Posted by: Patricia Salkin | December 1, 2020

CA Appeals Court Finds Council Member was Biased Towards Project and Therefore Applicant Did Not Receive a Fair Hearing

This summary appears in the Perkins Coie Land Use and Development Law Briefing and is posted with permission from the California Land Use Attorneys with Perkins Coie, LLP

The court of appeal held that where a city councilmember’s actions evinced bias toward the project, the
applicant did not receive a fair hearing and the City Council’s denial of a conditional use permit would
be set aside.
Petrovich applied for a conditional use permit for operation of a gas station in a shopping center. The
Planning Commission’s approval of the permit was reversed by the City Council on appeal. Petrovich
sued, claiming the actions of one of the councilmembers demonstrated hostility and bias toward the
project and resulted in denial of a fair hearing.

The appellate court agreed. The court observed that city councilmembers wear “multiple hats,”
sometimes serving as local legislators, but also occasionally acting in a quasi-adjudicatory capacity
similar to judges, as in the case of a hearing on a conditional use permit. In making such a decision,
councilmembers must be “neutral and unbiased.” Bias and prejudice cannot be inferred from mere
appearance (such as likelihood that a vote was influenced by personal interests) but must be proven
with “concrete facts.”
Applying these principles, the court concluded that the councilmember’s residence in the same
neighborhood as the project or membership in the area homeowner’s association (which actively
opposed the project) did not establish bias. Nor did the councilmember’s prehearing public comments
that a gas station “did not fit” in the shopping center amount to unacceptable bias, since a
councilmember “has not only a right but an obligation to discuss issues of vital concern with his
constituents and to state his views on matters of public importance.”
But the councilmember’s actions went beyond legitimate representation and “crossed the line into
advocacy against the project.” There was evidence the councilmember was actively lining up votes of other councilmembers against the project, as well as advising the president of the HOA on how to lobby
the City Council. The councilmember prepared and sent to project opponents “talking points” whose
“only conceivable purpose,” the court said, was to assist in advocacy against the project. The
councilmember also sent the Mayor what amounted to a script for orchestrating a “no” vote on the
project, including a proposed statement by the Mayor to be made after the motion to deny the project
had been made and seconded.
These activities, the court found, evidenced both behind-the-scenes advocacy and organization of the
presentation at the hearing, including orchestrating the very sequence of actions—the motion and
second—that occurred at the hearing. These “concrete facts” showed that the councilmember acted as
an advocate, not an impartial decisionmaker, and should have recused himself from voting on theappeal. His actions demonstrated an unacceptable probability of actual bias and denied Petrovich a fair hearing.

Petrovich Development Co., LLC v City of Sacramento, 48 Cal. App. 5th 963 (2020)


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