Daily Development for Thursday, January 6, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

ZONING AND LAND USE; PROCEDURE; HEARINGS: City council action reversing administrative variance decision will be overturned if it appears that council members were inattentive and occupied with other things during the presentation by the parties.

Lacy Street Hospitality Service v. City of Los Angeles 2004 Westlaw 3016280 (12/30/04)

Appellant acquired property that had previously used for an adult entertainment club.  The prior owner had experienced many difficulties with the neighborhood, and had been saddled with 20 special restrictions limiting its business conduct.  Appellant intended to conduct the same use, and was subject to the same restrictions.  Appellant sought to modify some of the restrictions, and apparently a process existed for it to obtain such modification as a new owner.  Specifically, it sought longer operating hours and the right to use employees, rather than independent contractors, as security guards.  A zoning hearing officer visited the site, heard all appropriate evidence, and granted the relief.

The neighbors protested to the Zoning Board, which recommended to the City Council that it reverse the modifications.  Appellant thus appeared before the Los Angeles City Council.  Amazingly, appellant was able to get the entire proceeding videotaped, and on appeal from a trial court ruling upholding the City Council, provided the tape to the California Court of Appeals.  Just as the tape spoke for itself to the court, it is just as well to refer to the court’s narrative here:

“A picture is worth a thousand words, and here the picture was a videotape. [Appellant] recorded the city council hearing, slowly moving the camera's gaze back and forth from one end of the council table to the other, at times lingering on particular council members, capturing their behavior at that moment. The tape shows that when the council president summoned [appellant] to the speaker's lectern to present its case, eight council members--three of whom were absent--were not in their seats. Only two council members were visibly paying attention. Four others might have been paying attention, although they engaged themselves with other activities, including talking with aides, eating, and reviewing paperwork.

One minute into [appellant’s] presentation, a council member began talking on his cell phone and two council members, one of whom had been paying attention when the hearing opened, started talking to each other. A minute later, two other council members struck up their own private conversation. Three minutes into his presentation, LSHS's counsel complained "it doesn't appear that too many people are paying attention," an observation the videotape verifies, as only a few council members were sitting in their seats not talking to others.

Despite [appellant’s] public reproach of council members, their private conversations and pursuit of other activities continued. For example, the council member with the cell phone started another conversation on it and four council members talked among themselves or with others. One council member was especially peripatetic, walking from one side of the council chamber to the other to talk to different colleagues. Only five council members and the council president sat at their desks spending most of their time not talking to anyone--but even some of them turned their attention to other things from time to time.

After 10 minutes, [appellant’s] presentation ended and those opposed to the zoning modifications began. Although the speakers changed, the council's behavior did not. Some members paid attention, but even some of them divided their attention among things such as reviewing paperwork and getting up from their seats to talk to others. At one point, the camera zoomed out for a wide angle shot of the entire council table. At that moment, only five members were at their seats, and only one member appeared to be focusing on what the speakers were saying.

We do not presume to tell the city council how it must conduct itself as a legislative body. Here, however, the city council was sitting in a quasi-judicial role, adjudicating the administrative appeal of constituents. A fundamental principle of due process is "he who decides must hear.. . . The inattentiveness of council members during the hearing prevented the council from satisfying that principle. . . . Model Code of Judicial Conduct Canon 3 (B)(4) (American Bar Association 2000) ["A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . ."].) The council's distraction with a multitude of other things during the hearing is especially troubling because it was reversing its own zoning administrator who took great care to reach his decision. It is not our province to insist that the council members consider every word of every witness. Good judgment and common sense are entitl!

 ed to
prevail. Here, however, the tape shows the council cannot be said to have made a reasoned decision based upon hearing all the evidence and argument, which is the essence of sound decision making and to which LSHS was entitled as a matter of due process.”

The court reversed and demanded that the Council give Appellant another hearing.  Good luck, Appellant.

Comment 1: Note that this does not appear to be overtly a Constitutional Due Process  issue, but simply an interpretation of the City Charter.  This is underscored in the concurrence, written by two judges on the three judge panel.

[In response to the argument that the Council had broad de novo discretion on appeal] [w]e note. . . that the Los Angeles Municipal Code states, "When considering an appeal from the decision of an initial decision maker, the appellate body shall make its decision, based on the record, as to whether the initial decision maker erred or abused his or her discretion.. . . When the municipal code provides a standard, the city must apply it. . . . The city's argument makes the phrases "error" or "abuse of discretion" a nullity, a reading we must avoid. Only when a municipal code is silent about the standard of review may we presume de novo review. . . We need not decide this issue, however, because whether de novo or abuse of discretion, the city council did not conduct itself as a fair and impartial body.”

Might it have been a Constitutional principle?  Note that some courts have held that zoning privileges in the nature of variances are not property expectations, and Constitutional Due Process does not protect an applicant.  Not all agree, and likely we’ll see some erosion of this concept as it gets continually abused.

Comment 2: Also from the concurrence:

“The city's argument that the hearing was "fair" because council members treated [appellant] and its opponents alike is unavailing because [appellant] and its opponents had the right to be equally heard, not equally ignored.”

Comment 3: Your editor isn’t certain how many members are on the council.  Maybe an LA zoning maven can help us out.

Readers are encouraged to respond to or criticize this posting.

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