Perkins Coie

Subscribe to Perkins Coie's Posts

The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App. 5th 360 (2020).

Homeowners sought approval from the City build a cabaña near a tennis court on their property. Plaintiff neighbors appealed the Planning Commission’s approval to the City Council. During consideration of the appeal, the homeowner’s attorney threatened to sue the City if it denied the project. The City Attorney notified the City Council of the litigation threat orally in a closed session. The threat was not noted in the agenda for any of the public meetings, and there was no mention of it in the information packets made available to the public before the meetings. At its final public meeting, the City Council denied the appeal and upheld the Planning Commission’s approval of the application.

Plaintiffs sued, contending that the City violated the Brown Act by discussing the application in closed hearings, and that plaintiffs were deprived of their right to a fair hearing.

Brown Act Violation

Plaintiffs claimed the City violated the Brown Act by failing to announce or make available for public inspection the litigation threat that served as the basis for closed session discussions. The City argued it was not required to include the litigation threat in the pre-meeting agenda packet because the threat was not distributed in written form to the City Council. The court of appeal rejected this argument, stating that under the Act, the record of a litigation threat to be discussed in closed session must be reduced to writing and included in the agenda packet made available upon request before a meeting. Therefore, the City violated the Brown Act.
Continue Reading Brown Act Violation Did Not Require Nullification of Project Approval Where No Prejudice Was Shown

The City of San Diego was not required to obtain a coastal development permit for a transitional housing project because the Coastal Commission had certified the City’s local coastal program, whose provisions therefore applied in lieu of the Commission’s regulations. Citizens for South Bay Coastal Access v. City of San Diego, 45 Cal. App.…

The Second District Court of Appeal held that a project’s potentially significant environmental impacts required preparation of an EIR rather than the mitigated negative declaration adopted by the City. Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al., 46 Cal.App.5th 665 (2020).

The project consisted of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site located in Agoura Hills. The City approved a Mitigated Negative Declaration for the project, finding no substantial evidence of a significant effect on the environment because the project incorporated mitigation measures it believed would reduce potential impacts to a less-than-significant level.

  1. Impacts on Cultural Resources

The court of appeal determined the MND’s mitigation measures were insufficient to avoid or reduce potential impacts to archeological and tribal cultural resources to a less-than-significant level. The proposed  measures, it found, lacked an analysis of whether the resources within the proposed construction site could be avoided. Nor did the measures specify performance criteria for evaluating the feasibility of avoidance as an alternative to excavation. Further, substantial evidence provided by an expert in Native American archeology and history demonstrated that the project could likely cause significant permanent damage to the site and the proposed data recovery program was inadequate to mitigate that damage.

  1. Impacts on Sensitive Plant Species

The project site contained three special-status plant species that would be significantly impacted by project grading, landscaping, and fuel modification activities. The court found that, even with the proposed mitigation measures, the project could still have a significant impact on these sensitive plant species. It concluded that the mitigation measures improperly deferred formulation of certain mitigation efforts, failed to describe specific performance criteria to ensure that mitigation would be effective, relied on outdated botanical surveys of the area, and did not provide feasible alternatives if proposed salvage and replanting efforts failed.
Continue Reading Mitigated Negative Declaration Inadequate for Mixed-Use Project

A Riverside County zoning ordinance that removed religious assemblies as a permissible use in a particular zone did not violate the equal terms provision of the Religious Land Use and Institutionalized Person’s Act (RLUIPA) because it prohibited both religious and secular institutions alike from staging events without charging a fee. Calvary Chapel Bible Fellowship v. …