The Merced County Planning Commission (the Commission) posted an agenda for an upcoming meeting that set forth, as one item of business, the Commission’s potential approval of a subdivision application to divide 380.45 acres into nine parcels (the project). The agenda failed to mention that the Commission would also be considering whether to adopt a California Environmental Quality Act (CEQA) mitigated negative declaration (MND). At the meeting, the Commission approved the project and adopted the MND. San Joaquin Raptor Rescue Center and Protect Our Water filed a petition for writ of mandate against the County of Merced and the Commission (together the County) 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 and failed to comply with the CEQA notice provision.
In a partially published decision, San Joaquin Raptor Rescue v. County of Merced (May 2013) 2013 Cal.App.LEXIS 431, the Fifth District Court of Appeal held the Commission’s failure to mention the consideration of the CEQA document on the agenda violated the Brown Act. The Brown Act requires the legislative body of a local agency to post before a regular meeting, “an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting . . .” and “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda . . . .” (§ 54954.2, subd. (a)(1)-(2).) The court held the consideration of whether to adopt a MND was a distinct “item of business” and not a mere component of the underlying project approval. The court based its determination on two factors. First, the MND adoption involved a separate action or determination by the Commission. Second, the MND adoption concerned discrete, significant issues of CEQA compliance and the project’s environmental impact. Because the CEQA adoption was a distinct “item of business” the failure to expressly disclose it on the agenda was a violation of the Brown Act. It was not sufficient for the agency to merely reference the project in general.
The County argued the agenda requirements of the Brown Act were satisfied because the public could implicitly understand that CEQA documents, if any, would likely be considered at the same time of the project approval. The court disagreed, explaining that nothing in CEQA prevents an agency from holding a separate hearing on a CEQA document and then approving the project at a later meeting.
The County also argued the inclusion of CEQA documents in meeting agendas would make the agendas lengthy, cumbersome, and no longer useful. The court disagreed, explaining a brief, general statement indicating the public agency would be considering the adoption or certification of a CEQA document would not be lengthy or cumbersome. However, even if it were, the Brown Act would require it.
In further support of its holding the court explained “a public agency’s decision to adopt or certify a CEQA document . . . is always a matter of at least potential public interest . . .,” motivating members of the public to participate in the decision making process. The purpose of the Brown Act is to facilitate public participation. Thus, the County violated the Brown Act when it failed to disclose in its meeting agenda that it would be considering approval of a CEQA document.
The court of appeal addressed the CEQA cause of action in an unpublished portion of the case.
Key Point: The adoption of a CEQA document, such as a mitigated negative declaration, is a distinct “item of business” from the approval of an underlying project because it involves a separate action or determination by the agency, and it concerns significant issues of CEQA compliance. The failure to expressly disclose it on a meeting agenda was found to violate the Brown Act.