Fowler v. City of Lafayette

• Decision Date: 10 February 2020
• Docket Number: A156525
• Citation: 46 Cal.App.5th 360,258 Cal.Rptr.3d 353
• Court: California Court of Appeals Court of Appeals
• Parties: Lori FOWLER et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE, Defendant and Respondent.

46 Cal.App.5th 360

258 Cal.Rptr.3d 353

Lori FOWLER et al., Plaintiffs and Appellants,

v.CITY OF LAFAYETTE, Defendant and Respondent.

A156525

Court of Appeal, First District, Division 4, California.

Filed February 10, 2020

As Modified on Denial of Rehearing March 11, 2020

Certified for Partial Publication.^*

Larson O’Brien LLP, Scott A. Sommer, Los Angeles; and Gary S. Garfinkle, Lafayette, for Appellants.

Keker, Van Nest & Peters LLP, Benedict Y. Hur, Justina Sessions, and Neha Mehta, San Francisco, for Respondent

TUCHER, J.

The City of Lafayette (the City) approved an application to build a tennis cabaña on a residential property. Lori Fowler, Scott and Jeanne Sommer, Val and Rob Davidson, and Avon and George Wilson (collectively, plaintiffs), all residents of the City, brought this action challenging the approval on the grounds that the City improperly considered the application in closed sessions in violation of the Ralph M. Brown Act ( Gov. Code, § 54950 et seq. )¹ and violated their right to a fair hearing. They appeal after the trial court ruled against them. In the published portion of the opinion, we agree with plaintiffs that the City violated the Brown Act but conclude there was no prejudice. We also reject plaintiffs’ other contentions, and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The owners of the property, Michael and Diane Archer (the applicants), sought to build what they called a tennis cabaña (the project) next to a tennis court on their 2.38-acre property. As initially proposed, the 1,199-square-foot cabaña would have included a pavilion with a kitchen for entertaining and a guest room with a full bathroom. In March 2015, they applied through their architect for approval of the project. Through the course of the design review, the applicants made changes that eliminated the need for a setback variance and removed the kitchen from the proposed building. The City’s Design Review Commission (DRC) approved the project, with conditions of approval requiring the applicants to record a landscape maintenance agreement and a deed restriction preventing the cabaña from being used as a secondary dwelling unit.

Plaintiffs are neighbors of the applicants who objected that the tennis cabaña was inconsistent with the neighborhood and too close to an adjacent home, such that it would subject the occupants to noise and loss of privacy. They appealed the DRC’s action to the City’s Planning Commission, asserting a number of objections to the project: that it was an illegal second unit; that it violated a landscape condition of approval imposed in 1990, when the tennis court was approved; that the building was too large, too close to neighboring residences, and inconsistent with the City’s general plan and municipal code; and that the notices of DRC hearings were inadequate and violated the Brown Act. A supporting letter also raised the concern that the applicants had an unfair advantage in the review process because their architect was a member of the Planning Commission.

The City’s Planning Commission considered the matter at four meetings between December 2015 and May 2016. During the course of those meetings, the applicants made additional changes to the project, shaving its size to 1,100 square feet and decreasing its height, while increasing the distance from the cabaña to a neighboring project, and improving landscaping. The Planning Commission approved the project subject to conditions of approval including the landscape agreement and the prohibition on use as a secondary dwelling unit.

Plaintiffs appealed the matter to the City Council. They argued that the project violated the 1990 landscape condition of approval; that it improperly expanded the use of the tennis court, which they asserted was a nonconforming use under the City’s ordinances; that it was an illegal second unit; that the restrictions on use would not bind future owners of the property; and that consideration should be given to locating the cabaña on another portion of the applicants’ property, farther from neighbors’ homes.

The City Council considered the appeal at four meetings: July 11, July 25, September 26, and October 11, 2016. At the final meeting, the City Council denied the appeal and upheld the Planning Commission’s approval of the application, subject to conditions, on a four-to-one vote.

While approval was pending, the applicants’ attorney threatened to sue the City if it denied the project, and the City Council discussed the threat of litigation during closed sessions held before the July 25, September 26, and October 11, 2016 meetings. An entry in the "Notes" field in the City’s "Application Database" for the project—between notations indicating that the appeal to the City Council had been received and that the appeal was scheduled for a July 11 hearing—states: "On multiple occasions now, on the phone D. Bowie [David Bowie, the applicant’s counsel] indicated he would take the matter to court if the City denied the project. M. Canales [Megan Canales, an assistant planner who worked on the application] informed M. Subramanian [Mala Subramanian, City Attorney] of litigation threat."

Subramanian notified the City Council of the litigation threat orally, rather than in written form, in the July 25, 2016 closed session. That a threat of litigation had been made with respect to this specific project was not noted in the agenda for any of the public meetings, and there was no mention of it in any of the packets of information—including staff reports and agenda attachments—that were made available to the public for inspection in city offices and on-line before the meetings. The agendas simply record that the City Council would confer with legal counsel in closed session about one case of anticipated litigation, without identifying the case. In order to see the notation regarding the threat of litigation in this matter, a member of the public would have to visit the City’s "planning counter," speak with a planner, and ask to see the project’s "notes field." The computer network that included that information was password-protected, and there was no indication the notes in the project’s application database were printed out until after the City Council reached its decision.

Plaintiffs did not learn that Bowie had threatened litigation or that the City Council had discussed the matter in closed sessions until November 2016, after the project had been approved.

Plaintiffs brought a petition for writ of mandate ( Code Civ. Proc., § 1085 ) and complaint for injunctive and declaratory relief challenging the City’s decision. The operative second amended petition alleges the City violated the Brown Act by discussing the application in closed hearings, and that plaintiffs were deprived of their right to a fair hearing.

The trial court rejected all of plaintiffs’ claims, denied the petition, and entered judgment for the City.

DISCUSSION

I. Brown Act Violation

A. General Standards

Plaintiffs contend the City violated the Brown Act by failing to announce or make available for public inspection Bowie’s statement threatening litigation and by conducting unauthorized and overbroad discussions in closed sessions. Where the facts are undisputed, our review of this challenge is de novo. ( San Diegans for Open Government v. City of Oceanside (2016) 4 Cal.App.5th 637, 642, 209 Cal.Rptr.3d 305 ; Castaic Lake Water Agency v. Newhall County Water Dist. (2015) 238 Cal.App.4th 1196, 1204, 190 Cal.Rptr.3d 151.) However, to the extent the trial court drew factual inferences, we defer to those inferences if they are supported by substantial evidence. ( Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 178–179, 35 Cal.Rptr.3d 826.)

The Brown Act requires most meetings of a local agency’s legislative body to be open and public. (§ 54953, subd. (a); Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313, 1321, 5 Cal.Rptr.3d 776.) It "is intended to ensure the public’s right to attend the meetings of public agencies. [Citation.] To achieve this aim, the Act requires, inter alia, that an agenda be posted at least 72 hours before a regular meeting and forbids action on any item not on that agenda. [Citations.] The Act thus serves to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation by public bodies." ( Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1511, 178 Cal.Rptr.3d 168.) The Brown Act is " ‘construed liberally so as to accomplish its purpose.’ " ( Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 525, 245 Cal.Rptr.3d 236 ( Olson ).)

B. Closed Sessions Concerning Pending Litigation

One of the exceptions to the Brown Act’s open meeting requirements allows closed sessions for an agency to "confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation." (§ 54956.9, subd. (a).) Resolution of the question of whether the City Council gave adequate notice that it was discussing the project in closed session requires a close examination of the statutory provisions regarding pending litigation.

Litigation is considered pending when, inter alia, "[a] point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency." (§ 54956.9, subd. (d)(2).) Subdivision (e) of the same statute limits "existing facts and circumstances" in this context to five scenarios, two of which are pertinent to our inquiry: "(2) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are...