Court of Appeal:
By a MetNews Staff Writer
The Thousand Oaks City Council violated the Ralph M. Brown Act when, in awarding a solid waste management contract, it made a separate determination that there was no need for an environmental impact report, Div. Six of the Court of Appeal for this district has held.
Its opinion, filed Wednesday, reverses a judgment of dismissal that was entered after Ventura Superior Court Judge Ronda McKaig sustained a demurrer without leave to amend to a petition for a writ of mandate filed by G.I. Industries, doing business as Waste Management (“WM”). That company had been providing the services to the city that were now to be shifted to Arakelian Enterprises, Inc. doing business as Athens Services.
The petitioner contests the determination by city lawmakers that the California Environmental Quality Act (“CEQA”) does not apply to the project, arguing that they so proclaimed improperly because there was no notice by agenda, posted 72 hours before the meeting, that they would consider the matter. This, WM asserts, violated the Brown Act which sets forth in Government Code §54954.2(a)(1):
“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session….”
‘Item of Business’
A determination that a CEQA exemption applies, Presiding Justice Arthur Gilbert said in Wednesday’s opinion, is an “item of business.” His opinion rejects the city’s contention, accepted by McKaig, that it was in compliance with the Brown Act because it set forth in the agenda, posted on March 4, 2021, that it would be considering at its March 9 meeting the award of the contract to Athens and whether there was a CEQA exemption was merely a matter to be taken into account in making the decision.
(At 3:30 p.m. on the day of the hearing the city indicated in a supplemental agenda that the staff had recommended that the council find the project to be exempt from CEQA requirements.)
Also spurned was McKaig’s reasoning that notice by agenda was not required because the CEQA does not call for a public hearing before an agency concludes that an environmental impact study is not needed.
McKaig said, in sustaining a demurrer to WM’s petition:
“For agencies faced with projects that have CEQA implications, the agency is required to first determine whether a project is exempt from CEQA. The CEQA statutes specifically carve out this initial determination from other public notice requirements, making clear that no public notice, hearing or comment are required for an initial determination that a project is CEQA-exempt. This carve-out does not insulate the decision from public review. If proper public notice that a CEQA exemption determination has been made occurs by means other than the filing of a notice of exemption, there is a 180-day period for objectors to assert legal challenges, during which objectors must exhaust their administrative remedies.”
The judge related that he could find no published decision discussing the interplay between the Brown Act and the CEQA exemption. He opined:
“Under the CEQA statutes, in conducting a preliminary review of a project, a public agency is required to determine whether a particular activity is exempt from CEQA….As a result, this preliminary determination appears to be more a ‘mere component of project approval’ than a distinct item of business.”
The judge went on to declare:
“While the Court understands Plaintiff’s argument that the CEQA statutes should not trump public disclosure requirements of the Brown Act, the Court is hard-pressed to understand how else these statutes can be reconciled. To make an initial determination that a project is CEQA-exempt, an action must be taken. Actions are taken at public meetings (or closed sessions of public meetings). Under Plaintiff’s reading of the statutes, the public notice carve-out for CEQA exemption determinations is meaningless. The Court is not convinced that Plaintiff’s interpretation is correct If the CEQA statutes place the burden of making the exemption determination on the public agencies, certainly the CEQA statutes can dictate whether public notice of the decision is required.”
Gilbert commented that the Brown Act is “supported” by Art. I, §3(b) of the California Constitution, which says:
“(1) The People have the right of access to information concerning the conduct of the People’s business, and, therefore, the meetings of public bodies and writings of public officials and agencies shall be open to public scrutiny.
“(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the People’s right of access, and narrowly construed if it limits the right of access.”
The presiding justice wrote:
“We are required by the California Constitution to broadly construe the Brown Act to further the People’s right to access to the conduct of the People’s business….We would be remiss in that duty if we narrowly interpreted the Brown Act….”
He said that “a determination that a project is exempt from CEQA” is an aspect “of the People’s business.”
Another finding under the CEQA, a “mitigated negative declaration,” Gilbert noted, was held in a 2013 decision by the Fifth District Court of Appeal in San Joaquin Raptor Rescue Center v. County of Merced to constitute a separate item of business.
“Here the trial court agreed that the CEQA exemption was a separate item of business,” Gilbert wrote. “It follows that the City violated the Brown Act by adopting the exemption without having listed it as an item on its agenda for at least 72 hours.”
Line of Cases
Gilbert went on to say:
“The City relies on a line of cases that hold CEQA does not require a public hearing for a determination that a project is exempt….The cases discuss only CEQA. They do not discuss whether the Brown Act applies. A case is not authority for issues it does not consider.”
“A finding that a project is exempt from CEQA is not a minor matter. Such a finding forecloses any analysis of the project’s environmental impact.”
Unnecessary Public Discussion
While initially hinting that if the City Council had simply approved the contract with Athens on the assumption, based on a determination by staff and by the city attorney, that an environmental impact study was not required, there would have been no problem, the opinion then declares:
“Where a local agency at a regular meeting approves a project that is subject to a staff’s determination of a CEQA exemption, it must give notice of the CEQA exemption on its agenda. The addition of words to the agenda indicating the local agency is considering a project subject to staff determination of CEQA exemption will not unduly tax a local agency’s resources.”
As to what is to be done now, Gilbert said:
“We leave it to the trial court to fashion the appropriate remedy in the first instance should WM prove its case.”
The case is G.I. Industries v. City of Thousand Oaks, 2022 S.O.S. 5482.
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