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.