Closed Session Discussion of Litigation Threat in Case of Project Approval:  Steering Away from the Brown Act Violation

Environmental/Land Use Alert (February 20, 2020)

In a recent decision, Fowler v. City of Lafayette (Case No. A156525), the First District Court of Appeal held that the public agency’s closed session discussion of a litigation threat pertaining to an application to build a tennis cabana on a residential property violated the Brown Act because the record of the threat was not made before the meeting and not made available to the public. However, the court rejected the argument that violation of the Brown Act nullified the project approval, finding no prejudice.

In Fowler, the applicants sought the city’s approval of a 1,199-acre tennis cabana (Project) next to a tennis court on their 2.38-acre property. The Project was approved by the city’s design review committee and planning commission, with the latter approval appealed to the city council by neighbors of the applicants. The city council proceeded to hold four public hearings on and ultimately approve the Project. During closed session before one of the city council hearings preceding Project approval, the city planner orally (but not in writing) informed the city council and city attorney that the applicants’ attorney threatened to sue the city if the city denied the Project. The threat of litigation was never noted in the publicly accessible agendas or staff reports for any of the public hearings. The agendas simply stated that the city council would confer with legal counsel in closed session about one case of anticipated litigation, without identifying the case.

The neighbors opposing the Project only learned that the applicants’ attorney threatened litigation, and that the city council discussed the matter in closed session, after the Project was approved. The neighbors subsequently filed suit alleging violations of the Brown Act and seeking to nullify the Project approval.

As background, discussion of pending litigation is an exception to the Brown Act’s open meeting requirement. However, the public agency must provide proper notice of same, and the Brown Act requires that the litigation threat be reduced to writing and included in the agenda materials available to the public upon request. Construing the Brown Act liberally to promote its purpose of facilitating public participation, the court found fatal the city’s failure to include the litigation threat in the agenda packet.

The court next analyzed whether the approval of the Project should be set aside as a result of the Brown Act violation. The court was not persuaded by the neighbors that it should be. While the Brown Act authorizes nullification of “an action taken . . . in violation of [the Brown Act],” the Project approval did not occur in closed session but in open session, which was properly noticed. Further, the court may only set aside an action in violation of the Brown Act if the violation caused prejudice, and no prejudice was shown here. The city fully considered the Project application, and the neighbors were given a fair opportunity to present their case. The court stated that “there is no reasonable argument that . . . plaintiffs would have achieved a more favorable result if they had known the City Council was also considering the litigation threat in closed session.”  

The case is another reminder to public agencies of the importance of Brown Act compliance. And, one lesson for applicants is that not every Brown Act violation will render a subsequent approval null and void – opponents must show that the violation caused prejudice.

[This case 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.]