United States: Court Rules CEQA Determinations Must Be Included On Public Meeting Agendas

California's Second District Court of Appeal recently issued an important decision clarifying that the Ralph M. Brown Act applies to CEQA decisions, including CEQA exemption determinations, discussed or voted upon during the regular meetings of the legislative bodies of local agencies, meaning that such items of business must be listed on those meeting agendas at least 72 hours prior to the meeting. (G.I. Industries v. City of Thousand Oaks, 2d Civ. No. B317201, October 26, 2022.)

In March of 2021, the City of Thousand Oaks posted an agenda for its regular City Council meeting in which it was stated that the City would consider awarding a new exclusive solid waste management franchise agreement. During the meeting, the City Council adopted an amended motion that not only approved the franchise agreement, but also included a finding that entering into the franchise agreement was exempt from CEQA. The meeting minutes indicated that these were two separate actions. Based on their vote to adopt the exemption findings, the City then filed a Notice of Exemption.

At no point did the posted agenda for the meeting indicate that the City would be considering whether the agreement was exempt from CEQA, and the City only updated the agenda on the day of the meeting to include a staff report recommending exemption from CEQA (under the "existing facilities," "common sense," and "actions by regulatory agencies for the protection of the environment" exemptions).

Plaintiff, the City's previous waste management franchisee, alleged that the City Council's vote regarding the CEQA exemption had violated the Brown Act. After the City failed to respond to Plaintiff's "cure and correct" letter, Plaintiff petitioned for a writ of mandate. The trial court ruled in favor of the City, reasoning that the Brown Act was inapplicable to determinations that do not require a public hearing, such as CEQA exemption determinations. Plaintiff appealed and the Second District Court of Appeal reversed.

Under the Brown Act, meeting agendas for the legislative bodies of 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. In G.I. Industries, the Court held that the City's determination that the project was exempt from CEQA was a separate item of business discussed during the meeting and that the Brown Act thus applied to that item because it was "a separate action or determination by the City and concerned discrete significant issues of CEQA compliance." The Court found irrelevant the fact that CEQA exemption determinations need not be made at public meeting; if the matter is discussed at all during such meetings, the Brown Act's agenda requirements apply. Furthermore, the Court dismissed the City's argument that adopting a CEQA exemption was distinct from adopting a Mitigated Negative Declaration – an action which courts have previously determined to be subject to Brown Act agenda requirements. (San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167.) The Court labelled this "a distinction without a difference," reasoning that members of the public have just as much of a right to participate in either type of decision under the Brown Act.

More broadly, the Court found nothing in CEQA that precluded application of the Brown Act, holding that the Brown Act should be applied charitably to the CEQA process given the privileged position that members of the public are granted in the CEQA process.

Developers and localities must be cognizant of posting each distinct CEQA-related decision discussed at public meetings on meeting agendas so as to give adequate opportunity for public participation, as required under the Brown Act, and to avoid project risk from non-compliance.