With the ongoing drought and the endless debate over responsible development, land use law is a fertile field of confusion, controversy, and contempt. Municipalities, counties, community services districts, and the state each have their own set of rules and regulations, and navigating the myriad laws can be the bane of anyone taking on a development project or petitioning a city or county for a special use permit. The political nature of land use makes the process even more difficult and leads to local actions that, in the words of Judge William Bedsworth of the California Fourth District Court of Appeal, do not pass “the smell test.”

Take for instance the case of Woody’s Group Inc. v. City of Newport Beach. There, Woody’s Wharf, a restaurant in Newport Beach, petitioned the city of Newport Beach for a conditional use permit and variance to allow Woody’s to have a patio cover, remain open until 2 a.m. on the weekends, and allow dancing inside the restaurant (insert obvious “Footloose” reference here – or simply view this youtube(link is external) video).

The conditional use permit was approved by the Newport Beach Planning Commission. Thereafter, a Newport Beach City Council member sent the city clerk an email in which he made an “official request to appeal” the Planning Commission’s decision because he “strongly believed … the operational characteristics requested in the application and the Planning Commission’s decision was inconsistent with the existing and expected residential character of the area and the relevant policies of the voter approved 2006 General Plan.” The Council heard the appeal and voted to reverse the Planning Commission’s decision based in part on the dissenting council member’s prepared remarks against the conditional use permit. The dissenting council member participated in the vote.

Subsequently, Woody’s sought administrative mandate to overturn the resolution, claiming due process violations. In deciding for Woody’s, Judge Bedsworth – whose opinion this author found very entertaining – found two compelling reasons why the decision of the Newport Beach City Council violated Woody’s due process rights.

First, the court stated the obvious proposition that a City Council cannot be biased when adjudicating the issuance of a conditional use permit. The court found that based on the council member’s prepared remarks and his open hostility and strong opposition to the permit in his “notice of appeal,” the council member demonstrated an “unacceptable probability of actual bias.” Therefore, his participation in hearing the appeal deprived Woody’s of their due process rights.

Second, the court found that the City Council failed to follow its own procedures in hearing the appeal. The council member was not “an interested party” in the proceedings (required by the municipal code), he failed to pay the filing fee (also required), and was not authorized to bring an appeal as a council member (per the code). The fact that council members of the City Council had historically been allowed to appeal decisions was of no importance. In summing up its position, the court stated, “A person cannot be a judge in his or her own cause” nor can he “chang[e] the rules in the middle of the game.” Accordingly, the court found a violation of Woody’s due process in that the City Council lacked authority to hear the appeal and ordered the trial court to issue Woody’s a writ of mandate.

The takeaway from the Woody’s decision is that actions by municipalities and other local governments must comport with notions of fundamental fairness in making land use decisions. While that may be a fairly obvious proposition, as the Woody’s case highlights, the maxim of fundamental fairness and due process can get lost in the land use dance.