Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Super. Ct. No. 351002 & 351003
R. Bruce Tepper for Plaintiff and Appellant.
OPINION
Ardaiz, P.J.
David A. Prentice, County Counsel, Douglas W. Nelson, Assistant County Counsel, and Cox, Castle & Nicholson, R. Clark Morrison and Andrew B. Sabey, for Defendant and Respondent County of Madera. Sagaser, Franson & Jones, Timothy Jones and John P. Kinsey, for Real Parties in Interest and Respondents Central Green Company, Larry Freels, Oak Grove Investors, and River Vista Partners. Felger & Associates, and Warren P. Felger, for Defendant Respondent Central Green Mutual Water Co. Troy Ewell, for Defendants and Respondents R. Dan Ewell and Ranger Group, Inc.
This case involves an application of Public Resources Code section 21177, a statute which requires an exhaustion of administrative remedies before a civil action may be brought under section 21167 of the California Environmental Quality Act (CEQA). Subdivision (b) of section 21177 states: “No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” In the case before us, the “public comment period” ended in May of 2003. On March 8, 2004 the Madera County Board of Supervisors (Board) held a “public hearing on the project.” On or about May 6, 2004 appellant Friant Water Authority (FWA or appellant) submitted a written objection to the project (the River Ranch Estates project) and to certification of the environmental impact report (EIR) for the project. On May 11, 2004 the Board held a public meeting at which it approved the project. The County issued its “notice of determination” on May 12, 2004.
All further statutory references are to the Public Resources Code unless otherwise stated.
On June 11, 2004 FWA filed in Madera County Superior Court a petition for writ of mandate alleging various violations of CEQA by respondent County of Madera (the County or respondent). The matter was transferred to Stanislaus County and consolidated for purposes of trial with five other cases involving the same project. After FWA filed its second amended petition, the County moved for summary judgment. The County’s motion contended that FWA had failed to comply with section 21177, subdivision (b) because the “public comment period” ended in May 2003, the “close of the public hearing on the project before the issuance of the notice of determination” occurred at the close of the March 8, 2004 public hearing, and therefore FWA’s May 6, 2004 written objection to the project was neither “during the public comment period provided by this division” nor “prior to the close of the public hearing on the project before the issuance of the notice of determination.”
FWA’s opposition contended that the May 11, 2005 public meeting at which the Board of Supervisors approved the project was a “public hearing on the project” within the meaning of subdivision (b) of section 21177, and that therefore FWA’s May 6, 2004 written objection to the project did occur “prior to the close of the public hearing on the project before the issuance of the notice of determination.” (§ 21177, subd. (b).)
The superior court agreed with the County and granted the County’s motion for summary judgment. In December of 2005 FWA appealed from the court’s order granting summary judgment (appeal No. F049479). The superior court entered judgment in favor of the County in January of 2006, and FWA then appealed from the judgment (appeal No. F049860). We ordered both appeals to be administratively consolidated.
APPELLANT’S CONTENTION
FWA contends the superior court erred in granting the County’s motion for summary judgment and in concluding that as a matter of law FWA’s May 6, 2004 objection to the project was not made “prior to the close of the public hearing on the project before the issuance of the notice of determination.” (§ 21177, subd. (b).) FWA argues that the Board of Supervisor’s May 11, 2005 public meeting at which the project was approved was a “public hearing on the project” within the meaning of section 21177, subdivision (b). As we shall explain, we agree with FWA and will reverse the judgment.
Both appeals contend that the superior court erred in granting the County’s motion for summary judgment. Because an order granting summary judgment (as opposed to the judgment itself) is not appealable (see Modica v. Merin (1991) 234 Cal.App.3d 1072), we will dismiss the appeal from the order (case No. F049479) and will reverse the judgment in case No. F049860.
STANDARD OF REVIEW
A defendant or respondent moving for summary judgment based upon an affirmative defense bears the burden of persuasion that there is a complete defense to the plaintiff’s action; in other words, “he must persuade the court that there is no material fact for a reasonable trier of fact to find as to that defense.” (Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 557-558 (Rancho Viejo) [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. 11].) To meet this burden of persuasion, the defendant has the initial burden of presenting “evidence” supporting a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850 [citing Evid. Code, § 110; Rancho Viejo, supra, 100 Cal.App.4th at p. 558].)
“Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to that defense.” (Rancho Viejo, supra, 100 cal.App.4th at p. 558 [citing Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; Code Civ. Proc., § 437c, subd. (o)(2)].) Notably, the plaintiff may not rely upon the mere allegations or denials of its pleadings to show the existence of a triable issue of fact; rather, “[t]here is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof .…” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted; see also Code Civ. Proc., § 437c, subd. (o)(2); Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464, fn. 4; Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 69.)
On appeal, although this court’s review of the superior court’s entry of summary judgment in favor of respondent is de novo, requiring this court to apply the same legal standard that governed the superior court (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1522), this court may “affirm the [superior court’s] ruling if it is correct on any ground, regardless of the trial court’s stated reasons.” (Rancho Viejo, supra, 100 cal.App.4th at p. 558 [citing Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083].)
FACTS
The key evidence in this case is the evidence of what occurred at the May 11, 2005 meeting of the Board of Supervisors. Appellant FWA contends there was a “public hearing on the project” on this date. (§ 21177.) The County contends there was not. We will address this dispute in our discussion below of the merits of this appeal. For now, we note that the County’s motion for summary judgment presented certain basic facts which are not in dispute, and we begin with these.
On or about December 3, 2003 the Madera County Planning Commission denied the application of the Central Green Company for a tentative subdivision and related entitlements pertaining to the project, a proposed residential and mixed-use development in southeast Madera County known as the River Ranch Estates Project. The Planning Commission concluded that the EIR for the project was inadequate. Central Green appealed the denial to the Madera County Board of Supervisors. On March 8, 2004 the Board of Supervisors held a public hearing on Central Green’s appeal of the Planning Commission’s December 3, 2003 decision.
FWA sent its objection letter to the Board of Supervisors on or about May 6, 2004. FWA’s letter stated in part: “The newly-formed Friant Water Authority (‘FWA’) objects to the approval to [sic] the River Ranch Estates Development, as proposed, and the certification of the Environmental Impact Report submitted as part of the proposed development.” The letter incorporated by reference objections previously raised by the Friant Water Users Authority, and added: “In brief, FWA is concerned about the source and adequacy of water for the development. … The FWA has the same concerns about the water supply as expressed in portions of the letter … from the California Attorney General. Further, we join with the California Attorney General in stating that the Environmental Impact Report and the water supply analysis should include a more thorough determination as to whether the proposed project has the requisite water rights.”
On May 11, 2004 the Board of Supervisors conducted its regularly scheduled monthly meeting.
THE COURT ERRED IN GRANTING THE COUNTY’S MOTION FOR SUMMARY JUDGMENT
(A) Section 21177
As we have already mentioned, subdivision (b) section 21177 states: “No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” Subdivision (a) of the statute contains a similarly worded limitation on “grounds for noncompliance” alleged in a CEQA action. We are not concerned in this case with the phrase “during the public comment period provided by this division.” (§ 21177, subd. (b).) CEQA requires a lead agency to provide a notice specifying “the period during which comments will be received on the draft environmental impact report ….” (§ 21092, subd. (b)(1).) “The notice shall disclose … [t]he starting and ending dates for the review period during which the lead agency will receive comments.” (Guidelines, § 15087, subd. (c).) The section 21092 notice in this case stated that “[t]he … public review period will commence on Friday, April 11, 2003 and end on Tuesday, May 27, 2003.… All comments concerning the DEIR must be submitted in writing to the Madera County Planning Department on or before Tuesday, May 27, 2003.” !(11 AR 2720.! This case concerns the phrase “prior to the close of the public hearing on the project before the issuance of the notice of determination.” (§ 21177, subd. (b).) The language of section 21117 has been discussed in several appellate court opinions. The upshot of these opinions, as we shall explain, is that the language simply means what it says.
Section 21108, subdivision (a), states: “Whenever a state agency approves or determines to carry out a project that is subject to this division, the state agency shall file notice of that approval or that determination with the Office of Planning and Research. The notice shall indicate the determination of the state agency whether the project will, or will not, have a significant effect on the environment and shall indicate whether an environmental impact report has been prepared pursuant to this division.” (See also Cal. Code Regs., tit. 14, §§ 15000-15387) (hereinafter Guidelines), at sections 15373, 15075 and 15094. Thus “‘Notice of Determination’ means a brief notice to be filed by a public agency after it approves or determines to carry out a project which is subject to the requirements of CEQA.” (Guidelines, § 15373.) “The lead agency shall file a notice of determination within five working days after deciding to carry out or approve the project.” (“Guidelines, § 15094, subd. (a).) “The notice of determination shall include: [¶] … [¶] (5) a statement that the EIR was prepared and certified pursuant to the provisions of CEQA.” (Guidelines, § 15094, subd. (b)(5).) The Notice of Determination for the River Ranch Estates project, cited by FWA in its opposition to the County’s motion for summary judgment, states in part: “This is to advise that the Madera County Board of Supervisors has approved the above described project on May 11, 1004 .…” The CEQA Guidelines are “promulgated by the state’s Resources Agency” and “are authorized by … section 21083” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.) The California Supreme Court has stated “[a]t a minimum, … courts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2; in accord, see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 428, fn. 5.)
Section 21177, subdivision (a) states: “Presentation of grounds for noncompliance; objections to approval of project [¶] (a) No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b). [¶] (d) This section does not apply to the Attorney General. [¶] (e) This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law.”
In Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109 (Galante), the court rejected a contention that the words “‘prior to the close of the public hearing on the project before issuance of the notice of determination’” should be interpreted as referring to a public hearing held during the public comment period. (Id. at pp. 1119-1121.) “‘The Legislature is presumed to have meant what it said, and the plain meaning of the language will govern the interpretation of the statute.’ [Citations.] Accordingly, this court is without authority to disregard a portion of the language of section 21177. [Citation.] As we read section 21177, any alleged grounds for noncompliance with CEQA provisions may be raised by any person prior to the close of the public hearing on the project before the issuance of the notice of determination. Any challenge to this interpretation should be addressed to the Legislature.” (Galante, supra, 60 Cal.App.4th at p. 1121.) At the end of this discussion the Galante decision then inexplicably went on to say, in conclusory fashion and in apparent contradiction of what it had just said: “Based on our reading of section 21177, we conclude that any party may bring an action pursuant to section 21167 if it has raised an objection to the adequacy of an EIR prior to certification.” (Galante, supra, 60 Cal.App.4th at p. 1121.)
Perhaps the Galante court was simply assuming that “certification” would occur at the close of the public hearing and was using the term “certification” as shorthand for the statutory words “prior to the close of the public hearing on the project.” The term “certification” refers to certain findings a lead agency must make before approving a project for which an EIR has been prepared. “Prior to approving a project the lead agency shall certify that: (1) The final EIR has been completed in compliance with CEQA; (2) The final EIR was presented to the decisionmaking body of the lead agency and that the decisionmaking body reviewed and considered the information contained in the final EIR prior to approving the project; and (3) The final EIR reflects the lead agency’s independent judgment and analysis.” (Guidelines, § 15090, subd. (a); see also §§ 21082 & 21082.1, subd. (c).) Certification of an EIR always occurs “before the issuance of the notice of determination” (§ 21177, subd. (b)) because “[t]he notice of determination shall include: [¶] … [¶] (5) A statement that an EIR was … certified pursuant to the provisions of CEQA.” (Guidelines, § 15094, subd. (b).)
We commented on this imprecise language of Galante, supra, 60 Cal.App.4th 1109 in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, at pages 1199-1200, where we stated: “When discussing exhaustion some opinions have identified certification of the EIR rather than approval of the project as the crucial cutoff point. (See, e.g., Galante, supra, 60 Cal.App.4th at p. 1121.) However, section 21177 specifically refers to close of the public hearing on project approval prior to issuance of the notice of determination, not certification of the EIR. (§ 21177, subds. (a) & (b).) The correct formulation is expressed in [Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1263]: ‘[A] party can litigate issues that were timely raised by others, but only if that party objected to the project approval on any ground during the public comment period or prior to the close of the public hearing on the project.’” In Bakersfield Citizens for Local Control v. City of Bakersfield, supra, we then went on to say:
“We believe that the apparent inaccuracy in some case law results from the fact that environmental review is not supposed to be segregated from project approval. ‘[P]ublic participation is an “essential part of the CEQA process.”’ [Citation.] Although public hearings are encouraged, they are not explicitly required by CEQA at any stage of the environmental review process. (Guidelines, § 15087, subd. (i).) ‘Public comments may be restricted to written communications.’ (Guidelines, § 15202, subd. (a).) Yet, ‘[p]ublic hearings on draft EIRs are sometimes required by agency statute, regulation, rule, ordinance, or the agency’s written procedures for implementation of CEQA.’ [Citation.] ‘If any agency provides a public hearing on its decision to carry out or approve a project, the agency should include environmental review as one of the subjects for the hearing.’ (Guidelines, § 15202, subd. (b).) Since project approval and certification of the EIR generally occur during the same hearing, the two events are sometimes treated as interchangeable. (See, e.g., [Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252], 1257 [final EIR certified at same hearing during which project was approved]; [Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383], 1389 [same].)” (Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at p. 1200.)
(B) Appellant FWA Presented an Abundance of Evidence That The County Held a Public Hearing on the Project On May 11, 2004
FWA’s May 6, 2004 objection letter preceded the May 11, 2004 public meeting of the Madera County Board of Supervisors. If the May 11, 2004 public meeting of the Board of Supervisors included a “public hearing on the project” (§ 21177, subd. (b)), then FWA’s May 6 objection to the project was “prior to the close of the public hearing on the project” (§ 21177, subd. (b)) and was timely. FWA’s opposition to the County’s motion for summary judgment presented an abundance of evidence that the Board of Supervisors held a public hearing on the project on May 11, 2004.
FWA’s opposition to the County’s motion relied on, among other things, the Board of Supervisors’ Agenda for its May 11 meeting, the minutes of the May 11 meeting, the Board’s May 11 “Resolution No. 2004-142” certifying the EIR and approving the project, the transcript of the portion of the May 11 meeting pertaining to the project, and the May 12, 2004 Notice of Determination stating that the Board of Supervisors’ approved the project on May 11, 2004. The Agenda shows that the issues of certification of the EIR and approval of the project were item No. “16” on the May 11 Agenda. The minutes show that the resolution certifying the EIR and approving the project was adopted on May 11. Resolution No. 2004-142 itself shows that the EIR was certified on May 11 and the project was approved on May 11. And as aforementioned, the Notice of Determination states that the Board approved the project on May 11.
The transcript of the May 11 meeting shows an abundance of comment by various persons as to whether the resolution certifying the EIR and approving the project should or should not be passed. At the end of all of the oral comments on the project, the Board passed four separate motions. One was to adopt the findings necessary to certify the EIR and to certify the EIR. The other three were the three approvals necessary for approval of the project. These were (1) “A Resolution Adopting the North Fork Village Logical Sub-Area Infrastructure Master Plan and Design Guidelines” (also known as Resolution No. 143), (2) a resolution approving tentative subdivision map S96-07 with conditions (also known as Resolution No. 144), and (3) the adoption of rezone ordinance No. 525-580.
The County argues that “the undisputed evidence in the record demonstrates that the Board ‘approved’ the project on March 8, 2004,” and that therefore whatever happened at the May 11 public meeting of the Board could not have been a “public hearing on the project.” (§ 21177, subd. (b).) On March 8 the Board appears to have passed a resolution approving the project “pending approval of findings.” Chairman Dominici stated on March 8 that “[t]here will be another hearing on this finding.” Supervisor Gilbert stated on March 8 “[t]his will be a tentative vote … then it comes back to the Board for final adoption.” The previous two paragraphs, however, recite evidence that the project was approved on May 11.
The County then argues that even if the project is deemed to have been approved on May 11, the “public hearing on the project” nevertheless closed on March 8. The County relies on the evidence it presented that a public hearing on the project was held on March 8, 2004, and that at the end of the March 8 hearing Supervisor Dominici (the Chairman of the Board of Supervisors) stated “[a]t this time … I’m going to close the public hearing.” This is certainly evidence that a public hearing was held on March 8, and that the March 8 public hearing closed on March 8. It is not, however, undisputed evidence that no public hearing was held two months later on May 11, 2004. The County points to no law prohibiting the holding of more than one public hearing on a project, and we are aware of no such law. What the County fails to satisfactorily explain is how the Board’s entertaining of argument from members of the public on May 11, 2004 as to whether it should pass the resolutions certifying the EIR and approving the project does not constitute a “public hearing on the project.” If this was not a “public hearing on the project,” then what was it? The County argues that what occurred on May 11 was a “public meeting” and not a “public hearing.” In support of this argument the County calls our attention to Government Code section 54954.6, subdivision (a)(1), which states: “Before adopting any new or increased general tax or any new or increased assessment, the legislative body of a local agency shall conduct at least one public meeting at which local officials shall allow public testimony regarding the proposed new or increased general tax or new or increased assessment in addition to the noticed public hearing at which the legislative body proposes to enact or increase the general tax or assessment.” We fail to see how this statute bolsters the County’s argument. If the event at which the legislative body proposes to adopt an enactment is the “hearing,” then May 11 would appear to be a hearing. The essence of the County’s argument appears to be that if the County labels or calls an event a “hearing,” then it’s a hearing, and if the County calls an event a “meeting,” then the event is a meeting and is not a hearing. We are not persuaded.
This case appears to us to be on all fours with Bakersfield Citizens for Local Control v. City of Bakersfield, supra, where we stated: “[I]f a public hearing is conducted on project approval, then new environmental objections could be made until close of this hearing. (§ 21177, subd. (b); Guidelines, § 15202, subd. (b); Hillside [& Canyon Associations v. City of Los Angeles], supra, 83 Cal.App.4th at p. 1263.) If the decision making body elects to certify the EIR without considering comments made at this public hearing, it does so at its own risk. If a CEQA action is subsequently brought, the EIR may be found to be deficient on grounds that were raised at any point prior to close of the hearing on project approval.” (Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at p. 1201.) “Prior to approving a project, the lead agency shall certify” the EIR. (Guidelines, § 15090, subd. (a).) “The lead agency shall file a notice of determination within five working days after deciding to carry out or approve the project.” (Guidelines, § 15094, subd. (a).) Here, there was evidence that the Board of Supervisors held a public hearing on the project on May 11, 2004, certified the EIR on that date, approved the project on that date, and that the County then filed its Notice of Determination the next day (May 12). Under Bakersfield Citizens, supra, FWA’s May 6 objection was raised “prior to the close of the public hearing on the project” (§ 21177, subd. (b)), which occurred on May 11. FWA thus presented evidence that its objection to the project was timely, and the superior court should have denied the County’s motion for summary judgment.
At oral argument, both the County and Central Green again argued that what occurred on May 11 was a “meeting” under the Brown Act, and not a “public hearing” within the meaning of section 21177. We have no disagreement with the proposition that what occurred on May 11 was a “meeting” as that term is defined in the Brown Act. We do not, however, accept the argument that a Brown Act “meeting” and a Public Resources Code section 21177 “public hearing” are necessarily mutually exclusive events. On May 11 the Board entertained comments from approximately 15 different speakers on whether it should or should not certify the EIR and whether it should or should not adopt the three previously described approvals necessary for approval of the project. The County could have had proposed findings and approvals ready for a vote on March 8 and could have taken a final vote on March 8. We are not suggesting that the County necessarily should have done so. We are merely saying that if the County prepared those proposed findings and approvals at a later date, and then entertained comment from the public at the Board’s May 11 meeting on whether those proposed findings and approvals should be adopted, then the County on May 11 conducted a “public hearing on the project” within the meaning of Public Resources Code section 21177. To hold otherwise, we would have to conclude that even though the Board on May 11 entertained oral comments from the public as to whether the Board should approve the project, and even though the Board then took a vote on May 11 as to whether the Board should approve the project, and even though the members of the Board were free to vote yes or no on May 11 as each Supervisor saw fit, what occurred on May 11 was not a “public hearing on the project” solely because the County prefers instead to call it a public meeting. We are not of the view that the Legislature intended such a myopic reading of the term “public hearing on the project.”
The Ralph M. Brown Act (hereinafter the Act or Act) (Gov. Code § 54950 et seq.) defines “meeting” as follows: “(a) As used in this chapter, ‘meeting’ includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it permits.” (Gov. Code, § 54952.2, subd. (a).) Another provision of the Act provides in pertinent part that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body .…” (Gov. Code, § 54954.3, subd. (a).) The parties do not call our attention to any definition of “hearing” or “public hearing” in the Brown Act, and we see no such definition there. “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” (Gov. Code, § 5490.) “[a]ll meetings of the legislative body of a local agency shall be open and public … except as otherwise provided in this chapter.” (Gov. Code, § 54953, subd. (a); see also 9 Witkin, Summary of Cal. Law (4th ed. 1997) Administrative Proceedings, §§ 15-17, pp. 1069-1081.)
Notably, respondents offer no definition of “public hearing” which would exclude from its reach an event of the type which occurred on May 11. Their argument, reduced to its essence, is that (and the quotation is ours) “the May 11 event was a public meeting and not a public hearing because we say so.” But “CEQA was intended to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Guidelines, §15003, sub. (f); see also Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) A “hearing” has been defined as “[a]ny setting in which an effected person presents arguments to an agency decision-maker.” (See Black’s Law Dict. (8th ed. 2004) p. 737.) That is what occurred on May 11.
Given our resolution of this issue, we need not and do not address FWA’s argument that its objection was also timely under subdivision (c) of section 21177.
DISPOSITION
The judgment in case No. F049860 is reversed. Costs to appellant FWA. The appeal in case No. F049479 is dismissed.
WE CONCUR: Levy, J.,Kane, J.