Appellate court rules Merced County violated Brown Act

rgiwargis@mercedsunstar.comJune 9, 2013 

An appellate court has ruled in favor of two environmentalist groups who claim Merced County violated the state Brown Act in 2009 — which is meant to ensure transparency in public agencies.

Two of the lawsuits say the Brown Act was violated because the Merced County Planning Commission combined two "action" items into one — the approval of a project and the adoption of its environmental study.

County officials said they've since corrected the issue, now listing such items separately — a practice that's been in place for the past three years.

Three appeals cases were heard last month, stemming from lawsuits originally filed in 2010 by the San Joaquin Raptor Rescue Center and Protect Our Water groups over a proposal.

The nonprofit organizations claim the Planning Commission didn't disclose certain actions on its agenda and in public notices. They originally prevailed in two of the three suits.

"We had no clue at what level these items were on the agenda or what the action was," said Lydia Miller, president of the San Joaquin Raptor Rescue Center.

"You shouldn't have to go digging around, or have to ask the planning department what is going to be decided. It reaffirms that there has to be clarity and transparency of what is intended," she added.

At the center of the lawsuits were two project proposals.

The first would divide 380 acres in the Hilmar area into nine parcels, at the southwest corner of American Avenue and Mitchell Road.

The second project, called Lucca Villas, is on agricultural residential land off Leeds Road, east of the city of Merced. The project would divide 22 acres into 17 family residential lots.

The lawsuits allege the Planning Commission put the approval of the two projects on its agenda, but didn't mention it would also consider adopting a California Environmental Quality Act document.

The CEQA document evaluates the impact a project would have on the environment.

The commission went ahead and approved the projects and adopted the environmental document at those meetings.

"We had no clue the impact of the projects on natural resources," Miller said. "When you're arguing the merits of a particular project, one of our complaints is that we didn't get proper notification or access to material."

But County Counsel James Fincher said, "There was no case prior to this that delineated that each element of the project approval had to be separate agenda action."

The lower court originally found that a "CEQA violation" had occurred, but the appellate judges said the violation was "moot" because the project approvals were rescinded.

Another lawsuit claimed a Brown Act violation occurred when an October 2009 agenda allegedly "failed to make any mention of the fact that the Planning Commission intended to consider and approve a new policy regarding all future public notices," according to court documents.

The county responded that the item in question was not an official "action."

"We viewed it as a report, because the Planning Commission didn't have the power to change the policy because the Board of Supervisors have delegated that to the planning director," said Fincher.

The court ultimately ruled in favor of the county in that case, deciding it did comply with the Brown Act.

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