Court of Appeal Overturns City Council Denial of Use Permit Based on Councilmember Bias

One of the basic tenets of the land use permitting process in California is that City Councilmembers, when hearing an appeal of a conditional use permit decision, must be “neutral and unbiased,” and will recuse themselves from the decision-making process if they are unable to remain neutral and unbiased. On April 8, 2020, in Petrovich Development Company, LLC v. City of Sacramento (Cal. Ct. App., Apr. 8, 2020, No. C087283), the Third District Court of Appeal affirmed a Sacramento County Superior Court judgment finding that a Sacramento City Councilmember was “not a neutral and impartial decisionmaker” at a 2015 hearing on a conditional use permit (CUP) for a new gas station, and ordering that the denial of that CUP must be rescinded and reheard, with the councilmember recusing himself. The Court reached this result even though only the Council voted 7-2 to deny the permit and only one of the seven members voting in favor was determined to be biased.

In September 2014, Petrovich Development Company applied to the Sacramento Planning Commission for a conditional use permit to construct a gas station in conjunction with a Safeway supermarket in a planned unit development. By a significant majority, the Planning Commission approved the CUP, which was subsequently appealed to the Sacramento City Council by a local neighborhood association. Upon a motion by City Councilmember Jay Schenirer at the appeal hearing, the City Council overturned the Planning Commission’s grant of the CUP by a 7-2 vote.

Although Councilmember Schenirer lived in and represented the neighborhood where the potential gas station was to be located, and was a member and former board member of the appellant local neighborhood association, the Court did not find those facts alone to be sufficient to demonstrate “an unacceptable probability of actual bias” which would force him to recuse himself from the appeal hearing. However, the Court described Councilmember Schenirer’s impermissible efforts to overturn the CUP (many of which occurred after the city attorney opined that Councilmember Schenirer was not required to recuse himself from the appeal), including privately securing votes of other members of the City Council to reverse the Planning Commission’s decision prior to the appeal hearing; preparing “talking points” which advocated against the gas station; coaching the individual appealing the permit on how to prosecute the appeal; and personally making the motion to reverse the Planning Commission’s decision. The written evidence before the Court, including multiple text messages and emails from Councilmember Schenirer, as well as those from an advisor to the mayor, provided the “concrete facts” establishing that Councilmember Schenirer was impermissibly biased, rather than his potential bias being implied from his personal associations and public statements. The constitutional threshold requires a showing of “actual bias” or where the “probability of bias” is “too high to be constitutionally tolerable.” Here, the Court found the latter.

The Court found that, because Councilmember Schenirer had not recused himself, Petrovich Development Company was denied a fair hearing on the appeal. The Court further concluded that sufficient grounds to overturn a decision-making body’s decision exists even if the biased individual did not make the determinative vote. In affirming the lower court’s judgment, the Court of Appeal confirmed that, due to the Councilmember’s apparent bias, the City must rescind the City Council’s decision denying the CUP and hold a new hearing from which Councilmember Schenirer must recuse himself.

This article is not meant to constitute legal advice, but Wendel Rosen’s Land Use attorneys are available to answer any questions you have regarding this case or any other related matter.

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