Key Point

When taking action on projects that include a recommendation to rely on CEQA exemptions, local agencies should include, on the agenda entry for the item, a mention of the intent to rely on the exemption or exemptions.

Background

The Brown Act requires local agencies to post an agenda containing a brief general description of each item of business to be discussed at the meeting. (Gov. Code, § 54954.2, subd. (a)(1).) A panel of the Court of Appeal found that an agency's failure to timely include on the agenda the fact that exemptions from the California Environmental Quality Act ("CEQA") were being included in the action on a project that was to be approved by the City Council invalidated the agency's action approval of the project. (G.I. Industries v. City of Thousand Oaks et al. ("G.I. Industries") (2022) (84 Cal.App.5th 814).) However, that opinion was ordered not to be published by the Supreme Court on February 15, 2023 and therefore is of no precedential effect.

In the G.I. Industries case, the City was considering a decision to award a franchise agreement to a new waste collection company. The initial agenda circulated by the City did not state whether the Council would also consider a CEQA exemption, and it also did not refer to the City staff's recommendation that the agreement should be determined to be categorically exempt from CEQA. The CEQA issue was raised by a competing waste hauler after the agenda was posted and, on the afternoon before the City Council meeting to consider the new agreement, the City added discussion of the categorical exemptions that applied to the agreement. The City Council then explicitly found that an exemption applied and approved the new contract, directing staff to file a Notice of Exemption. While the trial court agreed with the City that no hearing was required to find that a project is exempt from CEQA and that no Brown Act notice was needed, the Court of Appeal overruled the trial court. The Court of Appeal held that, regardless of whether CEQA requires a hearing regarding an exemption, the Brown Act requires that any proposed finding or recommendation for approval of a project pursuant to an exemption should be included on the agenda and circulated no later than 72 hours before the meeting where the project will be considered. The decision relied upon San Joaquin Raptor Center v. County of Merced (2013) (216 Cal.App.4th 1167), which held that failure to mention on the meeting agenda the fact that a mitigated negative declaration was going to be adopted as part of an action that approved a subdivision was a violation of the Brown Act.

On February 15, the Supreme Court rejected petitions requesting that the Court review the case, making the Court of Appeal's decision binding upon the parties to the case. However, the Supreme Court also granted a request that the case be "depublished," meaning that it will not appear in the official reports and cannot be cited for any purpose in any future case.

We recommend that agencies that plan to include items on their agendas for the approval of projects where the agency's staff asks the legislative body to determine that the project is exempt include within the item approving the project a provision describing the CEQA determination and the exemptions on which the determination is based. Also, the agency should not file a Notice of Exemption for the project prior to Board approval because section 15062(a) of the CEQA Guidelines requires that a Notice of Exemption be filed only after the underlying project is approved. However, for the many projects that are approved at a staff level, there is no requirement under CEQA to have the legislative body act on the project or the exemption simply to have that action appear on a public agenda. But if the board action is going to include a finding or recommendation to rely on a CEQA exemption, an agency should include that action on the published agenda item. A Notice of Exemption for such an action should not be filed until after the agency has approved the project because the limitations period for challenging a Notice of Exemption runs only from the date of the approval of the project. But by listing the action on the agenda, the agency not only avoids a potential Brown Act challenge, but protects against a potential CEQA challenge by triggering a need for any challenger to exhaust their administrative remedies.