216 Cal. App. 4th 1167
Cal. Ct. App.
2013

SAN JOAQUIN RAPTOR RESCUE CENTER et al., Plaintiffs and Respondents, v. COUNTY OF MERCED et al., Defendants and Appellants; WILLIAM MORRIS, Real Party in Interest and Respondent.

No. F064930, No. F064675

Court of Appeal, Fifth District, California

May 31, 2013

1167

[CERTIFIED FOR PARTIAL PUBLICATION*]

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III., IV. and V.

COUNSEL

James N. Fincher, County Counsel, and Michael P. Calabrese, Deputy County Counsel, for Defendants and Appellants.

Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch for Plaintiffs and Respondents.

No appearance for Real Party in Interest and Respondent.

OPINION

KANE, J.—The Ralph M. Brown Act (Gov. Code,1 § 54950 et seq.; hereafter the Brown Act) requires, among other things, that the legislative body of a local agency shall post, at least 72 hours before a regular meeting, “an agenda

containing a brief general description of each item of business to be transacted or discussed at the meeting . . . .” (§ 54954.2, subd. (a)(1).) The same section of the Brown Act adds that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda . . . .” (§ 54954.2, subd. (a)(2).) In the present case,2 the Merced County Planning Commission (the Commission) posted an agenda that set forth, as one item of business for its upcoming meeting, the Commission‘s potential approval of a subdivision application submitted by William Morris to divide 380.45 acres into nine parcels (the project). The agenda, however, failed to mention that the Commission would also be considering whether or not to adopt a CEQA3 document known as a mitigated negative declaration (MND) concerning the environmental impact of the project. At the meeting, the Commission approved the project and adopted the MND. Thereafter, San Joaquin Raptor Rescue Center and Protect Our Water (petitioners) filed a petition for writ of mandate against the County of Merced and the Commission (together the County)4 seeking to set aside the approval of the project and the adoption of the MND on the ground that the Commission‘s adoption of the MND violated the agenda requirements of the Brown Act. Petitioners also alleged, as a separate cause of action, that the County failed to comply with a CEQA notice provision. Although the trial court eventually dismissed the Brown Act cause of action under the “cure and correct” provisions of that statute (see § 54960.1, subd. (e)), it found that a violation had occurred and that petitioners were entitled to an award of costs and attorney fees under section 54960.5. The County now appeals from the judgment, arguing that the agenda requirement was satisfied because the public would have implicitly understood that CEQA documents, if any, would likely be considered at the time of the project‘s approval. We disagree. As more fully explained herein, we conclude that the Brown Act was violated in this case because the Commission took action on the MND when that matter was not expressly disclosed on the meeting agenda. Accordingly, we affirm that portion of the judgment based on the Brown Act violation.5

FACTS AND PROCEDURAL BACKGROUND

The Public Meetings, Agendas and Actions Taken

The agenda issued by the Commission for its October 14, 2009, meeting included the following item of business: “V. . . . MINOR SUBDIVISION APPLICATION No. MS07-030—William Morris—To divide three parcels totaling 380.45 acres into nine parcels, ranging from 40.00 acres to 54.72 acres in size. The project site is located at the southwest corner of American Avenue and Mitchell Road in the Hilmar area. The property is designated Agricultural land use in the General Plan and zoned A-1 (General Agricultural). THE ACTION REQUESTED IS TO APPROVE, DISAPPROVE OR MODIFY THE APPLICATION. JH.” No further description of this item of business was provided. No mention was made in the agenda that the Commission would also be considering the adoption of an MND in connection with the project. At the October 14, 2009, meeting, the Commission approved the proposed project and, by separate motion, adopted the MND.

On October 19, 2009, petitioners sent a letter to the County objecting to the Commission‘s approval of the MND since “there was no mention [in the agenda] of consideration of a CEQA document of any kind.” The letter stated that such action violated the Brown Act and asked the Commission to “cure and correct”6 the violation by rescinding the approval of the project and the adoption of the MND. The Commission, at its meeting held on October 28, 2009, denied the request to cure or correct the alleged violation.

On October 19, 2009, petitioners administratively appealed the Commission‘s approval of the project to the Board of Supervisors of Merced County (Board of Supervisors).

On January 26, 2010, the Board of Supervisors granted petitioners’ administrative appeal. The Board of Supervisors directed the Commission to vacate its approval of the project and to hold a new meeting to readdress whether to approve the project and the MND after first issuing a new agenda in conformity with petitioners’ request that the MND be expressly specified on the agenda. In granting the appeal, the Board of Supervisors did not admit

that the Commission‘s actions violated the Brown Act but indicated that it was good policy for the Commission to provide more information to the public in its agendas, in accordance with petitioners’ request, even though arguably not required by the Brown Act.7

On February 10, 2010, the Commission complied with the Board of Supervisor‘s directive. The agenda for the Commission‘s February 10, 2010, meeting expressly listed the MND as an item of business along with the potential approval of the project. The Commission then heard the matter again, readopted the MND and reapproved the project.8

The Litigation

Pursuant to statutory deadline, a lawsuit to set aside or nullify the actions of a legislative body based on alleged violations of the Brown Act must be filed within 15 days after notice that a “cure or correct” request was denied by that body. (§ 54960.1, subd. (c)(3).) Here, as noted above, petitioners’ cure or correct request was denied by the Commission on October 28, 2009.

On November 12, 2009, petitioners commenced their lawsuit against the County by filing a petition for writ of mandate seeking to have the approval of the project and adoption of the MND set aside. The petition alleged that a violation of the Brown Act had occurred because the agenda for the Commission‘s October 14, 2009, meeting failed to mention that it would be considering the adoption of an MND concerning the project. Thus, the Commission took action at the meeting on a matter that was not included on the agenda, which allegedly was in direct violation of section 54954.2.

The petition also included a separate cause of action for an alleged violation of a CEQA notice provision. The CEQA claim alleged that the

County “did not provide sufficient or timely notice to the public of the intent to adopt the [MND] for the [p]roject under Public Resources Code section 21092 and 14 Cal. Code Regs. section 15072.”

On December 24, 2009, the County demurred to the petition. The demurrer alleged that the petition failed to state a cause of action because (1) the Commission‘s agenda complied with the requirements of the Brown Act as a matter of law; (2) petitioners and others were given adequate notice under CEQA provisions, therefore no CEQA violation occurred; and (3) petitioners failed to exhaust administrative remedies with respect to the CEQA cause of action. Petitioners opposed the demurrer, arguing the causes of action were sufficiently stated and that the exhaustion of remedies defense should not be applied to the CEQA claim since it was more efficient to file both causes of action together and the Brown Act claim had a short statutory deadline.

The County filed a reply in support of its demurrer on February 2, 2010. The reply informed the trial court that the Board of Supervisors granted petitioners’ administrative appeal: “The [B]oard [of Supervisors] recently heard petitioners’ administrative appeal, on January 26, 2010, and ordered the [C]ommission to rehear the [p]roject with direction that the [C]ommission, purely as a matter of sound policy, conform the format of its agenda descriptions to those of the [B]oard [of Supervisors] and include from now on the type of CEQA document before the [C]ommission.” According to the County‘s reply, the trial court was required to dismiss the Brown Act claim since the alleged violations were “cured or corrected” pursuant to the provisions of section 54960.1, subdivision (e).

The hearing on the demurrer was held on February 9, 2010, and following oral argument the trial court took the matter under submission. On March 22, 2010, the trial court overruled the demurrers. The trial court‘s order did not expressly rule on the alleged failure to exhaust administrative remedies (as to the CEQA claim) and did not address the issue raised in the County‘s reply that the Brown Act claim should be dismissed under section 54960.1, subdivision (e).

On August 6, 2010, in an ironic reversal of positions, petitioners moved for a judicial determination that the alleged Brown Act violations were “cured and corrected” under section 54960.1, subdivision (c), based on the fact that on February 10, 2010, at the direction of the Board of Supervisors, the Commission had rescinded the approval of the project and the adoption of the

MND, renoticed those matters by a new agenda that expressly stated the MND would be considered, and then proceeded to reapprove the project and readopt the MND. The County opposed the motion, even though it had previously requested such a ruling. The County was apparently concerned that if it conceded the matter was cured or corrected, that might leave room for petitioners to argue in a future attorney fees motion that there was a Brown Act violation, which the County adamantly denied.9 The trial court denied petitioners’ motion.

On June 28, 2011, the trial court heard oral argument on the merits of the petition for writ of mandate. On October 20, 2011, the trial court ruled on the petition, finding as follows on the Brown Act causes of action: “[T]his court finds a Brown Act [v]iolation did occur that was cured and corrected. The agenda item for the [p]roject did include a brief general description of the project, but not of all action items that were to be taken. The fact a MND was under consideration for certification is an action item that should have been included on the agenda. The Board [of Supervisors] rescinded the approval and directed the . . . Commission to include the CEQA decision on the [a]genda, thus curing and correcting the previous Brown Act violation on February 20, 2010. The [Brown Act] cause of action is dismissed with prejudice. Government Code § 54960.1[, subdivision] (e).”

As to the separate CEQA cause of action, the trial court found: “[A] CEQA [v]iolation did occur because the Notice did not give the correct date of the public hearing. However, said alleged CEQA violation [is] moot because the . . . Commission‘s action, rescinding the approval of the project and MND, re-noticing the meeting, re-certifying the CEQA document and re-approving the [p]roject cured and corrected the alleged CEQA violation. Therefore, the [CEQA] Cause of Action is dismissed as moot.”

Following this ruling but before entry of judgment, a dispute ensued as to which party was the prevailing party for purposes of recovery of statutory costs and attorney fees. The trial court issued what it called an order on judgment in which it found, based on the Brown Act attorney fees and cost provision (§ 54960.5), that petitioners had prevailed in their lawsuit under the Brown Act and were entitled to an award of costs and attorney fees under that section. The trial court noted that the County had consistently denied that the Brown Act had been violated; hence, petitioners’ lawsuit was necessary to

resolve the issue and to prevent a recurrence. Judgment was entered in petitioners’ favor.

The County appealed from the judgment.

DISCUSSION

I. Standard of Review

Ordinarily, “[o]n appeal following a trial court‘s decision on a petition for a writ of mandate, the reviewing court “‘need only review the record to determine whether the trial court‘s findings are supported by substantial evidence.“’ [Citation.] However, we review questions of law independently. [Citation.]” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.) Where, as here, an appeal involves the application of a statute to undisputed facts, our review is de novo. (Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8; Alliance for a Better Downtown Millbrae v. Wade, supra, at p. 129.) Additionally, statutory construction is a question of law requiring our independent review. (Botello v. Shell Oil Co. (1991) 229 Cal.App.3d 1130, 1134.)

II. The Trial Court Correctly Found a Brown Act Violation

A. Overview of the Brown Act

The Brown Act, one of California‘s open meeting laws, provides, among other things, that “[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.” (§ 54953, subd. (a).) The Brown Act begins with a forceful declaration of the Legislature‘s purpose: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people‘s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [¶] The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (§ 54950.)

To accomplish these vital goals, the Brown Act, inter alia, (1) requires that an agenda be posted at least 72 hours before a regular meeting and (2) forbids action on any item not on that agenda. (§ 54954.2, subd. (a)(1) & (2); Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868 (Epstein).) In this way, ” ‘[the] [Brown] Act . . . serves to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies. [Citation.]’ [Citation.]” (Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313, 1321-1322.)

The section of the Brown Act requiring an agenda for regular meetings states more fully as follows: “At least 72 hours before a regular meeting, the legislative body of the local agency,10 or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency‘s Internet Web site, if the local agency has one . . . .” (§ 54954.2, subd. (a)(1).)11 This agenda requirement acts as a limitation on what the public body is authorized to do at the meeting, because the statute further states that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda . . . .” (§ 54954.2, subd. (a)(2).)12

B. The Agenda Requirement of the Brown Act Was Violated

Applying the agenda requirement of the Brown Act to the undisputed facts of this case, we have no difficulty concluding that the Commission violated that requirement. The Brown Act clearly and unambiguously states that an agenda shall describe “each item of business to be transacted or

discussed” at the meeting. (§ 54954.2, subd. (a)(1), italics added.) Here, the Commission failed to disclose in its agenda that it would be considering the adoption of the MND at its October 14, 2009, meeting. The adoption of the MND was plainly a distinct item of business, and not a mere component of project approval, since it (1) involved a separate action or determination by the Commission13 and (2) concerned discrete, significant issues of CEQA compliance and the project‘s environmental impact.14 As an individual item of business, it had to be expressly disclosed on the agenda; it was not sufficient for the agenda to merely reference the project in general.

Because the Commission discussed and adopted the MND at its October 14, 2009, meeting even though that matter was not set forth on the meeting agenda, it violated the Brown Act. (§ 54954.2, subd. (a)(1) & (2).)

We are further persuaded of the correctness of this conclusion by the fact that a public agency‘s decision whether to adopt or certify a CEQA document (such as a negative declaration, MND or an EIR) is always a matter of at least potential public interest since it would concern the local environmental effects of a proposed project.15 Such issues often motivate members of the public to participate in the process and have their voices heard. Of course, that is exactly what the Brown Act seeks to facilitate. Its

purposes include ensuring that the public is adequately notified of what will be addressed at a meeting in order to facilitate public participation and avoid secret legislation or decisionmaking. (§ 54950; Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, supra, 112 Cal.App.4th at pp. 1321-1322.) Those purposes would be impaired if a public agency could refuse to disclose in its meeting agenda that it will be considering approval of a CEQA document. Such an approach would allow a potentially controversial issue to be quietly proposed and decided without having to open the discussion to meaningful public input.16 That is one of the evils the Brown Act was designed to prevent. (§ 54950; see Epstein, supra, 87 Cal.App.4th at p. 869 [the Brown Act is construed liberally to accomplish its remedial purposes].)

As should be apparent, we also reject the County‘s argument that the agenda‘s reference to another item of business—the Commission‘s potential approval of the project—somehow provided enough information to the public. Even assuming for the sake of argument that a person could have speculated from what appeared on the agenda (i.e., the project‘s approval) that the adoption of the MND might possibly be considered at the meeting, that would not make the agenda legally adequate. The Brown Act mandates that each item of business be described on the agenda, not left to speculation or surmise.17 And, as we have concluded herein, the Commission‘s adoption of the MND was a distinct item of business that had to appear on the agenda before it could be discussed and decided. Nor is the County helped by the fact that the statute only requires “a brief general description” of each item of business (§ 54954.2, subd. (a)(1)), since the agenda in question did not mention the MND in even the most general terms. Moreover, contrary to the County‘s position that the agenda adequately alerted the public, it seems more likely to us that the net effect of the approach taken by the Commission would be to mislead (not inform) the public about what items of business would be addressed at the meeting, due to the material omission of the MND from the agenda. (See, e.g., Moreno v. City of King (2005) 127 Cal.App.4th 17, 26 [an agenda stating ” ‘Public Employee (employment contract)’ ” was inadequate to describe the fact that a particular employee‘s dismissal would be discussed]; Carlson v. Paradise Unified Sch.

Dist. (1971) 18 Cal.App.3d 196, 200 [under Ed. Code provisions, an agenda describing the subject matter of a meeting was inadequate and misleading where a vital part of the proposed actions—the school‘s “closure“—was left out].)

Finally, we reject the County‘s policy argument that the inclusion of CEQA documents in meeting agendas will make the agendas so lengthy and cumbersome that they will no longer be useful. We do not believe that a brief, general statement to the effect that the public agency will be considering the adoption or certification of a CEQA document would have that result. Here, for example, the Commission could easily have complied with the agenda requirement by simply adding a few words, such as “and consider adoption of a mitigated negative declaration,” regarding the project. In any event, even assuming the County is correct that agendas disclosing CEQA documents as items of business are more cumbersome, we would still be required to apply the Brown Act in accordance with its clear terms, as we have done.

We hold that the trial court correctly decided the Brown Act was violated in this case based on the Commission‘s failure to comply with the agenda requirements set forth in section 54954.2, subdivision (a)(1) and (2). As part of its judgment, the trial court also determined that petitioners were prevailing parties and were entitled to recover costs of suit under the Brown Act in an amount to be determined. As to the trial court‘s discretion to award statutory costs and attorney fees, former section 54960.5 stated that a “court may award court costs and reasonable attorney fees to the plaintiff [s] in an action brought pursuant to Section 54960 or 54960.1 where it is found that a legislative body of the local agency has violated [the Brown Act].” In light of our holding that the Brown Act was violated, we reject the County‘s argument that it was the true prevailing party under section 54960.5. Rather, the trial court correctly held that petitioners prevailed and were entitled to bring a motion for such fees and costs. However, inasmuch as the trial court‘s subsequent order awarding attorney fees and costs under section 54960.5 is not before us in the present appeal, but is the subject of a separate appeal, we do not venture beyond what we have stated here concerning that matter.18

III.—V.*

*See footnote, ante, page 1167.

DISPOSITION

The portion of the judgment in case No. F064930 addressing the CEQA cause of action is modified to vacate the finding on the merits of that claim. The judgments are affirmed in all other respects. Costs on appeal are awarded to petitioners.

Levy, Acting P. J., and Cornell, J., concurred.

Notes

1
Unless otherwise indicated, all further statutory references are to the Government Code.
2
We refer to case No. F064930 as “this” case or as the “present” case in our main discussion of the issues. We address a related and virtually identical case, No. F064675, at the end of our main discussion herein, in a more summary fashion. By prior order, we have consolidated cases Nos. F064930 and F064675. There is a third related case also before us, San Joaquin Raptor Rescue Center v. County of Merced (May 31, 2013, No. F064931) (nonpub. opn.), but we have not consolidated it herewith and that case will be addressed in a separate opinion.
3
An abbreviation of the California Environmental Quality Act, found at Public Resources Code section 21000 et seq.
4
We frequently refer to the Commission separately in our discussion, even though the Commission is an agency of the County and not a separate entity.
5
We will correct the portion of the judgment that was based on the alleged CEQA violation, since a failure to exhaust administrative remedies (raised by the County on demurrer) precluded the trial court‘s consideration of the merits of that cause of action.
6
Before a lawsuit may be filed to set aside actions taken in violation of certain provisions of the Brown Act, the interested person must send a demand to the legislative body that it “cure or correct” the actions. (§ 54960.1, subd. (b).)
7
The minutes of the January 26, 2010, meeting of the Board of Supervisors, at which the administrative appeal was granted, included the statement of County Counsel James Fincher that although no violation of the Brown Act occurred, it would be good policy to go beyond what is required and do the utmost to keep the public informed. It was also noted that when the Board of Supervisors considered such issues at its meetings, CEQA documents were always expressly specified in the Board of Supervisor‘s agendas, thus it made sense to have the Commission follow the same practice.
8
The Commission‘s action at the February 10, 2010, meeting included rescinding both the prior approval of the project and the adoption of the MND, then reapproving and readopting same. The minutes reflect that these actions were taken based on the “policy direction” given to the Commission by the Board of Supervisors on January 26, 2010.
9
Under the relevant provision of the Brown Act, the mere fact that a legislative body takes a subsequent action to cure or correct an action previously taken “shall not be construed or admissible as evidence of a violation of this chapter.” (§ 54960.1, subd. (f).)
10
A ” ‘local agency’ ” includes a city or county “or any board, commission or agency thereof . . . .” (§ 54951.) A ” legislative body ” includes “[t]he governing body of a local agency” and “[a] commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.” (§ 54952, subds. (a) & (b).) There is no question that the Commission comes within these broad definitions.
11
The provision regarding use of the local agency‘s Internet Web site is new. (Stats. 2011, ch. 692, § 8.) That newly added language is not relevant to any issue in the present appeal but is set forth here to show the most current version of the statute.
12
A few limited exceptions to this rule are set forth in section 54954.2, subdivisions (a)(2) and (b).
13
The adoption of an MND must be based upon a determination by a public agency as to the environmental impact of a project. (See Pub. Resources Code, §§ 21080, subds. (c) & (d), 21080.1, subd. (a).) In essence, the adoption of an MND means the public agency has determined that the project, as revised or mitigated, would have no significant effect on the environment and thus an environmental impact report (EIR) is unnecessary. (Pub. Resources Code, § 21080, subds. (c) & (d).) The minutes of the Commission‘s meeting of October 14, 2009, reflect that the MND was approved, with the required CEQA findings, by a separate motion and vote of the Commission.
14
A ” ‘negative declaration’ ” means “a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report.” (Pub. Resources Code, § 21064.) A ” ‘mitigated negative declaration’ ” means “a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (Pub. Resources Code, § 21064.5.)
15
CEQA has its own notice statute that comes into play when a public agency proposes to adopt a negative declaration or certify an EIR. (Pub. Resources Code, § 21092, subd. (a).) However, contrary to the County‘s unsupported argument, nothing in the CEQA notice provision would relieve the County of having to comply with the Brown Act concerning meeting agendas. Additionally, although a notice of intent (NOI) to adopt a mitigated negative declaration was issued by the County in July 2009, it contained an erroneous hearing date.
16
Additionally, CEQA contains short, mandatory statute of limitations and rigorous exhaustion requirements (see, e.g., Pub. Resources Code, §§ 21167 & 21177), which make the County‘s approach even more detrimental in this particular context.
17
Furthermore, it does not appear to us that the consideration of a project necessarily means, in every case, that a CEQA document will be considered at that same meeting. For example, nothing in CEQA prevents an agency from holding a separate hearing on the CEQA document and then approving the underlying project at a later meeting. Additionally, if a project was found to be exempt, there may not be a CEQA document at all.
18
That separate appeal by the County is San Joaquin Raptor Rescue Center v. County of Merced (Apr. 26, 2013, No. F066060, app. dism.).
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