69 Cal.App.5th 1
Cal. Ct. App.2021Background
- Placer County posted an agenda (Nov. 9, 2016) stating the Board would consider certifying the EIR and approving the Development Agreement that the Planning Commission recommended; the recommended Development Agreement was made available when the agenda was posted.
- The California Attorney General raised late concerns about in-basin vehicle impacts; Squaw Valley Real Estate and the AG reached an agreement Nov. 14 that added a TRPA mitigation-fee provision (about $440,862) to the Development Agreement.
- County counsel emailed the revised Development Agreement and a Schwab memorandum to the County clerk at 5:36 p.m. on Nov. 14; the clerk placed copies in the clerk’s office (which was closed after hours) and emailed the materials to Board members at 5:42 p.m.
- At the Nov. 15 Board meeting the public saw only the revised agreement (and the Board approved it); Sierra Watch learned of the revision too late and claimed Brown Act violations.
- Sierra Watch sued alleging violations of (1) §54957.5 (making writings distributed <72 hours before a meeting available for public inspection at the time of distribution) and (2) §54954.2 (posting an agenda that accurately describes items to be transacted); the trial court rejected both claims and Sierra Watch appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a writing distributed <72 hours before a meeting must be actually available for public inspection at the time of distribution under §54957.5 | Sierra Watch: statute requires actual availability to the public at the time of distribution; placing the writing in a closed office after hours does not comply | County: placing the writing in the designated public office at the time of distribution satisfies the statute even if the office is closed | Court: §54957.5 requires actual availability at the time of distribution; placing documents in a closed office after hours did not comply and thus violated §54957.5 (remedies limited to declaratory/injunctive relief) |
| Whether the Board’s agenda violated §54954.2 by failing to disclose that the Board would consider a materially revised Development Agreement (the TRPA-fee insertion) | Sierra Watch: agenda was misleading because it indicated the Board would consider the Planning Commission’s recommended agreement, not a materially revised version; the TRPA provision was a substantial, undisclosed change | County: agenda adequately described the item as the Development Agreement; Board may accept/modify the Planning Commission’s recommendation and the change was minor | Court: agenda was misleading because it indicated consideration of the specific agreement recommended by the Planning Commission but the Board in fact considered only a materially revised agreement; however, Sierra Watch failed to show prejudice required to void the Board’s approvals, so nullification was denied while declaratory and injunctive relief is appropriate |
Key Cases Cited
- Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315 (1975) (agenda fatally misleading where governing body adopted a plan that differed radically from plans presented)
- Hernandez v. Town of Apple Valley, 7 Cal.App.5th 194 (2017) (Brown Act violation where an agenda did not disclose a separate, important item later approved at the meeting)
- San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal.App.4th 1167 (2013) (approving a CEQA document at a meeting when it wasn’t on the agenda violates Brown Act notice requirements)
- Common Cause v. Board of Supervisors, 49 Cal.3d 432 (1989) (distinction in statutory interpretation between mandatory 'shall' and permissive 'may')
- Fowler v. City of Lafayette, 46 Cal.App.5th 360 (2020) (a plaintiff seeking to nullify action under Brown Act must show prejudice)
- Galbiso v. Orosi Public Utility Dist., 182 Cal.App.4th 652 (2010) (prejudice analysis examines whether public was deprived of a fair opportunity to participate)