The council will meet beginning at 6 p.m. on Thursday, April 9, in the council chambers at Clearlake City Hall, 14050 Olympic Drive, Clearlake.
The council will hold a second reading and roll call vote on the Provinsalia rezone, which would change the project's 292 acres along Cache Creek – located at 17012, 17055 and 17065 Dam Road – from “resource protection” to “specific plan.”
Lake County Resort Partners Inc. proposes to build 565 single-family homes, 100 condominiums and a nine-hole golf course on the site, as Lake County News has reported.
At its Feb. 26 meeting, the council approved that ordinance on a first reading after holding two public hearings on the project.
The Feb. 26 meeting has since become the focus of controversy, after the council decided to limit discussion to new items released in an updated staff report – specifically, a letter from Caltrans and alleged discrepancies between the project's environmental impact report evaluations on climate change and those done by the same consultant for the Valley Oaks project hear Hidden Valley.
Victoria Brandon, chair of the Sierra Club Lake Group, alleged violations of the Ralph M. Brown Act, which governs government meetings, and filed a complaint with the Lake County Grand Jury.
The allegations caused the Clearlake City Council to delay further consideration of the rezoning ordinance in March while City Attorney Malathy Subramanian prepared a report on whether or not a Brown Act violation occurred.
Subramanian's April 3 report found no violations, clearing the way for the council to once again take up the matter.
“The City Council's actions at its meeting on February 26, 2009 did not violate the Brown Act or due process rights of any individual,” wrote Subramanian. “The Project was considered by the Planning Commission and the City Council at several meetings that contained numerous hours of unlimited testimony from the public. The public was provided with ample opportunity to comment on the Project by submitting written or oral comments at any of these meetings.”
Subramanian's review of the Brown Act led her to conclude that “although the right to address the City Council and speak on agenda items before they are acted upon is considered paramount, it is not unlimited.”
She said the act “seeks to balance the public's right to participate in local government, with the City Council's need to expeditiously conduct business and its right to make decisions regarding how to do so.”
A section of the act also allows the council to limit public testimony to five minutes or less. Subramanian noted a California Attorney General ruling stated that “a single item or several items may not reasonably be permitted to monopolize the time necessary to consider all agenda items. If the legislative body is to complete its agenda, it must control the time allotted to particular matters.”
The “reasonable” period of for public discussion, the attorney general's ruling notes, varies “with the facts and circumstances in each case.”
Subramanian's examination of the allegations noted that the council's consideration of Provinsalia's two resolutions and one ordinance “spanned several meetings and over five hours of public comment at the two City Council meetings held in February where the City Council did not set a time limit on the testimony of any speaker on this matter.”
During that time, the Provinsalia project didn't substantially change, other than the Caltrans and climate change issues that were raised. Subramanian said that, because the public had had plenty of opportunity to discuss the project in written and oral comments, the council wasn't required to allow public comment on the entire project on Feb. 26, and therefore didn't violate the Brown Act.
She suggested that, in the future, if the council continues a public hearing to another meeting, “it should indicate that the public hearing may be limited to new or limited matters to avoid misunderstanding or confusion on the part of the public.”
Subramanian also suggested, in her conclusion, that the council may want to allow public comment on the project at the Thursday meeting when it discusses the ordinance and considers its adoption.
Brown Act doesn't address public hearings
On Monday, Brandon remained firm in her opposition to how the city conducted the matter.
“Whether or not that opinion is correct from a strictly legal perspective, it seems to me that allowing public comment to be narrowly restricted to an arbitrarily selected set of subjects prevents effective participation almost as much as forbidding comment altogether would do,” she said.
She also suggested that, from a political perspective, the council would be wise to rescind the approvals it made on the project on Feb. 26 and reschedule a hearing on the basis of free speech, “since failing to do so will perpetuate the growing atmosphere of suspicion and distrust in the city of Clearlake, and encourage pressure for recall.”
Brandon added that allowing public comment on the project on Thursday without repealing the two resolutions it adopted Feb. 26 would be a meaningless gesture that some might take as an insult. “It would do more harm than good.”
Terry Francke, general counsel for Californians Aware, a group that advocates on behalf of open government, agreed with Subramanian's findings.
He also offered insight into the Brown Act that may surprise some people.
For one, “The Brown Act says nothing about public hearings,” he said. “It's not an issue the Brown Act addresses.”
The act does require agencies to provide time on their agendas for people to address both items listed on the agenda and things that aren't on the agenda but are under the legislative body's jurisdiction.
It also allows agencies to impose reasonable time restrictions on the length of the opportunity to comment – either per person, per topic or per meeting, he said.
“The Brown Act is fairly liberal and nonspecific, I would say, and there's nothing in the Brown Act or any other law that I'm aware of that requires extending a public hearing on certain issues over multiple meetings,” he said.
In this case, he found that the council did not err either under the Brown Act or under the California Environmental Quality Act (CEQA). “Not even CEQA requires a hearing in these circumstances,” Francke said.
He said there are two Brown Acts – the actual statute, as it's been interpreted by the courts and the attorney general, and the other version of the act that's the interpretation of citizens who feel frustrated when their desire to take part in public meetings isn't satisfied.
“People tend to identify their frustration with not being allowed to speak or not being allowed to speak as much as they would like with the Brown Act, but it's just not there,” he said.
What both the Brown Act and the First Amendment of the US Constitution do, he said, is require that no particular viewpoint is discriminated against.
“And that's pretty easy to spot if that's gong on,” Francke said.
E-mail Elizabeth Larson at
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