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HomeMy WebLinkAbout1986: 12-15-1986 Review of Planning Coimmission Rules of Procedure CITY OF DUBLIN PLANNING COMMISSION AGENDA STATEMENT/STAFF REPORT Meeting Date: December 15, 1986 TO: Planning Commission FROM: Planning Staff SUBJECT: Review of Plannin~ Commission Rules of Procedure EXHIBITS ATTACHED: A. Draft Resolution Adopting Rules of Procedure Back~round Attachments: 1, Memorandum from Assistant City Attorney dated November 24, 1986 2, League of California Cities Report dated October 6, 1986 RECOMMENDATION: tr Adopt Resolution FINANCIAL STATEMENT None DESCRIPTION: On January 1, 1987, a new Law goes into effect which changes the Brown Act requirements for open meetings, The new Law does the following: 1) Requires the agenda to include a description of each item of business to be transacted or discussed at the meeting, The agenda is to be posted at least 72 hours before a regular meeting, 2) Generally prohibits action on any item not appearing on the posted agenda unless: a) an emergency situation exists; b) the need to act arose after the agenda was posted; or c) the item was posted on an agenda for a prior meeting held within five calendar days and was continued to the meeting at which action is taken, 3) Requires an opportunity for public comment on items of interest to the public within the Planning Commission's jurisdiction, The League of California Cities has prepared a report on the new Law, The Assistant City Attorney has prepared procedures to comply with the new Law, Staff has drafted revisions to the Planning Commission's Rules of Procedure which reflect the Assistant City Attorney's recommendations, The main revisions to the Rules of Procedure are: Section V, AGENDA: This section is revised to include specific agenda items, opportunity for public comments, and agenda posting, Section VIII, ITEMS NOT ON THE AGENDA: This new section prohibits action on items not on the agenda and automatically refers to Staff such items raised by the public unless specific determinations or situations exist, Staff recommends that the Planning Commission adopt the Resolution adopting the Dublin Planning Commission Rules of Procedure as revised, ITEM NO, /0, / COPIES TO: Planning Department RESOLUTION NO, 86- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN - - - - - - - - - - - - - - - - - - - - - - - ------ -- -- -------- -- - - - -- ---- - - - - - - - - - - - - - - - - - - - - - - - - -- ADOPTING THE DUBLIN PLANNING COMMISSION RULES OF PROCEDURE WHEREAS, the Planning Commission seeks to govern meetings and conduct hearings in a fair and effective manner and in compliance with the Ralph M, Brown Act, Government Code 54950 et, seq,; and WHEREAS, on May 19, 1986, the Planning Commission did review and adopt revised Dublin Planning Commission Rules of Procedure; and WHEREAS, on December 15, 1986, the Planning Commission did review further revisions to the Dublin Planning Commission Rules of procedure; NOW, THEREFORE, BE IT RESOLVED THAT THE Planning Commission finds that the following Rules of Procedure are necessary to govern meetings and conduct hearings in a fair and effective manner and in compliance with the Ralph M, Brown Act, BE IT FURTHER RESOLVED THAT THE Planning Commission does hereby adopt the following Rules of Procedure: REVISED 12/15/86 DUBLIN PLANNING COMMISSION RULES OF PROCEDURE I, GENERAL PROVISIONS A, These rules of procedure shall be known as the "Dublin Planning Commission Rules of Procedure," A copy of these rules, and amendments thereto, shall be filed in the offices of the Planning Department and the City Clerk for examination by the public, B, These rules, and any amendments hereto, shall be effective on the date of the adoption hereof and shall govern the meetings and conduct of hearings by the Commission, II, OFFICERS A, Election and Term of Office The Chairperson, Vice Chairperson and Secretary are elected by the majority of the Commission for a one-year term and hold office until their successors are elected or until their terms as members of the Commission expire, The officers are elected at the first meeting of the Commission in December of each year, Elections, whether regular or to fill vacancies, shall be held only if at least four Commission members are present. B, Vacancies In case of any vacancy in the office of Chairperson, Vice Chairperson or Secretary, the vacancy shall be filled by an election held at the first regular meeting after the occurrence of such vacancy, Persons so elected shall serve the balance of the term, -1- r. V.. I, "" ...'."..,'".. "I,.., '<.../I!!. . !1' II' 'C , , ~ s: "';:,: "'1"-:: f " ,,_;,. ~".~ li' .}-... ... ',"b"""",; 't. '5 ""- .,f' . .4-;~~, -t'~" '-~~:~~ i~ ~~ ..M....._.,'.., C. Duties of Officers The Chairperson performs the following duties: 1, Presides at all meetings of the Commission, 2, Appoints committees and chairpersons of committees, 3, Approves the agenda prior to distribution, 4. Signs correspondence on behalf of the Commission, 5. Represents the Commission before the City Council, 6, Performs other duties necessary or customary to the office, In the event of the absence of the Chairperson or his/her inability to act, the Vice Chairperson presides in place of the Chairperson, In the event of the absence of or inability to act of both the Chairperson and the Vice Chairperson, the remaining members shall elect one of their members to act as temporary Chairperson, D, Committees The Commission or the Chairperson, upon direction of the Commission, may appoint several of its members, but fewer than a quorum, to serve as a committee, On certain occasions, such as when a particular kind of expertise or public representation is desirable, the Commission may appoint non-members to the committee, Committees make recommendations directly to the Commission, A committee may not represent the Commission before the Councilor other bodies unless it has first received the authorization of the Commission to do so, III, MEETINGS A, Regular meetings shall be held on the first and third Mondays of each month at 7:00 p,m, in the Dublin Library Meeting Room, B, Items for public hearing will normally be considered at the beginning of each meeting. C, Special meetings may be called by the Chairperson or a majority of the members of the Commission, D, A majority of the voting members of the Commission shall constitute a quorum for the purpose of transacting business, E, No new public hearing item will begin after 10:30 p,m., and the meetings will be adjourned by 11:00 p,m" except under unusual circumstances where the Commission votes to hear the item or to extend the meeting for 30-minute increments, IV, VOTING A, No official action shall be transacted by less than the affirmative vote of a majority of the quorum present, and at least three affirmative votes shall be required to recommend matters to the City Council for adoption, B, A motion may refer to items by agenda number, A motion may not be withdrawn by the mover without the consent of the member seconding it, Motions on items or matters not involving a hearing may be adopted by voice vote unless any members request a roll call vote. C, Tie votes result in defeat of a motion, and unless a subsequent motion is passed regarding an item, results in its denial. Abstensions shall not be counted as either for or against a motion under any circumstances, -2- V, AGENDA The agenda of each regular or special meeting shall, at a minimum, include: a, The date, time, and location of the meeting, b. A brief ge~eral description of each item of business to be transacted or discussed at the meeting, c, A specified period of time for members of the public to address the Commission on items of interest to the public that are within the jurisdiction of the Commission, including a provision that no person may speak longer than five (5) minutes, The agenda of each meeting will normally include the following items: 1, Call to Order 2. Roll Call 3, Pledge of Allegiance 4. Additions or Revisions to the Agenda 5. Minutes 6. Oral Communications 7, Written Communications 8. Public Hearings 9, New or Unfinished Business 10, Other Business 11, Planning Commissioner's Concerns 12. Adj ournment At least 72 hours before each regular meeting, and at least 24 hours before each special meeting, the Secretary shall post a copy of the agenda at the Alameda County Library Dublin Branch, 7606 Amador Valley Boulevard, Dublin, California, The Secretary shall execute a Declaration of Posting which shall be filed in the Dublin Planning Department, VI, HEARING PROCEDURES A. The Chairperson shall announce the public hearing item. Commission members shall state any known conflicts of interest and shall not participate in the hearing, B. The Chairperson shall determine if the Applicant or representative is in attendance at the public hearing, If the Applicant or representative fails to attend the public hearing, the Planning Commission may take action to deny, continue, or approve the item, The item may be continued if the Planning Commission receives written notification of the Applicant's inability to attend the meeting, C, The order of presentation shall be as follows: 1) Summary Presentation by Planning Staff 2) Questions by Planning Commission 3) Comments by Applicant 4) Comments by Other Proponents 5) Comments by Opponents 6) Rebuttal by Applicant if necessary 7) Additional Comments by Staff as appropriate D, The Chairperson or Commission shall close the public hearing and the item is turned over to the Commission for discussion and action, The audience is not permitted to make any further comments unless invited by the Commission, E. The Planning Staff shall retain copies of all documents or exhibits presented, F, All those wishing name and address, slips, to give testimony shall identify themselves by The Chairperson may require the use of speaker -3- G, The Chairperson may limit the time for the presentation of testimony by each person and shall announce said limitation prior to any presentations, Persons may speak more than once only after obtaining permission from the Chairperson, Notwithstanding the above, the Chairperson may terminate the speaking period of any person when the time taken by the person becomes excessive or when the testimony becomes repetitious or irrelevant. H, A member of the Commission, Staff or public may ask questions only with the consent of the Chairperson, and answers shall be made to the Commission through Chairperson, the speaker All responses the I, A member of the Commission may not consider a fact not presented as part of the record unless he discloses said fact prior to the closing of the public hearing, J, No evidence shall be taken after the closing of the public hearing, The public hearing may be reopened for the taking of further evidence at the discretion of the Chairperson, K, Applause and other demonstrations are prohibited during public hearings, Such demonstrations tend to intimidate those in the audience who may have valid but opposing viewpoints. VII. DELIBERATIONS AND DECISIONS A, The Commission shall not deliberate nor make a decision on the application until the close of the public hearing, B, Deliberations and decisions shall be based on the staff report, documents and exhibits, evidence presented at hearings and stated open and notorious facts, VIII, ITEMS NOT ON THE AGENDA A, No action shall be taken on any item not appearing on the posted agenda for a regular or special meeting, unless: 1) the Planning Commission determines by majority vote that an emergency situation exists, as defined in Government Code Section 54956.5; 2) the Planning Commission determines by a two-thirds vote, or by a unanimous vote if only three members are present, that the need to take action arose after the agenda was posted; or 3) the item was included in a posted agenda for a prior meeting held within five (5) calendar days and was continued to the meeting at which the action is taken, -4- B. When an item not on the agenda is raised by a member of the public, the matter shall be deemed automatically referred to Staff unless the Planning Commission determines to take action under Section VIII (A-2), PASSED, APPROVED AND ADOPTED this 15th day of December, 1986, AYES: NOES: ABSENT: Planning Commission Chairperson ATTEST: Planning Director -5- ;~ i: C c i V E D " , N\ 26 1986, NAVE & SILVER .... ...-. Mlc;HAEL R. NA YE EUZA8ETH H. SIL YER ATTORNEYS AT LAW 1220 HOWARD AVENUE. SUITE 250 p,o, BOX 208 BURLINGAME. CALIFORNIA 94011'0208 (4151348,7130 DllSlIN P1.At-!NING EAST SAY OFFICE: CIVIC CENTER COMPLEX 835 E. '''TN STREET SAN LEANDRO. CALFORHIA M577 TELEPHONE: U 1 51 577.3333 AEPl. Y TO MEMORANDUM TO: ' Richard Ambrose, City Manager DATE: 11/24/86 FROM: Elizabeth H. Silver, Assistant City Attorney RE: Brown Act - AB2674 Pursuant to your request we have prepared procedures to be followed by the City Council in order to comply with the recent amendments to the Brown Act, commencing January 1, 1987. The enclosed Resolution is self-explanatory except for a few points which require elaboration: 1) Newly-enacted ~54954.3(b) allows the Council to limit the time each person may address the Council and the total time allocated to public comments. If the Council wants to do this I would suggest that this information be set forth on the agenda (see Section l(e) of draft Resolution) . 2) Section 2 requires the Clerk to execute a Declaration of Posting for each agenda. This Declaration should be kept on file, along with a copy of each agenda, in case of a legal challenge. 3) AB2674 prohibits the Council from taking action on any item not on the agenda, unless it comes within one of the exceptions. Government Code ~54954.2. The problem this presents is how to deal with an issue raised by a member of the public which is not on the agenda. The draft Resolution provides that such issues are automatically referred to staff unless the Council determines that the need to take action arose after the agenda was posted (see Section 3(b)). 4) If the Council votes to consider an item under Section 3(b) of the draft ReSOlution, the motion or the minutes should reflect the reason for the Council's determination. ~k: (' 'l,-:. .. 1 tit i i j~,L .. ~ ~j ~~ Ii ;~ J - ( Memorandum To Richard Ambrose Re:, Brown Act November 24, 1986 Page two As you know, AB2674 added Government Code Section 54960.1 which provides for a judicial challenge to actions taken in violation of certain provisions of the Brown Act: Government Code ~54953 (all meetings open, no seriatim meetings); ~54954.2 (posting agenda; no action on item not on agenda); and ~54956 (agenda of special meeting must be posted). The proposed Resolution deals with procedural matters only. Newly-enacted Government Code ~54960.l does not require procedural guidelines. The Council should be aware, however, that it will have the opportunity to "cure" any action, if challenged. As an alternative to this resolution I would suggest incorporating the provisions of the draft resolution into Resolution No. 5-82, which establishes rules for the conduct of Council meetings. For instance, Section 1 and Section 2 of the enclosed draft resolution could be included in paragraph 3 of Resolution No. 5-82. Section 3 and Section 5 of the draft resolution should replace paragraph 9 of Resolution No. 5-82. Finally, Section 4 of the draft resolution should be added at the end of paragraph 2 of Resolution No. 5-82. I have also prepared a similar resolution for the Planning Commission. Please call if you have any questions. M...Ji~ ElizJbeth H. Silver EHS:cw Enclosure " 'v cc: Larry Tong (w / encl. ) , " DUBLIN PLANNING COMMISSION RESOLUTION NO. -86 The Planning Commission adopts the following procedures pursuant to and in compliance with the Ralph M. Brown Act, Government Code 54950 et. seq. Section 1 The Secretary shall prepare an agenda for all Planning Commission meetings, which shall, at a minimum include: a) the date of the meeting; b) the time of the meeting; c) the location of the meeting; d) a brief general description of each item of business to be transacted or discussed at the meeting; e) a specified period of time for members of the public to address the Commission on items of interest to the public that are within the jurisdiction of the Commission including a provision that no person may speak longer than minutes. Section 2 At least 72 hours before each regular meeting the Secretary shall post a copy of the agenda at the Alameda County Library Dublin Branch, 7606 Amador Valley Boulevard, Dublin, California. The Secretary shall execute a declaration of posting which shall be filed in the office of the City. Section 3 No action shall be taken on any item not appearing on the agenda for a regular meeting as posted, unless: a) the Planning commission determines by majority vote that an emergency situation exists, as defined in Government Code ~54956.5; b) the Planning Commission determines by vote of 4 out of 5 members (or if only three members are present by a unanimous vote) that the need to take action arose ;,' after the agenda was posted: or -1- . . c) the item was included in a posted agenda for a prior meeting held within five calendar days of the meeting at which the item is acted upon. Section 4 Special Meetings The agenda for special meetings shall contain the information in Section l(a)-(d). At least 24 hours before each special meeting the Secretary shall post a copy of the agenda, including the call and notice of the special meeting, in the manner specified in Section 2. Section 5 When an item not on an agenda is raised by a member of the public, the matter shall be deemed automatically referred to staff unless the Planning Commission determines to take action under Section 3(b). AYES: PLANNING COMMISSIONERS NOES: ABSENT: Planning Commission Secretary -2- California Cities Work Together League of California Cities ,1400 K STREET . SACRAMENTO, CA 95814 · (916) 444-5790 RECEIVED NOV: 5 1986 ~ ..... .... ..... .... ..... '....... . Sacramento, CA. October 6, 1986 C~~.' C ~ r: ~~. ~..~~ ! TO: city Attorneys and City Clerks RE: Changes in Brown Act Open Meeting Requirements Introduction AB 2674 (Connelly), Ch. 641 of the 1986 statutes, which dramatically changes the Brown Act open meeting requirements, takes effect January 1, 1987, This new law requires local agencies to post an agenda prior to each meeting of the legislative body, requires local agencies to provide an opportunity for the public to address the legislative body, generally prohibits the legislative body from acting on items not appearing in the agenda, and authorizes bringing suit to void certain actions taken in violation of the Brown Act, Because the new law raises numerous questions of interpretation, Robert Flandrick, City Attorney of Baldwin Park, Bell and Whittier and President of the City Attorneys Department, appointed a committee to recommend a uniform approach to implementing AB 2674. The members of this committee are: Steve Amerikaner (Chair), City AttorneY,of Santa Barbara; Bill Adams, City Attorney of Palm Springs; George Buchanan, Senior Assistant City Attorney of Los ~ngeles; Frank Gillio, City Attorney of Los Altos Hills, Millbrae and Monte Sereno; Alice Graff, City Attorney of Hayward; Ron Johnson, Senior Chief Deputy City Attorney of San Diego; and Ron Stein, City Attorney of Lodi. This report is intended to help city attorneys resolve some of the interpretive questions raised and ensure compliance with the spirit of the Brown Act. A summary of the bill is followed by specific, practical recommendations. The text of the bill should be carefully reviewed for detailed provisions not covered in the summary. The recommendations at times will propose alternative courses of action or merely identify issues which could arise. While the bill a plies to every local "legislative bod " including certain a visory bodies suc as p annin commlSSlons re ences Wl p.nera e ma e on 0 c ' . All code section 're erences are to the Government Code, Because the bill requires considerable attention to detail to ensure compliance, the Committee recommends that prior to January 1, 1987, each city adopt written internal procedures to provide the council and staff with guidance. ,~ ~~':-~~~ ~ i~'i lJ' tp n ~ ~ ~" ?;~4 J- 1 . - 1 - f' '~ ~ Summary of AB 2674 , Posting Agendas, AB 2674 requires a city to post an agenda in a location which is freely accessible to the public at least 72 hours before each regular meeting of the city council. The agenda must include a brief description of each item of business to be transacted or discussed at the meeting together with the time and location of the meeting. The council is prohibited from taking action on any item not appearing on,the posted agenda unless: (I) a council majority determines that an "emergency situation," as defined, exists; (2) the council determines by a two-thirds vote, or by a unanimous vote if less than two-thirds of the council members are present, that the IIneed to take action" on the item arose subsequent to the posting of the agenda; or (3) , the item was included in a properly posted agenda for a prior meeting occurring not more than five days prior tO,the meeting at which the action is taken and was continued to the meeting at which the action is taken. (Section 54954.2), Notice of each special meeting must be posted at least 24 hours prior to the special meeting. (Section 54956). Public Discussion, AB 2674 requires that every agenda for a regular meeting provide an opportunity for members of the public to address the legislative body on items of interest to the public within the body's subject matter jurisdiction, If an item discussed by a member of the public did not appear in the agenda, the same restrictions on council action discussed above will apply, The council does not have to allow the public time to speak on an item which was previously considered by a council committee if an opportunity for public input was afforded at the committee meeting, (Section 54954.3), Violations. AB 2674 authorizes any interested person to seek a judicial determination that an action taken by the council in violation of the public meeting or agenda posting requirements of the Brown Act is null and void, Prior to filing a lawsuit and within 30 days of the action, the interested person must make a demand of the council that it cure the challenged action, If the council takes no curative action within 30 days of the demand, the interested person must file suit within the earlier of: (1) 15 days after the expiration of the 30-day period; (2) 15 days after receipt of written notice from the city council of its decision to cure, or not to cure, the challenged action; or (3) 75 days from the date the challenged action was taken, Notwithstanding the foregoing, an action of the council cannot be determined to be null and void if: (1) the action was taken in substantial compliance with the Brown Act; (2) the action was taken in connection with the issuance of an evidence of indebtedness; (3) the action taken gave rise to a contractual obligation upon which a party has, in good faith, detrimentally relied; or (4) the action was taken in connection with the collection of any tax. (Section 54960.1), - - ' - 2 - Recommendations and Discussion t 1. New Section 54954.2 (a) provides that an agenda shall be posted in a location that is freely accessible.to the public. What is meant by "freely accessibleu1 Since the statute does not specify locations where the agenda must be posted, cities should take a common sense approach to what is reasonable. If a meeting is to be held early in the week, the agenda should not be posted only in a building which is closed on weekends. Possible alternative locations might include a library, a supermarket, a newspaper building or a bulletin board located outside of city hall, The agenda should regularly be posted in the same location (or locations) rather than rotating locations. The agenda should be posted in a location where the agenda will remain undisturbed. While the statute does not require the city to maintain the agenda after it is posted, it may not be reasonable to post the agenda in a location where the agenda is regularly torn down before the meeting, 2, Should a record be kept of the time and location of posting of the agenda? The Committee recommends that each city adopt, by resolution or otherwise, a procedure to be followed in posting agendas, The Committee recommends that the procedure include one of two alternative methods of keeping a record of posting. Under the first alternative, the clerk would routinely sign a declaration of the time and place where the agenda was posted and keep those in his or her office for public reference, Under the second alternative, each meeting's agenda would include a clerk's report on the posting of the agenda, which would be reflected in the minutes of the meeting. 3, New Section 54954.2 (a) requires that the agenda contain a brief general description of each item of business to be transacted or discussed at the meeting. How much detail must be included in this description? For the purpose of clarifying this point, the following letter was placed in the July 3, 1986 Senate Journal at page 6703 at the time of the Senate floor vote on AB 2674: "The intent of subsection (a) of Section 54954,2 [Section 5 of AB 2674] is to require local public agencies to post agendas that contain sufficient descriptions of the items of business to be transacted at a meeting of a council, board of supervisors, commission, etc" to enable members of the general public to determine the general nature or subject matter of each agenda item, so that they may seek further information on items of interest. It is not the purpose of this bill to require agendas to contain the degree of information required to satisfy constitutional due process requirements," The Committee recommends that the description be reasonably calculated to adequately inform the public. For example if the item involves a land use decision, the agenda should include c description of the - 3 - action proposed and the location or street address of the property in plain English, and if the item involves a contract, the agenda should describe the nature of the contract. Emphasis should be placed on informing the public of the substance of the matter rather than precisely describing the contemplated council action. 4. New Section 54954.2 (a) provides that Uno action shall be taken" on any item not appearing on the posted agenda. What is meant by the phrase, "no action shall be, taken"? The Committee believes that the existing definition of Raction takenR should be referred to for guidance, Government Code Section 54952.6 defines "action taken" as "a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vot~ by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance." 5. May the council simply discuss an item which was not included in the 'posted, agenda if ho formal Uaction" is taken? The language of the statute is inconsistent on this point. New Section 54954.2 (a) provides that the agenda must include a description of each item of business "to be transacted or discussed," This section then states that "[n]o action" shall be taken on any item not appearing on the agenda, but does not explicitly extend this prohibition to the discussion of such items. Clearly_if th~_council or _staff intends to bri n9 _up anitemIor d~ scussJ ~nat a meeting, the lfem should be included in the agenda unless it falls within one of th-e exceptions unaer' Section 54954.2 (b):- If council members give reports, the nature of the reports should be described in the agenda. However, it is unclear whether the council may discuss an item which is brought up by a member of the public and neither was described in the agenda nor falls within one of the exceptions under Section 54954.2 (b), Under a strict interpretation of the statute, such an item should not be discussed. However, as a practical matter, it will be difficult to restrain council members from responding to the public, and such discussion is not explicitly prohibited, 6, ' As stated in question 5, supra, it is unclear whether the council can even discuss an item which is not included in the agenda but which is raised by a member of the public. At the same time, clearly the council cannot take "action" on such a matter. Assuming discussion is permitted, how can the council respond to the public's concern without running afoul of the prohibition against taking "action"? Four alternatives are available to the council. First, the council can simply do nothing to resolve the concern of the public. However, council members may believe that this would make them appear to be unresponsive to their constituents. Second, the council can adopt, in advance, a rule whereby any matter raised by the public is automatically referred to staff or placed on the next meeting's agenda, Third, the prohibition on taking "action" can be construed to refer only to substantive actions taken by the council, Under such a construction, the council would be free to taree.roceduraLaction_?_ ~- -~--- - 4 - such as referrinQ matters to sJlaff or Dlacing matters on the next agenaa. Any risk that such a procedural action would be deemed a prohibited "action" could be minimized by authorizing the presiding officer, in advance, to take such procedural action by edict. Fourth, the council can make a determination pursuant to Section 54954.2 (b) that the need to take action arose after the agenda was posted (see question 7) or that an emergency situation exists. Upon making such a determination, the council is free to take any appropriate action. 7. New Section 54954.2 (b) (2) provides that the council may take action on an item not appearing on the agenda upon a adeterminationa by a two-thirds vote (or a unanimous vote if less than two-thirds of the council are present) that lithe need to take action arose. after the agenda was posted. What does the phrase athe need to take action arose. mean? Clearly if the need for action on an item was known by the councilor staff prior to posting the agenda but was not included for reasons of scheduling convenience or oversight, the need to take action did not arise after the agenda was posted. A more difficult question is presented where, for example, a developer faces a condit~onal use permit approval deadline but does not seek council approval until after the agenda for a meeting is posted. In this situation, it could be argued that the "need" for action did not arise until after the agenda was posted because it was not until this time that the matter was presented to the council for action. On the other hand, it could be argued that the underlying need to act before the deadline existed prior to posting the agenda regardless of whether the developer had requested council action at that time. The Committee recommends that cities adopt the latter view, as that approach is more in harmony with the Act's apparent intent of ensuring prior public notice of matters to be considered at a meeting, If this latter approach is adopted, existing ordinances which include time deadlines should be reviewed to eliminate the hardship placed on parties who seek council action within the deadline but whose requests were filed after the agenda was posted. Ordinances should be revised so that the filing of an application or request tolls any applicable deadline for a specified period of time to enable the council to act. To protect subdividers who request subdivision map extensions after the agenda is posted, Government Code Sections 66452,6 (e) and 66463.5 (c) (the Subdivision Map Act) were amended by AS 2740 (Cortese) Ch, 787 of the 1986 statutes, to extend a tentative map for the time required to process a developer's application to extend a tentative subdivision map or tentative parcel map, 8. New Section 54954.2 (b) (1) and (2) provides that action may be taken on items not appearing on the posted agenda upon a "determination" that the item arose after the time of posting or that an emergency situation exists. To what extent must facts be presented to support these determinations? The "determination" requirement does not mean that formal findings must be made, although a separate vote should be taken in making the determination, Nevertheless, the Committee recommends that the minutes reflect what the need for action was and why the need arose - 5 - after the posting of the agenda, or why an emergency situation exists. Cities which keep action minutes may wish ,to establish a policy whereby the need for any late additions are substantiated in writing and kept in the council file, 9, New Section 54954.3 (a) provides that the public shall be given an opportunity to speak on Uitems of jnterest to the pUblic.- Does this include agenda items? At what point during the meeting must this opportunity to speak be provided? The Committee recommends that cities interpret this provision broadly to provide an opportunity to speak on all items within the subject matter jurisdiction of the council, including agenda items. The provision does not specify whether the opportunity to speak must be provided prior to council action on an item. However, the intent of the legislation is probably most fully carried out by providing the opportunity to speak prior to council action. This provision does not require the council to allow public input on each item as it comes up- during the course of a meeting, Thus the Committee believes that a city may set aside a fixed period of time early in the meeting to receive public comment, both on agenda items and other matters, and decline to permit public comment at other times during the meeting (except as required for public hearings as discussed below). The Committee believes that the determination of whether an item is within the subject matter jurisdiction of the council is a discretionary decision to be made by the council. This provision for public input is completely independent from statutory-requirements for public hearings on particular matters (e,g. hearings on subdivision approvals and assessment proceedings) and in no way affects these requirements, Public comment which is a part of required public hearings should continue to be heard at the time the item is before the council, 10, New Section 54954.3 (b) provides that a city may adopt regulations governing public discussion Uto ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.. If a city adopts such regulations, what may they include? The Committee believes that these regulations may include provisions specifying the total amount of time devoted to public input, how such time should be allocated among speakers, at what point during the meeting the public will be allowed to speak, time limits on individuals, time limits on particular items and limits on the subject matter of discussion. The Committee suggests that each city adopt such regulations prior to January 1, 1987, the effective date of the statute, 11, New Section 54960.1 provides a procedure by which actions taken in violation of the Brown Act may be determined to be void. What types of Brown Act violations are susceptible to a judicial determination that the underlying action is void? - 6 - New Section 54960,} creates a cause of action to judicially declare void only those council actions taken in violation of Sections 54953, 54954.2 or 54956. Thus actions taken in violation of the open meeting requirements, such as during seriatim meetings, can be set aside by a court. ,Similarly, actions improperly taken on items which should have been, but were not, described in an agenda posted at the prescribed time may also be set aside. However, violations of Brown Act provisions other than those contained in the aforementioned sections, e.g. where the council prohibits ~ member of the public from tape recording a meeting (Section 54953,5), do not render the underlying council actions subject to invalidation. Of course, these latter violations may still be enjoined (Section 54960) or subject council members to criminal liability (Section 54959). 12, New Section 54960.1 authorizes any interested person to bring an action Afor the purpose of obtaining a judicial determinationA that an action taken in violation of the Brown Act -is null and void.- Does this provision make such a council action void ab initio? This provision does not clearly specify whether an action taken by ,the council in violation of the Brown Act is void ab initio or whether it is voidable upon a finding by the court that a-Violation occurred, This distinction may be quite significant in certain situations. For example, suppose a city council approves a general plan amendment in violation of the Brown Act, but the action is not directly challenged within the period prescribed by Section 54960.1. The council then approves a development project on the property subject to the general plan amendment. An opponent of the project then challenges the development project approval on the grounds that it is inconsistent with the general plan prior to the amendment, and that the amendment is void because it was adopted in violation of the Brown Act. If the amendment is deemed to be void ab initio, the development project is inconsistent with the general plan and cannot proceed, However, if the amendment could only be set aside if a lawsuit had been filed within the prescribed period (which has now expired), the amendment is valid and the development project is consistent with the general plan. Based on the language of the statute and the legislative history, the Committee believes that an impro~er council action is not void ab initio. Section 54960,1 (a) authorizes bringing an action to obtain a "judicial determination" that an improper action is void. The use of the word "determination" implies that the action is not void until the time of the determination. Further, Section 54960.1 (b) provides that an improper counc i1 act ion " shall not be determi ned to be null and void" if certain conditions exist. Significantly, this section does not say "an action shall be void unless" certain conditions exist. The legislative history of AB 2674 also supports the position that an improper action is not void ab initio. When introduced on January IS, 1986, Section 54960,1 (a) stated, "Any action taken by a legislative body of a local agency in violation of Section 54953 or 54954.2 is null and void," On March 3, 1986, the bill was amended, at the League's request, to delete the foregoing provision. Note that Section 54960.1 (a) authorizes an action by mandamus or injunction, The Committee believes that the rr.ost appropriate means to - 7 - .._,_..__._~..,"~,__.____",<,. _,,' ______-~- _._.,"_, __'." ,r declare a legislative decision void is declaratory relief. When introduced, AB 2674 also authorized an action for declaratory relief. This authority was inexplicably dropped when the bill was amended on March 10, 1986.The legislative Counsel's Digest of AB 2674 at the time the bill was adopted continued to state that the bill authorizes actions by mandamus, injunction or declaratory relief. 13. New section 54960.1 provides that,~prior to seeking a judicial determination that an improper council action is void, the complainant must make a demand of the council to cure or correct the allegedly improper action. The council may then cure or correct the challenged action or decide not to do so. Procedurally, how should the council respond to such a demand? - The Committee recommends that upon receipt of a demand, an item with two sub-items should be added to the next meeting's agenda. The first sub-item should be consideration of the demand, i.e. whether the challenged action can reasonably be said to have violated the Brown Act. The second sub-item should be consideration of the underlying subject matter of , the challenged action if the council decided, in considering the demand, that the challenged action may have violated the Brown Act. (Alternatively, the council may want to consider the demand at one meeting and, if it finds the demand to be valid, consider the subject matter of the challenged action at a subsequent meeting. However, since an action to cure or correct must be taken within 30 days of receipt of the demand, the council may need to take prompt action.) 1) The first sub-item to be considered is the demand that the council cure or correct the allegedly improper action. The rationale for considering the demand as a separate sub-item, as opposed to discussing the subject matter of the challenged action at the same time, is two-fold. First, it ensures that the council, rather than staff, makes the determination of whether a violation may have occurred. Second, it avoids any implication that the council, by considering the underlying matter, is admitting that a violation took place or is waiving a possible defense of substantial compliance. Since filing a demand is a preliminary step to bringing a suit, the Committee believes that the council generally will be able to consider the demand in closed session pursuant to Section 54956,9 on the basis that a significant exposure to litigation exists, In considering the demand, the two approaches, It could ask: the Brown Act? Alternatively: the Brown Act was violated? council may want to take one of Was there an actual violation of Is there a colorable claim that 2) If the council decides to act upon the demand, it should then consider the second sub-item, i.e, whether action should be taken on the matter considered in the allegedly improper action. The Committee recommends that this sub-item on the agenda should not be termed on the agenda a ratification or confirmation of the allegedly improper action, because such terminology implies that the action was invalid when taken and presupposes that the council will not be influenced by public jnput to take a - 8 - different action, The Committee therefore suggests it be termed a "consideration." In considering the underlying matter, should the council set aside the original action prior to taking corrective action? As discussed in question 9 supra, the Committee believes that an action taken in violation of the Brown Act is not void ab initio, so such an action remains in effect at the time curative-action is being considered. However, the Committee recommends that the council should not declare the original action to be void, because then any action taken, e.g. the imposition of a fee, would not be effective until the corrective action was taken. At the same time, the council should not just ignore the fact that the original action was taken, because this could create confusion if the corrective action differed in substance from the original action. Thus the Committee recommends that the corrective ordinance or resolution state that the original action is superseded or rescinded as of the effective date of the corrective action. To establish a record the corrective ordinance or resolution should also describe the original action and why the corrective action is being taken. The foregoing procedure may also help cities in demonstrating compliance with the Permit Streamlining Act (PSA) which, among other things, requires a city to approve or disapprove a development project within one year of accepting the application. Has a city complied with the PSA if an allegedly improper approval or disapproval occurs before the one year deadline and the corrective action occurs after the deadline? The Committee believes that the city has complied with the PSA in this situation, because it took an action, albeit defective, which was not void ab initio and which was taken prior to the deadline. In considering the underlying matter, should the council build a new record from scratch, or can it rely on the record developed when taking the allegedly improper action? Certainly the council must permit new public testimony on the underlying matter. At the same time, the Committee believes that the council can incorporate the record of the prior meeting in support of any findings, provided that no member of the public shows that he or she has suffered prejudice (e.g, by not being present at the earlier meeting and not being able to review the testimony offered at the earlier meeting.) In allowing additional testimony at the subsequent meeting, the council probably can limit members or the public from repeating testimony given at the previous meeting. However, it would be more prudent simply to state that all previous testimony will be considered part of the record and that such testimony need not be repeated. 14, New Section 54960.1 (c) provides that an action taken Hin connection with the collection of any tax" shall not be determined to be null and void. How broad is the phrase "in connection with the collection of any tax?" - 9 - - . -" - . .' _" ",.. n~ '." Although the statute is not clear, the author of AB 2674 has indicated that he did not intend for this phrase to include the collection of any fee or assessment or to include the imposition of any tax. 15. Amended Section 54960.5 provides that a court may award court costs and attorneys fees to the plaintiff in an action brought pursuant to the Brown Act where the court finds a violation. If the council purportedly takes corrective action after the statutory deadline and after the suit has been filed, is a court nevertheless authorized to award attorneys fees? If the council takes corrective action, any previously filed suit must be dismissed with prejudice pursuant to Section 54960.1 (d). Accordingly, the Committee believes that a court has no authority to award attorneys fees under this provision because no Brown Act violation has been found. At the same time, a council's decision to take corrective action has no effect on the authority of a court to award attorneys fees in an action brought pursuant to Section 54960. AB2674,legal - 10 -