An Arguable Expansion of the Brown Act’s Agenda Requirements for CEQA Exemptions

G.I. Industries v. City of Thousand Oaks
(2022) (Case No. B317201)

On October 26, 2022, the California Court of Appeal for the Second District published its G.I. Industries v. City of Thousand Oaks decision, which arguably expands a previous Court of Appeal ruling, San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (SJRRC), relative to agenda-listing requirements under the Ralph M. Brown Act (Brown Act) applicable to exemption determinations prepared pursuant to the California Environmental Quality Act (CEQA).

In this case, G.I. Industries, a solid waste management provider, petitioned the trial court for a writ of mandate directing the City of Thousand Oaks (the City) to set aside its approval of a solid waste franchise agreement with Athens Services, as well as the City’s determination that the agreement was exempt from CEQA. G.I. Industries argued the approvals must be set aside because the City violated Government Code section 54954.2 of the Brown Act by approving the CEQA exemption without including the CEQA exemption as an explicitly listed agenda item prior to the City Council meeting. The trial court dismissed G.I. Industries’ claims, but the Court of Appeal reversed, holding section 54954.2 of the Brown Act does require a legislative body of a local agency to include a CEQA finding of exemption as an agenda item prior to consideration of the approval of the CEQA exemption at a public meeting.

On March 4, 2021, the City posted an agenda for its regular City Council meeting held on March 9, 2021. The agenda stated the City would consider awarding the solid waste franchise agreement to Athens Services. The agenda did not state the City would also consider whether the franchise agreement is exempt from CEQA. At the March 9, 2021, meeting, the City Council voted to approve the agreement and also separately determined the agreement was exempt from CEQA.

Section 54954.2 of the Brown Act provides: “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.” The purpose of the Brown Act is to ensure public agencies conduct their business in a manner that is open and accessible to the public.

Here, the Court of Appeal explains: “the Brown Act applies to the City’s determination that the Athens project is exempt from CEQA. That determination was an item of business transacted at a regular meeting of a local legislative body.” Thus, the business item should have been included on the agenda provided to the public 72 hours prior to the meeting.

The Court of Appeal cited the SJRRC decision, and slightly expanded its holding to the facts present here. In SJRRC, the county planning commission considered whether to approve a subdivision application. In addition, the commission considered whether to adopt the mitigated negative declaration (MND) prepared for the project pursuant to CEQA. The agenda for the commission meeting listed “approval, disapproval, or modification of a subdivision application.” SJRRC held the agenda should have included adoption of the MND in addition to listing possible approval of the project.

Here, the Court of Appeal found no difference between consideration of an MND and consideration of a CEQA exemption for purposes of the Brown Act’s requirements. Indeed, the Court states: “Members of the public are just as entitled to have notice of and an opportunity to participate in a local agency’s determination that a CEQA exemption applies as they are to the agency’s determination that an MND should be issued.”

In addition, the Court was not persuaded by the City’s arguments that CEQA does not require a public hearing to determine whether a project is exempt. The Court concluded its holding is not that a formal public hearing is required to approve a CEQA exemption; rather, the Brown Act does require the exemption be placed on the meeting agenda when the legislative body intends to vote on or discuss a CEQA exemption at a regular meeting.

Overall, the opinion should be noted by the legislative bodies of local agencies who will be called upon to consider whether to approve a CEQA exemption for a project at a public meeting. In such instances, the G.I. Industries decision interprets the Brown Act to require that the meeting agenda expressly and explicitly refer to the CEQA exemption determination as a matter of business before the legislative body.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]