P. v. El Dorado County

Filed 11/30/05 P. v. El Dorado County CA3

Opinion following remand

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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THE PEOPLE ex rel. DEPARTMENT OF CONSERVATION et al., Plaintiffs and Appellants, v. EL DORADO COUNTY et al., Defendants and Respondents; LORING BRUNIUS, Real Party in Interest and Respondent; CALIFORNIA MINING ASSOCIATION et al., Interveners and Respondents.

C039428 Super.Ct.Nos. PV002958 PV002959

The Director of the Department of Conservation (the Director) filed petitions for writs of administrative mandamus against the County of El Dorado (the County) and real party in interest Loring Brunius (Brunius), the operator of two surface mining quarries in the County, challenging the County’s approval of Brunius’s proposed reclamation plans and financial assurances, as required under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code, § 2710 et seq.). The Director also asserted that the County violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in approving mitigated negative declarations for each quarry and challenged the County’s finding that Brunius had a vested right to operate the Weber Creek Quarry without a permit or that the County was estopped from enforcing its land use ordinance. The trial court granted summary adjudication on the Director’s challenge to the land use findings and dismissed the remainder of the Director’s claims on the basis that he lacked standing. The trial court awarded attorney fees to the County, Brunius, and trade association Interveners under the private attorney general doctrine (Code Civ. Proc., § 1021.5).

On appeal, a majority of this court affirmed the dismissal on the basis that the Director lacked standing and reversed the award of attorney fees.

The California Supreme Court granted review and reversed, finding the Director had standing to challenge compliance with SMARA and CEQA, and to challenge the vested use determination. (People ex rel. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971.) The high court remanded the cause for further proceedings. (Id. at p. 997.)

In the initial appeal, in addition to challenging the dismissal due to lack of standing, the Director also contended there was no substantial evidence to support the finding that Brunius had a vested use or that the County was estopped to challenge his use; the trial court erred in dismissing the CEQA claims; and the award of attorney fees was improper. We determine there is substantial evidence to support the County’s land use decision and the trial court erred in dismissing the CEQA claims because the Director timely requested a hearing under Public Resources Code section 21167.4. We remand the cause to the trial court for further proceedings on the SMARA and CEQA claims and for a new determination of whether an award of attorney fees is appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

In 1975, the Legislature enacted SMARA. (Stats. 1975, ch. 1131, § 11, pp. 2793-2803.) SMARA requires that all surface mining operations have an approved reclamation plan and approved financial assurances to implement the reclamation plan. (Pub. Res. Code, § 2770, subd. (a); all further unspecified section references are to this code.) The County, as lead agency, was primarily responsible for compliance with SMARA in the County. (§ 2774.1, subd. (f).)

Brunius has two surface mining operations in the County, the Weber Creek Quarry and the Diamond Quarry. In the mid-1990’s, he was operating both without approved reclamation plans and financial assurances. The statutory deadline for compliance had long since expired. Those with existing surface mining operations were to submit reclamation plans by March 31, 1988. (§ 2770, subd. (b).) Unless there is an approved reclamation plan and financial assurances, or unless an appeal of the nonapproval was filed by July 1, 1990, as to reclamation plans, and January 1, 1994, as to financial assurances, continuation of a surface mining operation is prohibited. (§ 2770, subd. (d).)

In response to this situation, both the Director and the State Mining and Geology Board (the Board) took actions to enforce SMARA. The Director brought suit against Brunius. A stipulated judgment in June 1995, required Brunius to pay the Director $70,000 in administrative penalties. These penalties would be reduced if Brunius took actions to comply with the law, including submitting proposed reclamation plans, posting interim financial assurances for both mines by certain dates. Brunius failed to comply. In March 1997, the Director sent Brunius notice to cease all mining activity at Weber Creek Quarry and Diamond Quarry. Brunius secured a preliminary injunction against operation of the cease and desist order based on his pending applications for reclamation plans and financial assurances.

Meanwhile, the Board had concluded that the County had knowingly allowed Weber Creek Quarry to operate since 1982 without an approved reclamation plan and since 1994 without approved financial assurances in violation of SMARA. After the County failed to rectify this situation, the Board commenced procedures to assume the powers of a lead agency under SMARA in the County.

Brunius then submitted proposed reclamation plans and financial assurances for both mines. During the review process, the Director submitted extensive comments on the inadequacy of the reclamation plans and financial assurances. On July 24, 1997, the El Dorado County Planning Commission (Planning Commission) approved a mitigated negative declaration, a reclamation plan, and financial assurances for both Weber Creek Quarry and Diamond Quarry.

The Director appealed these approvals to the County’s Board of Supervisors. In late August, the Board of Supervisors adopted the mitigated negative declaration for each mine, and approved the reclamation plans and financial assurances.

In separate petitions for a writ of administrative mandamus, the Director sought to vacate the County’s approval of the reclamation plans and financial assurances and the mitigated negative declaration as to both Weber Creek Quarry and Diamond Quarry. The Director alleged the reclamation plans and financial assurances were inadequate to comply with SMARA. The major inadequacies included design for erosion control, slope stability analysis, reclamation plan for the 200-foot cut slope, and protection against groundwater contamination. The Director further alleged the County violated CEQA in approving the mitigated negative declarations for each mining operation. The project descriptions were incomplete; the County failed to determine Brunius’s right to mine without a permit; and the County failed to require an environmental impact report to evaluate the elimination of resoiling and revegetation, the inadequacy of financial assurances, the failure to require safety fencing near residential neighborhoods, increased dust and asbestos concerns, the alteration of the stream bank, the impact on the red-legged frog, erosion control, and groundwater contamination. The two cases were consolidated.

In March 1998, the Director filed amended petitions. As to the Weber Creek Quarry, he added a challenge to the County’s finding that Brunius had a vested right to operate the mine without a permit or that the County was estopped from enforcing its land use ordinance. As to Diamond Quarry, the Director contended the County failed to enforce its land use ordinances by allowing Brunius to expand his mining operations without a permit.

The California Mining Association, the Construction Materials Association of California, and the Southern California Rock Products Association (Interveners), all trade associations, moved to intervene in the proceeding. Interveners argued that the Director exceeded his statutory authority in challenging the County’s implementation of SMARA. The application to intervene was granted.

The County, Brunius, and Interveners all demurred to the petitions on the basis that the Director lacked standing. The trial court overruled the demurrers, finding the Director’s official responsibilities gave him standing to seek judicial review of the action by a lead agency under SMARA. This court denied Interveners’ petition for a writ of mandate or other relief.

The County and Brunius answered the petitions, raising lack of standing as an affirmative defense. Interveners’ complaint in intervention alleged the Director had no standing.

The County moved for summary adjudication on the third claim in the Weber Creek Quarry writ proceeding. That claim challenged the County’s finding that the Weber Creek Quarry was a vested use or that the County was estopped from requiring a permit. The County offered three bases for summary adjudication. First, the Director lacked standing to contest the County’s vesting determination. Second, substantial evidence supported the County’s finding that a vested mining operation existed at Weber Creek Quarry. Third, substantial evidence supported the finding that the County was estopped to deny the vested status of Weber Creek Quarry. The trial court granted the motion, finding the vested rights determination was supported by substantial evidence.

In October 2000, over three years after the original petitions were filed, the County moved to dismiss the remainder of the case for delay in prosecution. Alternatively, the County moved to dismiss the CEQA claims for failure to request a hearing timely under section 21167.4. Section 21167.4 requires that petitioner request a hearing on the merits of CEQA claims within 90 days of filing the petition or be subject to dismissal. Brunius also moved to dismiss on the same bases. The Director opposed the motion, arguing he timely requested a hearing, but that a hearing could not be scheduled within the 90-day period because the administrative record had not been prepared. The Director also moved for mandatory relief under Code of Civil Procedure section 473, subdivision (b), on the basis that any failure to set a timely hearing was solely the fault of counsel. The trial court denied the Code of Civil Procedure section 473, subdivision (b) motion and the motion to dismiss for delay in prosecution, but granted the motion to dismiss the CEQA claims.

Briefing was then completed on the remaining claim of whether the County had complied with SMARA in approving the reclamation plans and financial assurances.

In ruling on the petitions, the trial court reversed its earlier decision and found the Director lacked standing. The Board, not the Director, had policy authority and the power to take action in the present situation, if warranted. The responsibilities of the Director were primarily advisory and he did not have authority to commence a mandamus proceeding against a lead agency in place of the Board’s authority to take over lead agency’s powers under section 2774.4. The petitions were dismissed.

The County, Brunius, and Interveners all sought attorney fees under the private attorney general doctrine of Code of Civil Procedure section 1021.5. The court awarded attorney fees as follows: $368,186.50 to the County; $57,951 to Brunius; and $81,076 to Interveners.

I. The Director’s Standing

The trial court dismissed the petitions on the basis that the Director lacked standing to file the petitions for a writ of mandate. A majority of this court affirmed the judgment of dismissal. The Supreme Court reversed, finding: “the Director’s statutorily conferred powers and responsibilities--those expressly granted him under SMARA, as well as those inhering in his capacity as the executive officer of the state department charged with SMARA’s implementation--create in him a substantial interest in reclamation plans and financial assurances being both legally consistent with SMARA and practically adequate to accomplish SMARA’s goals and state reclamation policy promulgated thereunder. Therefore, when a local lead agency approves allegedly illegal or inadequate plans or assurances, the Director is ‘beneficially interested’ (Code Civ. Proc., § 1086) in the issuance of a writ of mandate to address the deficiencies.” (People ex rel. Dept. of Conservation v. El Dorado County, supra, 36 Cal.4th at p. 992, fn. omitted.) The high court further found the Director had standing to challenge the County’s vested use determination and compliance with CEQA. (Id. at pp. 995-996.)

Since the trial court dismissed the petitions without addressing the SMARA claims, we remand this cause to the trial court to consider those claims.

In a letter filed after remand, the County requests that this court remand this case to the trial court for consideration of the SMARA claims before addressing the other issues raised on appeal. The County contends that addressing those issues now will lead to the waste of judicial resources. We disagree. A permit or vested rights is a necessary prerequisite to a lawful mining operation under SMARA. (§§ 2770, 2776.) Our determination that the CEQA claims were improperly dismissed will permit a more efficient determination of the CEQA and SMARA claims together on remand. Accordingly, we address substantial evidence of the vested use determination and dismissal of the CEQA claims.

II. Substantial Evidence of Vested Use or Estoppel

During the County’s consideration of the adequacy of Brunius’s reclamation plans and financial assurances, questions were raised whether Brunius had the legal right to operate Weber Creek Quarry. In particular, a homeowners association of a neighboring subdivision, Greenstone Country, questioned whether Weber Creek Quarry was a vested, nonconforming use. The County deferred the question until after the approval of the reclamation plans and financial assurances.

In February 1998, the Planning Commission held a hearing on the issue. After receiving testimony and documentary evidence, the Planning Commission found “that the mineral deposit and the current mining activity described in the reclamation plan for the Weber Creek Quarry is, and has been, a lawful vested nonconforming use” on parcels 8/16 and 28. “Further, the County is estopped from denying a lawful nonconforming use status for mining” on parcels 8/16 and 28 “since it was determined by the appropriate and authorized planning department staff to be vested nonconforming uses in or about 1968 and again in or about 1980.”

In response, the Director amended the petition relating to Weber Creek Quarry, challenging the vested use determination. The Director alleged the decision by the Planning Commission was not supported by substantial evidence.

The County moved for summary adjudication of this issue, urging there was substantial evidence. Brunius joined the motion.^[1] The trial court granted the motion, finding “the vested rights determination of the Planning Commission was supported by substantial evidence.”

On appeal the Director again challenges the findings of the Planning Commission. He asserts there is not substantial evidence of either a vested use or estoppel.

“On appeal, this court exercises the same function as the trial court and must decide if the agency’s findings were based on substantial evidence. Neither court may reweigh the evidence, and both courts must view the evidence in the light most favorable to the [agency’s] findings and indulge in all reasonable inferences in support thereof. [Citations.]

“This court’s duty is to review the findings and actions of the [agency] ‘and not the findings of the trial court.’ [Citation.] To that end, this court must review the entire

record to determine whether the [agency’s] findings and decision are supported by substantial evidence. [Citations.]” (Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 531.)

We begin with a summary of the evidence before the Planning Commission.

Evidence Before Planning Commission

Determining whether Weber Creek Quarry was a vested nonconforming use required the Planning Commission to consider the use of the land over several decades. To assist the Planning Commission, county counsel prepared a report outlining the issues before the Commission and summarizing the evidence submitted by the parties.

County Counsel concluded Weber Creek Quarry was located on parcels zoned residential, and mining was not allowed without a special use permit. No such permit was ever issued, so mining was lawful only if Weber Creek Quarry had achieved vested status under the County’s nonconforming use ordinance.

Weber Creek Quarry operated on three parcels that were once part of the much larger BOB Hereford Ranch owned by Beverly O. Brace. The ranch was subdivided and changed hands many times thereafter. The quarry is located south of Weber Creek and east of Lotus Road. The parcels at issue were known as 8/16, 25, and 28.^[2] The quarry was consistent with the general plan land use designation of Industrial-Mining Resource, but inconsistent with the current Residential-Agricultural zoning. Mining had required a special use permit since January 1968 for parcel 8 and since August 20, 1964, for parcels 16, 25, and 28. If the use was lawful as of January 1, 1976, then it was a vested use under SMARA. Thus, the crucial time period to establish there was mining on the land was 1964 to 1976.

In support of a finding of a vested use, Brunius provided a number of documents. Maps and reports from 1930 and 1951 identified chromite mines in the vicinity of the quarry. There were also a number of mining leases from the 1970’s between Beverly Brace and various parties, including Brunius, for extraction of serpentine or rocks and gravel. A 1985 letter from a geologist to a real estate broker stated the parcel could be used as a source of aggregate for which a special use permit would be required. It was unclear whether this letter referred to parcel 8/16 or parcel 25. County counsel stated the letter implied there was no vested mining operation in existence; otherwise, a special permit would not have been required. A statement of George Varozza, a long time resident of the County, asserted the area around Weber Creek was worked for aggregate around 1973. The 1990 environmental impact report for Greenstone Country, a subdivision in the area, indicated an aggregate quarry operation had been active for 30 years on adjacent parcels.

A declaration from Jean Klotz, an attorney, detailed her representation of Brunius in 1980 regarding a complaint by Brunius’s neighbor, David Callahan. Brunius had been contacted by Ross Hutchinson of the Planning Department about the complaint; Hutchinson advised the gravel operation was not consistent with the current zoning. Klotz consulted various maps and reports that showed mining in the area for previous decades. She also went with Brunius to the site. She observed the caved-in mine referred to in the maps and reports and saw evidence of mining in the channel of Weber Creek. Brunius’s gravel operation was immediately adjacent to the previously mined areas. She advised the district attorney that she believed Brunius had “grandfathered” or vested mining rights. The district attorney referred the matter to the Planning Commission for investigation. Thereafter the matter was dropped. Callahan brought an action against Brunius for an injunction, claiming Brunius unlawfully trespassed on his property. In resolving the matter, the court specifically recognized that Brunius had the right to cross the property of Callahan for mining purposes.^[3]

Jack Sweeney, a land surveyor who was raised in the area, declared there “has been nearly continuous operations of some type along the vein which is very apparent from just North of Indian Creek to its intersection with Lotus Road North of Weber Creek.” His first recollection of quarrying was about 1950 when he and his father met Tex Marlin at a pit he was operating one-quarter mile north of Indian Creek and a quarter mile east of Lotus Road. At that time the Williamson family was operating a pit north of Weber Creek and east of Lotus Road. The area of the vein connecting these two pits was worked at various times, but not as extensively as these two pits.

Sweeney also testified before the Planning Commission. He thought the proceedings were a waste of money. He was familiar with the various maps before the commission because he had prepared many of them. He noted that old mining law referred to mining load, not parcels. He remembered various people mining the area when he was a child; specifically, he recalled seeing the County’s rock crusher in front of Brunius’s scale house. When Sweeney worked on the maps for the Greenstone Country subdivision, they worried about a nearby mine pit and whether it should be shut down. He talked to Ross Hutchinson about it and was told the pit was vested. One of the stockpiles was just east of where Brunius’s scale house is now. He concluded: “So for nearly 60 years that I’ve lived near to, been involved with, somehow with that property, I’ve always known that it was operated for the extraction of aggregate. . . . [¶] . . . [¶] I don’t know what the technicalities are. Sitting back there listening to the attorneys and their technical magic, I wrote something down and I want to close with this. So if you want to be judges of technicalities, keep looking and you’ll probably find some problems. If you want to be just and deal with justice, I believe you’ll find that this thing is really vested for the purposes of mineral extraction.”^[4]

Ross Hutchinson, who worked in the planning department from 1959 through 1989, provided a declaration about his investigation in 1968. There had been a report that someone was driving a tractor through Weber Creek. He met with Beverly Brace, who advised him that his gravel operation on the north side of Weber Creek had played out, so he was moving it to the south side of Weber Creek. Based on his research, Hutchinson determined the operation was a vested, nonconforming use.

Douglas Noble was an employee of the planning department from 1974 through 1983. He was a member of the Planning Commission when the hearing on the vested use was held, but recused himself because he had worked as a consultant for Brunius. He declared he investigated Callahan’s complaint against Brunius in 1980. He determined that a vein of serpentine ran north-south through the BOB ranch where Brunius was conducting his gravel operation and this vein had been commercially quarried over many years by many operators, including the County. He determined Brunius’s operation was a vested, nonconforming use. At the hearing Noble testified he and Hutchinson met with Brunius’s attorney and went over all the evidence and determined it was a vested use. “Now, what does the world have to rely upon if these things keep coming back every ten years? We vested it in 1980. Period.” He stated they had vested a lot of mines.

The Greenstone Country Owners Association presented evidence and argument that Weber Creek Quarry was not vested. A declaration from Douglas and Lois Hagens, who lived across Weber Creek from the quarry, stated their “clear and unwavering” recollection that there was no mining activity at the quarry when they purchased their property in 1977. Mining began in 1981 or 1982, making their property more difficult to sell. By the time of the hearing, Greenstone had reached an agreement with Brunius regarding future use of the quarry and withdrew its objection to finding Weber Creek Quarry was a vested use.

The only evidence presented by the Director was a series of aerial photographs of the area of the quarry. The Director contended these photographs showed no surface disturbance south of Weber Creek--and thus established that no mining activity occurred--before 1980.

Discussion

The Planning Commission based its decision on the evidence summarized above, except for the Hagens declaration. The Planning Commission found the aerial photographs “difficult to interpret,” but noted each showed an area in the vicinity of Weber Creek Quarry that could be interpreted as disturbances due to surface mining. It noted the Director offered no expert testimony to assist in interpretation of the photographs.

The Director attacks each piece of evidence offered by Brunius on the basis that it is (1) irrelevant to the issue before the Planning Commission, (2) not credible, or (3) not specific as to the location or the time of the mining activity. We decline the Director’s invitation to reassess the credibility and weight of the evidence offered by Brunius. “The trier of fact is the sole judge of the credibility and weight of the evidence and the findings of the trier of fact in this regard will not be disturbed so long as it is supported by substantial evidence. (Estate of Teel (1944) 25 Cal.2d 520, 526-527 [].)” (Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465.)

The evidence showed there was mining activity in the area of Weber Creek Quarry for several decades. What was less certain was whether there was mining activity on the parcels that comprised Weber Creek Quarry in the relevant time period of 1964 to 1976. The best evidence establishing mining activity in this precise time and location was the declaration and testimony of Sweeney, who located the mining activity by reference to Brunius’s scale house. The Director contends this evidence was

still too imprecise to provide substantial evidence of vesting. A reasonable inference to be drawn from Sweeney’s evidence, however, is that there was mining in the area where the quarry is now located in the 1950’s, 1960’s, and 1970’s. In applying the substantial evidence rule, all reasonable inferences are indulged to uphold the challenged findings. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) This evidence, therefore, provides substantial evidence to support the Planning Commission’s decision.

Because we have found that substantial evidence supports the finding that Brunius’s operation at Weber Creek Quarry was a vested, nonconforming use, we need not consider whether there is substantial evidence to support the finding of estoppel.

III. Dismissal of CEQA Claims

The Director contends the trial court erred in dismissing the CEQA claims for failure to set a hearing on the merits within 90 days as required by section 21167.4, subdivision (a). The Director contends he made a timely request for a hearing and a hearing was unable to be set at that time because the County delayed in preparing the administrative record. In the alternative, the Director contends the trial court should have granted relief under Code of Civil Procedure section 473, subdivision (b) for counsel’s failure to set a hearing on a timely basis.

Background

This action began when the Director filed writ petitions on September 27, 1997. Pursuant to section 21167.4, the Director requested a hearing on December 18, 1997, within the 90-day period. The request noted: “The administrative record in this case was requested on September 29, 1997, but has not been completed or certified by the County of El Dorado, respondent herein. Accordingly, petitioner respectfully requests that the Court establish a briefing schedule to be completed within 90 days of the certification and filing of the administrative record in this case, and a hearing date to be held within 30 days thereafter.”

An internal court note was sent to the trial judge to establish a briefing schedule and set a hearing. The judge responded: “Has the administrative record been certified and filed? If so, return to me. If not, we cannot set hearing or briefing yet.”

The Director undertook no further action to set a hearing date.

In October 2000, the County and Brunius filed motions to dismiss on two grounds. First, they sought discretionary dismissal for failure to prosecute under Code of Civil Procedure sections 583.410 and 483.420, and rules 372 and 373 of the California Rules of Court. Alternatively, they sought dismissal of the CEQA claims for failure to timely set a hearing on the merits under section 21167.4. They argued no hearing had been set within 90 days of commencement of the case.

The Director failed to file a timely opposition.

The Director then filed a number of documents, including a request to consider a late opposition and an opposition to the motions to dismiss, in which he argued the request for a hearing on the CEQA claims was timely. In the alternative, the Director also filed a request for relief under Code of Civil Procedure section 473, subdivision (b), for setting a hearing late on the CEQA claims.

The parties stipulated that the Director’s late opposition could be considered. After a hearing, the trial court denied relief under Code of Civil Procedure section 473, granted the motion to dismiss the CEQA claims under section 211167.4, and denied the motion for discretionary dismissal for failure to prosecute.

Discussion

Section 21167.4 provides: “(a) In 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. [¶] (b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files a request for a hearing. [¶] (c) Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 90 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court.”

The parties agree that the Director filed a request for a hearing within 90 days of filing the petitions, but no hearing date was set. The County and Brunius contend that simply filing a request for a hearing was insufficient, relying on McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352. In McCormick, the petitioners filed a document entitled “Request for Hearing,” but took no further action to schedule the hearing for a date certain. The court held a pleading requesting a hearing was insufficient to meet the requirements of section 21167.4. “Nevertheless, it would elevate form over substance to accept appellants’ argument that a mere declaratory statement that a hearing is requested is sufficient to comply with the statute. . . . We therefore hold that section 21167.4 requires the petitioner to 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. A mere advisory pleading stating that the petitioner requests a hearing is inadequate.” (Id. at p. 358.)

Recently, this court had occasion to consider what actions

are sufficient to request a hearing as required by section 21167.4. In Association for Sensible Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, the challengers to a project at a ski resort filed a request for a hearing and noticed a hearing to schedule the matter for a hearing within the 90-day time period. The developers filed a motion to dismiss for failure to set the hearing within 90 days. This court found the trial court properly denied the motion to dismiss. We found the filing of the “Request for Hearing” complied with the statute, concluding “McCormick’s requirement that the petitioner do something more than this is no longer good law in light of the 1994 amendment to section 21167.4.” (Id. at p. 1294.)

In 1994, section 21167.4 was amended to add subdivision (c), which permits any party to file an application for a hearing date, at which point the court must set the hearing. (Stats. 1994, ch. 1294, § 21, p. 8326.) The legislative intent behind section 1167.4 is to conduct proceedings expeditiously. (McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 358.) This goal can now be accomplished by either party filing an application for a hearing date. (Association for Sensible Development at Northstar, Inc. v. Placer County, supra, 122 Cal.App.4th at p. 1295.) Adhering to McCormick’s requirement that the petitioner do more than simply request a hearing would render superfluous the provisions of subdivision (c), requiring the court to set a hearing “upon application by any party,” and we must avoid that result if possible. (Ibid.)

The Fifth Appellate District reached the same conclusion in Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1521: “Consequently, we conclude that a request for a hearing under section 21167.4 is not required to include the setting of a hearing date because (1) the literal meaning of the word ‘request’ does not include the setting of a hearing date; (2) such a requirement would render part of the language in subdivision (c) either superfluous or redundant; (3) a literal construction of section 21167.4 results in procedures that are simple and efficient, and promote the purpose of the statute; and (4) a nonliteral reading of the statute results in unnecessary complexity.”

Because the Department requested a hearing within 90 days of filing the petitions, and because that is all that is required under section 21167.4, the trial court erred in dismissing the CEQA claims. We remand this cause to the trial court to consider the Director’s CEQA claims.

IV. Attorney Fees

The attorney fee award was based on the County, Brunius, and the Interveners being successful parties upon dismissal of the proceedings. Since the judgment of dismissal is reversed, the attorney fee award must also be reversed. On remand, after the merits of the case have been determined, the trial court may consider whether an attorney fee award to any party is proper.

DISPOSITION

The judgment, including the award of attorney fees, is reversed. The cause is remanded to the trial court for determination of the SMARA and CEQA claims and for reconsideration of all requests for attorney fees.

The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a).)

MORRISON , J.

We concur:

SCOTLAND , P.J.

SIMS , J.

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^[1] The Interveners also moved for summary adjudication, solely on the basis that the Director lacked standing. This ground was also advanced by the County. Since the Supreme Court has determined the Director has standing to challenge the vested use determination (People ex rel. Dept. of Conservation v. El Dorado County, supra, 36 Cal.4th at pp. 995-996), we do not address this basis for summary adjudication.

^[2] The Planning Commission took no action with regard to parcel 25. There was no current active mining activity on parcel 25.

^[3] The court found Brunius had a 14-foot roadway easement across Callahan’s property. Brunius dramatically increased the width of the road to 95 feet at Lotus Road and to 60 feet in other areas to allow greater access to his quarry operation. The road widening required considerable earth moving and the removal of 130 feet of Callahan’s fence. The court granted an injunction limiting the roadway easement to 14 feet, awarded Callahan $12,000 in damages, and assessed Brunius $10,000 in punitive damages for his conscious disregard of Callahan’s property rights.

^[4] Sweeney’s point that the Planning Commission should not get bogged down in technicalities was echoed by one of the Commissioners: “Well, again, we’re getting into the -- to the fine-tuned technicalities we could argue for many, many days on vesting and issues and what, who saw what and when and all that stuff. But, again, what I’m looking at personally is the deposit. In other words, we made a -- we made a commitment in this General Plan relative to the natural resources in this County. And up until modern times in the last century we were looking at the resources of basically timber, water, and minerals.”