Failure To Separately Notice Consideration Of CEQA Document Violates Brown Act

by Sheppard Mullin Richter & Hampton LLP
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In San Joaquin Raptor Rescue Center v. County of Merced, the California Court of Appeal for the Fifth District held that the Merced County Planning Commission violated the Brown Act by adopting a CEQA mitigated negative declaration without specifically noticing it on the Commission’s agenda. The agenda had indicated consideration of a subdivision application, but the court found consideration of the MND accompanying the application to be a separate action requiring separate notice under the Brown Act. However, the court rejected the plaintiffs’ CEQA notice violation claims because plaintiffs had failed to exhaust their administrative remedies.

FACTUAL AND PROCEDURAL BACKGROUND

The agenda described a potential approval, disapproval, or modification of a subdivision application. The agenda did not mention the MND, and when it was adopted by separate motion, the plaintiffs objected on Brown Act notice grounds only. When the Commission denied their objection, plaintiffs appealed to the Board of Supervisors.

While their appeal was pending, the plaintiffs also filed suit, seeking reversal of the project’s approval and alleging that the adoption of the MND violated both Brown Act and CEQA notice requirements. The County demurred, claiming adequate notice as a matter of law to both complaints, and failure to exhaust administrative remedies on the CEQA claim.

While the demurrer proceedings were pending, the Board granted plaintiffs’ administrative appeal. The Board refused to admit a Brown Act violation, but directed the Commission to provide more information to improve public notice. In light of the Board’s ruling, the Commission scheduled another hearing. The County also filed a reply to plaintiffs’ opposition to its demurrer, arguing that the rehearing would cure the notice violations. After the demurrer hearing took place but before the court ruled on the demurrer, the Commission conducted the rescheduled hearing, this time including proper notification regarding the subdivision and the MND. The Commission reconsidered and re-adopted both.

Plaintiffs then filed a motion in the demurrer proceeding for a judicial determination that the notice violations had been cured and corrected by the Commission’s re-notification, reconsideration, and re-approval. The County opposed the motion, apparently concerned that such a determination might entitle the plaintiffs to an award of attorney’s fees. The trial court denied the motion and overruled the County’s demurrer.

SEPARATE NOTICE REQUIRED FOR CONSIDERATION OF CEQA DOCUMENTS

The court held that the MND was a separate item of business because it required discrete action by the Commission and concerned distinct issues about the project’s environmental impact and CEQA compliance. In other words, the MND and subdivision were separate actions because adoption of one did not automatically trigger adoption of the other, and it was important that the public be fully informed when CEQA documents were being considered. The court rejected the County’s argument that notice regarding the subdivision implicitly informed the public about the MND, holding that a general reference to the subdivision was not sufficient to meet the notice requirements under the Brown Act for the MND.

The court also affirmed the trial court’s decision overruling the County’s demurrer on the Brown Act claim. The court did so because in its reply papers, the County had reversed its position on plaintiffs’ “cured and corrected” argument, and the County had not taken the curative measures by the time of the demurrer hearing.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

On plaintiffs’ claim that the County had violated CEQA notice provisions, the court determined that the trial court shouldn’t have reached the merits because plaintiffs had failed to exhaust their administrative remedies before seeking judicial relief. The plaintiffs had filed their action while their administrative appeal was still pending, which provided an opportunity to raise the CEQA notice violation. Therefore, the trial court should have sustained the County’s demurrer. However, the court concluded the issue was now moot and did not overturn the trial court’s dismissal.

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