On January 5, 2017, the Court of Appeal for the Fourth Appellate District partially published Hernandez v. Town of Apple Valley, __ Cal.App.5th __ (2016) (Case No. E063721).  The published portion of the opinion addresses important issues arising in connection with alleged violations of both the Ralph M. Brown Act and California Constitution.  In particular, the case centered on an allegedly defective agenda description for a land use initiative to amend a specific plan to allow a 30-acre commercial development anchored by a Walmart Supercenter.


The Brown Act provides that at least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a “brief general description” of each item of business to be transacted or discussed at the meeting.  A brief general description of an item generally need not exceed 20 words.  With limited exceptions not relevant to the case, no action or discussion may be undertaken on any item not appearing on the posted agenda.

The relevant Town Council agenda read, simply, “Wal-Mart Initiative Measure” and contained a recommended action to “Provide direction to staff.”  The Town ultimately adopted three resolutions at the meeting, including a resolution calling for a special election on the initiative.  The Town also adopted a memorandum of understanding accepting $725,000 from Walmart to pay for the election.  The resolutions were not on the agenda.  In addition, the agenda did not provide a description of the Walmart initiative and the adopted resolutions did not mention the Walmart initiative in their text.  In addition, the agenda and agenda packet had no information about the MOU.

Article II, section 12 of the California Constitution provides that:

“ No amendment to the Constitution, and no statute proposed by the electors by the Legislature or by initiative, that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect.”

The initiative text referred to the “fee title holder” (i.e., Walmart) and to the “developer,” but did not refer to Walmart by name.  The ballot materials accompanying the initiative stated that  “VOTING YES ON MEASURE D will approve an upgraded new Walmart store and other businesses . . . .”  The ballot argument in favor of the Initiative included language that “Walmart proposed a new, upgraded store offering more affordable, fresh groceries and expanded retail choices for Apple Valley’s hardworking families.”

Cure Request and Lawsuit

A local resident sent a written request to the Town to cure the alleged Brown Act violations of taking action on the resolutions and MOU without the items appearing on the agenda.  The resident alleged that he was concerned that Walmart paid to circumvent the “normal administrative vetting process” by paying for the special election.  He alleged that he would have requested an elections report be prepared before the Town adopted the resolutions and called the special election so that the council and voters would be better informed.  The Town declined to cure.

The resident then sued the Town, alleging that none of the actions taken appeared on the agenda, including the three resolutions and the MOU.  He also argued that the initiative should be declared unconstitutional because it was clear to the electorate that the beneficiary of the initiative was Walmart, even if Walmart was not actually named in the initiative.  The Town responded that the agenda was posted on its website, in the clerk’s office, and at the public library.  The Town also responded that the agenda packet prepared for the meeting included a summary of the initiative, the procedure that would be followed for the special election, and the resolutions that would be passed.  As a result, according to the Town, there was substantial compliance with the Brown Act and no violation.

With respect to the initiative itself, the Town responded that while residents and others may have known the development would include a Walmart, the question was whether Walmart was named in the four corners of the initiative.  It was not.  The Town and Walmart argued that the initiative should be approved unless there was a clear and unmistakable constitutional violation. They argued the identification of Walmart in extraneous materials was not a violation of the California Constitution as a matter of law.  Moreover, the Town argued that the trial court could sever any illegal provisions while leaving most of the initiative intact.

The trial court ruled that the Town Council’s actions and the initiative were invalid, void, and unenforceable, and thus set aside the approvals.


The Court of Appeal stated that it did not address whether an agency may comply with the Brown Act by providing an agenda packet with the agenda, if the agenda itself does not describe the resolutions to be adopted.  Nevertheless, while the Court’s analysis focused primarily on the failure of the agenda and agenda packet to include any information regarding the MOU, which allowed the allowed the Town to accept a gift from Walmart in order to pay for the special election, the Court held that “the Town’s action of putting the Initiative on the ballot was properly found null and void by the trial court as the Town Council’s decision to put the Initiative on the ballot was done so [sic] in violation of the Brown Act.”  Thus, the Court did in fact address whether an agency may comply with the Brown Act by providing an agenda packet with the agenda where the agenda does not describe each item of business, and the answer is no.

The Court considered the plain and commonsense meaning of the initiative’s language, which used words such as “developer” and “owner” but did not name or identify Walmart.  The Court also considered the practical implications of the plaintiff’s argument, and noted that invalidating the initiative by looking “outside” to the related ballot materials to identify Walmart would allow “any land use initiative [to] be invalidated as one only would [sic] need to establish the company who [sic] intended to develop the property or owned the property, even though the Initiative itself makes no reference to the entity.”  The Court concluded that nothing in article II, section 12 was intended to be so broadly interpreted.


The Hernandez decision addresses important issues arising under both the Brown Act and the California Constitution.  Although the Court purported to not address the issue, it did in fact conclude that Brown Act compliance requires a description of each item of business to be transacted or discussed.  As importantly, the Court ruled that the text of a land use initiative controls and even if it is known that an initiative will benefit a particular entity the initiative is not invalid under article II, section 12 if it does not name the entity.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use.  Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  For more information, visit www.msrlegal.com.