CEQA Findings of Exemptions Must be Included on Public Meeting Agendas

The Court of Appeal (Second District) recently issued a decision clarifying that the Brown Act requires that CEQA decisions (including discussing or voting on CEQA exemptions) must be listed as an item of business on the meeting agenda at least 72 hours prior to the meeting.  (See G.I. Industries v. City of Thousand Oaks, 2d Civ. No. B317201, October 26, 2022 (G.I. Industries).)

The issue in G.I. Industries was that the City of Thousand Oaks had agendized for its regular City Council meeting consideration of an award of a new exclusive solid waste management franchise agreement.  The posted agenda for the meeting did not indicate that the City would be considering whether the franchise agreement was exempt from CEQA.  At the meeting, the motion was amended to not only approve the franchise agreement, but to also include a finding that the franchise agreement was exempt from CEQA.  The meeting minutes indicated these were two separate actions.  The City voted to adopt the exemption findings and filed a Notice of Exemption.

G.I. Industries, the City’s prior waste management provider, filed a writ of mandate alleging the City violated the Brown Act because it failed to provide notice through its posted agenda that CEQA exemptions would be considered at the City Council meeting.  The trial court ruled in favor of the City, concluding that because CEQA does not require a public hearing for an exemption determination, the Brown Act does not require that an exemption be agendized.  The Court of Appeal reversed.

The Court of Appeal determined that the City violated the Brown Act because “the CEQA exemption involved a separate action or determination by the City and concerned discrete significant issues of CEQA compliance.”  Under the Brown Act, meeting agendas for local agencies must include a description of each item of business to be considered at a meeting at least 72 hours prior to that meeting.  The Court found the fact that CEQA exemption determinations need not be made at a public meeting was irrelevant, and that if the matter is discussed at all during such meeting, the Brown Act’s agenda requirements apply. The Court relied on the earlier decision in San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, which determined that the City’s adoption of a Mitigated Negative Declaration was improper when not included on the agenda as a separate action from the project approval, holding “the Brown Act clearly and unambiguously states that an agenda shall describe ‘each item of business to be transacted or discussed’ at the meeting.  (§ 54954.2, subd. (a)(1).”  As explained in G.I. Industries, an agenda can merely state “the local agency is considering a project subject to staff determination of CEQA [compliance].”

This case expands both the requirements under the Brown Act and procedural requirements of CEQA.  Public agencies must now post distinct CEQA-related decisions discussed at public meetings on meeting agendas to avoid a Brown Act violation.