by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ZONING AND PLANNING; PROCEDURE; FAIR HEARING: Although due process clause of federal constitution does not apply, and there is no clear statutory mandate, nevertheless a court will issue a writ of mandate reversing a local planning authority decision where the court determines that the hearing provided has not been a "full and fair" hearing as contemplated by the statutory framework.

Clark v. City of Hermosa Beach, 56 Cal. Rptr. 2d 223 (Cal. App. 1996).

Plaintiff applied for a conditional use permit to build a condominium duplex that would be 35 feet high. Although this was a permitted height for structures in this zoning classification, the city reserved discretion to deny a conditional use permit if the proposed structure was not otherwise compatible with the neighborhood. The property is located near the beach and the proposed structure would have blocked the ocean view of neighboring properties behind it. Neighbors had raised a vigorous protest in an earlier attempt of this owner to carry out its project, and one neighbor, a tenant in an apartment whose view would be blocked, was a member of the City Council.

A lower review board had recommended approval of the plaintiff's project, but final action was reserved for the City Council, which, after hearing, denied the permit.

The City Council earlier had considered a moratorium on all construction over 30 feet in the City, and the proposal had failed to garner the necessary four votes of the five members of the Council, although it did receive a majority.

Ultimately, on review of the Council decision, a trial court found that the City had failed to provide a full and fair hearing on several particulars, including the following items of note:

(1) One council member had a personal bias against plaintiffs, with a record that included his urinating on the plaintiff's property one Friday evening, and a series of other incidents, including his activism in opposition to their earlier proposal. The City Attorney had ruled that this activism and the fact that his view would be blocked by the proposal did not require recusal because he was not an owner of the building in which he resided. The court held that this ruling was error, and moreover the Council member should have acknowledged his demonstrated personal bias against the plaintiff.

(2) Another Council member had raised issues of construction of the City ordinance in question after the close of the public hearing, and had given the applicants neither notice nor opportunity to respond to those issues, although they apparently formed a basis for the decision.

(3) The Council had denied permits to three proposals, all of which were 35 feet in height, and the court concluded that a majority of the Council had engaged in a course of biased decision making to implement the failed proposal to impose an absolute limit on building over 30 feet, even though they had failed to obtain the necessary fourth vote to adopt the moratorium properly.

The trial court had ordered reinstatement of the lower agency's approval of the project, but the appeals court concluded that the appropriate remedy simply was a new hearing before an unbiased panel. The appeals court also reversed extensive federal civil rights statute monetary awards that the trial court had granted to Plaintiff.

Comment 1: The notion that a court should adopt an independent standard of fairness in adjudicating the propriety of local decision making smacks of activism, but the circumstances of this case appeared to cry out for this result. Further, whether courts are denying other remedies for clear unfairness in the hearings process, it may be that special action is warranted.

Comment 2:Note the various standards by which the court judged the hearing to be unfair. The third standard, particularly, is rather vague and could lead to mischief in the hands of a reviewing court in the future. The holding on the failure of the council member to recuse himself is a refreshing turn of events, as there have been several cases in recent years where the court has simply found no procedural due process right in such cases and slammed the door on plaintiffs who had suffered from obviously biased decision making.

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