All of us involved in land use and planning matters are familiar with the tactic of project opponents to file last-minute submissions with new factual allegations. These “hit pieces” are filed after the staff report is in, and the project proponent has no time to respond.
Finally, a court has upheld a decision by a Board of Supervisors to refuse to consider a tardy submission. Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) __ Cal. App. 4th __; 12 C.D.O.S. 11889; 2012 WL 4378593 (Sept. 26, 2012), project opponents submitted a 16-page letter with 101 pages of attachments criticizing the air quality impacts of a proposed cogeneration plant one day before the Board of Supervisors’ hearing on an appeal of the certification of the EIR. Siskiyou County has a rule requiring submission of all written material five days in advance of the hearing. The Board refused to consider the late submission, even though it may have raised issues that should have been addressed in the final EIR. The Court of Appeal agreed that the Board could ignore the factual matter in the letter.
While this decision involves a CEQA proceeding, it should have equal application to other planning matters, such as subdivision and variance applications.
Unfortunately, not every public agency has a rule setting deadlines for submissions. This decision should encourage agencies to adopt reasonable time limits to protect the integrity of their hearing process.