Opinion requiring local agency to give notice on meeting agenda of CEQA exemption determined by staff is no longer binding precedent, but some CEQA actions must still be agendized
On February 15, 2023, the California Supreme Court invalidated and ordered depublished an opinion of the Second District Court of Appeal in G.I. Industries v. City of Thousand Oaks, which held that a local agency violated the Brown Act when it failed to give notice of a CEQA exemption on its regular meeting agenda. As a result, the lower court’s opinion is no longer binding precedent and may not be cited or relied on by a court or a party in any other lawsuit. However, this does not mean local public agencies are off the hook under the Brown Act when it comes to giving notice of CEQA actions on their meeting agendas.
The case arose out of a trash hauling contract. The City of Thousand Oaks (City) posted an agenda stating it would consider awarding a solid waste franchise agreement to Arakelian Enterprises, Inc., doing business as Athens Services, along with a note that City staff recommended approval. The agenda did not state that the City would also consider whether the agreement was exempt from CEQA. On the date of the City Council meeting, a supplemental item was posted giving notice of staff’s recommendation that the City find the agreement exempt from CEQA. The City Council moved to approve the franchise agreement, including in that motion that the approval was exempt under various CEQA exemptions.
G.I. Industries, doing business as Waste Management, filed a writ of mandate alleging that the City violated Brown Act section 54954.2 because the City failed to provide notice through its posted agenda that the CEQA exemptions would be considered at the City Council meeting. The trial court ruled for the City. The Court of Appeal reversed, holding that to comply with the Brown Act, where a local agency at a regular meeting approves a project that is subject to staff’s determination of a CEQA exemption, the local agency must give notice of the CEQA exemption on its agenda. The California Supreme Court ordered the Court of Appeal opinion depublished and, although the opinion still applies to the City’s dispute, depublication removes the opinion’s precedential value and renders it non-existent for purposes of other disputes.
This does not mean that public agencies are off the hook under the Brown Act when it comes to noticing CEQA actions on their meeting agendas. The Court of Appeal’s decision was an extension of precedent, which is still good law. For example, San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 held that a planning commission’s adoption of a CEQA mitigated negative declaration (MND) violated the Brown Act because the agenda did not mention that the commission would be considering the MND’s adoption. As an individual item of business, the MND had to be expressly disclosed on the commission’s agenda. For Brown Act purposes, it was not sufficient for the agenda merely to reference the project for which the MND had been prepared. San Joaquin Raptor is still binding on California’s trial courts. Also, there are other reasons under CEQA, such as exhaustion of administrative remedies, where it may be advisable to include information regarding exemptions in the agenda.
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