Archives: June 2013

First District Court of Appeal affirms trial court judgment upholding San Francisco’s certification of a mixed-use project EIR.

In a CEQA case originating in San Francisco, the First District Court of Appeal affirmed a trial court judgment denying a petition for writ of mandate and upholding an EIR certified by the city. The decision, Neighbors for Fair Planning v. City and County of San Francisco (2013) __Cal.App.4th__ (Case No. A135745), was filed on May 31, 2013 and recently ordered published.

Facts and Procedural Background

The real party in interest in this case, the Booker T. Washington Community Service Center (the Center), proposed demolition of the Center’s existing facility, which would be replaced by a mixed-use facility. This new facility would include 48 affordable housing units and an expanded and updated community center. The existing facility is a one-story building, while the proposed project would reach five stories.

The city planning department circulated a DEIR for the proposed project in June 2010. The project received both positive and negative comments. Numerous individuals and community groups objected to the project’s size, scope, and density, as well as the project’s visual impacts and effects on traffic and parking. To address concerns regarding the project’s visual character, the Center modified the project to break up its bulk into smaller components, reduce massing on the fifth story, and incorporate setbacks on the upper floors. The city certified the EIR and granted the Center a conditional use permit in April 2011.

The city upheld the EIR certification and use permit approval on plaintiff’s appeal. The city also approved an ordinance creating a special use district to increase allowable building height in the project area to 55 feet and density to 54 units.

The City did not violate CEQA by “preapproving” the project.

In the subsequent lawsuit, the petitioner (“Neighbors”) cited Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 in support of their argument that the city impermissibly “preapproved” the project in violation of CEQA. Specifically, the Neighbors asserted the city committed to approving the project prior to certification of the EIR. The appellate court noted that determining the appropriate timing for preparation of an EIR requires a balancing of competing factors. The CEQA Guidelines express these competing policies by recognizing legislative policy that: (1) CEQA should not be interpreted to require an EIR before a project is defined enough to facilitate meaningful review; and (2) CEQA should not be interpreted as allowing delay of EIR preparation beyond the point which it can serve its intended purposes—to inform and guide decision makers.

The general principle for balancing these two policies is described in the CEQA Guidelines: before conducting CEQA review, agencies must not “‘take any action’ that significantly furthers a project ‘in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.’” Courts have approached this principle by asking “whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features” in a way that precludes consideration of alternatives or mitigation measures that CEQA would otherwise require to be considered.

In this case, the Neighbors argued the city preapproved the project by improperly committing itself to the project and foreclosing consideration of all alternatives in 2010, when the Mayor’s Office of Housing “provided substantial funding for the project, signed commitments for millions of dollars, assigned numerous senior staff to the project, and coordinated and designed the project long before CEQA review was conducted.” Specifically, the Neighbors cited a pre-development loan agreement between the city and the Center that covered about 4% of the estimated project costs. A maximum disbursement of $550,000 was authorized prior to the completing of CEQA review. These funds were to cover predevelopment activities, such as survey and appraisal preparation, preparation of environmental studies, CEQA and NEPA review, and other expenses. The loan also described terms of repayment. It even explicitly stated that the city was not committing itself to the project.

The appellate court was not convinced by the Neighbors’ argument. Under the loan agreement, the project remained subject to review by the city, and the city’s financial support of the project extended only to exploratory and development costs recognized in Sava Tara not to require CEQA review. Further, the Center was required to repay the loan whether or not the project was approved. Finally, the city’s support of the low-income aspect of the project was only a single factor to be considered under Sava Tara and not tantamount to project approval.

The Neighbors also argued that the city preapproved the project based on adoption of the special use district ordinance allowing increased height and density. The court rejected this argument. Essentially, the Neighbors argued that the introduction of the ordinance constituted legislative action and therefore project approval under CEQA. But approval of the ordinance occurred two months after the EIR for the project was certified.

Finally, the Neighbors argued the city preapproved the project based on commitment of city staff resources and public comments by the Mayor’s Office of Housing. The appellate court was not persuaded by this evidence, stating that a supervisor’s advocacy for a project, an email from a non-profit soliciting support for the project, and a publication by the Center were insufficient to indicate the City improperly committed to the project prior to CEQA review.

The EIR prepared for the project was sufficient.

Challenging the substance of the EIR itself, the Neighbors first argued the EIR was inadequate because it relied on an improper baseline. The Neighbors pointed to one figure in the draft EIR that incorrectly identified all two-story buildings in the immediate project vicinity as three-story buildings. But the court found the DEIR as a whole adequately described the surrounding vicinity and, specifically, the heights of adjacent buildings. Further, a corrected version of the figure was included in the Final EIR certified by the Board of Supervisors, so informed decision making was not thwarted.

The Neighbors also argued the EIR was deficient for failing to evaluate relocating the Center’s existing facility to a new site as project alternative. But the court noted that the CEQA Guidelines do not require analysis of an off-site alternative in every case. The court held that the city reasonably determined, with analysis supported by substantial evidence, that it would not be feasible to relocate the Center away from the community it had historically served to an unidentified location, especially in light of the Center’s non-profit status and limited means for acquiring alternate property.

The City properly rejected a code-compliant alternative and properly issued the conditional use permit.

The Neighbors further argued the City’s rejection of a “code compliant” alternative was unsupported by substantial evidence. This alternative would reduce the number of affordable housing units from 48 to 30. The city determined this would cause the project to run an annual deficit that would need to be subsidized by the city. The Mayor’s Office of Housing testified that sound public policy supported construction of financially self-sustaining developments that would create more affordable housing units without additional public funds. Further, if the city were required to subsidize this project, it would have less funding available for other affordable housing projects. The court found these and other points to be well-established in the administrative record. Substantial evidence supported the city’s decision to reject the code-compliant alternative.

The Neighbors also argued the city’s findings that the project was necessary and desirable for, and consistent with, the neighborhood was unsupported by substantial evidence under section 303 of the San Francisco Planning Code. The record demonstrated that the city considered both the immediate neighborhood and its broader vicinity and found that the project would not be detrimental to the public health, safety, and welfare or adversely affect the General Plan. The city further found that the project was necessary or desirable because it would continue and expand upon services provided by the Center, particularly for at-risk emancipated foster youth. The findings were supported by substantial evidence, and the court found no merit in the Neighbors’ argument.

The project was consistent with the General Plan.

Lastly, the Neighbors argued that the project is inconsistent with the San Francisco General Plan because “it is incompatible with, and fails to preserve, the existing neighborhood character.” The standard of review for consistency findings is an arbitrary and capricious standard of review. Further, policies in general plans often reflect a range of competing interests that the governmental agency must weigh and balance when applying to legislative actions. Precise conformity is not required, just compatibility. The city made explicit findings that the project was consistent with various objectives and policies, including findings regarding the project’s scale and design—the Neighbors’ primary concern.  These findings were sufficient, and the court declined the invitation to second-guess the city’s determination.

Claims Dismissed in Tahoe Regional Plan Update Challenge

On June 17, 2013, the U.S. District Court for the Eastern District of California dismissed one federal claim and all state claims in Sierra Club and Friends of the West Shore v. Tahoe Regional Planning Agency and ordered Plaintiffs to pay for the production of the administrative record. The case involves a challenge to the Regional Plan Update approved by the Tahoe Regional Planning Agency (“TRPA”) on December 12, 2012.  TRPA had moved to dismiss the complaint for failure to prosecute, moved to dismiss all state law claims, and moved to dismiss two of the federal causes of action included in the Complaint.  TRPA moved to dismiss for failure to prosecute because Plaintiffs refused to pay for the costs associated with the production of the administrative record as required under the TRPA Rules of Procedure.  The court rejected Plaintiffs’ challenges to the validity of the administrative record provisions in the TRPA Rules of Procedure.  Rather than dismissing the entire case, the court held that the Plaintiffs were required to pay the costs to produce the record within 15 days of the court’s ruling.  The court also held that the Plaintiffs could not bring state law claims against TRPA or seek attorney’s fees under California law because the Congressional consent transformed the Tahoe Regional Planning Compact (“Compact”) into federal law. Finally, the court held that the Plaintiffs did not have standing to bring one of their federal claims, which challenged the provision of the Regional Plan Update that allowed the TRPA to delegate permitting of certain projects to local governments through Area Plans. The court held Plaintiffs lacked standing to pursue this claim because no delegation had occurred and thus there was no injury to the Plaintiffs. Although the remainder of the federal claims will proceed, the court’s ruling represents a substantial step forward for TRPA and the Regional Plan Update. Remy Moose Manley, LLP partners Whitman F. Manley and Howard F. Wilkins represent the TRPA along with TRPA attorneys John L. Marshall and Scott Lichtig. See TRPA’s press release for more information.

Third District Court of Appeal Holds Siskiyou County Does Not Have Exclusive Jurisdiction Over Scott River Groundwater Public Trust Doctrine Case and that Sacramento Venue is Proper

The Third District Court of Appeal issued its decision in County of Siskiyou v. Superior Court (2013) __Cal.App.4th__ (Case No. C067252) on June 13, 2013. The court denied Siskiyou’s petition for writ of mandate, which challenged the trial court’s decision on issues of exclusive jurisdiction and change of venue.


In the underlying action, real parties in interest—Environmental Law Foundation, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources—filed a petition for writ of mandate in Sacramento County. Real parties sought to halt the issuance of well-drilling permits, alleging Siskiyou and the State Water Resources Control Board (Board) failed to manage specific groundwater resources interconnected with the Scott River in a manner consistent with the public trust doctrine. They argued that Siskiyou and the Board’s failure to protect and manage public trust resources was harming the Scott River as well as its fish and wildlife populations. Real parties limited their prayer for relief to “groundwater not previously adjudicated within the Scott River sub-basin,” recognizing a 1980 Siskiyou County Superior Court decree that adjudicated water rights in the Scott River and reserved jurisdiction to review and modify the decree in the interests of justice. Real parties asserted that the 1980 decree did not extend to groundwater at least 500 feet from the Scott River. Real parties also argued venue was proper under Code of Civil Procedure section 401, subdivision (a) because the Board, a state agency, may be tried where the Attorney General has an office.

Siskiyou demurred to the petition, claiming that the Siskiyou Superior Court had exclusive jurisdiction to hear the case under the 1980 decree. Siskiyou argued that the 1980 decree “expressly applies to all interconnected groundwater . . . including interconnected groundwater located more than 500 feet from the river.” Siskiyou stated that the Siskiyou Superior Court had exclusive jurisdiction in this case because a public trust claim would require the Board and County to regulate the same groundwater resources that are subject to the 1980 decree.

In the alternative, Siskiyou moved to transfer venue to the Siskiyou Superior Court under section 392. Siskiyou asserted that that under section 392 the superior court where real property is located is the proper venue for issues pertaining to a right or interest in real property. Siskiyou interpreted Civil Code sections 658 and 662 to define groundwater as real property under section 392. Siskiyou therefore argued that section 392 applied to the underlying case because the parties’ petition implicated an interest in groundwater, and thus an interest in real property.

The trial court overruled the demurrer, holding that the real parties’ petition did not seek to adjudicate groundwater rights specifically identified in the 1980 decree. It also denied the change of venue, holding section 392 did not apply because the petition alleged injury to usufructuary water rights, not injury to real property.

Claim of Exclusive Concurrent Jurisdiction

On appeal, Siskiyou argued that exclusive concurrent jurisdiction applies when two actions relate to the same subject matter. It further argued that the real parties’ petition to apply the public trust doctrine to groundwater interconnected to groundwater of the Scott River related to the same subject matter as the 1980 decree. Siskiyou claimed the parties’ petition would affect the rights of groundwater users in the 1980 decree.

The Court of Appeal stated there are two limits to exclusive concurrent jurisdiction. Matters in the latter case must be “necessarily related” to the first, and issues in the cases must be “substantially the same.” The court held that the parties’ claim was not a matter necessarily related to the 1980 decree — there was no evidence that the 1980 decree considered the public trust doctrine. The court likewise stated that the issues were not substantially the same. The parties’ petition argued that the Board and Siskiyou have authority under the public trust doctrine to protect public trust resources, while the 1980 decree determined water rights to groundwater interconnected with the Scott River. Finally, the court noted that “the rule of exclusive concurrent jurisdiction is a rule of policy, and countervailing policies may make the rule inapplicable.” Thus, the court held Siskiyou did not have exclusive jurisdiction.

Request to Transfer Venue

On appeal, Siskiyou argued that the trial court erred in finding water is not real property within the meaning of section 392, but rather a usufructuary right, and it cited several cases holding that water is a part of the land. Siskiyou also reasserted that the parties’ petition implicated an interest in property whereby section 392 controlled proper venue. The court found two problems with Siskiyou’s analysis of section 392. The court noted that under section 401, venue was proper in Sacramento and that Siskiyou failed to cite authority for the proposition that section 392 takes precedence over other venue statutes. Second, the court pointed out that section 392 is limited to specific types of actions involving real property. The court distinguished actions listed under section 392 from the issue of whether the Board had authority to apply the public trust doctrine to the interconnected groundwater. The court clarified that the parties’ petition did not affect the rights of individual water rights holders. Thus, the court denied Siskiyou’s petition for writ of mandate.

The decision is available at

Delta Stewardship Council faces numerous lawsuits challenging its certification of an EIR for the Delta Plan

The California State Legislature created the Delta Stewardship Council in 2009 by enacting SBX7 1, the Delta Reform Act. The Council’s primary mission is to adopt a comprehensive management plan for the Sacramento-San Joaquin Delta (the “Delta Plan”) that achieves the “coequal goals” of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.

In developing its recently adopted Delta Plan, the Council was required to prepare an Environmental Impact Report (EIR). The Council published a notice of preparation in December 2010 indicating that it would prepare a programmatic EIR to evaluate the potential environmental impacts of the proposed Delta Plan.

An EIR was required under CEQA because the Delta Plan could have significant environmental effects relating to the binding regulatory policies included within the Plan. The Council will not directly construct, own, or operate facilities in the Delta, or directly undertake any other specific activities to implement the Delta Plan, so adoption of the Plan would not result in direct physical changes to the environment. But adoption of the plan could indirectly cause such changes by influencing the decisions and actions of other agencies. The EIR focused on these potential indirect impacts.

Preparation of the EIR involved an extensive drafting and public review process. Numerous public workshops and hearings were held, culminating in nearly 100 public meetings, and many draft documents were circulated to the public. Five draft versions of the Delta plan were released between 2010 and 2011, with a final draft released in 2012. The Draft PEIR for the Delta Plan was circulated in 2011, and recirculated in 2012. A final EIR responding to public comments was certified by the Council at its May 16-17, 2013 meeting.

Despite the extensive public review process, multiple interest groups have challenged the Council’s certification of the EIR in court. Following certification of the EIR, the Council published a notice of determination, which starts a 30-day statute of limitations in which to bring a suit under CEQA. By the close of this limitations period, seven lawsuits had been filed in various courts challenging the adequacy of the EIR.

Three lawsuits were filed in the Sacramento County Superior Court. The San Luis & Delta-Mendota Water Authority and Westlands Water District filed a petition alleging numerous causes of action under CEQA and also alleging that the Council violated the Delta Reform Act. A second lawsuit was filed by the State Water Contractors, who were joined by various flood control and water districts. This suit also alleges similar violations of CEQA, such as inadequate mitigation measures and inadequate responses to comments and claims that the Delta Plan is inconsistent with the Delta Reform Act. A third suit was filed by the North Coast Rivers Alliance, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and the Winnemem Wintu. Again, this suit included numerous allegations of CEQA violations, as well as violations of the Delta Reform Act.

The City of Stockton filed suit against the Council in San Joaquin County Superior Court. This suit alleges the EIR violated CEQA for numerous reasons and that the Delta Plan and regulations adopted by the Council conflict with state law and vested rights created by statutory and common law.

The three remaining suits were filed in the San Francisco County Superior Court. These included a suit by a new interest group, Save the California Delta Alliance, and a suit brought by the California Water Impact Network, Friends of the River, California Sportsfishing Protection Alliance, and Center for Biological Diversity, among others. The final petition was brought by in-Delta interests, including the Central Delta and South Delta Water Agencies, and local agencies of the north Delta. These suits too allege numerous violations of CEQA.

The plethora of suits against the Delta Council implicates upcoming procedural hurdles in the litigation over the Delta Plan and Delta Plan PEIR. First, the cases will likely need to be at least partially consolidated, so they may be tried before a single judge based on a single administrative record. And second, the preparation of the administrative record itself may be a hurdle because some petitioners have elected to prepare the record themselves, while others have requested that the agency prepare the record. In short, the filing of these seven lawsuits indicates that the Council will have to travel down a long and litigious road in order to implement the Delta Plan as directed by the State Legislature.

Federal Surface Transportation Board Approves Construction of Fresno-to-Merced HSR Project

On June 13, 2013, in a 2-1 decision, the federal Surface Transportation Board (“the Board”) granted the California High-Speed Rail Authority (“the Authority”) an exemption from the prior approval requirements granted to the Board by 49 U.S.C. § 10901, removing the final regulatory hurdle for the construction of the Fresno to Merced segment (“the Project”). The Board previously determined that it had jurisdiction over the intrastate project due to the connectivity between the high-speed train and Amtrak. In this decision, the Board decided to adopt the environmental review document prepared by the Authority and the Federal Railroad Administration rather than conduct its own environmental review. The result is that the Authority is now authorized by the federal government to construct the first 65 miles of track effective June 28, 2013.

On March 27, 2013, the Authority filed a petition for exemption and motion to dismiss for lack of jurisdiction. In the motion to dismiss, the Authority claimed that the Project did not require Board approval because it was located entirely within California, served only California cities,  and thus was not “part of the interstate rail network” under 49 U.S.C. § 10501(a)(2)(A). On April 18, 2013, the Board denied the motion to dismiss, citing the number of proposed HSR stations that were at or adjacent to current Amtrak stations. Additionally, the Board focused on the integral role that Amtrak’s San Joaquin line will play in the Authority’s new “blended” approach, which involves using and upgrading existing rail line during the construction of the system. Some of those existing lines, like the San Joaquin, belong to Amtrak.

Because the Board has jurisdiction over the high-speed rail system, no construction could begin on the Fresno-to-Merced segment until it authorized the Project. The Board usually chooses to conduct an environmental review on par with an EIS for rail construction projects. CEQ regulations, however, allow federal agencies to adopt the environmental documents prepared by another federal agency. On April 12, 2013, the Board’s Office of Environmental Analysis (OEA) recommended that the Board adopt the final EIS/EIR prepared by the Authority and the Federal Railroad Administration (FRA) because of the thorough, “hard look” environmental analysis the project had already received.

The Board, after addressing comments it received from opponents of the exemption, decided to adopt the OEA’s recommendation. The Board cited the overall intent of the exemption statute: “unless there is a good reason for full regulation, we should be looking toward exemption or relaxation of unneeded regulatory burdens.” The Board noted, however, that only the first 65 miles were authorized because that was all that had been subjected to environmental review. And the exemption was only granted if the Authority constructed the FRA-designated environmentally-preferable alternative and complied with the mitigation measures imposed by the FRA and the memorandum of agreement to preserve historic places.

The one dissenting Board member, Vice Chairman Begeman, believed a more thorough examination of the project was warranted because of the large amount of taxpayer dollars that were used to fund the project. The Project’s financial information was not discussed in the EIR/EIS, though it was discussed in the Authority’s 2012 Business Plan. The Vice Chairman was concerned that the decision set a precedent of streamlined review for future high-speed rail projects.

The full decision is available at$file/43070.pdf

Sixth District Court of Appeal Remands for Further Review Trial Court Decision Invalidating City’s Inclusionary Housing Ordinance.

In California Building Industry Association v. City of San Jose (2013) __Cal.App.4th__ (Case No. H038563) the Sixth District Court of Appeal rejected the strict standard of review applied by a trial court decision finding the City of San Jose’s inclusionary housing ordinance invalid and remanded the matter to the trial court for further consideration under a more deferential standard of review. This ordinance required developers of housing projects to construct affordable housing or otherwise pay an in-lieu fee.

Factual and Procedural Background

The state Legislature, in the Housing Accountability Act, emphasized the need for affordable housing to address a severe state-wide shortage. The act places the responsibility of facilitating the provision of affordable housing on local governments and directs that general plans include a “housing element.”

In January 2010, the City of San Jose addressed this state policy by adopting Ordinance No. 28689, the Inclusionary Housing Ordinance, which required residential developments of 20 or more units to reserve 15 percent of the units for purchase at below-market rate. The requirement could also be satisfied by constructing affordable housing on different sites at specified percentages. The ordinance also offered incentives for affordable housing units constructed on the same sites as market-rate units. Finally, developers could instead pay an in-lieu fee to satisfy the ordinance, with collected fees being directed to the City’s Affordable Housing Fee Fund.

The California Building Industry Association (CBIA) challenged the ordinance. In July 2012, a trial court declared the ordinance invalid and enjoined the City from enforcing it until the City could provide an evidentiary showing to demonstrate justification for the ordinance and a reasonable relationship between exactions and impacts caused by new residential development. The City appealed.

The Court of Appeal’s Decision

The primary issue on appeal involved the appropriate standard of review for the court to apply to the City’s challenged ordinance. The City argued that the CBIA relied on the wrong standard of review. The City characterized the ordinance as a land use regulation adopted pursuant to the City’s police power. Such ordinances must be upheld as valid if the terms “are reasonably related to purposes protecting or advancing the public welfare” subject to an arbitrary and capricious standard of review.

CBIA argued for stricter review of the ordinance because, in their opinion, it imposed an exaction that was neither a zoning ordinance nor a regulation of the use of property. Since the exaction, such as payment of an in-lieu fee or dedication and conveyance of property for public purposes, constituted a compelled transfer of property, the CBIA argued the ordinance required stricter scrutiny review, similar to that applied in takings cases.

The appellate court sided with the City, characterizing the ordinance as an exercise of the City’s police power with the express purpose of enhancing the public welfare by establishing affordable housing policies. The court emphasized that the ordinance was not enacted for the purpose of mitigating housing loss caused by new residential development, which could implicate a different standard of review.

The court cautioned that a municipality’s police power is not unlimited, and it declined to accept the City’s stated goals without further review of the record. Since the trial court formerly applied the incorrect standard of review, the Court of Appeal remanded the matter to the trial court to consider evidence offered by CBIA under the proper standard of review: whether the ordinance has a real and substantial relation to the public welfare supported by basis in fact.

Fifth District Court of Appeal Finds Violation of Brown Act

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.