Third Appellate District Voids City Council Vote Based on Legislative Member’s Bias

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On May 8, 2020, the Third Appellate District, certified for publication its earlier decision in Petrovich Development Co. LLC v. City of Sacramento (C087283), where the Court, in a rare decision, voided a city council’s denial of a  conditional use permit (CUP) upon finding that one of the councilmembers was impermissibly biased against the project; thus, denying the project applicant a “fair hearing.”  The city councilmembers, when acting in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body, are required as decision-makers to be “neutral and unbiased.”  This implies that “the decisionmaker has no conflict of interest, has not prejudged the specific facts of the case, and is free of prejudice against or in favor of any party.”  But here, one of the city councilmembers entered the deliberations on the issue with his mind already made up, and the court found that the councilmember’s actions prior to the hearing and the vote “crossed the line into advocacy against the project.”  As such, the project applicant was not afforded a “fair hearing,” and the council’s denial of the CUP was invalidated.

Background and Facts

Here, the Project applicant had applied for a CUP for a gas station located in the shopping center zone of a 72-acre planned unit development.  One of the neighborhood associations of the planned unit development opposed the CUP.  The Planning Commission approved the CUP, and the neighborhood association appealed to the city council.  But one of the city councilmembers was a resident of the neighborhood and a member and former board member of the neighborhood association, and at a public neighborhood association meeting stated that the gas station project did not meet the objectives of the planned unit development, as originally planned.

While the city council appeal was pending, the project supporters sought the city councilmember’s disqualification from the matter for bias.  But the city attorney found that the city councilmember’s statements about the project did not establish “ an unacceptable probability of actual bias[,] . . .the legal standard for recusal when the city council acts in a quasi-judicial capacity.”  The city attorney found that while the councilmember did express an opinion against the project, the public statements  did not attack or advocate against the project, did not indicate that his mind was made up, did not take a public position to oppose the project, and did not state that he would discuss the issue with his colleagues before he voted.

However, in the run-up to the city council hearing and vote, the councilmember communicated through a series of text messages and emails and conducted meetings with the neighborhood association’s president, the mayor, and the other councilmembers regarding his “talking points” to support the denial of the project.  These communications demonstrated that the city councilmember not only provided the major talking points to the neighborhood opposition against the project, but he also lined up the votes needed for denial of the CUP at the city council meeting, and that he intended to bring a motion to reject the CUP at the hearing.  Later at the city council hearing, the city councilmember in question did make a motion to deny the CUP, and the city council voted 7-2 to deny the CUP.  The project applicant then filed a lawsuit to rescind the denial of the CUP on the basis of lack of “fair and impartial quasi-adjudicatory hearing and to due process of law.”

Trial Court’s Ruling

The lower court found that the councilmember’s membership in the neighborhood association did not demonstrate bias in itself.  While the councilmember’s authoring of “talking points”  against the project were suggestive of his leaning against the project, and his similar emails to the mayor’s office were “suspicious,” they “fell short of  ‘concrete facts’ demonstrating ‘unacceptable probability of actual bias.’”  But considering the facts as a whole, the councilmember’s  actions in the run-up to the city council hearing, his authoring of the talking points against project, the text messages and email exchange and meetings before the vote (including a statement that he had the votes to deny the CUP and that he intended to bring the motion for denial), and then the councilmember’s action to bring a motion to deny the CUP at the hearing, demonstrated his pre-judgment and bias on the matter.  These actions on a whole were “akin to advocating” against the project, and the trial court ruled that the councilmember’s overall actions “demonstrated an unacceptable probability of actual bias.”

Appellate Court’s Ruling

In its ruling, the Third Appellate District re-emphasized that in the city council’s adjudicatory capacity, it must be “neutral and unbiased”:  “‘[A]llowing a biased decision maker to participate in the decision is enough to invalidate the decision.’”  The Court affirmed the trial court’s finding that factors such as residing in the neighborhood, being a member of the neighborhood association, or public statements that a gas station did not fit within the planned development did not establish “concrete facts” of bias.  In fact, a council member has a right and 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 subsequent actions in the run-up to the city council hearing and vote “crossed the line into advocacy against the project,” and the evidence showed that the sequence of events at the day of the hearing were planned.  These were considered “concrete facts” sufficient to establish bias.

Conclusion

This decision emphasizes the need for the decisionmakers to be careful with their actions and public statements regarding specific projects, specifically when acting in a quasi-judicial capacity.  While public statements opining on the policy implications and concerns about a project may be acceptable, statements and actions that evince the decisionmaker’s conflict of interest, prejudgment of the facts, or prejudice against a party can establish “concrete facts” of unfair bias and jeopardize the decisionmaking body’s decision.

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