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Appellate Court Clarifies Agenda Requirements Under Brown Act

On May 31, in San Joaquin Raptor Rescue Center v. County of Merced, the Fifth District Court of Appeal issued an opinion holding that the Merced County Planning Commission violated the Brown Act by failing to post a sufficiently specific agenda prior to consideration of a subdivision proposal.  The Commission posted an agenda for its meeting that included the potential approval of a development proposal.  However, the agenda did not specify that the Commission would consider whether or not to adopt a CEQA mitigated negative declaration concerning the environmental impact of the project.  At the meeting, the Commission approved the subdivision project and adopted the mitigated negative declaration by separate motion.

The San Joaquin Raptor Rescue Center filed a petition for writ of mandate against the County challenging both motions for violation of the Brown Act.  Under the Act, a legislative body must post, at least 72 hours before a regular meeting, an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.  The Center also filed an administrative appeal with the Board of Supervisors which directed the Commission to vacate its approval of the project and hold a new meeting after issuing an agenda with the mitigated negative declaration specifically listed.

The trial court found that a Brown Act violation had occurred and been cured and corrected, and it awarded the Center attorneys’ fees and costs.  The appellate court agreed and upheld the fee award, holding that the adoption of the mitigated negative declaration 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.

This decision reaffirms the importance of agendas that include sufficient specificity.  While each individual agenda item need only include a “brief general description” of the item, an agenda must at least mention each separate matter to be considered.  As in this case, courts will look to whether the policy of the Brown Act to facilitate public participation is fulfilled, and they may award fees and costs to a successful petitioner, even if an agenda item is renoticed and properly voted on at a subsequent meeting.