Councilman Defends Right to decide Own Appeal: Court Rules Applicant can Still receive a Fair Hearing
A city councilmember can appeal a planning commission decision and then cast a vote on the appeal, the Second District Court of Appeal has ruled. The court decided that the owner of a pool hall in Torrance who sought a permit to sell alcohol could get a fair hearing in such circumstances.
The unanimous three-judge panel made clear that the case was dissimilar to a 1994 case in which the Second District ruled that it was a conflict of interest for the Thousand Oaks City Council to appeal a Planning Commission decision to itself. (Cohan v. City of Thousand Oaks, (1994) 30 Cal.App.4th, 547; see CP&DR Legal Digest January 1995.) In Cohan, the city made a number of errors that added up to violation of a developer's substantive and due process rights. But in the new case from Torrance, the court ruled that the city followed its municipal code — which specifically allows a councilmember to appeal a planning commission decision — and that the pool hall owner did not prove the City Council's hearing was unfair. Furthermore, Cohan involved an appeal by the entire City Council, while the Torrance pool hall was appealed by only one councilman.
The unanimous three-judge panel also ruled that the City Council's de novo hearing was proper, and rejected the business owners' contentions that campaign contributions should have disqualified four councilmembers.
In early 1997, the owners of BreakZone Billiards submitted an application for a conditional use permit. The pool hall had been located in the Rolling Hills Plaza for three years. The owners wanted to expand their operation to include food service, outside dining and amplified music at a new location within the shopping center. BreakZone also sought permission to sell alcohol. The Planning Commission approved the application in November 1997, but Councilman Dan Walker filed an appeal, citing a Police Department recommendation that the full council should decide.
BreakZone attorneys and city officials then wrangled over a number of procedural issues, including BreakZone's assertion that four of five councilmembers should recuse themselves because they had received campaign contributions from the owner of Rolling Hills Plaza, which was in litigation with BreakZone. Eventually, the entire City Council heard the appeal in February 1998. Police described the pool hall as a gang hangout and said it contributed to area crime. Public testimony was split. The City Council voted 5-0 to deny the use permit and the following month adopted findings to support the decision.
BreakZone then filed a lawsuit making many claims, but Los Angeles Superior Court Judge David Yaffe ruled for the city.
In upholding Yaffe's decision, the appellate panel dealt at length with the question of bias. BreakZone argued that it could not receive a fair hearing because Councilman Walker appealed the Planning Commission's decision, voted on the application and had accepted $5,500 in campaign contributions from the Rolling Hills Plaza developer. But the court held that a unilateral perception of bias is not grounds for disqualification and that BreakZone did not prove its case.
"To prevail on a claim of bias violating fair hearing requirements, BreakZone must establish ‘an unacceptable probability of actual bias on the part of those who have actual decision making power over their claims,'" the court held, citing U.S. v. State of Oregon (9th Cir. 1994) 44 F.3d, 758. "A mere suggestion of bias is not sufficient to overcome the presumption of integrity and honesty."
Writing for the court, Los Angeles Superior Court Judge Allan Goodman, siting by assignment, continued: "It is clear that the Cohan court did not resolve whether and under what circumstances an elected official might both appeal to a city council the decision of one of its committees, and later vote on, an action of such committee. … Is it fundamentally unfair for the government official appealing the action to participating in the hearing on the appeal and vote on that appeal? Cohan suggests that it might be, but does not expand on that suggestion. Neither party cites cases which decide the question."
The court then noted that the Torrance mayor did not let Walker run the appeal hearing, and that BreakZone was given ample opportunity to respond to testimony.
As for the campaign contributions to Walker and three other councilmembers, the court made clear that no conflict of interest was presented. The Political Reform Act (Gov. Code §81000 et seq.) prohibits a public official from voting on a matter if he has received at least $250 during from an interested party during the last 12 months. In this case, no one had received a contribution from the shopping center owner in at least 17 months. "The concept that campaign contributions perpetually disqualify the recipient from participating in governmental decisions has been expressly and emphatically rejected by our Supreme Court," Judge Goodman wrote.
As for the type of hearing, the court said the city acted appropriately. "Although it is styled as an ‘appeal' of the decision of the planning commission, a hearing before a city council on an application for a CUP after hearing by a planning commission is a proceeding de novo. … As such, the burden is on the applicant to establish to the satisfaction of a majority of the city council that the application should be approved. As a de novo hearing, all issues are before the reviewing body, in this case the city council."
Finally, the court ruled that substantial evidence existed to support the City Council's decision. Although the city appeared to blame BreakZone for more than its true share of police calls, there were legitimate concerns about land use conflicts and the alteration of the business from "family-oriented" to one that served alcohol.
"While it is a correct statement that the record reveals that there were already 18 other establishments in the same vicinity which sold alcoholic beverages … it does not follow that the council must approve every application for a business that dispenses alcoholic beverages," Goodman wrote. "Decisions such as this — literally, where to draw the line — are best left to local zoning agencies; they are in the best position to exercise sound judgement as to appropriate uses for sites within zoning classifications which they establish."
BreakZone Billiards v. City of Torrance, No. B128098, 2000 Daily Journal D.A.R. 7163, filed June 30, 2000.
For BreakZone: Hillary Arrow Booth, Grossblatt & Booth, (310) 556-9766.
For Torrance: Philip Kohn, Rutan & Tucker, (714) 641-5100.