In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act. (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) ___ Cal.App.4th ___, 2013 WL 2378584.) Key points of the published portion of the opinion include:
- The Brown Act, which is liberally construed to accomplish its remedial purposes of facilitating public participation and open local agency meetings and decisionmaking, requires a local agency’s legislative body (broadly defined to include planning and other commissions) to post an agenda at least 72 hours before regular meetings (Gov. Code, § 54954.2(a)(1)); the Act also prohibits the body from discussing or taking action on any item of business not appearing on the agenda. (§ 54954.2(a)(2).)
- The Brown Act’s current version provides the agenda’s requisite “brief general description” of each “item of business … generally need not exceed 20 words” and that the agenda “shall” specify the regular meeting’s time and location and “be posted in a location … freely accessible to … the public and on the local agency’s Internet Web site, if [it] has one ….” (§ 54954.2(a)(1).)
- The trial court correctly ruled the Planning Commission’s “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 Commission and (2) concerned discrete, significant issues of CEQA compliance and the project’s environmental impact.” According to the Court of Appeal, “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.”
- The Court rejected County’s argument that the agenda’s reference to another, related item of business – potential approval of the subdivision project – provided the requisite information to the public. While a member of the public might have speculated that adoption of the MND might possibly have been considered at the meeting, the Brown Act mandates that each item of business be described, “not left to speculation or surmise.” Moreover, “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.”
- The Court also rejected County’s argument that requiring inclusion of CEQA documents in meeting agendas would make them unduly lengthy and cumbersome; a few added words such as “and consider adoption of a mitigated negative declaration” would have sufficed, and in any event the Brown Act’s requirements must be enforced notwithstanding any “cumbersome” effect.
- Because the trial court correctly ruled the Planning Commission’s agenda violated the Brown Act, it also correctly found petitioners prevailed in their Brown Act action and were entitled to move for their reasonable fees and costs as prevailing parties.
The Court of Appeal’s decision is undoubtedly correct, and it clarifies the requirements of the Brown Act in the CEQA context for the benefit of public agencies and members of the public alike. It also calls attention to an area where CEQA could be reformed. While nothing in CEQA expressly requires the agency’s decision on the environmental document to be considered at the same hearing as the hearing on the project approval, perhaps it should. Holding separate hearings on CEQA documents and project approvals is potentially confusing (particularly with regard to when agency actions become final and subject to challenge) and bad public policy. While CEQA itself does not require public hearings, the CEQA Guidelines already encourage coordination of environmental review with consideration of project approval so that the CEQA process proceeds concurrently with, rather than consecutively and separately from, the project approval process. (See 14Cal. Code Regs., § 15004(c).) Since CEQA’s standing requirements currently also allow environmental concerns to be raised to the public agency outside the public comment period and at any time prior to the close of the public hearing on the project (Pub. Resources Code, § 21177(a),(b)), it could make some sense to require concurrent consideration of the CEQA document and project approval at the same public hearing/s where feasible – and, indeed, that appears to be the usual, and least confusing, practice followed by most public agencies.