45 Cal.App.5th 245
Cal. Ct. App.2020Background
- In 2015 Lateef applied for conditional use permits (neighborhood convenience store; sale of tobacco and alcohol); the Planning Commission denied the application.
- Lateef appealed to the seven-member Madera City Council under MMC §10-3.1310; the ordinance had been amended (from a four-fifths rule for a five-member council) to require a "five-sevenths vote of the whole of the Council" after the council expanded to seven members.
- At the April/May 2016 appeal hearing one council seat was vacant and one councilmember (Rigby) recused, leaving five members present and voting.
- The council vote was 4–1 in favor of Lateef, but city staff concluded the ordinance required five affirmative votes (5/7 of the whole seven-member council), so the motion failed.
- Lateef sought judicial relief (administrative mandamus, declaratory and injunctive relief), arguing the ordinance requires five-sevenths of those present and voting (i.e., 4 of 5) and that counting the recused member and vacant seat denied him a fair hearing.
- The trial court and this court held "whole of the Council" means all seven members (so five votes required); the process was not unfair; judgment for the city was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "five-sevenths vote of the whole of the Council" in MMC §10-3.1310(E) | Requires five-sevenths of councilmembers present and voting; 4 of 5 satisfied the 5/7 percentage of votes cast | Requires five-sevenths of the entire seven-member council (i.e., 5 of 7) | "Whole of the Council" means all members; five affirmative votes required; 4 votes insufficient |
| Whether including a recused member and a vacant seat in the calculation denied a fair hearing | Counting a recused member and a vacancy effectively counts as "no" votes and deprived Lateef of a fair hearing; they should be excluded | Vacant seats and the council's full membership are properly used to determine the required supermajority; petitioner could have sought continuance | No deprivation of fair hearing; vacancies are included for determining the supermajority requirement and recusal/vacancy did not render the proceeding unfair |
Key Cases Cited
- Tidewater Southern Ry. Co. v. Jordan, 163 Cal. 105 (1912) (construed phrasing requiring a board's unanimous vote as referring to those present; used as distinction on wording like "board" v. "whole of the board")
- MacIsaac v. Waste Mgmt. Collection & Recycling, Inc., 134 Cal.App.4th 1076 (2005) (describes three-step statutory/ordinance interpretation approach: text, history, reasonableness)
- Berkeley Hillside Preservation v. City of Berkeley, 60 Cal.4th 1086 (2015) (canon against interpretations that render statutory language surplusage)
- Security Pac. Nat’l Bank v. Wozab, 51 Cal.3d 991 (1990) (court may not add or omit language when construing statutes)
- Price v. Tennant Community Servs. Dist., 194 Cal.App.3d 491 (1987) (vacant council seats may be included in quorum/voting calculations)
- Ursino v. Superior Court, 39 Cal.App.3d 611 (1974) (party may request continuance where vacancies affect required number of votes)
- Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996) (standards for when an administrative hearing is unfair)