In Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429 (Torrey Hills), the Fourth District Court of Appeal upheld the dismissal of a CEQA Petition due to the Petitioners’ (1) failure to serve a summons within 90 days of project approval as required by Government Code section 66499.37, and (2) failure to make a written request for a hearing within 90 days of filing the action as required by Public Resources Code section 21167.4, subdivision (a). In reaching the holding, the court affirmed that the holdings in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 748 (Friends) and County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 953 (County of Sacramento) apply retroactively.

The Petitioners challenged the City of San Diego’s approval of a condominium development project based on several alleged violations of CEQA. The City filed a Motion to Dismiss alleging that the case must be dismissed for two procedural reasons. First, the City alleged that the Petitioners violated the Subdivision Map Act (SMA) by failing to serve a summons within 90 days of the City’s approval of the project, as required pursuant to Government Code section 66499.37. Second, the City alleged that the Petitioners failed to comply with CEQA because the Petitioners did not file a written request for a hearing within 90 days of filing the writ petition, as required pursuant to Public Resources Code section 21167.4, subdivision (a). The trial court granted the motion to dismiss.

In arguing that the trial court’s decision should be reversed, the Petitioners did not contest the trial court’s determination that all the CEQA claims were within the scope of the SMA. Therefore, the question before the court was not whether Government Code section 66499.37 applied, but only whether compliance with the section “was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” The court found that, after Friends was published, the Petitioners made no effort to obtain a summons before the 90-day deadline expired. The court explained further that the normal remedy of a party aggrieved by an act or omission of the clerk is to apply to the court for an order directed to the clerk. The court thus found that Petitioners’ failure to serve a summons within 90 days of project approval required dismissal.

Although the Petitioners’ failure to comply with Government Code section 66499.37 was dispositive, the court chose to exercise its discretion to address the City’s claim under Public Resources Code section 21167.4, subdivision (a). The Petitioners argued that they had complied with Public Resources Code section 21167.4, subdivision (a), by making an oral request for a hearing. The court in County of Sacramento had addressed this exact issue, holding that a written request is required under this provision, and declaring that its holding should apply retroactively. (County of Sacramento, supra, 180 Cal.App.4th at page 953.) The Torrey Hills court agreed with the holding in County of Sacramento. The court explained further that while section 21167.4, subdivision (a), does not expressly require CEQA petitioners to make a written request, the plain language of other subdivisions in the section establish that the request must be in writing. Therefore, the court found that the Petitioners’ failure to make a written request was not excusable, and provided additional support for the trial court’s granting of the Motion to Dismiss.