I will start with the cats. Irena Hauser applied for a conditional use permit to house up to five tigers on her property, located in a rural part of Ventura County. Ms. Hauser proposed three tiger enclosures, an area with a roof, and an eight-foot chain link fence enclosing seven acres. The animals were to be used for filming purposes. 57 residential lots with 28 existing homes were located within a one-half mile radius of the tiger enclosures, with a total of 46 existing homes within one mile. In addition, there were two children’s camps within 2-3 miles. The project site was located in “rugged topography … with dense vegetation.” Ms. Hauser proposed that one family member would always be onsite. She and another family member had attended an eight-day class on animal husbandry, safety and training (as the court noted, there was no written test, and everyone was assured a passing certificate).
As one might predict, the neighbors were opposed, presenting a petition with 11,000 signatures in opposition, news reports of animal maulings, and video of uncaged tigers on the Hauser property in Beverly Hills. The planning commission denied the use permit, as did the Board of Supervisors, the latter on a 4-1 vote. Ms. Hauser filed a writ of mandate challenging the findings adopted in support of the denial claiming a lack of substantial evidence. The appellate court largely deferred to the fact finding undertaken by the Board, noting that the Board was not compelled to believe Hauser’s uncontradicted testimony. With deference to the Board, the appellate court found that the evidence did in fact support the Board’s decision.
While the fate of five tigers is always interesting reading, more important is the court’s decision regarding the effect of communications to the Board members outside of the formal hearing process. The Board members disclosed pre-hearing contacts with both the applicant and opponents (in person and by email). The adopted county rules discouraged ex parte contacts and required disclosure, which the Board members fully complied. The appellate court noted that less formality is required for local government hearings as compared to a judicial hearing and with respect to ex parte contacts cited City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975), in which the California Supreme Court noted “A councilman has not a right but an obligation to discuss issues of vital concern with his constituents.” The potential for bias is insufficient. There must be a probability of actual bias which is constitutionally intolerable. The court viewed that the pre-hearing contacts were quite typical, and no decision maker had promised to vote a certain way. All Board members disclosed the contacts as required by the local code. In the end, Ms. Hauser received a full and fair hearing.
Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.