Radke v. City of Goleta

Filed 8/11/08 Radke v. City of Goleta CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Reed Radke appeals from judgment in favor of respondent City of Goleta (City) on a petition for writ of administrative mandate in which he challenged two decisions that were made by the Goleta City Council (Council) on November 13, 2006. The decisions concerned a faculty housing project proposed by the University of California, Santa Barbara (University) adjacent to the City, including a North Campus Housing Project (the project). The Council authorized a letter to the California Coastal Commission (CCC) conveying conditional support for the project, and conditionally authorized the mayor to sign a Cooperative Agreement between several entities concerning the financial impact of the project. The trial court found that appellant did not meet his burden of proving alleged violations of the Brown Act (Gov. Code,  54950 et seq.)^[1]and the Political Reform Act ( 87100 et seq.). We affirm.

FACTS

The University campus is situated along the California Coast and is bordered by the City. The University property includes open spaces, wetlands and environmentally sensitive habitats. In 2003, the University began discussions with various governmental bodies concerning a proposed faculty housing development on its property. The University hoped that affordable housing would help it recruit and retain qualified faculty. Many Goleta residents opposed the project, and hoped that a negotiated resolution would preserve the open coastal lands. The proposed project was not within the limits of the City, but had the potential to encroach upon a right-of-way easement owned by the City that extends from the end of Phelps Road in Goleta to the coast. The project was also expected to impact views, public access, traffic and parking in the City.

The City, the County of Santa Barbara and the University negotiated for several years. Councilmembers Margaret Connell and Cynthia Brock served as a subcommittee advising the Council during the negotiations. In 2003, the three entities reached a Memorandum of Understanding, pursuant to which the University would build housing away from the coastline in order to protect natural resources and passive recreational opportunities. In July of 2006, the details of the project were presented to the Council. After public hearing and comment, the Council identified three items of remaining concern: (1) "Neighborhood issues and concerns with the project need to be addressed," (2) "The project should not rely on use of the City's Right-of-Way," and (3) "South Parcel preservation must be addressed and resolved prior to reconsideration of this project."

By November of 2006, the University had made some changes to its proposed plan in response to neighborhood concerns. The CCC had scheduled a November 17, 2006, hearing on the project. The County of Santa Barbara had scheduled a November 14, 2006, hearing on the project. The Council had scheduled discussion of the project for November 6, 2006.

The agenda for the November 6, 2006, Council meeting described item D.2 for discussion as a Cooperative Agreement between the City, the County of Santa Barbara and the University. The proposed agreement was attached to the November 6 agenda. The agenda reported a recommendation to "(a) authorize the Mayor to execute a Cooperative Agreement with the County and University supporting the University's North Campus Housing Project; (b) authorize the Mayor to prepare a letter to the California Coastal Commission providing conditional support for the project, pending South Parcel preservation and any other matters raised by the Council; or (c) defer any action on this matter until additional information is known." Many residents, including appellant, spoke at the November 6 meeting in opposition to the proposed project.

The Council voted on November 6 to continue item D.2 to the November 13, 2006 special meeting, and to "authorize the Mayor to work with staff to draft a letter to the California Coastal Commission requesting a continuance alerting [the] Coastal Commission to the issues raised." Between November 6 and November 13, 2006, staff prepared a draft letter to the CCC requesting a continuance and identifying areas of concern regarding the project (the continuance letter). In the same time period, a general election was held in which Councilmembers Connell and Brock were not reelected.

The Agenda for the November 13, 2006, meeting did not fully restate the agenda item concerning the project. It did identify as item A.1 "UCSB Cooperative Agreement," and stated, "Recommendation: Authorize the Mayor to sign and transmit the attached letter to the California Coastal Commission." The draft continuance letter, attached "for review and authorization," asked the CCC to postpone its decision on the project, "so that the City and the University may work towards satisfying a number of remaining concerns and issues." The letter enumerated the concerns and noted that "neighboring residents have come out in staunch opposition" against the project, and that "[a]lthough the University's latest proposal for the North Campus Housing Project is an improvement over previous versions, it does not go far enough to satisfactorily address neighborhood concerns." A staff memorandum attached to the November 13 agenda stated with respect to item A.1, "Alternatives: None suggested."

The Cooperative Agreement was not attached to the November 13, 2006, agenda. The attached staff memorandum provided, "Should an acceptable project come forward in the future, a Cooperative Agreement between the City and UCSB would require reconsideration as well. For reference, the execution of a draft Cooperative Agreement for the current project would have guaranteed $1.1 million in traffic impact fees to be paid to the City, along with a clarification of roles, responsibilities and enforceability as it relates to this and future projects." The memorandum also noted, "the belief that a missed opportunity exists for UCSB to work with neighbors and local residents concerned about the North Campus Housing project."

At the beginning of the November 13, 2006 special meeting, Mayor Jonny Wallis, Councilmember Jack Hawxhurst and outgoing Councilmembers Connell and Brock were present. Councilmember Jean W. Blois was absent. Hawxhurst stated that he might be unable to remain for the full meeting. He stated that "what we say doesn't matter all that much to the Coastal Commission."

The City's general manager reported that, since drafting the continuance letter, staff had reviewed the University's information in greater depth and that staff had met with University representatives that morning. The City manager remarked that Connell and Brock had seen the project through from inception, advising staff and the Council throughout that time. He observed that CCC postponement would result in the item coming back to a future, re-constituted council. He stated that Connell and Brock had met with the University earlier in the day and would be proposing an alternative draft letter that "modifies significantly" the continuance letter in the agenda packet. This alternative letter had not yet been made available to the public or to the other members of the Council.

The University's Executive Vice Chancellor next addressed the Council, and spoke of a "severe problem we have hiring and retaining faculty," because of the lack of affordable housing. He spoke of the preservation of 13 acres in the South Parcel under the present plan as something "for this City Council to put its stamp on." The University's Vice Chancellor for Administrative Services told the Council that the CCC staff report had indicated that any approval would require the University to have a conservation easement or an offer to dedicate the South Parcel in place to ensure that it remain open space in perpetuity. The Vice Chancellor for Administrative Services gave her personal commitment to the Council that this would be done.

A number of local residents, including appellant, spoke out against the project and urged the Council to send the continuance letter. Residents expressed issues of concern that included possible encroachment on the right-of-way, flooding, impact on nearby playgrounds and air traffic patterns, and potential ownership by persons other than faculty. In response to a question, the city manager clarified that, even if the CCC approved the project, the City would retain authority to deny use of its right-of-way because an encroachment permit would be required before the University could use it for any purpose.

About an hour into the discussion of item 1.A, Connell called for a short recess. A recording of the meeting shows her and Brock leaving the dais, with Wallis and Hawxhurst remaining. After a 14 minute break in the meeting and the recording, Wallis, Connell and Brock were present on the dais and Hawxhurst was gone. When the meeting resumed, Mayor Wallis announced that "as a result of a meeting with our subcommittee," there was an alternative letter for consideration. Copies of the alternative letter were distributed to the public, and Wallis stated that public comment would be heard. The alternative letter conveyed conditional support for the project and emphasized the previously identified concerns.

Connell stated that she had "met this morning" with University representatives, and had a subsequent meeting with staff, after which the alternative letter had been drafted. Connell expressed her view that it was unlikely that the CCC would actually postpone its approval, and that if the Council wished to have any impact on the way the project would develop that it should express conditional support, emphasizing the issues that were identified in the continuance letter. Connell stated that because the CCC meeting was only a few days away, the current Council needed to make a decision, and that after five years working on the issues the decision should rest with the present Council. No vote was taken on a need for immediate action.

Brock then expressed her agreement with Connell, and noted that she had been working to preserve the coast and to retain open space for a long time. During the public comment period, several residents spoke out strongly against the alternative letter and stated that it had taken them by surprise. Appellant stated that he was very upset and that he doubted the sincerity of the University's oral promise to preserve the South Parcel.

Connell responded to the public comment, stating that the alternative letter was a pragmatic solution. She explained that the continuance letter would reduce future influence over modification of the project. She said she was sorry that "we didn't have the letter at the beginning of the meeting" and that "we were working up to the last minute on this." Wallis stated that she would not support the alternative letter, but she did suggest revisions to it, with which Connell and Brock agreed. The Council voted 2-1 to approve the revised alternative letter conveying conditional support (Ayes: Connell and Brock; No: Wallis). Hawxhurst and Blois were absent.

The Council also voted 2-1 to agree to sign the Cooperative Agreement if the other parties would agree to amendments that would eliminate any possibility of encroachment on the City's right-of-way. Before this vote, staff clarified that once the CCC approved the project, the opportunity to sign the Cooperative Agreement would be lost.

On about November 15, 2006, appellant sent a written demand to the Council to cure perceived violations of the Brown Act and the Political Reform Act. The demand identified a single violation of the Brown Act on November 13, 2006: "Following an unscheduled intermission, a substituted letter with substantially changed contents and intent from the letter released to the public as part of the agenda item was inserted as the 'letter' as described in agenda item A.1." He alleged that this substitution violated the agenda requirements of section 54954.2, and rendered the vote on the alternative letter null and void. His demand also stated that two voting Councilmembers (Connell and Brock) were required to disqualify themselves from the November 13 vote based on conflicts of interest arising from the fact that they were each married to University faculty, rendering their vote a "probable violation" of sections 87100 and 87103, subdivision (c). He did not make any allegations concerning the signing of the Cooperative Agreement or meetings of the subcommittee.

In November of 2006, appellant filed a petition for writ of mandamus pursuant to section 54960.1, seeking to set aside the November 17, 2006, votes that approved the alternative letter and the Cooperative Agreement. Like the written demand, the petition alleged violations of the Brown Act and the Political Reform Act.

With respect to the Brown Act, the petition alleged that the November 13, 2006, agenda and attachments did not adequately notify the public that an alternative letter would be authorized that would convey conditional support for the project, and that "the three Council members" met secretly and discussed the item "during the unscheduled 'break' session" in the November 13 proceedings. The petition did not challenge any subcommittee meeting that occurred before November 13, 2007, and it did not allege failure to include on the agenda an adequate description of the Cooperative Agreement item. The petition did not allege failure to attach a copy of the Cooperative Agreement to the November 13 agenda.

With respect to the conflict of interest claim, the petition alleged that Councilmembers Connell and Brock were each married to University faculty members, and thereby stood to benefit from development of faculty housing and stood to receive reward or patronage for their support of the project.

The City brought a demurer to the petition on the grounds that it did not sufficiently allege a secret meeting in violation of the Brown Act or any financial interest that would give rise to a conflict of interest in violation of the Political Reform Act. The court overruled the demurrer, but cautioned appellant that "if there are no witnesses, if there is no way to fill in the blanks, then the Plaintiff will fail in meeting his burden of proof." The Council offered to make Mayor Wallis available for deposition, but appellant did not accept the offer, and relied solely upon the taped transcripts of the hearings.

On October 5, 2007, the court conducted an evidentiary hearing on the petition. Appellant played the video recordings of the November 6 and November 13, 2006, Council meetings, and then rested his case. The City moved for judgment pursuant to Code of Civil Procedure section 631.8. The court granted the motion, finding that "[t]here was no evidence presented of any secret meeting during the break in the proceedings where the letter was put together, cobbled together and then foisted on the unsuspecting public." The court found that "two council members who were on a subcommittee did take it upon themselves to do what the mayor essentially invited. The mayor didn't really want to write the letter and was looking for some cooperative help from other council members." The trial court found that appellant did not meet his burden of proving a Brown Act violation because, "There's an absence of evidence of any secret behavior by the city council in their drafting of this letter, the fine-tuning of this letter, the form that the letter ultimately ended up in." With respect to the conflict of interest claim, the court found that appellant had "not met [his] burden of proof of raising an actual conflict of interest within the Brown Act. There's just a vague, unsubstantiated hint of a possible conflict. [] The fact that Dr. Connell and Dr. Walker receive their salaries from the University and they happen to be married to city council members, that doesn't bring you over the burden of proof."

DISCUSSION

Conflict of Interest

A trial court's decision on a petition for writ of administrative mandate is affirmed if substantial evidence supports the findings and judgment. (Los AngelesCountyProf. Peace Officer's Assn. v. County of Los Angeles(2004) 115 Cal.App.4th 866, 869.) Issues of law and statutory interpretation are subject to independent review. (Ibid.) A party may move for judgment pursuant to Code of Civil Procedure section 631.8 after the opposing party has rested its case. The trial court weighs the evidence, and its findings on the motion "are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence." (Slater v. Alpha Beta Acme Markets, Inc. (1975) 44 Cal.App.3d 274, 278.)

No public official may participate in a decision in which he or she has a financial interest. ( 87100.) A financial interest includes a foreseeable financial impact on a member of the official's family or on a source of income of more than $500 in the year preceding the decision ( 87103), excluding salary, reimbursements or benefits from a state, local or federal agency. ( 82030.) Appellant offered no evidence to the trial court to sustain his allegation that Connell and Brock had a financial interest in the faculty housing project. He offered no evidence of their marital status or the employment and compensation of their spouses. He offered no evidence that they or their spouses might qualify for the proposed affordable housing. The correspondence that is attached to appellant's opening brief was not a part of the record in the trial court and has not been considered. Substantial evidence supports the trial court's finding that appellant did not sustain his burden of proving a conflict of interest.

Brown Act

The Brown Act imposes requirements upon local legislative bodies to ensure that their actions are taken openly and their deliberations are conducted openly. ( 54950.) Appellant raises four contentions on appeal with respect to the Brown Act: (1) the private meeting between Connell, Brock and University representatives before the November 13 Council meeting was a private meeting of a majority of the Council in violation of sections 54953 and 54952.2; (2) Connell and Brock constituted a standing subcommittee, and as such, their private meetings also violated sections 54952 et seq.; (3) the November 13 agenda did not identify a vote on the Cooperative Agreement or attach the agreement, in violation of sections 54956 and 54954.1; and (4) the Council did not provide a copy of the alternative letter to the public in advance of the meeting in violation of section 54957.5, subdivision (b)(1).

The first three of these contentions were not raised in appellant's written demand or his petition for writ of administrative mandate. Before commencing a civil action to determine that an action of a legislative body is void for violation of the Brown Act, the plaintiff must make a written demand upon the body to cure or correct the action. ( 54960.1, subd. (b).) On review, we will not consider an alleged violation of the Brown Act that was neither articulated in the written demand to cure nor alleged in the pleadings. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 978.)

Even if we were to reach the merits of appellant's claims, he did not demonstrate that the meetings that Connell and Brock held privately or with University representatives were subject to the Brown Act. An advisory committee composed solely of members of the legislative body that are less than a quorum of the legislative body are not legislative bodies subject to the requirements of the Brown Act. ( 54952, subd. (b).) Connell and Brock did not constitute a quorum of the five member Council. If a "majority of the members" of a legislative body meet to deliberate, they are subject to the provisions of the Brown Act ( 54952.2, subd. (a)), but Connell and Brock did not constitute a majority of the five member Council. Standing committees, which have "continuing subject matter jurisdiction" are legislative bodies subject to the Brown Act ( 54952, subd. (b)), but appellant offered no evidence to the trial court that Connell and Brock had continuing subject matter jurisdiction. No minutes or other record concerning the formation, authority or purpose of the subcommittee were presented in the trial court.

With respect to the November 13 agenda description of the Cooperative Agreement, appellant can obtain no relief because he did not demand that the Council cure any errors concerning the Cooperative Agreement and did not raise the issue in his pleadings. We do note deficiencies in the November 13 agenda with respect to the Cooperative Agreement. The November 6, 2006, agenda had provided the public with a complete description of the Cooperative Agreement in compliance with section 54954.2, subdivision (a). However, a new agenda description was required for the November 13, 2006 special meeting, because it occurred more than five days later. ( 54954.2, subd. (b)(3); 54956.) Although a legislative body is excused from the agenda requirement if it determines by vote that there is a need to take immediate action which has come to the attention of the body after the agenda was posted ( 54954.2, subd. (b)(2)), no such vote was taken on November 13. The November 13 agenda identified "Cooperative Agreement" as an agenda item, but disclosed no recommendation to vote on the agreement and did not attach the proposed agreement. The accompanying staff memorandum implied that no vote on the Cooperative Agreement would be taken unless the matter returned to a future council after the CCC had taken action. No relief is available to appellant because he did not afford the Council an opportunity to cure their error as required by section 54960.1, subdivision (b).

Finally, appellant contends that section 54957.5, subdivision (b)(1) required the Council to make a copy of the alternative letter available to the public 24 hours before the November 13 special meeting. Section 54957.5, subdivision (b)(1), requires distribution of documents related to agenda items "at the time the writing is distributed to all, or a majority of all, of the members of the body." Substantial evidence in the record would support a finding that the alternative letter was not distributed to a majority of the Council until after the recess during the special meeting. Connell and Brock drafted the letter, but did not constitute a majority of the members. Connell stated that they had been drafting the letter up to the last minute, and Mayor Wallis can be seen on the video recording scrutinizing the letter in a manner that suggests she had not seen it before the break. Appellant did not otherwise challenge the agenda description of the proposed letter on appeal.

With respect to the agenda description of the letter, a technical violation of the Brown Act will not render an action null and void if there is substantial compliance with the Act. ( 54960.1, subd. (d)(1).) The agenda does not identify any alternative to the continuance letter, but it substantially complies with the agenda requirements and appellant was not prejudiced by any omission. The November 6 agenda specifically described a proposed letter of conditional support consistent with the alternative letter that was authorized on November 13, and the Council heard appellant's comments at that meeting in opposition to conditional support. The November 13 agenda recommended and described only a continuance letter, but the Council were not bound by staff's recommendation and redrafting of the letter was not outside the bounds of reasonably expected actions. Appellant was afforded two opportunities to speak at the November 13 meeting, and the Council heard his opposition to conditional support before voting to authorize the alternative letter. There was substantial compliance with the Brown Act.

The judgment is affirmed. Each side shall bear its own costs on appeal.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Denise deBellefeuille, Judge

Superior Court County of Santa Barbara

______________________________

Reed Radke, in pro. per. for Plaintiff and Appellant.

Burke, Williams & Sorensen and Brian A. Pierik, for Defendants and Respondents.

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^[1]All statutory references are to the Government Code unless otherwise stated.