Opinion
C087892
08-24-2021
Shute, Mihaly & Weinberger, Amy J. Bricker, Robert S. Perlmutter and Laura D. Beaton, San Francisco, for Plaintiff and Appellant. Office of the Placer County Counsel and Clayton T. Cook for Defendants and Respondents Placer County and Placer County Board of Supervisors. Remy Moose Manley, Whitman F. Manley, Howard F. Wilkins III and Nathan O. George, Sacramento, for Real Parties in Interest and Respondents Squaw Valley Real Estate, LLC, and Squaw Valley Resort, LLC.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part II the Discussion and the concurring opinion.
Shute, Mihaly & Weinberger, Amy J. Bricker, Robert S. Perlmutter and Laura D. Beaton, San Francisco, for Plaintiff and Appellant.
Office of the Placer County Counsel and Clayton T. Cook for Defendants and Respondents Placer County and Placer County Board of Supervisors.
Remy Moose Manley, Whitman F. Manley, Howard F. Wilkins III and Nathan O. George, Sacramento, for Real Parties in Interest and Respondents Squaw Valley Real Estate, LLC, and Squaw Valley Resort, LLC.
BLEASE, J. In 2016, Placer County (the County) approved a project to develop a resort on about 94 acres near Lake Tahoe. Sierra Watch afterward challenged the County's approval in two lawsuits, both of which are now on appeal. In one of its suits, it alleged the County's environmental review for the project was inadequate. In another, it alleged the County approved the project in violation of the Ralph M. Brown Act (Brown Act, Gov. Code, § 54950 et seq. ) — an act intended to facilitate public participation in local government decisions. This appeal concerns Sierra Watch's Brown Act allegations and involves two of the act's requirements. Its first claim concerns section 54957.5 of the Brown Act. Under that statute, in the event a county distributes to its board of supervisors any writing pertinent to an upcoming board meeting less than 72 hours before that meeting, the county must make that writing "available for public inspection" at a county office "at the time the writing is distributed" to the board. We consider here two competing interpretations of this statute. To satisfy section 54957.5 ’s requirements, must the writing simply be placed in a county office that allows for public inspection of documents "at the time the writing is distributed" to the board, or must the writing be placed in this office and actually available for public inspection "at the time" of distribution? Considering the statute's plain language and purpose, we find the latter is true. In most instances, the distinction between the two interpretations is irrelevant, as a writing is generally available for public inspection at the moment it is placed in a location allowing for public inspection. But that is not true when, as in this case, the county places the writing in a county office at a time the office is closed to the public — for example, on a weekend. In that event, the writing is not actually available for public inspection until the office reopens to the public, and so is not available at the time required under section 54957.5.
Undesignated statutory references are to the Government Code.
Sierra Watch's second claim concerns section 54954.2 of the Brown Act. Under that statute, counties must post an agenda before each board meeting "containing a brief general description of each item of business to be transacted or discussed at the meeting." The County here, in its agenda, informed the public that its board would consider approving a development agreement that its planning commission had recommended. But in the end, the County's board never considered that particular agreement. It instead considered and then approved a materially revised development agreement that County staff, in consultation with the project applicant and another party, had prepared the night before the meeting. The question we consider is whether the board's consideration of this revised agreement, rather than the one referenced on the County's agenda, rendered its agenda misleading. We find it did.
Because the trial court found differently on both of these issues, we reverse in part. But although we find the County's conduct violated the Brown Act, we reject Sierra Watch's request that we vacate the County's approvals. BACKGROUND
I
Factual Background
In 2011, Squaw Valley Real Estate LLC (Squaw) proposed a project titled the Village at Squaw Valley Specific Plan, which involves a proposed development on about 94 acres in Olympic Valley (formerly known as Squaw Valley). Shortly after, the County began environmental review for the project under the California Environmental Quality Act (CEQA), and in 2015, the County released a draft document, called an Environmental Impact Report or EIR, analyzing the project's potential impacts.
Several parties afterward expressed concern over the County's analysis of the project's environmental impacts, including Sierra Watch and the California Attorney General. According to the Attorney General, the County's EIR insufficiently analyzed project impacts from increased vehicle use in the Lake Tahoe Basin. The Attorney General's office initially expressed these concerns in August 2016 in a formal comment letter, and later, in early November 2016, it reiterated these concerns in an e-mail to County counsel. In the e-mail, the deputy attorney general assigned to the matter offered to speak with County staff about her office's concerns but warned that, absent additional environmental review, her office would file litigation challenging the County's EIR.
Shortly after receiving this e-mail, on November 9, 2016, the County posted the agenda for the upcoming meeting of its board of supervisors (the Board), during which the Board would consider whether to approve the EIR for the project. Among other things, the agenda informed the public that the Board would consider at its November 15, 2016 meeting "a recommendation from the Placer County Planning Commission for APPROVAL of the following": (1) "a resolution to certify the Village at Squaw Valley Specific Plan Final Environmental Impact Report" and (2) "an ordinance to approve the Development Agreement relative to the Village at Squaw Valley Specific Plan." At the same time it posted the agenda, the County also made available for public inspection various documents discussed on the agenda, including the proposed development agreement for the project.
The same day the County posted the agenda, two deputy attorneys general met with County counsel and Squaw's counsel about the project. At the meeting, the two deputy attorneys general asked the County to require Squaw to pay an air quality mitigation fee to the Tahoe Regional Planning Agency (TRPA). But the County declined to do so. Squaw, however, thought it better to pay the fee if the Attorney General would agree not to sue over the project. It approached the Attorney General about such an agreement and offered to ask the County to amend the development agreement for the project to include a requirement that it pay the TRPA fee. Squaw and the Attorney General afterward reached an agreement along these lines on November 14, 2016. Shortly after, at Squaw's request and in consultation with the Attorney General, County counsel updated the development agreement to accommodate the agreement between Squaw and the Attorney General. To that end, she added a provision requiring Squaw to pay $440,862 in fees to be used for TRPA "Environmental Improvement Projects," which are projects intended to reduce traffic and improve air and water quality at Lake Tahoe.
Squaw and the Attorney General's agreement was initially reflected in a series of e-mails. On January 4, 2017, the parties also entered into a formal contract.
County counsel afterward, at 5:36 p.m. on November 14, 2016, e-mailed the County clerk the updated development agreement and a memorandum (the Schwab Memorandum) explaining the change and providing other information about the project. On receiving the e-mail, the County clerk placed copies of the development agreement and the memorandum in an office where the public can inspect County records — namely, the County clerk's office, which is open to the public from 8:00 a.m. to 5:00 p.m. on weekdays. At 5:42 p.m., the County clerk e-mailed the two documents to all Board members.
A few minutes before the County clerk shared the new materials with the Board, a deputy attorney general e-mailed Sierra Watch's counsel about the development. Without going into detail, she informed Sierra Watch's counsel that Squaw had agreed "to mitigate ... the Project[’s] in-basin trips as if the project were located in the basin." She also offered to talk about the new mitigation requirements, but Sierra Watch's counsel did not see the e-mail until after the Board's meeting began the following day.
The Board held its meeting the next day, which Sierra Watch attended. Before the meeting began, County staff placed at a public table at the meeting copies of the Schwab Memorandum and other project documents. Following some discussion of the development agreement, including the new TRPA provision, the Board voted in favor of the ordinance approving the agreement. II
Procedural Background
A couple of weeks after the Board approved the development agreement and the EIR for the project, Sierra Watch sent a letter to the County alleging it had violated the Brown Act. The Brown Act imposes various requirements on local agencies, including counties, intended to ensure that their actions and deliberations are conducted openly. ( § 54950.) According to Sierra Watch's letter, the County violated two of these requirements. First, it alleged the County violated section 54954.2 of the Brown Act, which requires counties (and other local agencies) to post an agenda at least 72 hours before each board meeting "containing a brief general description of each item of business to be transacted or discussed at the meeting." ( § 54954.2, subd. (a)(1).) Sierra Watch reasoned the County's agenda was insufficient because it did not "announc[e] ... that [the Board] was to consider a substantive amendment to the proposed Development Agreement" — namely, the addition of the TRPA-fee provision. Second, it alleged the County violated section 54957.5 of the Brown Act, which requires counties (and other local agencies), when distributing any meeting material to their boards less than 72 hours before an open meeting, to make that writing "available for public inspection ... at the time the writing is distributed to all, or a majority of all, of the [board] members." ( § 54957.5, subd. (b).) The County violated this requirement, Sierra Watch asserted, because it failed to make the Schwab Memorandum available to the public at the same time it was distributed to the Board members. The County, however, disagreed with both Sierra Watch's allegations and declined to reconsider its approvals.
Shortly after receiving the County's response, Sierra Watch filed a petition for writ of mandate and complaint for injunctive and declaratory relief against the County and its Board. Sierra Watch alleged in its suit the two issues it raised in its letter: The County violated section 54954.2 because its agenda failed to notify the public that the Board would consider a substantive revision to the development agreement, and it violated section 54957.5 because it failed to make the Schwab Memorandum available for public inspection at the same time it was distributed to the Board. After the County successfully demurred to Sierra Watch's cause of action under 54954.2, Sierra Watch modified its allegations somewhat in an amended petition and complaint. In its amended petition and complaint, it alleged the County violated section 54954.2 because its "posted agenda listed no item of business describing that the Board would consider approving the substance of an agreement ... between the County, Attorney General's Office, and [Squaw] to purportedly address serious concerns about the Project's impacts on the Lake Tahoe Basin, which was memorialized in a substantive revision to the ... Development Agreement." Sierra Watch asked the trial court to, among other things, nullify the Board's approval of the development agreement, grant injunctive relief, and declare that the County violated the Brown Act.
Following a bench trial, the court rejected Sierra Watch's claims, starting with Sierra Watch's claim under section 54954.2. In the court's view, to determine whether the County violated this provision, it needed to consider whether the TRPA provision "constituted a distinct item of business which needed to be separately identified on the agenda, or whether the amended Development Agreement differed radically from the previous version of the Development Agreement to such an extent as to make the agenda misleading." But because it found neither true, it rejected Sierra Watch's claim. The court turned next to Sierra Watch's claim under section 54957.5. Rejecting Sierra Watch's contentions, it found the County made the Schwab Memorandum available for public inspection at the same time the memorandum was distributed to the Board members. It reasoned that the County clerk made the memorandum available for public inspection the moment she placed it in the County clerk's office — which she did around the same time she e-mailed the memorandum to the Board — even though the clerk's office was closed at that time.
Around the same time it challenged the County's action under the Brown Act, Sierra Watch also challenged the County's action under CEQA. In that case too, the trial court ultimately rejected all Sierra Watch's claims. Sierra Watch afterward appealed the court's decision, which we consider in the separate case of Sierra Watch v. Placer County et al. (Aug. 24, 2021, C088130) 2021 WL 3732238 [nonpub. opn.].
DISCUSSION
I
The County's Disclosure of the Schwab Memorandum
We consider first whether the County violated the Brown Act's disclosure requirements under section 54957.5.
Under section 54957.5 of the Brown Act, a county must disclose writings that are distributed to all or most of the county's board of supervisors "in connection with a matter subject to discussion or consideration" at the board's open meetings. ( § 54957.5, subd. (a).) In most circumstances, section 54957.5 requires these writings to "be made available upon request without delay." ( § 54957.5, subd. (a).) But when these writings are distributed to all or most board members less than 72 hours before an open meeting, it imposes a slightly different requirement in terms of when and where these writings must be made available. Under these circumstances, subdivision (b)(1) of section 54957.5 describes when these public records must be made available: If a "public record ... that relates to an agenda item for an open session of a regular meeting of [a county's board of supervisors], is distributed less than 72 hours prior to that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, of the members of the [board]." Subdivision (b)(2) of section 54957.5 then describes where these public record must be made available: "A [county] shall make [the] writing ... available for public inspection at a public office or location that the [county] shall designate for this purpose." Subdivision (b)(2) adds that "[t]he [county] also may post the writing on the [county's] Internet Web site in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting." Should a county fail to abide by these requirements, an interested person cannot nullify the county's resulting actions but can seek declaratory and injunctive relief. ( § 54960, subd. (a).)
With those requirements in mind, we turn to the issue before us. The Schwab Memorandum, as all parties agree, was a public record related to an agenda item for one of the Board's open meetings and was distributed to all the Board members less than 72 hours before that meeting. Under those circumstances, as all parties further agree, the County needed to make the memorandum "available for public inspection" at the same time it was distributed to the Board members. (See § 54957.5, subd. (b).) The question here is whether it did. The County, its Board, Squaw, and Squaw Valley Resort LLC (collectively, respondents) argue it did, reasoning the County complied with section 54957.5 because it placed the Schwab Memorandum in an office where records are "available for public inspection" at the same time it distributed the memorandum to the Board — that is, around 5:40 p.m. on November 14, 2016. Sierra Watch, in contrast, argues otherwise. Because the memorandum was placed in the County clerk's office after hours, it contends the County made the memorandum "available for public inspection" only when the office reopened on November 15, 2016.
We find Sierra Watch has the better argument. Section 54957.5 is not, as respondents believe, merely concerned with the time a record is placed in a location allowing for public inspection; it is instead principally concerned with the time a record is actually available for public inspection. That is plain from the statutory text. Per section 54957.5, subdivision (b)(1), "the writing shall be made available for public inspection ... at the time the writing is distributed to all, or a majority of all, of the members of the [board]." (Italics added.) In this case, the County distributed the Schwab Memorandum to the Board around 5:40 p.m. on November 14, 2016. The question for us, then, is whether the memorandum was "available for public inspection ... at th[at] time." It was not. No document at the County clerk's office, after all, was "available for public inspection" at 5:40 p.m. on November 14, 2016 — a time when the clerk's office was closed.
Respondents, reading section 54957.5 somewhat differently, contend the statute's plain language instead requires a ruling in their favor. They argue as follows: (1) Subdivision (b)(1) of section 54957.5 required the County to make the memorandum "available for public inspection pursuant to [subdivision (b)(2)] at the time the writing [wa]s distributed to all, or a majority of all, of the members of the [Board]." (2) Subdivision (b)(2), in turn, required the County to make the memorandum "available for public inspection at a public office or location that the [County had] designate[d] for this purpose." (3) Putting these two requirements together, the County fully complied with section 54957.5 because it placed the memorandum in the County clerk's office at the time it was distributed to the Board.
But subdivisions (b)(1) and (b)(2), read together, did not simply require the County to place the memorandum in the County clerk's office at the time it was distributed to the Board. Both these subdivisions, again, are principally concerned with the time that records are actually available for public inspection, not merely the time that these records are placed in areas allowing for public inspection. Subdivision (b)(1) describes when these records must be "available for public inspection" — namely, "at the time the writing is distributed to all, or a majority of all, of the members of the [board of supervisors]." Subdivision (b)(2) then describes where these records must be "available for public inspection" — namely, "at a public office or location that the agency shall designate for this purpose." Together these subdivisions required the memorandum here to be available for public inspection "at a public office or [other designated] location" ( § 54957.5, subd. (b)(2) ) "at the time the writing [wa]s distributed to all, or a majority of all, of the members of the [Board]" ( § 54957.5, subd. (b)(1) ). But again, that did not happen. More specifically, the Schwab Memorandum was not available for public inspection at the County clerk's office around 5:40 p.m. on November 14, 2016 — the time the memorandum was distributed to the Board. It instead was first available for public inspection at the clerk's office a day later, when the clerk's office reopened. The County violated section 54957.5 as a result.
Apart from their textual argument, respondents also assert that accepting Sierra Watch's position would lead to several absurd results. First, they contend Sierra Watch's position will at times force counties to delay when they distribute materials to their board members. That is so, they explain, because if a county would like to deliver certain materials to its board at, say, 6:00 p.m. on a Friday in advance of a Monday meeting, it would need to wait until its offices reopened on Monday to send the materials.
Sierra Watch, in response, contends this is not necessarily so because agencies could always post their materials online to comply with section 54957.5, subdivision (b). But we are not so sure. Section 54957.5 does not say agencies may make records available at a physical location or alternatively post the records online — though some committee analyses on the bill enacting section 54957.5, subdivision (b) did interpret it this way. (See Sen. Rules Com., Analysis of Sen. Bill No. 343 (2007-2008 Reg. Sess.) p. 2 [to make "writings available for public inspection," this bill requires a local agency to "do either of the following": (1) "[m]ake the writing available at an office or location that has been designated by the agency and listed on the meeting agenda; or " (2) "[p]ost the writing on the local agency's Internet Web site" (italics added)]; Sen. Local Gov. Com., Analysis of Sen. Bill No. 343 (2007-2008 Reg. Sess.) pp. 1-2 [same].) The statute instead says agencies "shall " make records available at a physical location and "also may " post the records online. ( § 54957.5, subd. (b)(2), italics added; see Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443, 261 Cal.Rptr. 574, 777 P.2d 610 ["the word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed as mandatory, particularly when both terms are used in the same statute"]; Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490, 167 Cal.Rptr.3d 74, 316 P.3d 1188 [" ‘If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls.’ "].) We thus agree with respondents that, under a literal reading of the statute, counties cannot satisfy section 54957.5, subdivision (b) merely by posting materials online. And we agree too that, if that is so, then accepting Sierra Watch's position may at times require counties to delay when they distribute materials to their board members.
But even so, we do not find that result so absurd that we must override the plain meaning of the statutory language requiring records to be "available for public inspection ... at the time" they are distributed to the board. "To justify departing from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them." ( In re D.B. (2014) 58 Cal.4th 941, 948, 169 Cal.Rptr.3d 672, 320 P.3d 1136.) We cannot find so here. True, our literal reading of the statute may at times delay the distribution of materials to board members, occasionally leaving them with less time to consider late submissions. But the Legislature enacted section 54957.5, subdivision (b) in part because of the disparity of information available to the public and board members, with board members having access to agenda materials before the public. (See Assem. Com. on Local Gov., Analysis of Sen. Bill No. 343 (2007-2008 Reg. Sess.) p. 2 [noting the bill author's concern that "the last-minute release of agenda packet materials leaves citizens feeling blindsided by their governments"].) And its solution to this perceived problem was not to require counties to make these materials available to the public "without delay" after distribution to board members, as section 54957.5 requires in other circumstances. (See § 54957.5, subd. (a).) Its solution instead was to require counties to make these materials available to the public "at the time" they are distributed to board members. Considering this backdrop, it is at least plausible the Legislature thought it best that board members and the public have equal opportunity to review late submissions, even if achieving that requirement would on occasion result in less time for board members to review these submissions.
Respondents further assert that accepting Sierra Watch's position "would also lead to absurd results because it would allow opponents to perpetually delay project approval by submitting last minute comments outside of normal business hours." We appreciate the concern. Suppose that in the middle of the night before every meeting, a member of the public e-mails all board members comments concerning an item on the board's agenda. Strictly construing section 54957.5, those e-mails arguably would need to "be made available for public inspection" at the county's office "at the time" they were sent to the board members. But it of course would be absurd to expect the county to remain open and staff its office to allow public inspection of documents in the middle of the night.
As originally drafted, section 54957.5 required only the disclosure of records distributed to a local agency's legislative body "by a member, officer, employee, or agent of such body for discussion or consideration at a public meeting." (Stats. 1980, ch. 1284, § 24, pp. 4343-4344.) But in 1993, the Legislature expanded this language to require the disclosure of records distributed "by any person in connection with a matter subject to discussion or consideration at a public meeting" — language that remains the same today, with the exception of "a public meeting" now being "an open meeting." (Stats. 1993, ch. 1136, § 14, p. 6366, italics added; see § 54957.5, subd. (a).)
For that reason, respondents argue, their favored reading of the statute is the better one. But their approach fares no better in addressing this issue. Respondents, again, contend a county satisfies section 54957.5, subdivision (b) if, at the time a record is distributed to most or all board members, the county places a copy of that record in a location allowing for public inspection — even if the county does so at a time when that location is currently closed. But unless the county staffs its office around the clock, it cannot even accomplish that much when a member of the public e-mails the board in the middle of the night. And so, even under respondents’ approach, this potential issue remains. So how should we deal with this situation? We need not decide this issue today, which unlike our case, concerns the conduct of those outside a county's control. For our purposes here, it is enough that we find the County violated section 54957.5 when, as a result of its own conduct, it failed to make the Schwab Memorandum available for public inspection at the time it distributed the memorandum to the Board.
See footnote *, ante .
DISPOSITION
The judgment is affirmed to the extent that it denies Sierra Watch's petition to set aside the County's action and is otherwise reversed. The trial court is instructed to enter a new judgment granting Sierra Watch's writ petition, including its request for declaratory and injunctive relief, in a manner consistent with this opinion. The parties are to bear their own costs on appeal. ( Cal. Rules of Court, rule 8.278.)
I concur:
DUARTE, J.
RAYE, P. J., concurring.
See footnote *, ante .