SAN JOAQUIN RAPTOR RESCUE CENTER et al., Plaintiffs and Respondents,
COUNTY OF MERCED et al., Defendants and Appellants WILLIAM MORRIS, Real Party in Interest and Respondent. SAN JOAQUIN RAPTOR RESCUE CENTER et al., Plaintiffs and Respondents,
COUNTY OF MERCED et al., Defendants and Appellants.
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara and Carol K. Ash, Judges. Super. Ct. Nos. CV000629, CV000689 [†]
James N. Fincher, County Counsel, and Michael P. Calabrese, Deputy County Counsel, for Defendants and Appellants.
Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch, attorneys for Plaintiffs and Respondents.
No appearance for Real Party in Interest and Respondent William Morris.
The Ralph M. Brown Act (Gov. Code,  § 54950 et seq.; hereafter the Brown Act) requires, among other things, that the legislative body of a local agency shall post, at least 72 hours before a regular meeting, “an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.…” (§ 54954.2, subd. (a)(1).) The same section of the Brown Act adds that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.…” (§ 54954.2, subd. (a)(2).) In the present case,  the Merced County Planning Commission (the Commission) posted an agenda that set forth, as one item of business for its upcoming meeting, the Commission’s potential approval of a subdivision application submitted by William Morris to divide 380.45 acres into nine parcels (the project). The agenda, however, failed to mention that the Commission would also be considering whether or not to adopt a CEQA document known as a mitigated negative declaration (MND) concerning the environmental impact of the project. At the meeting, the Commission approved the project and adopted the MND. Thereafter, San Joaquin Raptor Rescue Center and Protect Our Water (petitioners) filed a petition for writ of mandate against the County of Merced and the Commission (together the County) seeking to set aside the approval of the project and the adoption of the MND on the ground that the Commission’s adoption of the MND violated the agenda requirements of the Brown Act. Petitioners also alleged, as a separate cause of action, that the County failed to comply with a CEQA notice provision. Although the trial court eventually dismissed the Brown Act cause of action under the “cure and correct” provisions of that statute (§ 54960.1, subd. (e)), it found that a violation had occurred and that petitioners were entitled to an award of costs and attorney fees under section 54960.5 of the Brown Act. The County now appeals from the judgment, arguing that the agenda requirement was satisfied because the public would have implicitly understood that CEQA documents, if any, would likely be considered at the time of the project’s approval. We disagree. As more fully explained herein, we conclude that the Brown Act was violated in this case because the Commission took action on the MND when that matter was not expressly disclosed on the meeting agenda. Accordingly, we affirm that portion of the judgment based on the Brown Act violation.
FACTS AND PROCEDURAL BACKGROUND
The Public Meetings, Agendas and Actions Taken
The agenda issued by the Commission for its October 14, 2009, meeting included the following item of business:
“V. … MINOR SUBDIVISION APPLICATION No. MS07-030—William Morris—To divide three parcels totaling 380.45 acres into nine parcels, ranging from 40.00 acres to 54.72 acres in size. The project site is located at the southwest corner of American Avenue and Mitchell Road in the Hilmar area. The property is designated Agricultural land use in the General Plan and zoned A-1 (General Agricultural). THE ACTION REQUESTED IS TO APPROVE, DISAPPROVE OR MODIFY THE APPLICATION. JH.”
No further description of this item of business was provided. No mention was made in the agenda that the Commission would be considering the adoption of an MND in connection with the project. At the October 14, 2009, meeting, the Commission approved the proposed project and, by separate motion, adopted the MND.
On October 19, 2009, petitioners sent a letter to the County objecting to the Commission’s approval of the MND since “there was no mention [in the agenda] of consideration of a CEQA document of any kind.” The letter stated that such action violated the Brown Act and asked the Commission to “cure and correct” the violation by rescinding the approval of the project and the adoption of the MND. The Commission, at its meeting held on October 28, 2009, denied the request to cure or correct the alleged violation.
On October 19, 2009, petitioners administratively appealed the Commission’s approval of the project to the Board of Supervisors of Merced County (Board of Supervisors).
On January 26, 2010, the Board of Supervisors granted petitioners’ administrative appeal. The Board of Supervisors directed the Commission to vacate its approval of the project and to hold a new meeting to re-address whether to approve the project and the MND after first issuing a new agenda in conformity with petitioners’ request that the MND be expressly specified on the agenda. In granting the appeal, the Board of Supervisors did not admit that the Commission’s actions violated the Brown Act, but indicated that it was good policy for the Commission to provide more information to the public in its agendas, in accordance with petitioners’ request, even though arguably not required by the Brown Act.
On February 10, 2010, the Commission complied with the Board of Supervisor’s directive. The agenda for the Commission’s February 10, 2010, meeting expressly listed the MND as an item of business along with the potential approval of the project. The Commission then ...