REAL ESTATE UPDATE
BIASED DECISION-MAKER – YOUR OPPONENTS MAY BE DISQUALIFIED FROM VOTING AGAINST YOUR PROJECT
During my 35 years of land use representation, I have many times witnessed my clients endure grandstanding by planning commissioners, city council members and supervisors, who were clearly biased against development proposals before a fair hearing. Sometimes this type of opposition is in the open and sometimes, stealth. In any event, a motivated and biased decision-maker often torpedoes a project prior to a hearing on the merits. Many good projects are denied or approved with conditions that render them economically infeasible, after hundreds of thousands of dollars have been spent in good faith by a developer who naively expects a fair hearing.
The California Court of Appeal in the Fourth District recently provided a ruling which may bar biased decision-makers from participating in the decision they pre-judge. In the case of Woody’s Group, Inc. v. City of Newport Beach, the Court held that a Newport Beach city councilperson could not appeal a conditional use permit approved by the Planning Commission, and was disqualified from reviewing an appeal on the merits of such decision because of his apparent and demonstrable “bias.”
The Appellate Court held that when a decision-maker “exhibited enough probability of bias” he should not have participated in the decision. If the decision-maker’s public statements show that the decision-maker is strongly opposed to the action being decided upon, such decision-maker should not participate in the decision (both the discussion and the vote).
While I personally feel the decision may “chill” vigorous debate on development proposals by decision-makers, for the time being the Woody’s Group decision should be useful to developers processing project approvals where they have faced a publicly outspoken opponent. A strong demand for disqualification or recusal made before the decision may provide the critical vote (or lack thereof) in a close decision on a project. I will be surprised if this decision is upheld. However, if not overturned, we should expect that decision-makers will be much more muted in stating their public positions on projects before the public hearing and perhaps actually weigh the merits of a project before deciding.
Gregory N. Weiler is a partner of the law firm of Palmieri Tyler specializing in transactional real estate and land use.