Opinion
2d Civ. No. B305317
02-23-2021
Hensley Law Group, Mark D. Hensley and Gregg Kovacevich, for Plaintiff and Appellant. Aleshire & Wynder, Jeffrey M. Malawy, Stephen R. Onstot, D. Dennis La and Matthew K. Tom, for Defendants and Respondents. Fauver, Large, Archbald & Spray, Marcus J. Kocmur, Olivia K. Marr and Christopher M. de la Vega, for Real Parties in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CV04541)
(Santa Barbara County)
Bradley Couey appeals the judgment of dismissal entered after the trial court sustained, without leave to amend, a demurrer to appellant's complaint and writ petition to cure a Ralph M. Brown Act (Brown Act; Gov. Code, § 54950 et seq.) agenda violation that occurred when the City of Lompoc approved a development agreement extension and environmental impact report addendum for a housing project. (§54960.1, subd. (e); Code Civ. Proc., § 581.) We affirm.
All statutory references are to the Government Code unless otherwise stated.
The Project
This action concerns the Burton Ranch Specific Plan Development (project), a 476-unit residential dwelling project and community park at the northeast perimeter of the City of Lompoc (City). After City certified the Final Revised Environmental Impact Report (FEIR) on the project, it annexed the project area, and in 2007, approved a seven-year development agreement (Ordinance No. 1520(06)). In 2014, City extended the development agreement five years (Ordinance No. 1602(14)). On April 16, 2019, City introduced a second five-year extension and California Environmental Act (CEQA; Pub. Resources Code, § 21000 et seq.) determination that there was no new information that required an environment review. Both items were approved on May 7, 2019 and adopted in Ordinance No. 1669(19).
Appellant, a Redondo Beach resident, claimed the ordinance violated the Brown Act because the agenda notice, posted before adoption of the ordinance, did not say the city council would be making a CEQA determination. On June 6, 2019, appellant served a cure-and-correct demand. (§ 54960.1.) City posted a new agenda, and on July 2, 2019, readopted Ordinance No. 1669(19) in which the same CEQA determination was made, i.e., that no new information was available that required an environment review other than that which was provided in the 2007 FEIR.
The Lawsuit
Appellant brought an action on the theory that City's readoption of Ordinance No. 1669(19) did not cure the Brown Act violation. The complaint alleged that Ordinance No. 1669(19) took effect on June 7, 2019 and City's readoption of the ordinance "was nothing more than a ceremonial exercise that could not have had any legal effect on an ordinance which had already been in place for nearly a month." It goes on to state that "the ordinance must be fully repealed, after which time the City Council may choose to introduce and adopt a replacement ordinance in the manner required by law."
City filed a demurrer and motion to strike. Sustaining the demurrer, the trial court found that the July 2, 2019 readoption of Ordinance No. 1669(19) was "a full cure." City "put it on the agenda for July 2nd, within 30 days of the - their notice of the problem, separately agendized the necessity of determining that there was no further environmental impacts, and then, took action to adopt both [the EIR] determination and the extension of the Burton Ranch Specific Plan."
De Novo Review
We review the order de novo and affirm if there is any ground on which the demurrer can properly be sustained. (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) The statutory construction of the Brown Act is a question of law requiring our independent review. (San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, 1175 (San Joaquin).)
Brown Act Agenda Requirement
Under the Brown Act, all legislative body meetings of a local agency must be open and public. (§ 54953.) The Brown Act requires that an agenda be posted before a regular meeting and forbids action on any item not on the agenda. (§ 54954.2, subd. (a); Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868.) "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. A brief general description of an item generally need not exceed 20 words." (§ 54954.2, subd. (a)(1).)
When City adopted Ordinance No. 1669(19) to extend the development agreement, the CEQA matter was not listed on the agenda. On April 16, 2019 and May 7, 2019, the city council voted on and approved two items of business: first, the five-year extension of the development agreement; and second, the CEQA determination that no new information was available that required an environmental review. The Brown Act required that the agenda describe "each item of business to be transacted or discussed . . . ." (§ 54954.2, subd. (a)(1), italics added.) City concedes the CEQA determination was a separate item of business and had to be listed on the agenda. (See San Joaquin, supra, 216 Cal.App.4th at pp. 1176-1177.)
Cure or Correct
The dispositive issue is whether City had to rescind the entire ordinance to cure and correct the agenda omission. Based on appellant's construction of the Brown Act, everything in the ordinance must be rescinded (both the development agreement extension and the CEQA determination) to effectuate a cure. The agenda omission, however was on the CEQA matter, not the development agreement extension. The certification of an EIR or an EIR addendum is generally done by resolution, as was the case when City certified the project FEIR in 2007 by Resolution No. 5299 (06). A development agreement, however, is treated as a legislative act and must be approved by ordinance (§ 65867.5, subd. (a)). So must a development agreement extension.
Assuming that the CEQA determination is null and void because of the agenda violation, does that invalidate the development agreement extension? Not according to the petition and complaint. Appellant, in his opening brief, concedes "the petition does not challenge the City's 'decision to adopt, amend, or modify' the development agreement extension. In fact, the petition has nothing whatsoever to do with the substance of the development agreement of the extension thereof. Rather, the action arises solely under the Brown Act as consequence of the City's failure to disclose its intention to authorize an EIR addendum at its May 7, 2019 meeting."
Appellant contends the entire ordinance must be rescinded to cure the CEQA agenda problem, even though it was a separate and distinct item of business. The law traditionally disfavors forfeitures and requires strict construction of statutes imposing them. (See, e.g., People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.) The words "rescind" and "rescission" are not in the cure and correct statute (§ 54960.1, subd. (c)(2)). Although rescission is the recommended remedy, no court has held it is the exclusive remedy.
Section 54960.1, subdivision (c)(2) provides: "Within 30 days of receipt of the demand, the legislative body shall cure or correct the challenged action and inform the demanding party in writing of its actions to cure or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action."
A pamphlet by the Attorney General's Office on open meeting laws says that curing an agenda violation is "like trying to put toothpaste back in the tube. If possible, the body should try to return to a point prior to when the violation occurred and then proceed properly. For example, if the violation involves improper notice, we recommend that the body invalidate its decision, provide proper notice, and start the process over." (Cal. Attorney General's Office, A Handy Guide to the Bagley-Keene Open Meeting Act 2004, Remedies for Violations, p. 14.)
The League of California Cities offers the following practice tip: "The Brown Act does not specify how to cure or correct a violation; the best method is to rescind the action being complained of and start over, or reaffirm the action if the local agency relied on the action and rescinding the action would prejudice the local agency." (Open and Public V, A Guide to Ralph M. Brown Act (Revised April 2016) p. 57, italics added.)
In San Joaquin, supra, 216 Cal.App.4th 1167, the Merced County Planning Commission followed the recommended procedure and rescinded prior approval of a subdivision application and adoption of a CEQA mitigated negative declaration (MND) after it failed to list the CEQA matter on its agenda. (Id. at p. 1172.) The commission renoticed the matter on a new agenda, readopted the MND, and reapproved the subdivision application. No court ordered the rescission and no published case has held that rescission of an entire ordinance is the only way to cure the agenda omission of a discrete item in an adopted ordinance. Appellant takes a "My kingdom for a horse" (William Shakespeare, King Richard III, Act V, Scene 4) position and argues that City must let the development agreement lapse to correct the agenda defect on a CEQA determination that could have been made another day, at a different city council meeting.
Detrimental Reliance - Contractual Obligation Exception
Section 54960.1, subdivision (d)(3) precludes a lawsuit for a Brown Act violation where the action taken by the local agency gives rise to a contractual obligation on which a party detrimentally relied in good faith. Here the project developers claim such reliance. On June 27, 2019, a week before Ordinance No. 1669(19) was readopted, the developers' attorney sent a letter stating that the developers relied on the development agreement extension to hire consultants and had expended significant time, effort, and financial resources on the project. Although the complaint alleges, on information and belief, that no party detrimentally relied on Ordinance No. 1669(19), the developers' letter is attached to the verified complaint as an exhibit and takes precedence on demurrer. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145-1146; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.)
Appellant unsuccessfully argues there was no reasonable reliance as a matter of law. This is at variance with the complaint which attaches the "detrimental reliance" letter. In addition, when City entered into the development agreement, it was required to record a copy of the agreement. (§ 65868.5.) Once recorded, the agreement imparted notice to the public and the burdens and benefits of the agreement inured to the parties to the agreement including the developers. (Ibid.) Detrimental reliance was included into the development agreement which required that it be reviewed every 12 months to verify the developers' good faith compliance. (§ 65865.1.) Pursuant to that contractual obligation, developers requested that the city planning commission approve the development agreement extension and EIR addendum, which it did on March 13, 2019 pursuant to Resolution No. 900(19). The matter was then forwarded to the city council for its approval.
Appellant concedes the CEQA matter was correctly placed on the agenda when Ordinance No. 1669(19) was readopted on July 2, 2019 but argues that the Brown Act requires a perfect cure, i.e., rescission of Ordinance No. 1669(19) and adoption of a new ordinance that says the same thing. Until that is done, appellant believes there are lingering questions about whether an ordinance can be readopted, and whether it was proper to place the proposed readoption on the city council's consent calendar as a routine item of business. Appellant complains that City's decision to proceed with an EIR addendum in lieu of a new EIR "rob[bed] the public of the opportunity to influence decisionmakers before a decision is made, [and] can severely prejudice the public under other areas of substantive law." That goes far beyond what is alleged. Like appellant, we take the Brown Act as we find it and are not at liberty to add rescission language to the statute's cure and correct provision. (Code Civ. Proc., § 1858; Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698-1699 [court does not act as a super-legislature].)
CEQA (Pub. Res. Code, § 21166) and the CEQA Guidelines (14 Cal. Code Regs., § 15164(c)) do not require a formal public review process when a local agency certifies an EIR addendum on an existing project. (Practice Under The California Environmental Quality Act (Cont.Ed.Bar 2d ed. March 2020) § 19.48, p. 19-49; Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, 669 ["New findings under [Public Resources Code] section 21081 are not required in connection with the approval of an addendum to an EIR"].) That is what distinguishes this case from San Joaquin which involved a new project to subdivide property and a first time CEQA determination.
Disposition
The judgment (order sustaining the demurrer without leave to amend) is affirmed. Appellant is to pay costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J
TANGEMAN, J. TANGEMAN, J., Concurring:
I agree with the majority's conclusion that the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.) violation which occurred here was cured by renoticing and then approving, after proper notice, the readoption of the ordinance. Accordingly, I concur in the result.
I part company with the majority, however, on the alternative ground of detrimental reliance. Both parties agree that the initial adoption of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) determination was in violation of the Brown Act. (Maj. opn., p. 4.) That occurred on May 7, with an effective date of June 7. (Maj. opn., pp. 2-3.) On June 6, appellant served a cure-and-correct demand. (Maj. opn., p. 2.) Appellant alleged that there was no detrimental reliance on the May 7 approval as a factual matter, but this panel now concludes as a matter of law that the developers detrimentally relied on an approval which was not effective until one day after service of the cure-and-correct demand. Why? Because the developers (not the appellant) made this unsubstantiated claim in an unsworn letter that was attached to the complaint for other, independent, reasons. Pursuant to this logic, the entire contents of any attachments to a verified complaint would automatically become binding admissions by the complainant, regardless of the source of the attachment or the purpose for which it was attached to the complaint. This constitutes an unwarranted extension of the rule and an 2exceedingly dangerous trap for the unwary.
All references to dates are in the year 2019. --------
Finally, I have disregarded appellant's place of residence in considering his appeal. I deem that fact immaterial and would reach the same conclusion were he a resident of Lompoc.
NOT TO BE PUBLISHED.
TANGEMAN, J.
Jed Beebe, Judge
Superior Court County of Santa Barbara
Hensley Law Group, Mark D. Hensley and Gregg Kovacevich, for Plaintiff and Appellant.
Aleshire & Wynder, Jeffrey M. Malawy, Stephen R. Onstot, D. Dennis La and Matthew K. Tom, for Defendants and Respondents.
Fauver, Large, Archbald & Spray, Marcus J. Kocmur, Olivia K. Marr and Christopher M. de la Vega, for Real Parties in Interest.