Posted by: Patricia Salkin | March 4, 2015

CA Appeals Court Finds Bias on the Part of Councilmember in Effort to Overturn Decision of Planning Commission

Woody’s Group Inc. owned Woody’s Wharf a long-established restaurant overlooking the harbor in Newport Beach, California.. It has been open late on weekends and has allowed interior dancing since its inception. The neighborhood was a “mixed use.” The Newport Beach Planning Commission voted to approve a conditional use permit and variance to allow Woody’s to have a patio cover, remain open until 2 a.m. on weekends, and allow dancing inside the restaurant. Four days later, Councilmember Mike Henn (“Henn”) sent the city clerk an email in which he made an “official request to appeal” the planning commission’s decision because he “strongly believed” the “operational characteristics requested in the application and the Planning Commission’s decision were inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan.”

The city council heard Henn’s appeal and voted to reverse the planning commission’s decision. Woody’s sought administrative mandate to overturn the resolution, also asserting a 1983 claim. The city filed a cross-complaint for injunctive relief. The city obtained a preliminary injunction that prohibited Woody’s from operating after 11 p.m. or allowing dancing. The Superior court denied Woody’s application for a writ of administrative mandate.

The appeals court found that the City Council violated at least two basic principles of fairness in overturning a permit application approved by the city’s planning commission.
First, you cannot be a judge in your own case. In this case Henn, having already voiced his “strong” opposition to Woody’s application, was allowed to appeal the approval of Woody’s application to the very body on which he sat, where he did his best to convince his colleagues to vote with him against the application.

Second, you cannot change the rules in the middle of the game. The Newport Beach Municipal Code required appeals from the city’s planning commission to the city council be brought by “interested parties,” who pay a filing fee and submit their appeal on a form provided by the city. The Newport Beach Municipal Code made no provision for appeals by council members acting in their role as council members. The city council violated its own municipal code by entertaining Henn’s appeal even though he didn’t follow the procedures laid out in the code, and then retroactively tried to justify that violation by claiming the city has a custom of extending such lenity to council members.

Further, under BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 97 Cal.Rptr.2d 467. When functioning in such an adjudicatory capacity, the city council must be “neutral and unbiased.” The rule against bias does not require the applicant to prove actual bias. Rather, there must not be an unacceptable probability of actual bias on the part of the municipal decision maker. Bias, either actual or an “unacceptable probability” of it, alone is enough on the part of a municipal decision maker is to show a violation of the due process right to fair procedure.

Here, Woody’s had established an “unacceptable probability of actual bias” on Henn’s part. Henn’s “notice of appeal” by email showed he was strongly opposed to the planning commission’s decision on Woody’s application. Also, Henn was the one to propose the motion that the lower decision be overturned. Henn’s speech to the council had been written out beforehand, wholly belying his own self-serving comment at the hearing that “I have no bias in this situation.” He should not have been part of the body hearing the appeal.

Further, the problem of bias is amplified when it is combined with the related phenomenon of a city violating its own procedure by initiating an appeal to itself. Prior caselaw zeroed in on the fact the city’s municipal code did not entitle the council to bring an appeal to itself. In doing that, said the court, the council “acted in an arbitrary and high-handed manner.” It was the fact “the Council made sure the decision did not stand unchallenged,” in the context of the lack of authority to initiate the appeal in the first place, that constituted a violation of the due process right to a fair procedure. That court qualified its conclusion, stating, “Our holding should not be read as invalidating all appeals taken by a city council or other governing body to itself from a decision of a subordinate agency. However, that if such a procedure is contemplated, it should be authorized by the ordinances or rules which govern appeals to such entity, and some direction should be given in such ordinances or rules concerning specification of grounds and appropriate burdens of proof. No elected individual appealed here. The Council appealed. Had a single council member been the appellant, and complied with the municipal code, he or she might have been disqualified but the remainder of the City Council could have voted.” The earlier court found a violation of due process because the city council’s appeal to itself was not authorized by the city’s own ordinances or rules.

Regarding, whether Henn’s appeal was authorized by the city’s own municipal code, the court stated the Newport Beach Municipal Code dealing with appeals from planning commission decisions does not have a provision for free appeals by city council members. Under the Newport Beach Municipal Code, the reviewing body hearing an appeal shall hear testimony of the appellant, the applicant, and any other interested party ” again stressing the restriction of appeals to interested parties. The fact the reviewing body was acting in an adjudicatory capacity is then emphasized by language making clear that the body is to act as a fact-finder. The Newport Beach Municipal Code did not allow for city council members bringing appeals from city planning commission decisions to themselves. Further, under the canon of expressio unius est exclusio alterius, the use of the phrase “interested party” without explicit provision for a city council member exception—indicates that city council members would have to be disqualified from participating in any appeal they brought. If the code says “interested person” under the heading of eligibility, it is simultaneously conveying the thought that dis interested persons are not eligible. An “interested party” for purposes of bringing the appeal cannot simultaneously be a “disinterested person” for purposes of affording due process in the hearing of the appeal.

The custom of the city council letting its members appeal planning commission decisions, was based on the only written authority in the very document embodying the city’s council’s decision, which recited the city has a “long-standing policy and practice of not requiring Councilmembers to pay a filing fee because their appeals were taken for the benefit of the City’s residents.” The court noted that the assumption that by definition a city council member who appeals is doing so “for the benefit” of the residents, as distinct from some personal bias, was not based in logic. he court concluded that the city’s incantation of a “policy and practice” in direct violation of its own code could not conform that alleged policy and practice to due process.

Woody’s Group, Inc. v. City of Newport Beach, 2015 WL 367448 (Cal. App. 1/29/2015)

The opinion can be accessed at:

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