Blogging Bayport Alameda

February 6, 2015

Woody’s roundup

Filed under: Alameda, City Council — Lauren Do @ 6:06 am

So remember the whole hullabaloo that was made when former Mayor Marie Gilmore and other City Council candidates said they did not feel comfortable taking a position on the yet-to-be-submitted Harbor Bay Club project because it would put the individual City Council members in a bad position if the project ever did wind its way to the City Council.

Both Frank Matarrese and Trish Spencer both felt comfortable taking definitive positions on the issue and later Frank Matarrese — even though he was going to recuse himself anyway — said to a reporter:

In an interview afterward, Matarrese, a former councilmember for eight years, contended that Gilmore, Chen, and Oddie were just making up an excuse to avoid answering a tough question. “Does that mean if I’m Barbara Lee — and I’m against the war — does that mean if a war-funding bill comes up that I can’t vote on it?” Matarrese said. “I thought we were legislators, not judges.”

Here’s the thing, turns out the Court of Appeals has recently ruled on a case that could prove informative in the case that Harbor Bay submits their application considering that two members of this Council have already stated — definitely — how they felt on any development let alone a specific plan.

The case is Woody’s v. City of Newport Beach, the nutshell facts of the case. Woody’s is a bar/restaurant used to be owned by Chuck Norris and is an institution in Newport Beach. Planning Board approved extended operating hours and a patio or something. A City Councilmember didn’t like the approval and appealed the decision. The City Council reversed the decision of the Planning Board. The bar/restaurant sued, lost in the lower court, appealed, and Court of Appeals ruled in the favor of Woody’s. This part sort of speaks to the whole “we’re legislators not judges” thing:

Most of us think of city councils as legislative bodies. But city councils sometimes act in an adjudicatory capacity, that is, they sit in a role similar to judges. Judging applications for land-use permits is one of those times. (Wiltshire v. Superior Court (1985) 172 Cal.App.3d 296, 304.) And, as recognized in BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205 – the main case on which the city relies – when functioning in such an adjudicatory capacity, the city council must be “neutral and unbiased.”

Additionally the aggrieved party need not find “actual” bias but rather “an unacceptable probability of actual bias.”  I think declaring that you oppose the plan would fall under “an unacceptable probability of actual bias.”  And so:

Thus bias – either actual or an “unacceptable probability” of it – alone is enough on the part of a municipal decision maker is to show a violation of the due process right to fair procedure. (E.g., Cohan, supra, 30 Cal.App.4th at p. 559 [“A biased decisionmaker is constitutionally unacceptable.”].)

As Nasha made clear, allowing a biased decisionmaker to participate in the decision is enough to invalidate the decision.

And then for future reference, in the case of Calls for Review by City Council members:

Interestingly enough, the BreakZone court was willing to allow that the
Cohan opinion at least “suggests” it is fundamentally unfair to have the person who files an appeal actually sit as an adjudicator of that appeal. (BreakZone, supra, 81 Cal.App.4th at p. 1240.) But the BreakZone court did not feel that issue was properly before it. It asked, “Is it fundamentally unfair for the government official appealing the action to participate in the hearing on the appeal and vote on that appeal? [¶] Cohan suggests that it might be, but does not expand on that suggestion. Neither party cites cases that decide the question.”

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22 Comments

  1. Are we saying here that city councilors are not permitted to have and express an opinion about a subject that is likely to come to a vote at a city council meeting? If so, our legal beagles have clearly reduced governance to an absurdity.

    Comment by Tom Schweich — February 6, 2015 @ 7:11 am

  2. If the item to come before the City Council expects the City Council to act in an “adjudicatory capacity” then yes, the City Council may want to steer away from definitive statements like: “I would not vote for such and such and think it is a bad project” prior to actually having the issue before them.

    Comment by Lauren Do — February 6, 2015 @ 7:45 am

  3. But city councils sometimes act in an adjudicatory capacity, that is, they sit in a role similar to judges they sit in a role similar to judges. Judging applications for land-use permits is one of those times.

    Comment by Mike McMahon (@MikeMcMahonAUSD) — February 6, 2015 @ 7:46 am

  4. If we saying that a statement like, “Well, I think the Harbor Bay Club is in its correct place now and should not move to the business park,” is unacceptable because the city council may act later in adjudicatory capacity, then we are forcing them to be judges and prohibiting them from providing community leadership.

    Comment by Tom Schweich — February 6, 2015 @ 7:52 am

  5. They could choose to provide the community leadership (expressing an opinion) but then be prepared to recuse themselves when it comes to the discussion and vote on the particular issue because of the “unacceptable probability of bias” which would then violate the “due process right to fair procedure.”

    Comment by Lauren Do — February 6, 2015 @ 8:15 am

  6. Two Items

    First as I remember it and just briefly researched the one questioned asked at the debate was not ‘specific’ to the Harbor Bay Club but referred to if the Master Plan for Harbor Bay Isle be changed for the Harbor Bay Club. From what I have read in other places this language was intended to avoid any of the legal consequences that are implied.

    Second In your ‘blog’ https://laurendo.wordpress.com/2013/09/30/swap-trek-ii-the-wrath-of-cowan/ you state your opinion “At this point given this letter, anyone who accepts campaign dollars from Ron Cowan should be pretty much tainted. And Marie Gilmore will pretty much have to recuse herself from any vote because a vote FOR the project will be viewed as her caving into the threat by Ron Cowan. A vote AGAINST the project could be perceived as retaliation for being threatened in the first place. Politics really is quite a nasty business.”

    Comment by frank m — February 6, 2015 @ 9:28 am

  7. Frank M. again, asking about something that would require the Council to make a judgement on (changing a Master Plan) would be beyond a legislative act and move into “acting more like a judge” territory (land use permission). Given that Marie Gilmore is no longer on the Council her decision to recuse or not recuse is moot. If I were in her position I would recuse, but she never stated a position one way or the other despite the threat so she may have felt as though she would be able to be unbiased even in light of the threat.

    Comment by Lauren Do — February 6, 2015 @ 9:48 am

  8. Gonna be very difficult for politicians campaign on dicey issues.

    Comment by jack — February 6, 2015 @ 5:35 pm

  9. The best answer to this legislative/judicial council conundrum is to eliminate the judicial role of the council.

    I suggest a curate (serving in a religious capacity in an actual structural religious facility) select a blindfolded self-certified atheist hermaphrodite who is not an English as a first language speaker, who is not a registered voter and has lived in Alameda no longer than two years randomly select five non-voting, non-English-as-a-first-language persons who have lived in Alameda less than two years, three of the selected persons must reside on west end (west of Grand) and two on east end (east of Grand). The five selected will serve on an ad hoc as needed basis for one judicial decision then be disbanded. Once disbanded both the curate, atheist and five selected decision makers cannot serve again. The decision, once made, cannot be reversed

    This selection process must be utilized at each point a judicial decision arises before the council.

    Comment by jack — February 7, 2015 @ 11:00 am

  10. There is no money to build a new high school! Can we please drop the “what do you thinks”. On the plus side Trish is out of BOE! On the plus plus side, Alameda will get what it deserves by voting her in. My cat could do a better _____________. Please fill in the most appropriate answer.

    Comment by Paul M — February 8, 2015 @ 7:04 am

  11. 9. if there is a right wing politically incorrect Onion out there maybe you should try writing for them, or go start one.

    The judicial versus legislative is a conundrum, but I don’t really care to debate that. The salient point I come away with from Lauren’s post is who the individuals were who recognized there was a potential conflict when the question was raised and who didn’t get it.

    Comment by MI — February 8, 2015 @ 12:15 pm

  12. Yes, that is a salient point. One individual didn’t take a stand and didn’t get elected and the other did and did.

    Comment by jack — February 8, 2015 @ 3:14 pm

  13. Taking a stand to get elected, and reneging on that stand must be Trish’s style of governing. She campaigned against the Del Monte project. She places an agenda item to repeal a prior approval, then votes against her own initiative, essentially approving the Del Monte project. I call that a lack of leadership.

    Comment by BarbaraK — February 9, 2015 @ 11:58 am

  14. From now on, Barbara Kahn must recuse herself from voting on AoA issues, and perhaps all charter issues. If Gilmore couldn’t speak on Harbor bay’s application, Kahn can’t speak about a charter’s, right?

    Comment by Mark Bennett — February 9, 2015 @ 2:19 pm

  15. I’m sure you can ask AUSD’s legal counsel that question.

    Comment by Lauren Do — February 9, 2015 @ 2:31 pm

  16. Why am I getting this message when I try to visit your site on google chrome?

    laurendo.wordpress.com is no longer available.
    This blog has been archived or suspended for a violation of our Terms of Service.
    For more information and to contact us please read this support document.

    Comment by jack — February 9, 2015 @ 3:40 pm

  17. Clear your cache and your cookies, my blog was suspended this morning. I’ll post about what happened tomorrow.

    Comment by Lauren Do — February 9, 2015 @ 3:41 pm

  18. I spent my cache and ate my cookies, now you’re back

    Comment by jack — February 9, 2015 @ 3:52 pm

  19. I say we start a conspiracy theory about who messed with Lauren’s WordPress account. Some say it’s the North Koreans, but I’m leaning toward the idea of a disgruntled, newly arrived SF IT hipster who made a comment here and was generally ignored.

    Comment by Denise Shelton — February 10, 2015 @ 8:50 am

  20. 12. I don’t take the 124 votes to mean more than the final determination of who is mayor, especially as a measure of whether general public understands this point. But actually Oddie “didn’t take a stand” either and he DID get elected. My hunch is that general public took deference by Oddie and Gilmore as being evasive , but in fact they had the better understanding of the law, simple as that. Spencer surly had no clue and continues to be clueless. I’m hearing anecdotes about her behavior in various venues where she exhibits no meaningful knowledge but wades right in with opinions. This in regard to larger venues where she represents Alameda. This is hear say anecdote anyway so I won’t be specific, but understand that whether it is accurate or not, that is how she is being perceived.

    Comment by MI — February 10, 2015 @ 10:10 am

  21. Funny, I could connect to the site on every search engine (IE,Firefox,AOL,bing,yahoo) I tried except Google Chrome.

    So my guess is the Google Makani’s energy kite experiments on the West end somehow interfered with the version of Omega Do’s Sapphire psychic type which has strong waves in and around the small community of Baythink Portdeep which lies on the western edge of the Island and on the eastern edge of the Google Makani experimental enclave.

    Baythink Portdeep is covered with plants and flowers and its weather is mainly sunny as are the community’s inhabitants. The winds, though, are the key. Stable winds are key to the Google Makani energy project’s success. And the winds in Baythink Portdeep must be kept stable as well in order for Omega Do’s version of Pokemon to continue to flourish. Therein lies the rub, Makani’s experiments destabilized the winds in Baythink Portdeep.

    What we saw yesterday was, perhaps, the opening thrust of a powerful force sucking the wind out of Baythink Portdeep and using all the wind to further it’s experiments. At this point it is not known if this sucking-of-the-wind by Makani was intentionally aimed at Baythink Portdeep’s Omega Do or just a by-product of ongoing experiments. In any event, the effect was short-lived and was easily parried by Omeda Do, who has met and dealt with many obstacles over the years.

    One hopes that these two powerful foes can learn to equally share the wind.

    Comment by jack — February 10, 2015 @ 11:08 am

  22. 20 I’ve never seen Spencer surly.

    Comment by jack — February 10, 2015 @ 11:12 am


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