An appellate court has thrown out a decision by a City of Los Angeles planning commission because of the activities of a planning commissioner prior to a public hearing.
Before considering an appeal of a proposed five-house project, South Valley Area Planning Commissioner Tony Lucente wrote an article for a neighborhood association newsletter about the project, and he introduced at an association meeting a property owner who had appealed the project. Those activities, the court ruled, gave rise to an unacceptable probably of actual bias, and Lucente should have recused himself.
At issue was development of five lots on 3.8 acres owned by Nasha LLC on Multiview Drive in the Hollywood Hills. Nasha sought permission to build five three-story houses of 5,173 to 6,648 square feet on the existing lots. In late 2000, city planners issued a proposed mitigated negative declaration for the project. The Santa Monica Mountains Conservancy and some neighbors complained that the project would interfere with wildlife habitat and a migration corridor. Planners added a new mitigation measure and the project went to the Mulholland Design Review Board, an advisory panel.
The Design Review Board recommended disapproval of the project because the proposed houses were too big and incompatible with the environment. The board also recommended that an EIR be prepared. The project then went to the planning director, who was the decision-maker. The planning director (a deputy, actually) approved the project and certified the mitigated negative declaration in March 2001.
The Santa Monica Mountains Conservancy and Mark Hennessy, who lives next to Nasha's property, appealed the project approval and environmental document to the planning commission. While the appeal was pending, Lucente wrote an unsigned article in the June 2001 edition of the newsletter for the Studio City Residents Association, of which Lucente was president. Among other things, he wrote that the site “is an absolutely crucial habitat corridor” and suggested that people contact either the Conservancy or Hennessy.
Also in June 2001, Lucente introduced Hennessy at the neighborhood association's monthly meeting. Hennessy spoke against the project, although Lucente said he left the room during Hennessy's presentation.
At the start of the appeal hearing on June 28, 2001, Lucente said that his association's newsletter contained information on the project. Lucente said had not “had any direct contact with the appellants.”
At the end of the hearing, the planning commission voted 3-1 (a bare majority) to uphold the appeal. One week later, Nasha filed a request for reconsideration based on new information regarding bias by Lucente. Nasha filed another request a week later. The planning commission did not reconsider and in October 2001 adopted findings for overturning the planning director's decision on the project and the mitigated negative declaration.
Nasha then sued, seeking to overturn the planning commission's decision. Nasha argued that Lucente's role in the newsletter article (which Lucente conceded during a deposition that he wrote) and his introducing Hennessy reflected a reasonable appearance of bias. Nasha also challenged the planning commission's findings and the application of a specific plan to the project. Los Angeles County Superior Court Judge David Yaffe ruled that Nasha had failed to raise the issue of bias at the administrative level, so he dismissed it. Later, Yaffe found that evidence in the administrative record supported the planning commission's decision. The landowner appealed, and a unanimous three-judge panel of the Second District Court of Appeal, Division Three, overturned the lower court.
The appellate panel ruled only on the issue of bias. The court found, contrary to Judge Yaffe's decision, that Nasha had raised the question of bias at the administrative level when the landowner twice requested a rehearing. Besides, the appellate court ruled, when the issue is whether a hearing was fair, the trial court may consider evidence that is not in the administrative record.
The proceeding before the planning commission was quasi-judicial in nature because it involved the application of facts peculiar to an individual case, the court noted. “Accordingly, procedural due process principles are applicable,” Presiding Justice Joan Klein wrote. Still, administrative decision makers are not held to the same standard as judges. Thus, Nasha had to establish “'an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims,'” Klein wrote, citing BreakZone Billiards v. City of Torrance, 81 Cal.App.4th 1205, 1236 (see CP&DR Legal Digest, August 2000).
The court found that Nasha had made its case.
“Contrary to the position taken by Lucente, the newsletter article was not merely informational. The article clearly advocated a position against the project, which it characterized as a 'threat to wildlife corridor,'” Klein wrote. “Lucente's authorship of the newsletter article gave rise to an unacceptable probability of actual bias and was sufficient to preclude Lucente from serving as a 'reasonably impartial, noninvolved reviewer.' (Gai v. City of Selma, (1998) 68 Cal.App.4th 213, 219). Lucente clearly should have recused himself from hearing this matter. His participation in the appeal to the planning commission requires the commission's decision be vacated.”
The court directed the planning commission to conduct a new hearing.
Nasha LLC v. City of Los Angeles, No. B167071, 2004 DJDAR 15369. Filed December 29, 2004.
For Nasha: Robert Glushon, Luna & Glushon (818) 907-8755.
For the city: Steven Blau, deputy city attorney, (213) 978-8233.