Footloose in Newport Beach: City Councilmembers Lack The Inherent Right To Appeal A Planning Commission Decision Then Vote On The Appeal
By William W. Abbott
Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012.
While formal court rules do not apply to local land use proceedings fundamental requirements for due process and fairness are part of land use decisionmaking as illustrated in Woody’s Group, Inc. v. City of Newport Beach. [Woody’s Wharf - www.woodyswharf.com] The planning commission had granted a use permit to the restaurant permitting a patio cover, approval to stay open until 2:00 a.m., and indoor dancing. Four days later, City Councilman Henn sent the city clerk an email making an “official request” for an appeal, indicating his belief that the use, as approved by the commission was inconsistent with existing and expected residential uses in the area and the City’s General Plan. The councilman did not file a formal appeal form and did not pay an appeal fee. The appeal went forward to the city council where the permit applicant challenged the informal appeal and the ability of the city councilman to act upon his own appeal. The councilman in question, based upon his previously prepared notes, led the charge to deny request permit. The council, with one member abstaining and one recusing themselves, voted on Henn’s motion to reverse the planning commission decision. The council’s action also reflected that there had previously been a number of appeals by councilmembers in the past which were acted upon by the city council, and these appeals followed similar informal steps as the appeal in Woody’s Wharf, and thus reflected city custom. Woody’s filed for a writ of mandate to set aside the appeal and alleged a civil rights violation. The city filed a cross complaint to enjoin operations after 11:00 p.m. or dancing. The trial court denied the writ and issued the preliminary injunction. Woody’s appealed.
Did Woody’s get a fair shake or the legal shaft at city hall? The latter in the view of the appellate court. The city’s adopted procedures were specific as to how an appeal was to be processed. Appeals were allowed by interested persons, and necessitated the use of an approved form and payment of an appeal fee. The councilman’s appeal did not follow these procedures. While the city claimed that the city had long employed an informal call up procedure for appeals by councilmembers, the appellate court found fault with the reasoning, holding that such procedures needed to be codified to meet due process and fairness standards. In these circumstances, the combined effect of all of these factors led to an unacceptable probability of bias requiring that the city council’s decision be set aside. This decision includes a thoughtful review of earlier key due process cases involving local land use proceedings: Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547 and Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470. As the city council had no authority to hear this appeal, the appeal should be vacated thereby reinstating the Planning Commission’s decision.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595. For restaurant advice, try Yelp or Urbanspoon.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.