Q: I am looking for some direction in guidance in trying to overturn a street rezoning project completed without authorization, research, or notification to residents with major impact on safety and infringing my rights as an individual. Can you help?
A: It is not clear from the facts you have given how this particular street project was initiated or approved. Presumably, the Public Works Department was acting pursuant to a vote of the city council, which as a local legislative body would be subject to the Ralph M. Brown Open Meetings Act. Further, the Public Works Department, as a local agency, is likely itself subject to the Act. Cal. Gov. Code § 54951.
The Brown Act requires that deliberations as to the public’s business must generally take place in public, and votes must also generally be taken in public. Cal. Gov. Code § 54953. If the rezoning project was authorized in secret, or if the deliberations were kept private, then those actions may have violated the Brown Act. Without knowing more about the process through which this project was initiated and approved, however, we cannot say for certain.
If the city council or Department did in fact violate the Act in approving this project, the District Attorney or “any interested person” can file a lawsuit to enforce the provisions of the Brown Act. You may wish to first bring your concerns to the District Attorney’s attention. If you wish to pursue an enforcement action yourself, you have three options to enforce the Act:
(1) A lawsuit over an alleged previous violation of the Brown Act;
(2) A lawsuit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and
(3) A lawsuit to void an action taken by a government entity in alleged violation of the Brown Act.
With respect to option 1, persons alleging a past violation of the Brown Act and seeking to bar further violations – as opposed to seeking to invalidate a specific government decision or action – must first attempt to resolve the matter though an elaborate settlement procedure set forth in Cal. Gov. Code § 54960.2. The deadlines for filing a cease and desist letter with the government entity, as well as the government’s obligations in responding to such a complaint, are set forth in this code section.
With respect to option 2, barring an ongoing or future action, Cal. Gov. Code § 54960(a) provides that “any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter … or to determine the applicability of this chapter to ongoing actions or threatened future actions … of the legislative body.” Since lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Cal. Gov. Code § 54960.2.
With respect to option 3, bringing suit to void a specific past action, Cal. Gov. Code § 54960.1 provides the mechanism for bringing such a challenge, which includes a demand to the Board that it “cure and correct” the violation before filing a lawsuit. If action was taken based on improper procedure, the way to remedy the violation would typically be to send the legislative body a demand that it cure or correct the action taken in violation of the Brown Act. “The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days of the action if in closed session, or within 30 days if the action was taken in open session. Cal. Gov. Code § 54960.1.
You can find more about the Brown Act, including sample complaint letters, at the First Amendment Coalition’s website here. If you wish to pursue legal action, a good place to start would be your county bar association’s attorney referral service here.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.