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On May 8, 2020, the Third Appellate District certified for publication its decision in Petrovich Development Company, LLC et al. v. City of Sacramento et al. (opinion can be found here). The Petrovich court held the developer did not receive a fair hearing because “concrete facts” established that a City Councilmember was biased and took affirmative steps to assist project opponents and organize the opposition at the hearing.  Text messages and email correspondence provided the majority of the evidence.

Although the events covered in the Petrovich case occurred in 2014-15, the scenario highlights the importance of the California Supreme Court’s 2017 decision in City of San Jose v. Superior Court (2 Cal.5th 608), which held the Public Records Act applies to records about the conduct of public business stored on personal accounts, including email and text messages. Without those emails and text messages, the Petrovich court may not have had sufficient “concrete facts” to determine Councilmember Schenirer was biased.

Petrovich facts:

The Petrovich developer sought a conditional use permit to construct and operate a gas station tied to a grocery store in the shopping center zone of the Curtis Park Village planned unit development. The Sierra Curtis Neighborhood Association (Association) opposed the proposed gas station and appealed the Planning Commission’s approval. City Councilmember Schenirer represented the Curtis Park region and was a member and former board member of the Association.

Leading up to the City Council’s consideration of the appeal, Councilmember Schenirer texted with the Association president to set up meetings to “talk thru” the project, to offer “suggestions” for the Association’s visits with other Councilmembers, and to discuss appeal hearing procedures. He further developed “Talking Points” arguing against the proposed gas station, which he shared with the Mayor and his advisor. The Mayor’s advisor told the Mayor that Councilmember Schenirer was “confident that he has the votes (if not a unanimous one) to deny” the project.  At a public meeting before the project hearing, Councilmember Schenirer did not deny speaking to some of the Council, but stated only that he hadn’t talked to “all the councilmembers.”

The Association president sent emails to three of the City Councilmembers which mirrored Councilmember Schenirer’s “Talking Points.” Prior to the City Council meeting, the Mayor’s advisor used the “Talking Points” when putting together the appeal procedure sequencing, which included Councilmember Schenirer making the motion to deny the project. At the end of public comments, Councilmember Schenirer made that motion and the project was denied by a vote of 7 to 2.

Petrovich decision:

When a legislative body functions in a quasi-adjudicatory capacity such as hearing and deciding the appeal of a conditional use permit, the body must be neutral and unbiased.  An aggrieved party is not required to show actual bias but rather “an unacceptable probability of actual bias” which must be proven “concrete facts.” In reviewing the facts of the case, the Petrovich court determined neither Councilmember Schenirer’s Curtis Park residence, nor Association membership and statements made in the Association’s newsletter disqualified him from voting on the issue.

However, the Petrovich court determined Councilmember Schenirer “crossed the line into advocacy against the project” based on evidence that:

  • He was counting, if not securing, votes against the project.
  • His “Talking Points” amounted “to a presentation against the gas station,” which by emailing to the Mayor and his advisor, appeared to be “both behind-the-scenes advocacy against the gas station, as well as organizing the presentation at the hearing to obtain a “no” vote on the gas station.”
  • He coached the Association president on how to prosecute the appeal by asking to “talk thru” the project and offering suggestions for prehearing meetings with other City Councilmembers. Elements of his “Talking Points” were included in the Association president’s emails to other City Councilmembers.
  • He made the motion to reverse the Planning Commission’s decision and deny the Project, just as it was laid out in the hearing procedures drafted by the Mayor’s advisor.

Based on these “concrete facts,” the Petrovich court determined that the developer did not receive a fair hearing because Councilmember Schenirer “acted as advocate, not a neutral and impartial decisionmaker, and should have recused himself from voting on the appeal.”