Posted by: Patricia Salkin | March 12, 2015

CA Appeals Court Holds Council’s “Custom” of Letting Council Members Appeal Planning Commission Decisions Without Complying With Procedures Required by Municipal Code Violates Due Process

A restaurant owner brought action for an administrative mandate to overturn city council resolution reversing city planning commission’s approval of conditional use permit and variance to allow restaurant to have a patio cover, remain open late on weekends, and allow dancing inside the restaurant, and asserted § 1983 claim, while city filed cross-complaint for injunctive relief. The Superior Court, Orange County, granted preliminary injunction and denied application for writ of mandate, and the restaurant owner appealed.
On September 5, 2013, the Newport Beach Planning Commission voted 5 to 2 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, Newport Beach City Council member Mike 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 are inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan.” The council voted 4 to 1 to reverse the planning commission’s decision, with a 6th member abstaining and the 7th recusing himself.

The court found, under the canon of expressio unius est exclusio alterius, that 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 disinterested persons are not eligible. Therefore, 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. Furthermore, the court determined that a city council’s taking an appeal that is not authorized by the city’s municipal code requires that the council’s decision be nullified, not just returned for reconsideration. Accordingly, the order granting the city’s preliminary injunction was reversed, and the trial court was directed to vacate the order denying Woody’s petition for writ of mandate and enter a new order granting it.

Woody’s Group, Inc v City of Newport Beach, 2015 WL 367448 (CA. App. 3 Div. 1/29/2015)

The opinion can be accessed at:

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