Tag: Brown Act

IN A REVERSAL, SECOND DISTRICT FINDS CITY’S FAILURE TO INCLUDE CEQA EXEMPTION ON MEETING AGENDA VIOLATED THE BROWN ACT

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In G.I. Industries v. City of Thousand Oaks (2022) __ Cal.App.5th __ (Case No. B317201), the Second District Court of Appeal determined that the City of Thousand Oaks violated the Brown Act when it voted to adopt a CEQA exemption for a new waste-hauling Franchise Agreement without including the exemption on the meeting agenda at least 72 hours before the meeting.

Background

In 2020, the City of Thousand Oaks considered entering into a 15-year franchise agreement with Arakelian Enterprises, Inc., doing business as Athens Services, to provide solid waste management for the City. On March 4, 2021, the City posted an agenda for a March 9, 2021, City Council meeting, with an item to consider staff’s recommendation to approve the Athens franchise agreement. There was no indication on the agenda that the City also would consider finding the agreement exempt from CEQA.

On the day of the March 9th meeting, the City posted a supplemental agenda item and information packet with staff’s recommendation that the City find the agreement categorically exempt from CEQA under the Class 1 exemption for existing facilities, the Class 7 exemption for actions by regulatory agencies for the protection of the natural resources, and the so-called “common sense” exemption. At the meeting, the City attorney recommended adopting staff’s finding supporting the CEQA exemption. The City Council then moved to adopt a motion to approve the franchise agreement. At the suggestion of the Mayor, the Council amended the motion to also include the corresponding CEQA exemptions. The meeting minutes indicated that council took separate actions in approving the agreement and finding it exempt from CEQA.

The City filed a notice of exemption (NOE) on March 15, 2021. Thereafter, Waste Management sent a “cure and correct” letter asserting the City violated the Brown Act by voting to “adopt” the NOE before approving the franchise agreement. The City did not respond to the letter within 30 days, thus was deemed to not have cured or corrected the challenged action pursuant to Brown Act section 54960.1(c)(3). Waste Management filed a petition challenging the approval of the franchise agreement and exemption determination. Respondents filed a demurrer, which the trial court sustained without leave to amend. And, although it agreed with Waste Management that the CEQA exemption determination and franchise agreement approval were separate items of business, ruled that CEQA does not require a public hearing for an exemption determination, therefore, the Brown Act did not apply. Waste Management appealed.

Court of Appeal’s Decision

The Court of Appeal first held that the factual allegations in Waste Management’s petition were sufficient to state a Brown Act claim. Under the Brown Act, at least 72 hours prior to a regular meeting, the legislative body of a local agency must post an agenda containing a brief general description of each item of business to be transacted. (See Gov. Code § 54954.2, subd. (a)(1).) The agenda must provide the public with an opportunity to address the legislative body on any item of interest, effectively barring the agency from acting on any item that does not appear on the agenda.

The City argued that the CEQA exemption did not need to be on the agena because it was not a separate item of business was not a separate item of business within the meaning of the Brown Act. Rather, the City argued, it adopted the CEQA exemption only as a component of the agenda item awarding the franchise agreement to Athens. The court rejected this argument and cited San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, which, although involving the adoption of a mitigated negative declaration (MND), the court determined applied here. The court reasoned that, because members of the public are entitled to have notice of, and an opportunity to participate in, a local agency’s determination that an MND should be issued, they are also entitled to participate when an agency determines a project is exempt from CEQA.

The Second District noted that applying the Brown Act’s notice requirements do not alter an agency’s existing obligations under CEQA, which does not require public noticing of exemptions to CEQA. Rather, the Act requires only that the exemption, if it is to be discussed at a meeting of a local legislative body, must be placed on the meeting agenda so that the public be provided an opportunity for comment.

The City had argued that applying the Brown Act to a CEQA exemption determination would place an intolerable burden on local agencies. The court disagreed. According to the court, where an agency’s legislative body intends to vote on or discuss a CEQA exemption at a regular meeting, “it will require minimal effort to include it as an agenda item.” And while the agency may delegate some responsibility to staff before rendering a decision, the court cautioned that agencies cannot delegate its entire duty as the final decisionmaker on a project—i.e., approving an exemption—to avoid its Brown Act obligations. Accordingly, the court concluded that “[t]he addition of words to the agenda indicating the local agency is considering a project subject to staff determination of CEQA exemption will not unduly tax a local agency’s resources.”

The Second District also rejected the City’s claim that Waste Management’s “cure and correct” letter, pursuant to Brown Act section 54960.1(b)), was deficient because it stated the City “adopted,” rather than “filed,” an NOE. Section 54960.1(b) requires a prospective litigant to state, in writing, the nature of the alleged violation. The court determined that Waste Management’s letter satisfied this obligation because it informed the City that it violated section 54954.2 by considering the CEQA exemption without describing the action in the agenda for at least 72 hours before the meeting. That the letter stated the City had “adopted” an NOE, versus using the proper term filing, was immaterial—the letter adequately stated the substantive point in regards to the Brown Act violation. The court reiterated that the purpose of the section is to notify the local agency of its alleged violation so that it can cure it to avoid litigation; its purpose is “not to allow a local agency to avoid the consequences of Brown Act violations by launching nit-picking technical attacks on the language use in the cure and correct letter.”

By Bridget McDonald

*RMM represented Petitioner G.I. Industries (aka, Waste Management) in this litigation.

Third District Court of Appeal Holds that the County Relied on the Incorrect Prior EIR in Subsequent Review for a Partial Road Abandonment

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On August 17, 2020, the Third Appellate District in Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569 reversed the trial court’s decision in part and found that Placer County abused its discretion when it approved a partial road abandonment because it relied on the incorrect prior EIR for its addendum and therefore could not accurately determine whether a supplemental or subsequent EIR was required. The court, however, affirmed the lower court’s rejection of the petitioners’ claim that baseline conditions should include the existing but disallowed use of the road along with other non-CEQA claims.

Background

In early 2005, the Placer County Board of Supervisors approved two residential developments and certified their final EIRs—the Martis Camp and the Retreat projects. Martis Camp consists of 650 homes on 2,200 acres just south of State Route (SR) 267 and west of Northstar ski resort. The Retreat consists of 18 homes on 31 acres just east of Martis Camp and within the larger Northstar development. The main roadway connecting Martis Camp to SR 267 is Schaffer Mill Road, a private street that dead-ends at Martis Camp’s southeastern shared boundary with the Retreat. On the other side of that boundary is Mill Site Road, a public road that ultimately connects to Northstar Drive and Northstar ski resort. As initially planned in the 2003 Martis Valley Community Plan, an emergency access roadway with gated access was constructed between Schafer Mill Road and Mill Site Road. The Martis Camp conditions of approval required the developer to construct  this emergency access roadway, provide the County with access for emergency and transit vehicle use, and place signage notifying traffic coming from Schafer Mill Road that the roadway and gate were for “Emergency Access Only.” The Retreat conditions of approval included construction of Mill Site Road and required Retreat property owners to fund road maintenance and snow removal services because such services represented a “‘special benefit’” to them as the sole approved users of the road. At some point around 2010, Martis Camp residents began regularly using Mill Site Road as a more direct route to Northstar in an effort to bypass SR 267. This use coincided with the Martis Camp developer replacing the manual gate with an automatic one that operated by transponder, issuing transponders to Martis Camp property owners, and removing emergency access signage. Retreat residents quickly complained to the County about this use, and in response the Director of the Community Development Resources Agency issued letters in 2011 and 2012 stating that Martis Camp residents have the right to use this road as “owners of property abutting a pubic roadway.” In 2013, Retreat property owners filed a lawsuit to enforce the prohibition on the use of Mill Site Road by Martis Camp residents. That litigation, separate from this case, resulted in the trial court sustaining the County’s demurrers, but on appeal, the court reversed and remanded for the trial court to consider the CEQA claims.

In 2014, Retreat residents petitioned the County to abandon its public road easement rights in Mill Site Road (and a nearby cul-de-sac) and dissolve the associated maintenance benefits. In 2015, the Board approved the petition requests by partially abandoning the road but reserving an easement for public transit and utility services as well as for emergency access and a multipurpose public trail. In approving the road abandonment, the County prepared, and the Board relied on, an addendum to the Martis Camp EIR. The County initially considered relying on the Retreat EIR, but concluded that the Martis Camp EIR was the appropriate environmental document for its subsequent CEQA review because road abandonment would, in effect, “restore traffic patterns to those that were envisioned by the Martis Camp project and analyzed in its EIR.” .

Martis Camp property owners and the Martis Camp Community Association (MCCA) filed petitions for writ of mandate challenging the County’s actions and alleged that the County violated CEQA when it improperly: (1) relied on an addendum to the Martis Camp EIR instead of the Retreat EIR; (2) prepared an addendum instead of a supplemental EIR; and (3) used a baseline that omitted existing use of the road by Martis Camp residents. Other non-CEQA claims alleged that the County violated statutory standards for abandoning Mill Site Road and violated the Brown Act by improperly modifying project conditions of approval without proper notice. Amended petitions asserted “causes of action for inverse condemnation.” After consolidating the two petitions, the trial court sustained without leave to amend a demurrer on the inverse condemnation claim for Martis Camp property owners, but overruled the demurer with respect to MCCA and bifurcated it from other claims. The trial court then denied all other claims. Petitioners appealed.

CEQA Claims

Discussed below, the Court of Appeal reversed the trial court as to the first and second CEQA claims and affirmed the third and remanded to the County for additional consideration.

Addendum Prepared for Wrong EIR: The court held that the County’s decision to prepare an addendum for the Martis Camp EIR was “not supported by substantial evidence” and that its failure to consider whether the abandonment of Mill Site Road would require major revisions to the Retreat EIR was a prejudicial abuse of discretion, largely because the road “was not part of the Martis Camp project; it was part of the Retreat project.” The County had argued that road abandonment was a change in circumstances surrounding the Martis Camp project such that further environmental review for that project was appropriately triggered. But, the court pointed out that only “a further discretionary decision” on a project triggers subsequent CEQA review and because Mill Site Road is not a part of the Martis Camp project, there was no related discretionary action. As further support, the court cited to the finding that conditions of approval “prohibited” Martis Camp residents from regularly using the road. The court did concede, however, that the County’s approach was “reasonable from the perspective of informed decisionmaking.” Nevertheless, the County “should have looked to the Retreat EIR” when assessing the need for further environmental review.

Supplement or Subsequent EIR May Be Required: The petitioners argued that the County should have prepared a supplemental or subsequent EIR for the Mill Site Road abandonment instead of just an addendum because of “more and severe environmental impacts by forcing Martis Camp residents to use SR 267 to reach Northstar.” The court agreed with the petitioners, but did not address the substance of this claim because of the County’s improper reliance on the Martis Camp EIR. Instead, it generally found that the County had “prejudicially abused its discretion” when it relied on the wrong EIR to conclude that no subsequent or supplemental EIR was required.

In Supplemental Review, “Baseline” is the Approved Project: The court rejected the petitioners’ claim that the baseline should have included the existing use of Mill Site Road by Martis Camp residents. Agreeing with respondents, the court found that the petitioners “are conflating” CEQA rules for initial project review under Public Resources Code section 21151 with rules for supplemental review under section 21166. To that end, the court ordered the matter remanded so that the County may first decide whether the applicable EIR “retains relevance despite changes to the project or its surrounding circumstances,” and then consider whether project changes “require major revisions” to the EIR due to “new significant environmental effects or a substantial increase in the severity of previously identified significant effects,” per Public Resource Code section 21166. If it is found that the road abandonment has “rendered the Retreat EIR irrelevant to the decisionmaking process,” then the County must “start from the beginning” under section 21151 and determine whether a new EIR is required.

Other Claims

As a threshold issue, the court concluded that MCCA’s pending, bifurcated inverse condemnation claim did not preclude it from appealing the denial of other claims because the “‘one final judgement’ rule” does not definitively apply when there are multiple parties in a lawsuit. The court then upheld the trial court’s dismissal of the Martis Camp property owners’ inverse condemnation claim and its denial of the remaining non-CEQA claims, discussed below.

No Inverse Condemnation: The crux of the petitioners’ argument was that they have “abutter’s rights to access Mill Site Road” and “by approving the abandonment…the market value of their properties” is reduced, thereby impairing their property rights and effectuating inverse condemnation. However, as noted by the court, Martis Camp property owners do not own property that physically abuts Mill Site Road from whence an inverse condemnation claim can be made. Moreover, any theoretical “nonexclusive easement” granted to Martis Camp residents in 2011/2012 by the Director of the Community Development Resources Agency “does not alter this result.” Therefore, the court affirmed the trial court’s dismissal of this claim.

Abandonment of Road Was Proper: The court started its analysis by noting that two standards of mandate review—ordinary (legislative) mandate and administrative mandate—have been used by courts to decide issue arising from road abandonment. Ordinary mandate is governed by Code of Civil Procedure section 1085 and applies to ministerial acts and quasi-judicial acts and decisions. Administrative mandate is governed by section 1094.5 and applies only to quasi-judicial decisions resulting from a proceeding where there was a hearing, evidence, and agency discretion “in the determination of facts.” Because “the outcome of this appeal would be the same under either standard, the court declined to “enter [the] debate” as to which standard applied. Thus, “for simplicity” it applied the “less deferential” administrative mandate standard that results in an abuse of discretion determination if an agency’s findings are not supported by “substantial evidence in light of the whole record.”

The petitioners argued that the County violated the California Streets and Highways Code when it abandoned Mill Site Road because it did not possess substantial evidence showing that the road was both unnecessary for public use and that abandonment is in the public interest, as is statutorily required. The petitioners then attempted to evidence the road’s public necessity with the fact that it was used regularly by Martis Camp residents and by the County’s choice to reserve emergency and public transit easements as a condition of abandonment. However, the court pointed out the mere “‘convenient’” use of a road does not make it necessary, and that Mill Site Road was “not planned, designed, or approved to accommodate that use.” Further, the court found no authority to support the notion that emergency and public transit easements denote the public necessity of a roadway. To the contrary, the court noted that the statute expressly authorizes “a legislative body to place conditions on abandonment” or to only partially abandon a roadway. The court also found that abandonment was in the public interest because, per the Board of Supervisors’ findings, it conformed with existing planning and environmental documents, protected “the integrity of the traffic management system,” and alleviated the County of the burden of road maintenance—all of which benefited the public.

No Brown Act Violation: The petitioners argued that the County violated the Brown Act when it approved the abandonment of the Mill Site Road because such abandonment altered conditions of approval established by the 2011/2012 letters from the Director of the Community Development Resources Agency and, therefore, should have been included on the agenda for the Board of Supervisor’s meeting per the Act’s noticing requirements. The trial court rejected this argument, and the Court of Appeal agreed, on grounds that the 2011/2012 letters do not override language in the conditions of approval for Martis Camp or the Retreat, which “did not contemplate Martis Camp residents using the emergency access road as a means of ingress and egress from the community.” Also, the court found that the Board was not bound by the Director’s prior enforcement decisions; therefore, the Board’s overruling of those enforcement decisions was not a “‘distinct item of business’” that required separate notice under the Brown Act.

Casey Shorrock

Second District Court of Appeal Holds Brown Act’s “Committee Exception” for Public Comments Does Not Apply to Special Meetings

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In Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925, the Second District Court of Appeal reversed the trial court’s determination that the “committee exception” to the public comment requirements of the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.) apply to special meetings.

Appellant addressed the city’s planning and land use committee (“PLUM Committee”), which is comprised of five members of the 15-member city council, regarding a proposed real estate development near his residence. The committee voted to recommend approval to the full city council. At a special meeting held to consider approval of the committee’s recommendation, the city council refused to allow the appellant to speak because he had already spoken on the matter.

The Second District Court of Appeal found the city’s process to be in error. Generally speaking, the Brown Act requires a legislative body to provide an opportunity for public comment before its consideration of an item. Section 54953.3, subdivision (a) of the Government Code provides for what is commonly referred to as the “committee exception” to this requirement. Under this exception, a legislative body is not required to hear public comment, if the item has already been considered by a committee where the public was afforded the opportunity for comment.

Using general rules of statutory construction, the court found that the plain language of the statute specifies that the committee exception applies only to regular meetings, not special meetings. The court also rejected the city’s interpretation that the required opportunity for public comment before a legislative body takes action at a special meeting includes comments made at a prior separate meeting. The court found that such an interpretation rendered the committee exception superfluous. Finally, the court found support for its interpretation in the legislative history of the Brown Act, which demonstrated that the Legislature had purposefully made a number of distinctions between the requirements of regular and special meetings.

Fifth District Court of Appeal Finds Violation of Brown Act

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The Fifth District Court of Appeal issued a decision in San Joaquin Raptor Rescue Center v. County of Merced (2013) __ Cal.App.4th__ (Case Nos. F064930 and F064675) on May 31, 2013. The case involved a challenge to a mitigated negative declaration (MND) adopted by the County of Merced for a project involving the division of three parcels totaling 380.45 acres into nine parcels of smaller size. The MND was approved at a meeting that did not reference the CEQA approval in the agenda. The court held that this omission from the agenda was a violation of the Brown Act.

Factual and Procedural Background

The County Planning Commission approved the proposed project and adopted the MND meeting in October 2009. The agenda for the meeting described the proposed subdivision application but made no mention that a CEQA document would be considered at the meeting. Petitioner San Joaquin Raptor Rescue Center sent a letter to the Commission objecting to approval of the MND because, they argued, the failure to mention a pending action on a CEQA document in the agenda violated the Brown Act. The Petitioner’s letter asked the commission to “cure or correct” the violation by rescinding certification of the MND. The Commission declined.

The Brown Act sets a 15-day statute of limitations following notice that a “cure or correct” request is denied. Petitioners filed a lawsuit in early November 2009 alleging both Brown Act and CEQA violations. The County demurred to the petition.

Concurrent to the litigation, the petitioner filed an administrative appeal to the County Board of Supervisors. The Board granted the appeal in January 2010. The Board directed the Commission to vacate its prior approval and hold a new meeting after issuing an agenda that conformed to the petitioner’s request. The Board explained that it was good policy to provide more information in public agendas but did not admit that the Commission actually violated the Brown Act.

Following the administrative appeal process, the Board filed a reply in support of its demurrer in February of 2010. This reply informed the court that the Board had granted the petitioner’s request for a new properly noticed meeting. The trial court overruled the demurrer, and oral arguments were held on the petition for writ of mandate.

Following the hearing on the merits, the trial court determined that a Brown Act violation had occurred but that it was cured and corrected. Similarly, the trial court held that while a CEQA violation occurred due to the notice for the public hearing listing the wrong date, the County’s decision to re-notice the action and re-certify the CEQA document mooted this claim. The trial court determined that the petitioner was the prevailing party based on the Brown Act attorneys’ fees and costs provision. The County appealed.

The Court of Appeal’s Decision

The Court of Appeal agreed with the trial court and held that the County Planning Commission’s agenda violated the Brown Act. The court reached this holding based on the language of the
Brown Act which requires that an agenda describe “each item of business to be transacted or discussed.” The court noted that this requirement is especially important for CEQA matters, since a public agency’s decision regarding a CEQA document “is always a matter of at least potential public interest since it would concern the local environmental effects of a proposed project.” The agenda’s reference to the Commission’s potential approval of the project application was insufficient to notify interested members of the public that the Commission would also be deciding whether to adopt a CEQA document. The Commission discussed and adopted a CEQA document at a meeting despite not describing this action in the meeting agenda—a violation of the Brown Act. Thus, the appellate court upheld the lower court’s finding that the petitioner was the prevailing party for purposes of costs and attorneys’ fees under the statute.