By John M. Appelbaum, Caroline Fowler, and Scott C. Smith
John M. Appelbaum is a Deputy Attorney General at the California Attorney General's Office.
Caroline Fowler is a Deputy District Attorney at the District Attorney's Office of Sonoma County.
Scott C. Smith is a partner in Best Best & Krieger LLP's Irvine office. Matthew (Mal) Richardson, another partner at Best Best & Krieger LLP, assisted in the analysis of recent opinions regarding emergency powers exercised under Covid-19.
Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal. App.5th 963.
Although city council members are normally policymakers and voices of their constituents, when acting in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body, they must be neutral, unbiased, and approach the issue with an open mind.
Petrovich was an applicant for a conditional use permit for gas station in a shopping center. Petrovich contended that it did not receive a fair hearing before the City Council who reviewed and overturned a planning commission decision to grant the permit, and argued that one of the City Councilmembers was biased. The gas station was a permitted use under the City's zoning ordinance, but required issuance of a condition use permit. The Third District Court of Appeal affirmed the trial court's grant of a Petition for Writ of Administrative Mandate which ordered the City to rescind its denial of the permit and grant the applicant a new hearing without the participation of the biased Councilmember.
In reaching its decision, the court held that when a City Council sits in an adjudicatory capacity, it must be neutral and unbiased. If a biased decision maker participates in the decision, the decision may be invalidated. The president of the local grocery union representing store employees in Sacramento contacted the City Attorney prior to the hearing questioning whether a Councilmember who had made statements prior to the hearing regarding the proposed gas station and who was a member of the neighborhood association where the proposed gas station would be located should be required to recuse himself. The City Attorney determined that while the council member had expressed some opinions, he had also said he could not take a position on the gas station until the matter came before the City Council and therefore was not required to recuse himself.
Councilmember Jay Schenirer was a member of the Sierra Curtis Neighborhood Association which encompassed the area where the gas station was proposed. He had also made a public statement prior to the hearing that he did not believe the station fit in with the proposed plan for the community. The court held that this fact alone was not sufficient to establish bias, stating that "[b]ias and prejudice are never implied and must be established by clear averments."
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However, the record also showed numerous emails and conversations between the Councilmember and the President of the Association, including suggested "talking points" against the project and indicating that the Councilmember intended to vote no. There were also indications that the Councilmember had spoken to other Councilmembers regarding the project and was counting or securing votes and reporting to the Mayor. Councilmember Schenirer denied that he had talked to all the Councilmembers. Councilmember Schenirer was also the one to make the motion to deny the permit which the court concluded was a concrete fact indicating bias particularly in light of the...
