To Comply With The Brown Act, Consideration Of A CEQA Document Must Be Listed As A Separate Agenda Item From Consideration Of Project Approval

A county planning commission posted a meeting agenda that included an item on a potential approval of a subdivision application.  At the meeting, the commission not only approved the subdivision, it also approved a Mitigated Negative Declaration (“MND”) for the project, an action that had not been publicly noticed on the agenda.  Two organizations filed a lawsuit, claiming a violation of open meeting laws.  The trial court agreed, finding that the Brown Act was violated by the failure to list the MND consideration on the agenda.  The court of appeal affirmed.  (San Joaquin Raptor Rescue Center v. County of Merced (— Cal.Rptr.3d —-, Cal.App. 5 Dist., May 31, 2013).


The Merced County Planning Commission posted an agenda that listed as an item of business consideration of the approval of a subdivision application.  The agenda omitted a related item:  the Commission’s consideration of whether to adopt an environmental document for the project under the California Environmental Quality Act (“CEQA”).  At the meeting, the Commission approved the subdivision and, under a separate motion and vote, also adopted an (MND), a document that states that a project, based on planned mitigation, will not have a significant impact on the environment.

Subsequently, two organizations, San Joaquin Raptor Rescue Center and Protect Our Water (“San Joaquin Raptor”) filed a petition for writ of mandate to set aside the project approval and the MND adoption on the grounds that the failure to place the MND consideration on the Commission’s meeting agenda violated the agenda requirements of the Brown Act.  The trial court found that a Brown Act violation had occurred, and that San Joaquin Raptor should receive an award of costs and attorney fees as provided in the Brown Act.


The Fifth District Court of Appeal affirmed the trial court’s ruling that the Planning Commission violated the Brown Act by failing to notify the public in its agenda that it would consider adoption of the MND.  The appellate court rejected the County’s argument that the agenda’s listing of the consideration of the project approval was sufficient because the public would have impliedly understood that environmental documents would be likely to be considered at the same time.  Instead, the court emphasized that the Brown Act requires a public meeting agenda to describe “each item of business to be transacted or discussed,” and the MND adoption was a “distinct item of business” from the project approval because it involved separate issues from the approval:  compliance with CEQA and the project’s environmental impact.

The appellate court noted that to rule otherwise would allow controversial matters to be decided without full public notice, hampering the Brown Act’s goals of avoiding hidden decisionmaking and promoting public participation in government.  The appellate court also observed that the Brown Act required only a “brief general description” that “generally need not exceed 20 words” and that the Commission could have avoided violating the Brown Act “by simply adding a few words, such as ‘and consider adoption of a mitigated negative declaration’ regarding the project.”


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