Developments on Public Lands
Q: A developer is building or redeveloping 32 (of 36 buildings) towering buildings (8 to 14 stories tall each) in our town without adding streets, freeways or adequate city services. This is against our MASTER PLAN. Buildings include private residence towers (for people from outside the town) on the last of our public land, now zoned for education.
No one knows about this, residents are not being given public records when we ask in writing, we are not getting answers to our questions, we are shut up on camera at public hearings.
We do not believe our city officials and staff are acting in the best interests of the city. Almost half of them now recuse themselves at meetings. They tell us (and businesses in town) that things are decided, when the city attorney sends letters saying, “nothing has been signed or decided”.
A: From the information in your submission, it is not completely clear whether the city is acting in violation of the Brown Act and/or the Public Records Act (“PRA”). I will provide you some general information regarding certain Brown Act and PRA provisions that might be relevant to your situation and some legal steps you can take if the city is acting improperly.
As you seem to know, the Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body . . ..” Cal. Govt. Code Section 54954.3(a). The Brown Act also provides that “[t]he legislative body of a local agency may adopt reasonable regulations to 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.” Govt. Code Section 54954.3(b). The law does not specify what those time limits are, simply that they are to be “reasonable . . . to ensure that the intent” of accommodating public comment “is carried out.” Thus, for example, limiting a member of the public to speaking only once per meeting, or limiting the allotted time per speaker to a few minutes to allow other members of the public to address the body may or may not be reasonable depending on the circumstances. However, if the city is completely refusing to allow the public to address the body on the redevelopment issue you raised, this is probably not reasonable since such issue is within the subject matter of the city council. If you consider that the city council has violated the Brown Act, you may want to consider taking additional steps available under the Act.
First, you may seek to void an action taken at an illegal meeting. The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not. The requirements are very specific, they have very short deadlines, and they are generally strictly enforced. Generally speaking, the demand must be made within 90 days from the date the action is taken (but the demand must be made within 30 days if there is a violation of the agenda requirements set forth in Section 54954.2). If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.
You also have the option of filing an action for injunctive or declaratory relief, instead. This alternative remedy is available for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999). FAC’s website contains a link to the statute for your reference.
With respect to being denied public records, under the PRA, the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). It is not clear whether you have requested particular records under the PRA. If not, you may want to request specific records under the PRA, and you might also want to remind the city of its legal obligation to justify a denial of a records request. A sample PRA request is available on FAC’s website at: http://www.cfac.org/templates/cpraletter.html.
The ultimate recourse under the PRA in the event of an improper denial is to initiate litigation. It is sometimes helpful to remind the agencies that the prevailing parties in a PRA litigation are entitled to their attorneys’ fees. Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”). You might want to highlight this fact in your next communication with the city.