Thursday, December 30, 2004
This District’s Court of Appeal Rules:
Planning Commissioner’s Bias Requires Project Be Revisited
By KENNETH OFGANG, Staff Writer/Appellate Courts
A local planning commissioner’s authorship of an article criticizing a project that the commission was considering at the time establishes a probability of bias requiring that the subsequent rejection of the project be reconsidered, this district’s Court of Appeal ruled yesterday.
Div. Three, in an opinion by Presiding Justice Joan Dempsey Klein, said Tony Lucente, a member of the City of Los Angeles’ South Valley Area Planning Commission should have recused himself from consideration of Nasha, L.L.C.’s proposal to develop large single family homes on five lots north of Mulholland Highway and east of Laurel Canyon.
Nasha has the right to an unbiased commission ruling on the project, Klein said, and was deprived of that right when Lucente participated in the decision after writing an unsigned attack on the project that was published in the Studio City Residents Association newsletter and discussing the project privately with one of the citizens opposing it.
Planning commissioners, the presiding justice explained, are quasi-judicial decisionmakers who must avoid even the reasonable appearance of bias.
Critics of Nasha’s Multiview Drive project—which would place five three-story single family homes measuring between 5,000 and 7,000 square feet, plus outdoor swimming pools, on lots of between 22,000 and 47,000 square feet—include the Santa Monica Mountains Conservancy and several neighborhood residents. Those critics say the project endangers wildlife in violation of the Mulholland Scenic Parkway Specific Plan, and that its design is incompatible with the Mulholland Parkway environment.
The project received an adverse recommendation from the Mulholland Design Review Board, but was approved by the city planning director in March 2001. The conservancy, among others, appealed the approval to the commission.
The newsletter article, published in June 2001, describes the project site as “an absolutely crucial habitat corridor.”
Lucente, who was president of the residents association at the time, acknowledged at the time of the commission hearing that the article had appeared in the newsletter, saying the association had “included information...at the request of one of our members.”
He did not disclose his authorship prior to his deposition being taken in the developer’s writ proceeding, and said—inaccurately, Klein concluded—that he had not been in direct contact with the appellants.
At the conclusion of the hearing, Lucente moved to reject the project, which the commission did on a three to one vote.
After the commission denied reconsideration, based on the allegation of bias by Lucente, and issued its findings, Nasha petitioned the Los Angeles Superior Court for a writ of mandate. Judge David Yaffe denied the writ on the grounds that Nasha should have raised the bias issue at an earlier stage of the proceedings, and that the project was incompatible with the surrounding area.
But Klein, writing for the Court of Appeal, said the developer had “shown an unacceptable probability of actual bias” on the part of Lucente and that Yaffe’s findings regarding the timeliness of Nasha’s objections to Lucente’s participation were “erroneous, both factually and legally.”
Request to Reconsider
Nasha, the presiding justice noted, raised the issue in a request for reconsideration one week after the commission meeting at which Lucente failed to disclose his authorship of the article. Klein also rejected the city’s challenge to the consideration of Lucente’s deposition testimony, saying the usual rule limiting administrative mandate proceedings to review of the record is subject to an exception allowing extrinsic evidence on the issue of procedural fairness.
In a footnote, Klein pointed out that because the city’s charter requires three votes of the area planning commission to overrule the planning director, Lucente’s vote was crucial to the project’s rejection.
The presiding justice declined to address the merits of the commission’s decision, saying the taint created by Lucente’s participation necessitates that the matter be reheard “by an impartial panel.”
Attorneys on appeal were Robert L. Glushon of Luna & Glushon for the developer and Assistant City Attorney Jeri L. Burge and Deputy City Attorney Steven N. Blau for the city.
The case is Nasha, L.L.C. v. City of Los Angeles, 04 S.O.S. 6762.
Copyright 2004, Metropolitan News Company