Pollak, Vida & Barer

In Petrovitch Development Company, LLC v. City of Sacramento (Johnson), published May 8, 2020, the Third District Court of Appeal affirmed a trial court decision issuing a writ of administrative mandate setting aside the respondent city's decision on an administrative appeal.  By an 8-3 vote, the city planning commission issued a conditional use permit allowing the petitioner to build a gas station in the shopping center zone of a development.  A neighborhood association opposed the station's construction.  It appealed the decision to the city council.  A councilmember who represented the neighborhood made statements at a public meeting that he did not feel the gas station would fit in, but said he had not yet made up his mind.  The councilmember communicated with the mayor, counting the votes of councilmembers against the project and providing the mayor with talking points against the project.  He texted with the head of the neighborhood association, who then contacted other councilmembers using points similar to the councilmember's talking points.  When asked at a councilmeeting whether he had talked to other councilmembers about the appeal, the councilmember replied, "I haven't talked to all the councilmembers."  Before the appeal hearing, the councilmember texted the association president about the sequence of events at the hearing, and advising him on how to respond to the person who spoke before the president spoke.  At the hearing, the councilmember moved to deny the permit.  The permit was denied seven to two.  The trial court granted the writ setting aside the decision on the ground of impermissible bias.

The appellate court agreed.  Neither the councilmember's statements at the public meeting, nor membership in the association appealing the decision, nor living in the neighborhood near the planned gas station established impermissible bias.  But his other actions–counting councilmembers supporting his position, e-mailing talking points to the mayor, coaching the appellant, then making the motion to deny the permit–crossed the line into impermissible advocacy on the issue before him.