This post was authored by Georgia Reid of Touro Law Center
Development Company (Petrovich) applied for a gas station conditional use permit and approved by the Planning Commission (the Commission), and then later denied by the City Council (the Council). After taking the matter to court, the trial court held Petrovich did not receive a fair hearing in the Council’s review.
On September 10, 2014, Petrovich applied for a conditional use permit to construct and operate a gas station in a shopping center zone. The gas station was to be an extension of the services offered by Safeway, the anchor tenant in the shopping center, and was a requirement of the lease between Petrovich and Safeway. In 2014 and 2015, Eric Johnson (Johnson), president of the Sierra Curtis Neighborhood Association, submitted a series of letters to the Commission on behalf of an association that opposed the gas station. The Commission approved a conditional use permit for the gas station but noted that its decision could be appealed to the Council. Real parties in interest appealed the decision to the Council asserting, among other grounds, that emissions from the gas station were detrimental to public health and the gas station was inconsistent with Curtis Park Village development guidelines.
On June 29, 2015, Jacques Loveall (Loveall), president of UFCW 8—Golden State, the union representing grocery store employees wrote the Sacramento city attorney in support of the proposed gas station. Additionally, he claimed that Councilmember Jay Schenirer (Schenirer) represented the Curtis Park neighborhood and opposed the gas station and had “taken unprecedented and aggressive steps to block the issuance of the conditional use permit.” Loveall cited a statement by Schenirer at a meeting of the Sierra Curtis Neighborhood Association, where Schenirer said, “I don’t think a gas station fits in with what was originally proposed.” Lovell concluded that Schenirer should excuse himself from the proceedings since.
Text message and email evidence later corroborated that there was bias towards the project. On November 1, 2015, Schenirer sent a text message to Johnson: “Can you get together tomorrow night at 7. I’d like to put a few heads together to talk thru cpv [Curtis Park Village].” On November 3, 2015, Scott Whyte, an advisor to then-Mayor Kevin Johnson, sent an e-mail to the mayor providing a “quick update” on Curtis Park Village. Whyte wrote, “JS (aka Schenirer) is confident that he has the votes (if not a unanimous one) to deny the approval.” Whyte advised that “JS will be popping-in [sic] this morning to discuss with MKJ.” At the end of the hearing with the Council, during the public comment period, Schenirer said “I just can’t support in any way, shape or form putting a gas station that close to a residential area, and frankly if we never have a new gas station again I would be okay with that, I would be okay with that.” The Council revoked Petrovich’s permit.
Petrovich filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the city and real parties to rescind the denial of the conditional use, alleging multiple claims, including that respondents :were improperly influenced by inadmissible factors, including bias and hostility, ex parte communications, arguments, political pressure, threats and inducements outside the public record, had improperly reached a decision before the public hearing was even opened, and wrongfully deprived Petitioners of their rights to fair and impartial quasi-adjudicatory hearing and to due process of law, with no rational basis or justification.”
The trial court agreed with Petrovich in part, and found that “Councilmember Schenirer, in the days before the November 17, 2015 hearing, demonstrated an unacceptable probability of actual bias.”
On appeal, Appellate Court (the Court) stated “the issuance of a conditional use permit is a quasi-judicial administrative action reviewed under administrative mandamus procedures.” Whether Petrovich received a fair hearing before the Council was a legal question which the Court reviewed de novo. The Court found that Schenirer’s statement that “a gas station does not fit in the development as originally proposed” did not disqualify him from voting on the issue. However, in the run up to the Council hearing and vote, Schenirer crossed the line into advocacy against the project. There was evidence that Schenirer was counting—if not securing—votes on the Council against the gas station and communicating an “update” on that score to Mayor Johnson. Whyte’s statement to the mayor two weeks before the hearing that Councilmember Schenirer was “confident” he had a majority, if not unanimous, vote to deny the conditional use permit shows his prehearing commitment to achieving that outcome.
In conclusion, the Court agreed that the planning commission’s decision granting the permit was biased, holding that Petrovich was entitled to relief in an administrative mandamus proceeding. The Court stated that in such matters, council members must be neutral and unbiased. The Court noted that city council members often wear multiple hats. It is commonly understood that they function as local legislators, but sometimes they act in a quasi-adjudicatory capacity similar to judges. Therefore, it is imperative they remain unbiased.
Petrovich Dev. Co. ., LLC v. City of Sacramento, 48 Cal. App. 5th 963, 963, 262 Cal. Rptr. 3d 331, 332 (2020)
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