[Note to the reader:  This is a lengthy article — but you can understand what happened (and what the problem is) by reading 2 or 3 minutes of it — and by skimming. You do not have to understand the legal issue to see what the problem is. The Brown Act does not allow matters not on the agenda to be discussed. Yet this is what the Planning Commission did.
There is an overall view of what occurred and then the article goes into specifics, including what the League of California Cities Guide to the Brown Act has to say on this. There is a listing of the contents of the supporting materials with links. If you want to watch the video of the April 27 meeting, it’s here.]

What happened

At their April 27, 2023, meeting, the Planning Commission heard from twenty-one speakers as part of the Public Comment period. Following an approximately 20-minute presentation on crime prevention and bicycle safety, the Commission then turned the discussion to the issues of rezoning on two specific areas in Arcata: an area around 17th & Q Streets and the area around Eye Street, south of the Craftman’s Mall area. This discussion and survey of each of the Commissioner’s positions went on for about 38 minutes.

The problem was:  A discussion of rezoning was not on the Commission’s agenda.

Summary

1. The Commissioners requested that a discussion of the rezoning be put on the agenda for Thursday’s meeting, 4/27. That was on Saturday, 4/22. The video and transcription of this conversation are below.
2. I reminded Mr Loya, in writing on Monday 4/24 and in person at the Planning Commission meeting on 4/25, that this item had to be placed on the agenda. The agenda that had been posted did not include the rezoning, as the Commissioners had requested.
3. It was not put on the agenda.
4. Regardless of the item not being on the agenda, the Planning Commissioners discussed, considered, and through a polling-style vote provided recommendations. This is a violation of the Brown Act, which specifically prohibits discussion and action on items not on the agenda.

I don’t blame Commission Chair Scott Davies for what happened. He was put into a bad situation. It was Community Development Director David Loya who set up this unfortunate chain of events. “Unfortunate” because it was in direct violation of the terms of the Brown Act, California’s open meetings “sunshine” law.

A discussion of the re-zoning was not on the agenda, and the Planning Commission went on with their meeting as though it were there.

Let’s look at the words of Commission Chair Scott Davies, early in the meeting:

“Next, we will have public comment. During this time, people may make comments about items that are on the agenda.“

“Before I open public comment, I do want to address quickly the agricultural residential re-designation proposed in the land use element, which many of you are here to speak about. I recognize that this is not a time for Commissioner deliberations. But I want to let folks know that we have heard you and the many comments we’ve received as well as letters.”

And then: “As such, I would like the city to focus its energy on more productive sites. And for this reason, I’m not going to support this re-designation and suggest we leave the zoning as it is.”

This was all said before public comment.  Why did the Chair tell us what his views on this issue was? Was it as an effort to possibly calm the public? Was it an assurance that the other members of the Commission would later be voting alongside of him?

“With that I’d like to open public comment.”

Of the 21 people who spoke, there was one person who spoke on a matter that was actually on the agenda. The other 20 people spoke on matters not on the agenda. Eleven people spoke on the rezoning issues.

When the time came for Business Item “B” the Chair said:

“Our next agenda item this evening is to consider a recommendation to the City Council on the General Plan update. Can we begin with staff report?”

But what came next was not what was on the agenda.

What does the agenda say?

B. Consider a Recommendation to the City Council on the General Plan Updates
This meeting will focus on reviewing the Circulation Element. The Commission took this topic up at its April 11, 2023, meeting but did not complete the work. The Commission scheduled this Special Meeting to work on the Circulation items that they were not able to complete on April 11. The Commission will use the March 27, 2023, amended Framework to make changes to the draft Elements.

Here’s an image of the actual agenda, pages 2 & 3. (Portions of two pages are combined.)

Do you see anything on rezoning in this agenda item? No.
Do you see anything on the Land Use Element or on ​the “Draft Land Use Map amendments” — that’s the euphemism for rezoning — in this agenda item? No.

You don’t see anything about Land Use or rezoning. Because it’s not there.

Could the words “Consider a Recommendation to the City Council on the General Plan Updates” be enough?

After all, a discussion of Land Use Map Amendments and a rezoning discussion are certainly matters that are part of a recommendation to the City Council, right?

Sorry, that doesn’t hold. Those words are too vague and non-descriptive. The California courts have ruled on this consistently and clearly. There is not enough there for an ordinary person to know whether or not to attend this meeting or to know what would be discussed.

“Consider a Recommendation to the City Council on the General Plan Updates” is not enough — especially when it is followed by:

“This meeting will focus on reviewing the Circulation Element. The Commission took this topic up at its April 11, 2023, meeting but did not complete the work. The Commission scheduled this Special Meeting to work on the Circulation items that they were not able to complete on April 11.”

That paragraph makes it extremely clear what this meeting is about — the Circulation Element.

See below in the “Supporting Materials” section:
The Brown Act regarding the wording of agenda items.
Case Law on the Brown Act — regarding wording, brevity, and effect of the posting of agenda items.

Why was the Land Use Element and rezoning not on the agenda?

The Planning Commission clearly said that they wanted these items on the agenda. Near the end of their Saturday, April 22, special meeting, there was a 3-minute discussion about putting the rezoning issue on the agenda. At the conclusion (around 3 hours 49 min on the video), Commission Chair Scott Davies said:

“​Is everyone okay with putting this on the agenda for Thursday for our special meeting?”

To which Director David Loya said:

“So we’ll message that out through our e-notifications and et cetera — that Thursday in addition to what’s on the agenda already that you plan to get back to the land use bike rack. So if you’ve got land use questions come then. Thursday the 27th. Yes.”

And Commissioner Matt Simmons then reinforced that this should be on the agenda:

“​Can I suggest that it comes first on the agenda, so that we get to it? While people are here on the day that we told them to come?”

The Commissioners requested that this be on the agenda. David Loya said he’d send out an e-notification. In his response, he defied what the Planning Commissioners said that they wanted — and what they told him to do.

And what is wrong with just an e-notification?

Quite simply:  It’s an e-mail. By law, this is not enough. And David Loya knows this. The item is still not on the agenda. This does not fit into the notice requirements specified by State law. An e-notification that goes out to a list of people is not the same as a public noticing. The agenda is available to everyone if it’s properly noticed. If sent as an e-mail, it’s not. There are reasons that the law is set as it is.

But this situation was even worse. The e-notification itself was misleading.

Here is the Subject line of the e-notification that was sent out Monday morning, April 24: “April 27, 2023 Special Meeting outstanding items”

I ask you: What do you honestly think of an e-mail that has this as its subject line? Does it seem especially vague? Does this Subject line offer any indication of what the message is about?

The words “Outstanding Items” clearly do not give a clue about a meeting that might be about the City’s rezoning proposals.

To me, and I’m sorry to say this, this degree of vagueness represents an attempt to deceive. The text reads: ” The Planning Commission committed to reviewing outstanding items in the Land Use Element, including the Land Use Map with proposed changes, at its upcoming Special Meeting on April 27, 2023, starting at 5:30 p.m. The Commission will consider the Draft Land Use Map amendments at the beginning of the meeting. We have received comments on the proposed land use amendments, and the Commission will address those comments in this upcoming meeting.”  (Full text of this e-notification is below.)

Does an ordinary person have a clue what “reviewing outstanding items in the Land Use Element, including the Land Use Map with proposed changes” really means? 

Did the Commission in fact “review[ing] outstanding items in the Land Use Element” at that meeting? Nope, not even close. They talked about the rezoning only. No other outstanding Land Use Elements were brought up. Only the rezoning issues — and only three of them. (There are 22 non-Gateway area proposed zoning changes.)

Summary

1. The Commissioners requested that a discussion of the rezoning be put on the agenda for Thursday’s meeting, 4/27. That was on Saturday, 4/22.
2. I reminded Mr Loya, in writing on Monday 4/21 and in person at the Planning Commission meeting on 4/25, that this item had to be placed on the agenda.
3. It was not put on the agenda.
4. Regardless of the item not being on the agenda, the Planning Commissioners discussed, considered, and through a polling-style vote provided recommendations.

What to do now

• Have the agenda item headings and descriptions actually be headings and descriptions that define what is going to take place — as required by law. Do away with the “Consider the Gateway Plan” style of agenda item headings. They won’t hold up in court.
• Properly put up the notice of what will be discussed — on the agenda itself that is posted properly.

And better yet

• Institute the system that I presented to City Manager Karen Diemer in January (2023) for handling messages from the public. This system allows citizens to write letters to the Commission prior to the meeting — and have those letters be included in a packet or in an addendum to the packet. In this way, members of the public can see the agenda and see the viewpoints of other citizens all before the meeting. As outlined, this procedure would involve 15-30 minutes of staff time, generally twice a month. That is 30-60 minutes per month, for a substantial increase in public engagement for a small expenditure of staff time.
• Vow to abide by the Brown Act, to actively open the avenues of public engagement, and to, in short, treat the public as an asset and not as a pest.

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Supporting Material

Click on any link to go to that section. Use your back-arrow or scroll up to return to these contents.

1. The April 27, 2023, Planning Commission Agenda Packet
2. The e-notification sent out Monday morning, April 24, 2023
3. Portion of the video from the Saturday, April 22, 2023 special meeting.
   Two videos:  6 minutes long, and the last 2-1/2 minutes section of that.
4. Transcription from this portion of the Saturday, April 22, 2023, meeting.
5. What the California League of Cities say in their Guide to the Brown Act.
6. The Brown Act regarding the wording of agenda items.
7. Case Law on the Brown Act — regarding wording, brevity, and effect of the posting of agenda items.
8. Video of the Thursday, April 27th meeting.

Below is the complete Agenda Packet for the Planning Commission’s April 27, 2023, meeting. The reader is directed to pages 2 and 3, which show the Business Items for the meeting, and to page 4, which is the single-page Staff Report, on the Circulation Element.

There is no mention of the Land Use Element, no map of the proposed zoning changes, no staff report on the proposed zoning changes, or any mention whatsoever of Land Use Amendment or rezoning. The agenda is 100% empty when it comes to anything relating to the rezoning.

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Below is the entire text of the e-notification sent out Monday morning, April 24, 2023.

Sender Name:     City of Arcata – Community Development Dept.
Sent By:             (Automatically Sent By Website)
Send Date:          4/24/2023 10:12:42 AM
Email Subject:     April 27, 2023 Special Meeting outstanding items

The Planning Commission committed to reviewing outstanding items in the Land Use Element, including the Land Use Map with proposed changes, at its upcoming Special Meeting on April 27, 2023, starting at 5:30 p.m. The Commission will consider the Draft Land Use Map amendments at the beginning of the meeting. We have received comments on the proposed land use amendments, and the Commission will address those comments in this upcoming meeting.

The Commission will be making a recommendation on the proposed changes to the Council, who is the final decision maker. The Council will decide which land use amendments to make to meet our housing needs into the future. But the Commission’s recommendation is a critical step in adopting these changes to meet our future housing needs. Your participation is a vital part of this decision.

You can learn more about what is being proposed at https://www.cityofarcata.org/975/Land-Use-Element.

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Here is the portion of the video from the Saturday, April 22, 2023 special meeting. This portion is 6 minutes long that occurred toward the end of the almost 4-hour meeting. This portion starts at approximately 3 hours 44 minutes into the meeting.

The particularly relevant conversation starts at at about the 3 minute 30 second mark in this video. If you skip the first 3-1/2 minutes (mostly of David Loya talking), you can watch that 2-1/2 minute section, from 3:30 to the end, at the second video, below.

The full 6 minutes:

Shorter version, 2-1/2 minutes:

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The transcription from this portion of the Saturday, April 22, 2023, Planning Commission meeting. The times below are for the City video. To match it with the YouTube video, add ~10 seconds to the time shown here.

We can note that Commissioner Mayer had to ask 3 times before she gets an actual answer from David Loya.

“So when are we going to talk about those?”
“When should members of the public come to speak at our meeting and these rezoning suggestions?”
“Can we commit to a time when we will address these specific rezoning suggestions?”

Judith Mayer (Commissioner)  3:44:22
Can I ask a scheduling question? As part of the Land Use Element there were a number of proposals for rezoning which we haven’t talked about. Members of the public certainly have. When is that happening? Because the reason is that if there’s something that we adopt or recommend to adopt in the Land Use Element, that means it *will* come up later on when we talk about the Land Use Code. If we recommend against it, then it will not, likely. So when are we going to talk about those?

David Loya – Community Development Director  3:45:04
Yeah, no, I hoped we would get to some of these discussions today. Many of the policies or the zoning changes you’ve seen multiple times. Many of them you’ve already recommended. Several of them you have not seen multiple times or had a chance to really deliberate on them. And so, you know, we’re hearing from the public and, you know, concerns about different areas. I want the Commission to be able to provide direction to staff to, you know, how to amend the draft document here and, you know, make that recommendation that the City Council And also to give an opportunity to fully discuss why certain decisions were made, so that you’re able to incorporate that into your recommendation. So, with that background, I guess, I would say that, my hope is that we can get to this in, you know, one of our next couple of meetings. If we’re coming back to some of these other bike rack issues on a Land Use Element, that would be an opportune time to get into this material as well. You know, certainly, this is one of the most critical decisions that you’re going to make — what the Land Use Map is going to look like, where the zoning districts actually applying. So you’re going to absolutely have a conversation around that. So, fingers crossed, we can make good work in the Circulation discussion on Thursday, next week, and then we can start digging into this material again, or, you know, the Public Safety and Infrastructure Elements, you know, really had, you know, some very targeted suggestions from from Commissioners. It’s possible, even though we have several agenda items for Tuesday, that we can start in on those at that time. So, next week, hopefully, if not next week, then we’ll definitely have to to schedule some time to get back to these.

Judith Mayer (Commissioner)  3:46:52
When should members of the public come to speak at our meeting and these rezoning suggestions? Because I… [interrupted by David]

David Loya – Community Development Director  3:47:00
I would encourage folks to, you know, speak on these matters at, you know, at every meeting, if they wish. To write letters, to write emails, you know, you’re hearing it from them. We’ve heard, you know, some really good points of view on, you know, some of these zoning changes, the A-R projects here, or parcels here rather. You know, many people have spoken on, we heard a couple of people speak on, you know, the St. Louis Craftsman’s Mall area. So you all are hearing those. We, at this point, because of the way that the process is working, we don’t have a specific date that we’re noticing. These people will have to look on the agenda and see, you know, is this coming up at that time as a specific agendized item. And or tune into, you know, the meetings on Tuesday and Thursday to see if you get to them. I can’t predict whether or not you will get through your materials on Tuesday and Thursday. I would love to tell people that’s when you’re going to talk about it. But it’s it’s really out of any of our control to be able to predict that.

[Note:  Mr. Loya speaks falsely. It is completely within their control. All the Commission needs to do is exactly what they did:  To put this on the agenda. Unfortunately, Director Loya did not do what they requested.]

Judith Mayer (Commissioner)  3:48:03
Can we commit to a time when we will address these specific rezoning suggestions? Because I know that members of the public had come in several times when we never got around to those items.

David Loya – Community Development Director  3:48:15
Let me ask the Commission — Would you like to commit to a time to address these land use map questions? And agendize as well.

Dan Tangney (Commissioner)  3:48:24
So next week’s meetings are already agendized. So we’re talking about perhaps the meeting after that?

David Loya – Community Development Director  3:48:31
You have on your agenda the ability to go back into any of these bike rack issues, any of them, it’s all in the agenda. And so this material is in your agenda for Tuesday and in your agenda for Thursday. The specific focus of the staff report doesn’t incorporate this, but if you want to say right here and now, hey, Tuesday, we’re going to talk land use, we’re going to dedicate an hour to talking about land use. I can’t tell you that’s what you’re going to do. But you all can.

Scott Davies (Chair)  3:48:59
I mean, I kind of like the flexibility of us being able to work through our scheduled items, and then get back into the bike rack as we did today as time allows. But I would like to hear everyone’s input on that.

Dan Tangney (Commissioner)  3:49:10
Well, I think Judith is making an excellent point that this *is* a topic that the public is going to want to be here for if they are, you know, already writing letters and speaking. And we’re all losing track a little bit. I’m thinking back on — Oh, I’m gonna have to go back through all the e-mails that they’ve emailed to it or letters that they’ve emailed to us to be reminded of the concerns. So it would be nice to target a date. Does Thursday work? I mean, can we just….

Scott Davies (Chair)  3:49:37
Yeah, given that we have a project for Tuesday that we need to review.  Is everyone okay with putting this on the agenda for Thursday for our special meeting? Sure. Any opposed?

Peter Lehman, Planning Commissioner  3:49:48
I’ll just say that I agree with both of you that there’s enough interest so that we should have at a time soon.

David Loya – Community Development Director  3:49:57
So we’ll message that out through our e-notifications and et cetera — that Thursday in addition to what’s on the agenda already that you plan to get back to the land use bike rack. So if you’ve got land use questions come then. Thursday the 27th. Yes.

[NOTE:  What David Loya just said — “that you plan to get back to the land use bike rack” – is NOT what the Commissioners just said… less than 20 seconds earlier.]

Matt Simmons  3:50:12
Can I suggest that it comes first to the agenda, so that we get to it? While people are here on the day that we told them to come?

Scott Davies (Chair)  3:50:18
That’s okay with me. Great. Okay. Thank you for that.

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What does the California League of Cities say in their Guide to the Brown Act?

“Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.”

“Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?

While the Brown Act does not allow discussion or action on items not on the
agenda, it does allow members of the legislative body, or its staff, to “briefly
respond” to comments or questions from members of the public, provide a
reference to staff or other resources for factual information, or direct staff
to place the issue on a future agenda. In addition, even without a comment
from the public, a legislative body member or a staff member may ask for
information, request a report back, request to place a matter on the agenda
for a subsequent meeting (subject to the body’s rules or procedures), ask a
question for clarification, make a brief announcement, or briefly report on
his or her own activities. However, caution should be used to avoid any
discussion or action on such items.”

“The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.”

Q. The agenda for a regular meeting contains the following items of business:
• Consideration of a report regarding traffic on Eighth Street; and
• Consideration of contract with ABC Consulting.
Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”

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The Brown Act regarding the wording of agenda items

An agenda item shown such as “Consider the Gateway Area Plan” or “Consider a Recommendation to the City Council on the General Plan Updates” is considered to be too vague. This has been consistently backed by Case Law. “Case Law” means that there have been lawsuits on this, and the Court has found again and again that that level of brevity is a violation of the Brown Act.

The Court has maintained that where it would not be difficult to describe the item in a manner that would be helpful to public in their understanding, then it must be done.

Agendas must contain a brief general description of each item of business to be transacted or discussed at the meeting. § 54954.2(a). The description should inform the public of the “essential nature” of the matter, but need not exceed 20 words. San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 (2016).

Two key provisions of the Brown Act which ensure the public’s business is conducted openly are the requirements that legislative bodies publicly post agendas prior to their meetings, (§§ 54954.2, 54955, 54956, and 54957.5) and that no action or discussion may occur on items or subjects not listed on the posted agenda (§ 54954.2).

The description should inform the public of the “essential nature” of the matter, but need not exceed 20 words. San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 (2016).

The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.

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Case Law on the Brown Act — regarding wording, brevity, and effect of the posting of agenda items

Examples shown below. There are many others. The law is clear-cut on this.

Carlson v. Paradise Unified School Dist. (1971)

On this point alone, we think the trial court was correct because the agenda item, though not deceitful, was entirely misleading and inadequate to show the whole scope of the board’s intended plans.

It would have taken relatively little effort to add to the agenda that this ‘school site change’ also included the discontinuance of elementary education at Canyon View and the transfer of those students to Ponderosa School.

(Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, 199.) In interpreting this section, the court stated:

“In the instant case, the school board’s agenda contained as one item the language ‘Continuation school site change.’ This was entirely inadequate notice to a citizenry which may have been concerned over a school closure. “

On this point alone, we think the trial court was correct because the agenda item, though not deceitful, was entirely misleading and inadequate to show the whole scope of the board’s intended plans. It would have taken relatively little effort to add to the agenda that this ‘school site change’ also included the discontinuance of elementary education at Canyon View and the transfer of those students to Ponderosa School.” (Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, 200, original emphasis; see also 67 Ops.Cal.Atty.Gen. 84, 87 (1984).)

San Joaquin Raptor Rescue Center v. County of Merced (2013)

This decision reaffirms the importance of agendas that include sufficient specificity.  While each individual agenda item need only include a “brief general description” of the item, an agenda must at least mention each separate matter to be considered.  As in this case, courts will look to whether the policy of the Brown Act to facilitate public participation is fulfilled, and they may award fees and costs to a successful petitioner,

Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194 (2017),

The court held that the Apple Valley Town Council’s agenda description was insufficient.

https://www.meyersnave.com/appellate-court-clarifies-agenda-requirements-under-brown-act/

Appellate Court Clarifies Agenda Requirements Under Brown Act

June 12, 2013

On May 31, 2013 in San Joaquin Raptor Rescue Center v. County of Merced, the Fifth District Court of Appeal issued an opinion holding that the Merced County Planning Commission violated the Brown Act by failing to post a sufficiently specific agenda prior to consideration of a subdivision proposal. 

This decision reaffirms the importance of agendas that include sufficient specificity.  While each individual agenda item need only include a “brief general description” of the item, an agenda must at least mention each separate matter to be considered.  As in this case, courts will look to whether the policy of the Brown Act to facilitate public participation is fulfilled, and they may award fees and costs to a successful petitioner, even if an agenda item is renoticed and properly voted on at a subsequent meeting.

The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.

 In Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, the court interpreted the agenda requirements 16 set forth in section 966 of the Education Code. That section required “. . . [a] list of items that will constitute the agenda for all regular meetings shall be posted. . . .” (Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, 199.) In interpreting this section, the court stated:

“In the instant case, the school board’s agenda contained as one item the language ‘Continuation school site change.’ This was entirely inadequate notice to a citizenry which may have been concerned over a school closure. “

On this point alone, we think the trial court was correct because the agenda item, though not deceitful, was entirely misleading and inadequate to show the whole scope of the board’s intended plans. It would have taken relatively little effort to add to the agenda that this ‘school site change’ also included the discontinuance of elementary education at Canyon View and the transfer of those students to Ponderosa School.” (Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, 200, original emphasis; see also 67 Ops.Cal.Atty.Gen. 84, 87 (1984).)

However, the Legislature in section 54954.2 placed an important gloss on the requirement to provide a brief general description. That section expressly provides that the brief general description generally need not exceed 20 words in length. Thus, absent special circumstances, the legislative body may use a short description of less than 20 words to provide essential information about the item to members of the public. Where necessary, legislative bodies are free to provide a more detailed description, but as a general rule, they need not feel any obligation to do so (for more information about closed-session agenda description, see discussion infra).

https://www.cityofdavis.org/home/showpublisheddocument/15449/637423534494130000

Page 8

Courts will uphold a challenge to the sufficiency of an agenda item description when the description provides fair notice of what the agency will consider.

The San Diegans for Open Government case provides an example of a sufficient agenda description that provides fair notice. In San Diegans for Open Government, the Oceanside City Council approved a subsidy agreement with a hotel developer using the following agenda item description:

Adoption of a resolution to approve: 1. An Agreement Regarding Real Property (Use Restrictions) between the City of Oceanside and SD Malkin Properties Inc. to guarantee development and use of the property as a full service resort consistent with the entitlements for the project; 2. An Agreement Regarding Real Property to provide a mechanism to share Transit Occupancy Tax (TOT) generated by the Project; 3. A Grant of Easement to permit construction of a subterranean parking garage under Mission Avenue; 4. A report required by AB 562 prepared by Paul Marra of Keyser Marston and Associates documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, the public purpose of the subsidy, the amount of the tax revenue and jobs generated by the project; and 5. A License Agreement to permit construction staging for the project on a portion of Lot 26.

The court ruled that this agenda description complied with the requirements of Government Code Section 54954.2 because the agenda description expressly gave the public notice that the council would consider a fairly substantial development of publicly owned property as a hotel, that the City would share the transient occupancy tax generated by the project, and that the transaction would involve a subsidy by the City. Additional information, while helpful, was not necessary to provide fair notice of the essential nature of the action under state law.

 The Court found that the language of the agenda, considered as a whole, provided more than a “clue” that the City planned to provide the developer with a substantial and ongoing financial subsidy in exchange for the project.

In contrast, in Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194 (2017), the court held that the Apple Valley Town Council’s agenda description was insufficient.

There, the Apple Valley Town Council adopted three resolutions that called for a special election related to an initiative to adopt a commercial specific plan and the filing of arguments and rebuttal arguments for and against the initiative. In addition, the Town Council adopted a Memorandum of Understanding (“MOU”) that authorized the acceptance of a gift from an interested party, Wal-Mart, to pay for the special election. The agenda description for the matter read “Wal-Mart Initiative Measure” and included a recommendation for action that read “[p]rovide direction to staff.”

The court reiterated that the Brown Act requires that each item of business be placed on the agenda. Specifically, the court highlighted that nothing in the agenda description, or even in the agenda packet, indicated that the Town Council was going to consider an MOU to accept a gift from Wal-Mart to pay for a special election to pass the initiative. The court concluded that the City violated the Brown Act by omitting the MOU from the agenda description because the omission meant that the plaintiff was given no notice of the item of business.

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This is a video of the entire Thursday, April 27, 2023, Planning Commission meeting. The meeting was 2 hours 19 minutes long. This video starts at the beginning and includes the full public comment period.

The second video (below) takes things from when the Commissioners start the discussion on the rezoning. Approximately 1 hour long.

“Our next agenda item this evening is to consider a recommendation to the City Council on the General Plan update. ” Starts at about 1 hour 18 minutes.