Posted by: Patricia Salkin | February 14, 2020

CA Appeals Court Holds Applicant for Conditional Use Permit was Not Denied a Fair Hearing, as Would Warrant Issuance of Administrative Mandamus

This post was authored by Matthew Loescher, Esq.
In 2015, Lateef submitted an application for approval to operate a neighborhood convenience store and to obtain conditional use permits to sell tobacco products, beer and wine. On December 8, 2015, Charles Rigby, who was a sitting councilmember and the city’s mayor pro tem, sent an email to the commission’s members urging them to vote against the application. The commission denied the application, and Lateef appealed the commission’s denial to the city council, and the city council voted four to one in favor of granting Lateef’s appeal and reversing the commission’s decision to deny his application. After the roll call was taken, the city clerk stated “Motion passes 4 to 1.” The city attorney then stated, “actually it needed five-sevenths to pass. That’s on the appeal.” The city clerk declared, “correction for the record, motion fails.”
On appeal, Lateef challenged the denial of his writ of administrative mandamus, arguing the proper interpretation of subsection 10-3.1310(E) was that it “requires that five-sevenths of those councilmembers present and voting at the appeal hearing vote in favor of granting the appeal in order for the appellant to prevail on appeal….” Pursuant to that section, the city council’s four-to-one vote in his favor was sufficient to grant his appeal.

The court further found that Subsection 10-3.1310(E) could not be read as Lateef proposes without omitting the word “whole.” By its plain language, “whole of the Council” referred to the entire city council, or all seven members. Having obtained only four favorable votes, the court held that the city council properly denied Lateef’s appeal.
Lateef next argued that if the city’s interpretation of the ordinance was correct, he was deprived of a fair hearing because the recused councilmember and vacant council seat were included as councilmembers when determining the number of votes needed to grant his appeal. Under California law, a vacant council seat is included in determining whether a quorum exists. As such, Lateef could have requested a continuance of the hearing until the vacant seat was filled to better increase his chance of prevailing. Even had the city council excluded the recused councilmember from the calculation, Lateef still would not prevail, however, as five-sevenths vote of six was a number greater than four. Accordingly, the trial court properly denied his petition for administrative mandamus.
Lateef v. City of Madera, 258 Cal.Rptr.3d 553 (2020)


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