed approval. This process serves the purpose of the Act to avoid protracted delays in processing permit applications while protecting the interests of neighboring landowners.”
After concluding that the notice was inadequate under the statute, the court declined to consider whether adjoining landowners have a distinct due process right to notice of the potential for deemed approval.
The Case:
Mahon v. County of San Mateo, No. A110171, 06 C.D.O.S. 4156, 2006 DJDAR 6065. Filed May 18, 2006.
The Lawyers;
For Mahon: Ron Zumbrun, (916) 486-5900.
For the county: Kimberly Marlow, county counsel’s office, (650) 363-4250.
