CEQA Finding of Exemption to be Listed on an Agency’s Agenda for its Public Meetings

In G.I. Industries v. City of Thousand Oaks, the Second District Court of Appeal recently held that the City Council’s approval of a project exempt from CEQA violated the agenda requirements of the Brown Act when it did not list the item on its agenda. In doing so, the Court reversed the trial court’s order sustaining a demurrer without leave to amend brought by a local agency and the real party in interest.

The City of Thousand Oaks (City) posted an agenda stating that it would consider awarding a solid waste franchise agreement to Arakelian Enterprises, Inc., doing business as Athens Services, along with a note that City staff recommended approval. The agenda did not state that the City would also consider whether the agreement was exempt from CEQA. On the day of the City Council meeting, a supplemental item was posted giving notice of staff's recommendation that the City find the agreement to be exempt from CEQA. The City Council moved to approve the Franchise agreement including in that motion that the approval was exempt under various CEQA exemptions.

In response, Waste Management filed a writ of mandate alleging that the City violated Section 54954.2 of the Brown Act because the City failed to provide notice through its posted agenda that CEQA exemptions would be considered at the City council meeting. The trial court concluded that because CEQA does not require a public hearing for an exemption determination, the Brown Act does not require that the exemption be agendized. The Court of Appeal reversed.

The Court concluded that the Brown Act applies to the City Council's determination that the project was exempt from CEQA by relying on San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167. The Court of Appeal indicated that members of the public are entitled to have notice of and an opportunity to participate in a local agency's determination that a CEQA exemption applies, just as they are entitled to have such notice when a CEQA document is being considered. The Court ultimately held that “the City cannot avoid the Brown Act simply by delegating its duty to its staff. Where a local agency at a regular meeting approves a project that is subject to staff's determination of a CEQA exemption, it must give notice of the CEQA exemption on its agenda.” The Court remanded to the trial court to fashion an appropriate remedy.

This case expands existing case law by expressly requiring local legislative bodies who issue project approvals to put CEQA exemption determinations on their agendas to comply with the Brown Act. 

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