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.

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In 2012, the California legislature amended the remedies available to address violations of the Ralph M. Brown Act. The amendment added section 54960.2 to the Government Code to require that anyone seeking to challenge past actions of a legislative body in violation of the Brown Act must first submit a “cease and desist” letter.  If the legislative body “unconditionally commits”—at an open and noticed regular or special meeting, and not on the consent agenda—“that it will cease, desist from, and not repeat the challenged past action,” then no judicial remedy is available.  Thus, the amendment allows local agencies to avoid litigation by promising to end practices that cause accusations of Brown Act violations—without admitting that they are unlawful.  The amendment also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.

On May 31, 2016, in Center for Local Government Accountability v. City of San Diego, __ Cal.App.4th __ (2016) (Case No. D068432), the Court of Appeal for the Fourth Appellate District addressed the Brown Act’s cease and desist requirement in the context of San Diego’s adherence to an ordinance providing only for one non-agenda public comment period over the course of the City’s two-day regular weekly meetings.  At issue was the Brown Act’s requirement for the agenda of every regular meeting of a local legislative body to include an opportunity for members of the public to address the legislative body on matters within its purview, but not otherwise on its agenda for action.


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