Filing # 168732104 E-Filed 03/14/2023 08:33:20 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

AMNESIA INTERNATIONAL, LLC, d/b/a

STORY NIGHTCLUB, a Florida limited
liability company, GENERAL JURSIDICTION

CASE NO.: 2023-3316-CA-01

Plaintiff,
v.

CITY OF MIAMI BEACH, a Florida

municipal corporation,

Defendant.
/

REPLY IN SUPPORT OF MOTION TO EXTEND

ORDER WITHHOLDING ENFORCEMENT OF ORDINANCE 2023-4542

Plaintiff Amnesia International, LLC d/b/a Story Nightclub (“Story”), by and through

undersigned counsel, hereby replies in support of its Motion to Extend (the “Motion”) this Court’s

Order Approving Stipulation to Withhold Enforcement of Ordinance 2023-4542 (the “Order”)

entered on March 3, 2023. Contrary to Defendant City of Miami Beach’s claim in its Response to

the Motion, Story does not seek a “second bite of the apple” by filing its Motion. Rather, as stated

therein, Story merely seeks to preserve the status quo pending resolution of its appeal to the Third

District Court of Appeal. This Court properly may grant such relief.

A stay is warranted here because Story has established both elements for such relief.

Regarding success on the merits, the record evidence demonstrates that the challenged ordinance

is arbitrary and capricious for a number of reasons including the City’s rejection of the City

Attorney’s advice. Story cited numerous cases to the Court standing for the proposition that a

municipality or governing body acts arbitrarily and capriciously when it rejects or disregards the

advice of its attorney. See T-Mobile S. LLC v. City of Margate, No. 10-CV-60029, 2011 WL
1303898 (S.D. Fla. Apr. 4, 2011); Grumman Ecosystems Corp. v. Gainesville-Alachua Cnty. Reg'l

Elec. Water & Sewer Facilities Bd., 402 F. Supp. 582 (N.D. Fla. 1975); Chandler v. City of

Vestavia Hills Planning & Zoning Com'n, 959 So. 2d 1124 (Ala. Civ. App. 2006); Furlong

Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (Mo. 2006). Additional authorities support

Plaintiff’s argument on this point. See e.g. Clark v. City of Hermosa Beach, 56 Cal. Rptr. 2d 223

(Ct. App. 1996) (“In light of the city attorney's opinion, the Council did not act irrationally . . . .”);

Esquibel v. City of Santa Fe, 2009 WL 6560437 (N.M. Ct. App. June 17, 2009) (challenged

legislation was not arbitrary and capricious where evidence showed that municipality solicited,

discussed and followed the advice of the city attorney); McKenzie v. City of Ocean Springs, 758

So. 2d 1028 (Miss. Ct. App. 2000) (appellate court properly may review city attorney statements

to the commission regarding legislation challenged as arbitrary and capricious); Mission Springs,

Inc. v. City of Spokane, 134 Wash. 2d 947, 968 (1998) (finding that council members acted

arbitrarily where “City Attorney Tillotson warned them that if they acted to deny the building

permit or to initiate rezoning to make the proposed project improper or illegal, there was a

substantial probability that a court would overturn that action and hold them liable for the resulting

damages due to the project's delay.”).

The Court’s Order does not address whether the challenged ordinance is arbitrary and

capricious notwithstanding the substantial record evidence demonstrating same. This is despite the

clear language in Membreno v. Ciy of Hialeah that makes clear arbitrary and capricious legislation

by definition cannot survive rational basis review. See Silvio Membreno & Florida Ass'n of

Vendors, Inc. v. City of Hialeah, 188 So. 3d 13, 21 n. 6 (Fla. 3d DCA 2016) (“A law bearing a

rational basis to a legitimate legislative purpose is, by definition, not discriminatory, arbitrary, or

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oppressive, as those words are used in the test. Conversely, a law that is discriminatory, arbitrary,

or oppressive cannot, by definition, bear a rational basis to a legitimate legislative purpose.”).

Courts routinely analyze whether elected officials followed their professional staff’s

advice, especially the advice of counsel, when deciding whether the governmental body acted

arbitrarily. Such evidence is especially probative when the city attorney recommends an alternative

and warns that the governmental conduct will result in an injunction.

MR. PAZ: Now, there could be a good policy reason or an exception, and we've
certainly heard, you know, sympathetic commentary today, but it is -- it is an
additional challenge, and we will be challenged. There is a court reporter here --
MR. FERNANDEZ: Yeah.
MR. PAZ: -- getting ready, you know, for the injunction that will soon follow if
you adopt this.
Feb. 22, 2023 City Commission Hr’g Tr. at 35:2-9.

There is no dispute that Story will suffer substantial and irreparable harm the moment the

challenged ordinance takes effect. Accordingly, Story respectfully requests an extension of the

Order through and including March 27, 2023.

Dated: March 14, 2023 Respectfully submitted,

DORTA LAW
334 Minorca Avenue
Coral Gables, Florida 33134
Telephone: 305-441-2299
Telecopier: 305-441-8849
grd@dortalaw.com
jgonzalez@dortalaw.com

By: /s/ Gonzalo R. Dorta_____

GONZALO R. DORTA
Florida Bar No. 650269

BURSTYN LAW PLLC

By: /s/ Sean A. Burstyn

Sean A. Burstyn, Esq.
Florida Bar No. 1028778

-3-
sean.burstyn@burstynlaw.com
1101 Brickell Avenue
Suite S-700
Miami, FL 33131
Tel: (305) 204-9808

TODD R. FRIEDMAN, PA
1101 Brickell Avenue
Suite S-700
Miami, Florida 33131
786-536-7190

By: /s/ Todd Friedman

Todd R. Friedman, Esq.
Fla. Bar 97919
todd@toddfriedmanpa.com

-4-
 CERTIFICATE OF SERVICE

I certify that on March 14, 2023 a true and correct copy of the foregoing document was
filed in the Florida eFiling Portal and was thereby served by email to Defendant’s counsel for,
Joseph Serota, Esq. (JSerota@wsh-law.com) and Eric Hockman, Esq. (ehockman@wsh-law.com).
/s/ Sean A. Burstyn
Sean A. Burstyn, Esq.

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Composite Exhibit 1
 Kurtz, Lauren 3/14/2023
For Educational Use Only
T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
2011 WL 1303898
United States District Court,
S.D. Florida.
T–MOBILE SOUTH LLC, Plaintiff,
v.
The CITY OF MARGATE, Defendant.
No. 10–cv–60029.
| motion, which are supported by evidence in the
April 4, 2011.
Attorneys and Law Firms
Daniel P. Reing, T. Scott Thompson, Davis Wright Tremaine
LLP, Washington, DC, Mitchell Warren Mandler, Becker &
Poliakoff P.A., Miami, FL, Perry Michael Adair, Becker &
Poliakoff, Coral Gables, FL, for Plaintiff.
Robert Hunt Schwartz, Yoss LLP, Fort Lauderdale, FL, Perry
Michael Adair, Becker & Poliakoff, Coral Gables, FL, for
Defendant.
ORDER GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT; CLOSING CASE
ALAN S. GOLD, District Judge.
*1 THIS CAUSE comes before the Court on Plaintiff T–
Mobile South LLC's (“T–Mobile”) Motion for Summary
Judgment (the “Motion”). [ECF No. 23]. The Defendant, the
City of Margate (“the City”), has filed an Opposition to the
Motion [ECF No. 33], and T–Mobile filed a Reply in support
of its Motion. [ECF No. 37]. Oral argument was held on the
Motion on March 18, 2011. For the reasons set forth below,
I grant T–Mobile's Motion.
I. FACTUAL BACKGROUND
Having reviewed the Parties' statements of facts filed in
connection with their memoranda of law and the evidentiary
materials submitted by both Parties, the following facts are
not in dispute. 1
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
1 In the Southern District of Florida, a party moving
for summary judgment must submit a statement
of undisputed material facts. S.D. Fla. L.R. 7.5.
The opposing party may file a concise statement
of material facts as to which there exists a
genuine issue to be tried. Id. Each disputed and
undisputed fact must be supported by specific
evidence in the record, such as depositions, answers
to interrogatories, admissions, and affidavits on file
with the Court. Id. All facts set forth in the movant's
record, are deemed admitted unless controverted by
the non-moving party. Id. In this case T–Mobile
submitted a Statement of Material Facts Not in
Dispute [ECF No. 25], and the City submitted
a Statement of Material Facts in Opposition to
Plaintiff's Statement of Undisputed Material Facts
in Support of its Motion for Summary Judgment.
[ECF No. 32]. T–Mobile did not file an additional
Statement of Material Facts with its Reply.
T–Mobile is a national provider of digital wireless voice,
messaging, and data services. [ECF No. 25 ¶ 12]. A
significant gap exists in T–Mobile's wireless coverage in the
City of Margate, Florida and adjacent areas. [Id. ¶ 19; ECF
No. 33, p. 2 n. 4]. Because of this gap in coverage, people
trying to place cellular phone calls in this area experience
blocked calls, dropped calls, busy signals, or no service to
initiate or receive voice or data transmissions. [ECF No.
25 ¶ 20]. To resolve this problem, T–Mobile's engineers
determined that installation of a new wireless communication
facility (“WCF”) was necessary to fill the coverage gap. [Id.
¶ 22].
In 2006, after conducting a formal search for a location for
the WCF, T–Mobile proposed the site of Centennial Park,
a City-owned property in Margate. [Id. ¶ 24]. The City
Commissioners rejected this site. [Id. ¶ 25; ECF No. 4 ¶
65]. Following the rejection, T–Mobile worked together with
the City Planning Department and the City's independent
consultant, CityScape, to research other potential locations
that would meet T–Mobile's coverage objectives and the
requirements of the City's Telecommunications Ordinance.
[ECF No. 25 ¶ 26]. As a result of this collaborative effort,
T–Mobile proposed the Oriole Golf Course, which is also
located in the City of Margate, and T–Mobile entered into a
1
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
lease agreement with the owners of the property. [Id. ¶¶ 28,
30].
The proposed site is located on private property zoned “S–1
Recreation District” by the City. [Id. ¶ 31]. Under the City's
Telecommunications Ordinance, a conditional use permit
is therefore required. [Id.]. The approval process requires
City Planning Department Staff review, a hearing before
the Development Review Committee (the “DRC”), and a
final hearing by the City Commissioners. [Id. ¶ 32]. On
November 25, 2008, T–Mobile submitted its application
(the “Application”) to the City Staff and the DRC. [Id. ¶
33]. The Application included plans, technical drawings, and
photographs of the proposed 100–foot flagpole structure with
hidden antennas. [Id. ¶¶ 34–35]. T–Mobile's Application and
supporting materials satisfied all requirements necessary for
obtaining conditional use approval. [ECF No. 1 ¶ 42; ECF
No. 4 ¶ 42].
*2 On January 15, 2009, the City's consultant, CityScape,
submitted an independent report, finding that T–Mobile's
proposal met all of the City's requirements and recommending
approval with certain conditions. [ECF No. 25 ¶ 44–45]. 2
T–Mobile agreed to comply with and implement each of
the conditions. [Id. ¶ 49]. On February 19, 2009, the
DRC approved T–Mobile's Application, and the matter
went to the City Commission for a final hearing and vote.
[ECF No. 1 ¶ 53]. On December 2, 2009, CityScape
submitted a “Supplemental Report” to the City reiterating its
recommendation of approval. [ECF No. 25 ¶ 52].
2 The three conditions were (1) the Application
had to include an “as built” structural design and
certification by a Registered Florida Professional
Engineer, (2) the ground compound size had to be
increased to support up to a total of three service
providers, and (3) the flag had to be maintained in a
reasonable condition and be properly lighted. [ECF
No. 26, p. 5].
A final hearing was held before the City Commissioners
on December 9, 2009 (the “December 9 Hearing”). [Id.
¶ 54]. Among other things, the following testimony was
heard at the hearing. City Planner, Ben Ziskal, testified
that the “[s]taff recommends approval based on the Zoning
Code.” [ECF No. 26–1, p. 7:22–23]. Richard Edwards of
CityScape Consultants testified that “we've come to the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
opinion [that T–Mobile has] met all the criteria. They have
met the conditions of the City of Margate Ordinance, and it's
up now to the City Counsel as to the resolution of this.” [Id. at
11:23–24]. Likewise, the City Attorney testified that “we have
no grounds to turn this down.” [Id. at 15:9–10]. Following
the hearing, the City Commissioners voted unanimously to
deny T–Mobile's application. [ECF No. 25 ¶ 72]. They
formally notified T–Mobile of their collective decision by
adopting Resolution No. 11–591, which stated, without
further elaboration, that “the City Commission of the City of
Margate, Florida, hereby denies a conditional use to develop
a telecommunications site at Oriole Golf Course located at
8000 Margate Boulevard (T–Mobile, Petitioner).” [ECF No.
28–2].
On January 8, 2009, T–Mobile brought this action requesting
declaratory relief that the City's denial of the Application
violates the Federal Telecommunications Act (“TCA”), 47
U.S.C. § 332. T–Mobile also seeks an injunction compelling
the City to approve the Application and to issue all the
necessary authorizations and permits required for T–Mobile
to construct and maintain the proposed tower facility. [ECF
No. 1 ¶ 70]. 3 T–Mobile now moves for summary judgment
on all of the claims set forth in its Complaint. [ECF No. 24].
3 In the Complaint, T–Mobile also requested
reasonable costs and expenses. [ECF No. 1 ¶ 70].
II. JURISDICTION
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331. Plaintiff is entitled to have its Complaint heard
and decided on an expedited basis pursuant to 47 U.S.C. §
332(c)(7)(B) (v).
III. LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure authorizes
summary judgment when the pleadings and supporting
materials show that there are no genuine issues as to any
material facts and that the moving party is entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact
is “material” if it hinges on the substantive law at issue and it
might affect the outcome of the nonmoving party's claim. See
id. (“Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
2
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
entry of summary judgment.”). A court's focus in reviewing
a motion for summary judgment is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 252; Bishop v. Birmingham Police
Dep't, 361 F.3d 607, 609 (11th Cir.2004).
*3 The moving party bears the initial burden under Rule
56(c) of demonstrating the absence of a genuine issue of
material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646
(11th Cir.1997). Once the moving party satisfies this burden,
the burden shifts to the party opposing the motion to go
beyond the pleadings and designate “specific facts showing
that there is a genuine issue for trial.” Celotex v. Catrett, 477
U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A
factual dispute is genuine only if the evidence is such that
a reasonable fact finder could return a verdict for the non-
moving party. Anderson, All U.S. at 248; Denney v. City of
Albany, 247 F.3d 1172, 1181 (11th Cir.2001). In assessing
whether the movant has met its burden, a court should view
the evidence in the light most favorable to the party opposing
the motion and should resolve all reasonable doubts about the
facts in favor of the non-moving party. Denney, 247 F.3d at
1181.
The Parties agree that the TCA provides the substantive law
governing this dispute. The relevant provisions of that statute
provide that a “State or local government or instrumentality
thereof ... shall not prohibit or have the effect of prohibiting
the provision of personal wireless services” and that any
State or local governmental decision “to deny a request to
place, construct, or modify personal wireless service facilities
shall be in writing and supported by substantial evidence
contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii)
(emphasis added). The Eleventh Circuit has noted that the
term substantial evidence is a “legal term of art.” The court
has put forth the following standard regarding this term of art:
Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Although the
substantial evidence standard is not as stringent as the
preponderance of the evidence standard, it requires courts
to take a harder look than when reviewing under the
arbitrary and capricious standard. Finally, to determine
whether the substantial evidence standard is met, a court
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
should view the record in its entirety, including evidence
unfavorable to the state or local government's decision.
A court cannot substitute its own judgment for that of the
local board, but it must overturn the board's decision if the
decision is not supported by substantial evidence.
Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1218
(11th Cir.2002) (internal citations and quotation marks
omitted).
Taking this legal standard as a whole, I must determine if
any disputes of material fact preclude T–Mobile's request for
summary judgment on the grounds that the City denied its
Application without the support of “substantial evidence.”
IV. DISCUSSION
As a threshold matter, both Parties agree that there is
a significant gap in T–Mobile's coverage in Margate,
Florida. [ECF No. 33, p. 2 n. 4]. Therefore, I will focus
on the “effective prohibition” inquiry (i.e., whether the
City's denial of T–Mobile's application violated the TCA
because it effectively prohibited the provision of personal
wireless services without having the support of “substantial
evidence”).
a. Circuit Split Regarding T–Mobile's Burden of Proof
*4 The Parties disagree as to the standard governing T–
Mobile's burden of proof regarding its Application. This
disagreement reflects a split in authority between the U.S.
Courts of Appeals, and one in which the Eleventh Circuit has
not yet taken a position.
The City urges the Court to adopt the “only feasible plan” test
followed by the First and Seventh Circuits. It relies primarily
on Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38
(1st Cir.2009) and asserts that T–Mobile has the burden of
proving that the Oriole Golf Course was the “only feasible
plan” and that “no alternative sites” would solve the problem
caused by its coverage gap. [ECF No. 33, pp. 3–7]. 4 On the
other hand, T–Mobile urges the Court to follow the “least
intrusive means” test adopted by the Second, Third, and Ninth
Circuits. T–Mobile relies primarily on T–Mobile USA, Inc.
v. City of Anacortes, 572 F.3d 987 (9th Cir.2009) and asserts
that it only has the burden to prove that its proposal would
3
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
fill the coverage gap in the means that were “least intrusive”
5
on the City. [ECF No. 37, p. 4]. In fact, other courts that
have adopted one of these tests over the other have recognized
that the standards between the tests do not differ dramatically.
E.g., City of Cranston, 586 F.3d at 50–51 (“It is unclear how
much these different articulations of the tests truly differ....
The underlying question is whether, under the facts of a case,
a zoning decision effectively prohibited providing wireless
services.”).
4
In Omnipoint Holdings, the First Circuit held
that the “burden is on the carrier to prove it
investigated thoroughly the possibility of other
viable alternatives before concluding no other
feasible plan was available.” Omnipoint Holdings,
Inc. v. City of Cranston, 586 F.3d 38, 52 (1st
Cir.2009) (citations and quotation marks omitted).
As noted above, the Seventh Circuit also follows
this test. See VoiceStream Minneapolis, Inc. v.
St. Croix County, 342 F.3d 818, 834–35 (7th
Cir.2003) (“We agree with the First Circuit's
formulation of the statutory requirement and hold
that, so long as the service provider has not
investigated thoroughly the possibility of other
viable alternatives, the denial of an individual
permit does not prohibit or have the effect of
prohibiting the provision of personal wireless
services.”) (internal quotation marks omitted).
5 be likely to adopt a relaxed version of the “no alternative
In City of Anacortes, the Ninth Circuit held
that a provider must make a “prima facie
showing of effective prohibition by submitting
a comprehensive application, which includes
consideration of alternatives, showing that the
proposed WCF is the least intrusive means of filing
a significant gap.” T–Mobile USA, Inc. v. City of
Anacortes, 572 F.3d 987, 998 (9th Cir.2009). As
noted above, the Second and Third Circuits also
follow this test. See Omnipoint Commc'ns Enters.,
LP. v. Zoning Hearing Bd. of Easttown Township,
331 F.3d 386, 398 (3d Cir.2003) (“[T)he provider
applicant must also show that the manner in which
it proposes to fill the significant gap in service is the
least intrusive on the values that the denial sought
to serve.”) (citation and internal quotation marks
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
omitted); Sprint Spectrum LP. v. Willoth, 176 F.3d
630, 643 (2d Cir.1999) (same).
Neither Party relies on the minority test articulated by
the Fourth Circuit. See 360 Degrees Commc'n Co. of
Charlottesville v. Bd. of Supervisors of Ablemarle County, 211
F.3d 79, 88 (4th Cir.2000) (holding that provider has burden
of demonstrating that “denial of its application for the one
particular site is tantamount to a prohibition of service” and
that “further reasonable efforts are so likely to be fruitless that
it is a waste of time even to try”) (internal quotation marks
omitted). 6 As such, I will not consider its application to the
facts of this case.
6 During oral argument on this Motion, counsel for
the Plaintiff also recognized that the Fourth Circuit
test is an outlier. Hr'g Tr. (Mar. 18, 2011) 12:10–16
(“[T]he Fourth Circuit has adopted a very extreme
test that says you can only satisfy this section of the
code if there is a blanket ban, in other words they
have said only if the city adopts a blanket ban on
wireless. That standard has been rejected by every
other Circuit Court. It is clearly an outlier that is
highly inconsistent with the purposes of the act.”).
Given that the Eleventh Circuit has not yet expressly adopted
any of these tests, I look to Eleventh Circuit case law for any
indications as to the court's tendencies in disputes concerning
land regulations and local governments. In the context of
cases involving the TCA, the court has indicated that it may
plan” test. In Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757 (11th Cir.2005), the court acknowledged that
one relevant factor in determining if a provider had met its
burden under § 332(c)(7)(B) (i)(ll) was “whether the company
can reasonably place a cell site in an alternative location
and eliminate the residents' concerns.” Id. at 762 (emphasis
added). It appears from this passage that the Eleventh Circuit
would require a provider to demonstrate that it had no
alternative locations for a service tower within reason or
which could be considered reasonable alternatives.
*5 Looking to Eleventh Circuit case law from different
but analogous contexts also indicates that the court
would probably adopt a more lenient test than the “no
alternatives” test advocated by the City. For example,
the court's interpretation of the Religious Land Use and
4
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2011 WL 1303898, 52 Communications Reg. (P&F) 939
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §
7
2000cc, is instructive. Like the TCA, the RLUIPA permits
federal courts to review local governmental decisions relating
to land-use matters by providing religious individuals
and institutions with a federal cause of action if their
local governments “substantially burden” their exercise of
religion. The Eleventh Circuit has interpreted the phrase
substantial burden in that context as meaning “more than an
inconvenience on religious exercise” and “akin to significant
pressure which directly coerces the religious adherent to
conform his or her behavior.” Midrash Sephardi, Inc. v. Town
of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004). The court
has also held that State and local government ordinances,
which may substantially burden the exercise of religion, are
subject to strict scrutiny judicial review. Id. at 1231; see also
Konikov v. Orange County, Fla., 410 F.3d 1317, 1326 (11th
Cir.2005) (same).
7 1291(5) (Surface Mining Control and Reclamation
The Parties discussed the analogous nature of this
statute during oral argument. Hr'g Tr. (Mar. 18,
2011) 16:16–19:10.
Although the Eleventh Circuit's considerations in RLUIPA
cases are clearly distinct from those at hand in TCA cases,
the reasoning provided in RLUIPA cases sheds valuable light
on the court's analytical guideposts in such land-use cases.
For example, in Midrash Sephardi, the court looked for
guidance to the “jurisprudential foundations” of the statute,
the “core policy” behind the statute, and the net result
of the local government's action under consideration. See
Midrash Sephardi, 366 F.3d at 1231, 1242–43 (examining
the “jurisprudential foundations” of RLUIPA under U.S.
Supreme Court case law, noting that the “core policy” of
the statute was to protect the free exercise of religion,
and determining that states should be “free to eliminate
discrimination in any way they choose, so long as the
discrimination is actually eliminated” ) (emphasis added).
Applying this same analysis to the TCA, the jurisprudential
foundations of the statute established by the U.S. Supreme
Court suggest that courts should interpret the statute
while bearing in mind that Congress enacted it to
promote the “rapid deployment of new telecommunications
technologies.” City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316
(2005) (emphasis added). The core policy behind the statute
is the “reduction of ... impediments imposed by local
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
governments upon the installation of facilities for wireless
communications.” Id. And courts interpreting the TCA should
permit local governments to maintain discretion over land-
use matters, as long as the net result of local governmental
action still promotes and allows cellular phone coverage in
geographic areas with significant coverage gaps. Considering
these analytical guideposts taken from the RLUIPA context,
it again appears likely that the Eleventh Circuit would adopt
a test more favorable to service providers than the “no
alternative” standard advocated by the City. 8
8 Although there are a number of other federal
statutes such as environmental statutes, which
implicate local governmental land-use decisions,
Eleventh Circuit case law concerning those statutes
provides little guidance as to the dispute concerning
the TCA in this case. See, e.g., 16 U.S.C. § 1451
(Coastal Zone Management Act); 30 U.S.C. §
Act); 33 U.S.C. § 1251 (Clean Water Act); 42
U.S.C. § 7401 (Clean Air Act); 43 U.S.C. § 1331
(Outer Continental Shelf Lands Act).
b. T–Mobile Satisfies its Burden of Proof
*6 In any event, the Eleventh Circuit's silence on specific
standards under the TCA cases is immaterial to the outcome
of this dispute because I hold that T–Mobile has met its
burden even under the “only feasible plan” test put forth
by the City. In particular, the record supports T–Mobile's
argument that there were no alternative sites available to T–
Mobile other than the Oriole Golf Course. The City admitted
as much in its Answer:
[T–Mobile's] Application, supporting materials and
presentations satisfied all requirements for obtaining
conditional use approval for a telecommunications tower as
those requirements are set forth in the Telecommunications
Ordinance.
The Telecommunications Ordinance requires that
an applicant for a telecommunications tower must
demonstrate that no existing alternative structure can
accommodate the applicant's proposed antenna. Plaintiff
submitted supporting material and presentations that
satisfied this requirement.
5
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)

2011 WL 1303898, 52 Communications Reg. (P&F) 939
directing me to do so. In fact, case law confirms that a
[ECF No. 1 ¶¶ 42–43; ECF No. 4 ¶¶ 42–43 (emphasis service provider is not required to obtain judicial confirmation
added) ]. before a proposed location may be considered “unavailable.”
See, e.g., City of Cranston, 586 F.3d at 53 (finding that it
Faced with T–Mobile's Motion for Summary Judgment, the
was “pure speculation” for a city to assume that a provider
City now argues that T–Mobile fails the “only feasible
could obtain permission to use a country club for its permit
plan” test because Centennial Park—the site of the previous
when the country club had previously rejected the provider
proposal which the City already rejected—presents a
three times); City of Anacortes, 572 F.3d at 997–98 (rejecting
“reasonable alternative” site. [ECF No. 33, p. 5]. Referring to
hypothetical alternatives as too speculative).
Centennial Park as an “obvious ... alternative solution,” the
City notes that T–Mobile failed to file a lawsuit or otherwise
*7 Third, adopting the City's argument would frustrate
seek review of the City Commissioners' rejection of that
the foundational goals and purposes for which Congress
site in 2006, and the City asserts that “[a]bandonment of its
enacted the TCA in the first place. As noted above, this
right to challenge the denial does not free T–Mobile from
statute was meant to encourage the “rapid deployment of
conclusion that the site was appropriate.” [Id. at 5, 7; see
new telecommunications technologies” and “reduc [e] ...
also Hr'g Tr. (Mar. 18, 2011) 19:10–21:24 (counsel for the
the impediments imposed by local governments upon the
City raising this argument again during oral argument on this
installation of facilities for wireless communications.”
motion) ].
Rancho Palos Verdes, 544 U.S. at 115 (emphasis added).
Denying T–Mobile's Motion under the City's theory
I find this argument unpersuasive for three reasons. First, the
would promote litigation over cooperation between wireless
City has not raised a dispute of material fact on this issue.
providers and municipalities, thus delaying the deployment
There is no disagreement or factual ambiguity regarding the
of new technologies and encouraging local governments to
chain of events concerning T–Mobile's Application to place
actually impede the installation of wireless facilities.
a cellular tower in Centennial Park. All Parties would agree
that T–Mobile submitted such an Application in 2006; the
In its Opposition to T–Mobile's Motion for Summary
City Commissioners considered the Application as required
Judgment, the City does not refer to any other locations in
by the local ordinance; they rejected that Application; T–
Margate besides Centennial Park as alternative options for a
Mobile worked with City officials to find another location;
WCF. Nevertheless, it asserts that even if the Court does not
and now the City asserts that T–Mobile's failure to reapply
accept its arguments about Centennial Park, T–Mobile has
for the Centennial Park site should preclude it from obtaining
failed to carry the burden of showing that no other alternative
permission to place a tower at the new site. 9 No jury is sites exist because of certain comments made by T–Mobile
needed to resolve disputes concerning these facts. representatives at the December 9 Hearing. [ECF No. 33, pp.
6–7]. Specifically, the City refers to T–Mobile's testimony
9 that Oriole Golf Course was the “best possible location,”
There is also no dispute that when certain residents
raised the idea of placing T–Mobile's tower in which “would best fit all the coverage objectives,” would “fit
Centennial Park at the December 9 Hearing, the us exactly,” and would be “ideally more ideal to us.” [ECF
City Commissioners and the City Attorney ended No. 26–1, pp. 35:17–19, 44:15–19, 48:12–22]. It appears that
that debate by noting that that location had been the City infers from this testimony that the Oriole Golf Course
previously turned down by them. [ECF No. 26–1, could not be the only location available if it was the best or
pp. 72:22–73:6]. ideal location (presumably among other options).
Second, the City provides no case law to support its argument
The City's argument on this issue does not refer to any
that a service provider should be required to reapply for
factual disputes requiring a trial. To the contrary, the simple
permission to locate its tower on the very same plot of
fact that T–Mobile representatives used the words best and
land that the very same decision-making body previously
ideal to describe their proposed location during the hearing
rejected several years before. I see no reason to require T–
before the City Commissioners is undisputed. Interpreting
Mobile to take such an illogical step absent legal authority
this undisputed fact in the light most favorable to the City

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 6

 Kurtz, Lauren 3/14/2023
For Educational Use Only
T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
and resolving all reasonable doubts in favor of the City as I
must under binding case law, I find that the evidence does not
preclude me from granting summary judgment in favor of T–
Mobile.
Even if the words used by T–Mobile personnel to describe the
Oriole Golf Course could possibly give rise to an inference
that other possible locations existed, the record does not
otherwise support this inference. Simply put, the factual
record points to no other locations that could have served
as reasonable alternatives to the Oriole Golf Course, and
the City suggests no other locations to support its argument.
Shortly before the December 9 Hearing concluded, T–Mobile
reiterated its position in unequivocal terms that dispel any
doubt about the existence of alternative sites by noting that
“this is the only viable solution.” [ECF No. 26–1, p. 83:18–
21 (emphasis added) ]. The City's own consultant, Cityscape,
confirmed the same: “[T]here is no other facility for T–
Mobile to sufficiently accomplish satisfactory service, and
there are no other reasonable alternative technologies to
accommodate the Applicant's needs without the construction
of a new facility.” [ECF No. 4, p. 4]. Therefore, T–Mobile's
use of the words “best” or “ideal” is not talismanic and,
at most, may be disregarded as imprecise jargon or poor
word choice—not as evidence that actual alternative sites
existed. 10
10
In addition, T–Mobile correctly points out that a
review of the transcript text surrounding the quotes
referred to by the City makes it clear that T–
Mobile considered numerous alternatives and that
the “most ideal location” was not available. [ECF
No. 37, p. 7].
*8 The Eleventh Circuit requires district courts analyzing
decisions of State and local governments under the TCA
to “view the record in its entirety.” Preferred Sites, 296
F.3d at 1218. As such, I must consider the entire transcript
from the December 9 Hearing before I ultimately arrive at a
conclusion on this issue. A review of the transcript reveals
that participants of the hearing did make passing references
to two other locations as possible sites for a WCF. Although
neither of the Parties referred to these locations in their
summary judgment submissions, I will briefly address them
in keeping with my obligations to consider the entire record.
It is no surprise that the City did not raise the locations
in its Opposition because the only possible reading of the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
testimony from the December 9 Hearing is that neither
location presented an actual viable alternative to the Oriole
Golf Course.
First, a participant at the hearing mentioned “Royal Palm
and Rock Island” 11 as a potential site for a WCF. T–
Mobile responded with the following: “Royal Palm and
Rock Island, which is here. There's too far of a distance
to cover our coverage objective. We would still have a
coverage gap in this area and, therefore, we'd need another
tower in the future....” [ECF No. 26–1, p. 51:2–7]. Second,
when someone raised Winfield Boulevard Park as a possible
site for T–Mobile's WCF, a CityScape representative replied
that the “only city park that would have worked was
Centennial.” [ECF No. 26–1, pp. 75:14–16, 78:21–22]. T–
Mobile's representative also confirmed that “[Boulevard
Park] would be too close to an existing site, and it would still
leave the coverage objective....” [ECF No. 26–1, p. 83:4–7].
11 It is unclear from the factual record if these names
refer to parks, streets, or neighborhoods of the City
of Margate.
Considering the entire record, including this testimony, in the
light most favorable to the City, I can only conclude that the
evidence supports T–Mobile's position that Oriole Golf Park
was the only viable location in the City of Margate for a WCF.
For all of these reasons, there is no dispute of material fact that
T–Mobile satisfies the more stringent “only feasible plan” test
cited by the City. If the Eleventh Circuit adopts a more relaxed
version of the “only feasible plan” test as it has indicated it
may do, then T–Mobile would satisfy that test as well. Finally,
there is also no dispute of material fact that T–Mobile also
satisfies the “least intrusive means” test cited by T–Mobile. In
other words, if the Oriole Golf Course was the “only feasible
plan” available to T–Mobile, then, by definition, it must have
also been the plan that was “least intrusive” on the values held
by the City and its Commissioners. 12
12 As noted above, I decline to analyze the facts of
this case under the minority test articulated by the
Fourth Circuit because neither Party has suggested
that test should apply to this case.
c. “In Writing Requirement”
7
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
The TCA provides that any State or local governmental
decision “to deny a request to place, construct, or modify
personal wireless service facilities shall be in writing and
supported by substantial evidence contained in a written
record.” 47 U.S.C. § 332(c) (7)(B)(iii) (emphasis added). T–
Mobile argues that the City's Resolution, which consisted of
a one-sentence decision, must fail “on its face” because it
offered no basis for the denial. [ECF No. 24, p. 15].
*9 As the Parties recognize in their summary judgment
submissions, the district courts have come to different
conclusions as to what may satisfy the “in writing”
requirement contained in the TCA. See Verizon Wireless
v. Bd. of County Commissioners of Sarasota County, Case
No. 06–1991, 2007 U.S. Dist. LEXIS 68090, at *2, 2007
WL 2702331 (M.D.Fla. Sept. 14, 2007) (holding written
decision insufficient where it merely recited in a conclusory
fashion that the request was inconsistent with the county's
zoning regulation); Primesite Consulting Group, Inc. v. City
of Tampa, Case No. 98–2085, 1999 WL 33743961, at *2
(M.D.Fla. May 27, 1999) (adopting the reasoning of other
courts that a written denial “need only notify the applicant of
the local government's decision”).
The City asserts that the Eleventh Circuit has not formally
ruled on the proper scope of the written denial requirement.
[ECF No. 33, p. 9]. In fact, the Eleventh Circuit has indicated
in the context of TCA disputes that a court should look
beyond the formal notification document to transcripts or
other writings concerning a local government's decision in
order to see if that government has satisfied the “in writing
requirement.” See Am. Tower LP v. City of Huntsville, 295
F.3d 1203, 1207 n. 3 (11th Cir.2002) (“No party argues that
there is no written record in this case. The BZA's hearing was
transcribed (minutes were also prepared). Nor does any party
argue that the BZA's decision was not ‘in writing.’ The BZA
sent American Tower a letter denying their application, and
the BZA's reasons for that denial appear in the minutes and
transcript of the hearing.” ) (emphasis added).
The Seventh Circuit has also provided an explanation as to
the underlying purposes of the “in writing” requirement:
[T]he primary purpose of the “in writing” requirement for
the Telecommunications Act is to allow for meaningful
judicial review of the decisions of local governments.
Keeping in mind that local zoning boards typically are not
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
populated with lawyers much less judges, we cannot expect
something akin to a judicial opinion. Therefore, a decision
“in writing” is adequate if it provides an explanation
that allows us, in combination with the written record,
to determine if the decision is supported by substantial
evidence.
Helcherv. Dearborn County, 595 F.3d 710, 719 (7th
Cir.2010).
Given this case law indicating that a district court should look
beyond the formal notification document to the remainder
of the entire “written record,” I decline to grant T–Mobile's
Motion on the grounds that Resolution No.11–591 was, in and
of itself, inadequate. 13 Instead, I will consider the contents
from the December 9 Hearing transcript when deciding if
the City has put forth “sufficient evidence” for its denial as
required by the TCA.
13 Strangely, the City asserts in the Affirmative
Defenses listed in its Answer that “[t]he denial of
the Conditional Use Permit does not satisfy the ‘in
writing’ requirement of 47 U.S.C. § 332(c) (7)(B)
(iii).” [ECF No. 4, p. 6]. I assume this concession
is a typo and therefore do not address it.
d. “Substantial Evidence”
Looking beyond the text of the written Resolution to the
transcript of the December 9 Hearing, T–Mobile argues
that the City Commissioners' ultimate decision denying its
Application was not supported by “substantial evidence” as
required by 47 U.S.C. § 332(c)(7)(B)(iii). T–Mobile asserts
that the only opposition voiced against its Application was
“purely generalized objection, with no specific evidence or
support” and “unqualified, unscientific opinion of the City
Commissioners and lay members of the public.” [ECF No. 24,
p. 13]. T–Mobile concludes that such generalized opposition
may not qualify as “substantial evidence” under the TCA.
*10 The City responds to this argument with two short
paragraphs in which it outlines the definition of “substantial
evidence” and notes that T–Mobile bears the initial burden
of proof on this issue. [ECF No. 33, p. 8]. This response
raises no disputes of material fact and offers no reasons
why the Commissioners denied the Application, much less
any explanation as to why those justifications for denial
8
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For Educational Use Only
T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
should qualify as “substantial evidence” under the TCA. As
T–Mobile notes, the City also incorrectly argues that T–
Mobile must present “substantial evidence” whereas the TCA
actually requires that relevant State or local governmental
denial decision be supported by substantial evidence. 47
U.S.C. § 332(7)(B)(iii).
Although I could hold in T–Mobile's favor alone on the basis
of the City's inadequate response on this point, I am also
obligated to consider the record in its entirety when reviewing
a dispute governed by § 332(c)(7)(B)(iii). Thus, I look once
more to the transcript from the December 9 Hearing because
the City's official written decision provides no reason for the
denial. As reflected in that transcript, the City Commissioners'
votes to deny the Application were not accompanied by
any contemporaneous comments from the Commissioners
offering reasons for their votes. [ECF No. 26–1, pp. 86:11–
87:11]. Elsewhere in the transcript are certain complaints
voiced by City residents against T–Mobile's Application.
Some residents indicated that they opposed the plan because
they preferred that T–Mobile place the new tower in its
neighboring town of Coral Springs. 14 But as noted above,
the City concedes that a significant coverage gap exists in the
City of Margate, and it advances no arguments that the heart
of that gap was in Coral Springs, or a neighboring town, or any
place else other than Margate. Likewise, the City Attorney
responded to these comments by informing the residents that
Margate's ordinances prohibit using residents' preferences to
place the tower in another town as a basis to deny such an
15
application.
14
For example, one resident commented: “You guys
need to head over to Riverside Drive and in Coral
Springs and the other end of Royal Palm and get
your coverage over there. (Thereupon, everyone
clapping.)” [ECF No. 26–1, p. 35:3–7].
15
The City Attorney commented: “My Mayor, there
is nothing in our code that says that there is—
there has to be a primary benefit to the City of
Margate, a primary benefit to people who have
served in Margate. All that there is in the code is
that it says that they cannot do it on city-owned
property.” [ECF No. 26–1, p. 48:2–8]. Case law
also provides that a denial may not be supported
by justifications not based in the local ordinance.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
See T–Mobile South, LLC v. Coweta County, Ga.,
Case No. 08–0449, 2009 U.S. Dist. LEXIS 17067,
at *19–20, 2009 WL 596012 (N.D.Ga. Mar. 5,
2009) (“[T]he decision of the Board must be based
on the requirements set forth in the local zoning
ordinance.... Thus, if a local ordinance does not
require a provider [to do something as part of its
application], the Board cannot base its denial on the
failure of the company to provide such evidence.”).
Another city resident cited health concerns such as radiation
as a reason for his opposition to the Application. [ECF No.
26–1, pp. 64:24–65:22]. Again, the City Attorney responded
that the “federal courts have specifically ruled that radiation
cannot be the basis for turning this down.” [Id. at 66:2–
4]. 16 It does not appear that the City Commissioners
were concerned with the aesthetics of the proposed WCF.
When T–Mobile representatives offered to show pictures
or designs of their proposed “flag pole” design, at least
one City Commissioner responded: “We don't need to see
it. We know what it looks like.” [ECF No. 26–1, p. 24–
27]. Likewise, when the City Attorney asked the City's
independent consultant to comment on the proposed idea,
a City Commissioner stated “No, I don't want to hear
anymore.” [ECF No. 26–1, pp. 71:25–72:1]. Several other
aspects of the December 9 Hearing transcript provide the
distinct impression that the City Commissioners denied T–
Mobile's application in order to appease a crowd of local
residents who had gathered to attend the hearing and oppose
the Application. 17
16
The TCA specifically provides that “[n]o State
or local government or instrumentality thereof
may regulate the placement, construction, and
modification of personal wireless service facilities
on the basis of the environmental effects of
radio frequency emissions to the extent that
such facilities comply with the Commission's
regulations concerning such emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv); see also Cellular Tel. Co. v.
Town of Oyster Bay, 166 F.3d 490, 495 n. 3 (2d
Cir.1999) (holding that the terms “environmental
effects” and “health concerns” are interchangeable
under the TCA).
17 The transcript is replete with at least ten
references to people clapping when a resident or
9
 Kurtz, Lauren 3/14/2023
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T-Mobile South LLC v. City of Margate, Not Reported in F.Supp.2d (2011)
2011 WL 1303898, 52 Communications Reg. (P&F) 939
City Commissioner voiced any opposition to T–
Mobile's Application. [See, e.g., ECF No. 26–1, pp.
15:24, 24:18, 35:7, 61:13, 65:23, 66:18, 71:18–19,
77:6, 86:19, 87:12]. One resident also described
what appeared to be a similar atmosphere when the
City Commissioners denied T–Mobile's previous
application to place a WCF in Centennial Park:
“I was here when the Centennial Park thing came
down. Gentlemen, the people living there at the
time actually came up to me and said—asked me
how they can get it defeated. I told them just
bring in a crowd, and that's why it went down the
tubes.” [ECF No. 26–1, p. 73:17–23].
*11 Eleventh Circuit case law provides certain guidelines
about the types of reasons a State or local government may
rely on in order to deny an application under the TCA. For
example, a “blanket aesthetic objection does not constitute
substantial evidence under § 332.” See Michael Linet, Inc.,
408 F.3d at 761. But aesthetic objections “coupled with
evidence of an adverse impact on property values or safety
concerns can constitute substantial evidence.” Id. Similarly,
denial may be based on testimony of local realtors that the
proposed cell tower would adversely impact home resale
values or if the site may have a negative effect on nearby air
traffic or to the safety of school children. Id. at 760; City of
Huntsville, 295 F.3d at 1208–09. But “generalized objections
with no articulated reasons” and “rationalizations constructed
after the fact” do not constitute “sufficient evidence” under
the TCA. Preferred Sites, 296 F.3d at 1219–20 & n. 9.
This case law provides no support for local governments that
deny a provider's Application on the basis of health effects or
a preference to place the relevant cell tower in a neighboring
town. Construing this evidence in the light most favorable
to the City, I can only conclude that there are no disputes of
material fact that the City did not provide sufficient evidence
for its denial of T–Mobile's Application, and a reasonable
mind could not accept the evidence in the record as adequate
to support the City's denial.
e. No Other Disputes of Material Fact
The City raises no disputes of material fact in its Opposition
to T–Mobile's Motion for Summary Judgment. 18 In its
Statement of Material Facts, the City disputes certain
assertions made by T–Mobile, but none of these disputes is
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
material to the outcome of this Motion. [ECF No. 32]. For
example, the City asserts that there is a dispute about whether
T–Mobile provided an affidavit in support of its motion as
required by the City's Ordinance § 3.23.3. [Id. ¶ 4]. But this
does not amount to a material dispute in light of the City's
admission that T–Mobile submitted everything necessary to
constitute a proper Application under the relevant ordinance.
[ECF No. 1 ¶¶ 42–43; ECF No. 4 ¶¶ 42–43]. The City also
notes that it never refused to lease space to T–Mobile relating
to T–Mobile's earlier application for a site at Centennial Park.
[ECF No. 32 ¶ 25]. But the City acknowledges that the real
material aspect relating to that Application—namely, that the
City rejected the Application-is undisputed. [Id.].
18 Nowhere in the City's Opposition are the phrases
“dispute of material fact” or “material dispute of
fact” to be found.
The City argues that there is disagreement over whether
the Oriole Golf Course was the “least intrusive means” for
closing T–Mobile's coverage gap. This is plainly a legal issue,
not a factual issue. The City also asserts that a dispute exists
as to whether the Centennial Park site was “at all times
material unavailable to T–Mobile.” But the City has put forth
no evidence whatsoever showing when that park resurfaced
as a viable option, nor did the City explain why T–Mobile
should have refused to take the City Commissioners' previous
denial of the Centennial Park application at face value. The
City also disagrees with T–Mobile's characterization of the
testimony from Margate residents who opposed the plan
as “lay testimony.” [Id. ¶ 68]. Regardless of T–Mobile's
description of the testimony, the City points to no actual
disputes requiring a fact finder. Instead, it relies on testimony
from T–Mobile involving the words ideal and best as a basis
for the City Commissioners' denial. As discussed above, that
testimony is undisputed and does not provide “sufficient
evidence” for the City's denial under the TCA.
*12 Finally, the City disagrees with T–Mobile's statement
that the City Planning Department, CityScape, and the City
Attorney recommended approval of T–Mobile's application.
[Id. ¶ 55]. In support of this argument, the City cites
no evidence in the record and simply argues that the
“transcript contained in Exhibit 5 speaks for itself.” [Id.].
The City's failure to provide a citation for each disputed
fact in its statement constitutes a violation of the Court's
Order Setting Pretrial and Trial Dates. [ECF No. 8, p. 6].
10
 





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 Kurtz, Lauren 3/14/2023
For Educational Use Only

Grumman Ecosystems Corp. v. Gainesville-Alachua County..., 402 F.Supp. 582 (1975)

10 ERC 1863, 30 A.L.R. Fed. 702

Clinton Ashmore, U.S. Atty., Tallahassee, Fla., Thomas

402 F.Supp. 582
United States District Court,
N.D. Florida,
Gainesville Division.
. Fla., for defendants City of Gainesville and Gainesville-
GRUMMAN ECOSYSTEMS
CORPORATION, Plaintiff,
v.
GAINESVILLE-ALACHUA COUNTY
REGIONAL ELECTRIC, WATER AND
SEWER FACILITIES BOARD et al., Defendants.
Civ. A. No. 75-23.
| Corporation (Grumman), challenges the award of a
Oct. 1, 1975.
Synopsis
Contractor, which was unsuccessful bidder, brought an action
wherein it challenged bid procedures and award of contract
by city for waste water treatment plant funded in large
part by a grant from Environmental Protection Agency.
The District Court, Stafford, J., held that Environmental
Protection Agency did not act arbitrarily or at variance with
law, in upholding city's award of contract for waste water
treatment plant funded in part by a grant from EPA, on
theory that ambiguity of contractor's handwritten notation of
its bid was so great as to make the bid unresponsive and that,
therefore, allowance of a subsequent clarification amounted
to the allowance of a modification of bid in contravention
of federal regulations; Environmental Protection Agency
violated regulations of such agency and of Comptroller
General in advising city that city was free to award contract
to successful bidder without further delay; and that equities
did not warrant injunctive relief.
Judgment in accordance with opinion.
Attorneys and Law Firms
*583 V. Keith Young, Orlando, Fla., for plaintiff.
Thomas E. Abernathy, Smith, Currie & Hancock, Atlanta,
Ga., for defendant Norflor-Sunshine.
H. Ries, Asst. Regional Counsel, Environmental Protection
Agency, Atlant, Ga., for defendant Train.
Osee Fagan, A. Bice Hope, Norman J. LaCoe, Gainesville,
Alachua County Regional Board.
OPINION
STAFFORD, District Judge.
This case involves a challenge of bid procedures by an
unsuccessful bidder. The plaintiff, Grumman Ecosystems
construction contract for the Kanapaha Wastewater Treatment
Plant by the City of Gainesville, Florida. The defendants
are: Norflor Construction Corporation-Sunshine Peninsula,
Inc. (Norflor); The City of Gainesville, Florida (City); The
Gainesville-Alachua County Regional Electric, Water and
Sewer Utilities Board (Regional Board); and Russell E. Train,
as Administrator of the Environmental Protection Agency
(EPA). The City awarded the construction contract to Norflor,
and that award was affirmed by EPA in an administrative
appeal taken by Grumman. Grumman here challenges the
award to Norflor on three grounds, set forth respectively
in Counts I, II and III of its Amended Complaint. First,
Grumman contends that Norflor's bid was unresponsive at
the time of bid opening, and that the award to Norflor was
therefore in violation of EPA regulations. *584 See 40
CFR 35.938(f), (h). 1 Second, Grumman asserts that the City
violated EPA regulations by not providing written findings
substantiated by legal and engineering opinions. See 40 CRF
35.939(a). Third, Grumman asserts that EPA violated its own
regulations and those of the Comptroller General by notifying
the City on August 1, 1975, that it was free to proceed with the
execution of the contract with Norflor, when in fact EPA was
aware of a pending appeal of its administrative decision to
the Comptroller General. See 4 CFR 20.4; 40 CFR 35.939(d).
Grumman seeks a declaratory judgment that the City and the
Regional Board acted arbitrarily and capriciously in awarding
the contract to Norflor, that the award to Norflor is void,
that EPA acted arbitrarily in affirming the award, and that
EPA violated its own regulations and those of the Comptroller
General in subsequently allowing the City to proceed to

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 Kurtz, Lauren 3/14/2023
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Grumman Ecosystems Corp. v. Gainesville-Alachua County..., 402 F.Supp. 582 (1975)
10 ERC 1863, 30 A.L.R. Fed. 702
execution of the contract at a time when an appeal to the
Comptroller was pending. Grumman also seeks to enjoin
funding and construction of the project and to enjoin the City
to either award the contract to Grumman or rebid the contract.
The case is before the Court for final hearing, a
temporary restraining order and preliminary injunction
having previously been denied, for reasons more fully set
forth below.
Before proceeding to findings of fact, a brief history of this
litigation is in order, since the course of the litigation bears
upon the Court's judgment.
This case was begun by an application for Temporary
Restraining Order on August 7, 1975. The application was
on extremely short notice to opposing parties. The parties
were orally advised of the hearing one day in advance, but the
complaint was not filed until one hour before commencement
of the hearing. The complaint then before the Court contained
only the matters now set forth in Count I of the Amended
Complaint— allegations relating to the unresponsiveness of
Norflor's bid. No mention was made in the complaint or at the
hearing of other alleged violations of federal regulations. The
application for Temporary Restraining Order was denied for
failure to join the City and for failure to present a clear case
for such relief.
On August 20, 1975, Grumman served by mail an amended
complaint setting forth for the first time Grumman's
contentions concerning procedural irregularities by the City
and EPA. Notice of a hearing on Grumman's application for
preliminary injunction was served by mail on August 21.
The hearing was set for August 27, 1975. At that hearing
the Court declined to consider the merits of Grumman's
application, for lack of due notice to the defendants under
Rule 6 of the Federal Rules of Civil Procedure. Further, the
Amended Complaint was not verified nor were supporting
affidavits filed, although an officer of Grumman testified
as to the status of work then underway on the project in
Gainesville. 2 The Court accelerated the matter for final
*585 hearing in accordance with Rule 65(a)(2) of the
Federal Rules of Civil Procedure. Final hearing was held on
September 22, 1975.
Findings of Fact.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
Prior to May 22, 1975, the City promulgated bidding
instructions for the construction of the Kanapaha Wastewater
Treatment Plant. The plant was to be constructed in
Gainesville, Florida. EPA agreed to fund a major portion
of the project by a grant, with the rest of the funding to
come from local tax revenues. Of critical importance to the
project was a Denitrification Filter System, a relatively new
and untested piece of hardware. The City therefore required
a process guarantee of five elements of the system from the
system manufacturer. Initially, the manufacturer was also to
be required to post a $250,000 escrow fund to secure the City
for modifications in the system if it proved faulty in operation.
Those requirements were contained in paragraph DF-03 of the
bid instructions.
During the time when bidders were preparing their bids, the
filter system manufacturer informed all bidders and the City
that it would not provide the $250,000 escrow fund, and
further, that it would not guarantee all of the five system
components as specified in paragraph DF-03.
On May 22, the City modified the bid by means of ‘addendum
No. 6’, which stated in pertinent part:
‘Only those bids providing an escrow account and a process
guarantee, both in full accordance with par. DF-03 of these
specifications, will be considered as being totally responsive.
Any deviation from Section DF shall be specifically noted and
attached to the Bidder's Proposal.
. . . . Bi
‘In the event that the filter supplier does not furnish such
escrow account to the contractor, the contractor must provide
the escrow account.’ (emphasis supplied)
When the bids were opened, Norflor had submitted the
apparent low bid. Grumman's bid was $33,000 higher.
However, Norflor's bid contained the following handwritten
notation:
‘Per Addendum No. 6, page B-6, para. B-11, sub para. A-7,
our proposal deviates from this section as to the process
guarantee. See attached process guarantee by Dravo (the
manufacturer), pages 16-18. However, the escrow fund will
be supplied by the contractor.’
2
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10 ERC 1863, 30 A.L.R. Fed. 702
This language is the genesis of the controversy. Grumman
contends that by such language Norflor attempted to limit its
liability under the escrow fund to those elements of the filter
system which the manufacturer would guarantee. Norflor
maintained that the language was inserted to strictly comply
with the requirement that any deviations from the bidding
instructions, paragraph DF, be noted, and that it was intended
to assure the City that, despite Dravo's refusal to guarantee
the entire filter system, Norflor would do so to the extent of
$250,000 by providing the escrow fund.
The City's consulting engineers initially recommended award
of the contract to Grumman, taking the position that Norflor's
bid was unresponsive. However, the responsiveness of
Grumman's bid was never considered by the City authorities.
The City's attorney, on the other hand, was of the opinion that
Norflor's bid was unresponsive.
The language of the bid instructions was confusing.
Subsequent to the bid opening both Grumman and Norflor
sent communications seeking to clarify their bids.
A hearing was held before the Regional Board; at that hearing
Grumman had a full opportunity to be advised of the City's
position and to be heard. The transcript of that hearing
indicates that prior to receipt of Norflor's letter of clarification
the City Attorney was of *586 the opinion that Norflor's bid,
though somewhat ambiguous, was responsive. The Board,
relying both on that opinion and on Norflor's subsequent
letter, awarded the contract to Norflor.
The City did not provide a written summary of its position to
Grumman.
Grumman appealed the award to EPA, contending that the
City, by considering Norflor's letter, had, in effect, allowed
a modification of Norflor's bid, in contravention of 40 CFR
35.938-4.
A hearing was held before the Regional Administrator for
EPA, and on July 24, 1975, the Administrator issued his
opinion affirming the award to Norflor. The view taken by
EPA was that, under EPA regulations, the lo&cal agency
has wide discretion in determining bid responsiveness and
that no clear showing had been made that Norflor's bid was
unresponsive under local law or EPA regulations.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
On July 29, 1975 Grumman notified EPA by mailgram that
an appeal of its decision had been filed with the Comptroller
General. The City and Norflor were not so notified by
Grumman, nor did EPA notify them of Grumman's appeal.
Instead, on July 31, 1975 EPA advised the City in writing that
it was free to execute a contract with Norflor. The City entered
into the contract on August 1, 1975. At the time of final
hearing, Norflor had incurred very substantial contractual
commitments relating to its work on the wastewater treatment
plant.
Conclusions of Law
A. Jurisdiction and Standing.
The Court is of the opinion that jurisdiction exists to
resolve this controversy under 5 USC §§ 702, 706, and that
the plaintiff has standing to sue. See Hayes Int'l Corp. v.
McLucas, 509 F.2d 247 (5th Cir., 1975).
In opposing jurisdiction the defendants rely primarily upon
Larson v. Domestic & Foreign Finance Corp., 337 U.S. 682,
69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Malone v. Bowdoin, 369
U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962) and Dugan v.
Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). The
thrust of the defendant's position is that sovereign immunity
protects the action insofar as EPA is concerned and that no
other federal defendant exists.
In resolving this issue, the Court is confronted with the
problem of reconciling the mandates of the Administrative
Procedure Act, providing for judicial review of agency action
with the sovereign immunity doctrine. This conflict has
been directly addressed in other jurisdictions, with less than
definitive results. See Schlafly v. Volpe, 495 F.2d 273 (7th
Cir., 1974); Littell v. Morton, 445 F.2d 1207 (4th Cir., 1962).
In Estrada v. Ahrens, 296 F.2d 690 (5th Cir., 1961), the Fifth
Circuit addressed the issue and explicitly held the judicial
review provisions of the Act to be a waiver of sovereign
immunity. However, that Court tacitly receded from the broad
holding of Estrada in Colson v. Hickel, 428 F.2d 1046 (5th
Cir., 1970).
After reviewing these authorities the Court is convinced that
sovereign immunity is not a bar to this action. The decisions
relied upon by defendants as well as the Colson decision
arose on factual predicates such that, had the relief sought
3
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10 ERC 1863, 30 A.L.R. Fed. 702
been granted, the effect would have been to coerce the release
of sovereign lands or the unplanned expenditures of money The language of Norflor's bid was not a patent deviation from
from the public treasury. Here, such is not the case. The the City's bid instructions.
funds affected have already been committed by the sovereign
Although Norflor's bid was ambiguous, it permitted the
for expenditure; the effect of injunctive relief would be
reasonable construction that it was inserted to insure strict
only to bar expenditure in a particular way. Therefore, the
compliance with the bidding instruction that all deviations
policies underlying the doctrine of sovereign immunity have
be noted. Indeed, such a construction was placed upon the
no application in this case.
language of that notation first by the City and later by EPA.
B. Scope of Review.
However, Grumman argues that such a construction was
Review of the action taken by the EPA and the local
arrived at only subsequent to a clarifying letter submitted to
government agencies is restricted in scope. This Court
the City by Norflor. Grumman contends that such a procedure
cannot disturb the administrative action unless it is ‘arbitrary,
amounts to modification of Norflor's bid prohibited by EPA
capricious, an *587 abuse of discretion or otherwise not
in accordance with law.’ 5 U.S.C. § 706(2)(A). Further, the regulations. 3
Court cannot overturn EPA'S factual determinations unless
The record reflects that the City Attorney arrived at the
the record before the EPA was devoid of substantial evidence
opinion that Norflor's bid was responsive prior to receipt
to support the determination. See Illinois Central R. Co. v.
of the letter of clarification and that the City and the
Norfolk & Western Ry. Co., 385 U.S. 57, 87 S.Ct. 255, 17
Regional Board acted upon that opinion, although admittedly
L.Ed.2d 162 (1966).
it was buttressed in that regard by the subsequent letter of
clarification.
C. Arbitrariness vel non of EPA's Affirmance of the City's
Given these facts, the Court cannot say that EPA acted
Award to Norflor.
arbitrarily or at variance with law in upholding the City's
The Court is of the opinion that the EPA did not act arbitrarily
action.
or at variance with the law in affirming the City's award of
the contract to Norflor. The pertinent regulations do not define a responsive bid, nor
do they define what constitutes a bid modification. Instead,
the regulations place upon the local authorities the initial task
The gist of Grumman's case is that the ambiguity of Norflor's
of making those determinations. Local authorities are directed
handwritten notation on its bid was so great as to make
to consider both state and federal law in their deliberations. It
the bid unresponsive and that, therefore, the allowance
is thus clear that the regulations impart a substantial amount
of a subsequent clarification amounting to allowing a
of latitude and discretion to the local agency in such matters.
modification of Norflor's bid in contravention of 40 CFR
Where such administrative discretion exists, the courts should
35.398-4(f), (h)(2).
not overturn an agency's determination if it has “warrant in
There is no doubt that Norflor's bid notation was less the record' and a reasonable basis in law.' N.L.R.B. v. Hearst
than artfully drafted, and that it was subject to varying Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88
interpretations. Indeed the bidding instructions themselves L.Ed. 1170 (1944).
were confusing and may have led to the problem here
Grumman has brought to the Court's attention several cases in
presented. But, it must be remembered that the Court sits
which the courts have held that modification of a bid allowed
in judgment twice removed from the initial determination
after bid opening voids the bid award. However, those cases
that the bid was responsive. The Court may not substitute
differ factually. Most involve the interpretation of regulations
its judgment for that of the City or of the EPA, if the record
which specifically define certain matters as rendering the bid
supports the reasonableness of those decisions and supplies
unresponsive. All involve a clearer case of bid deviation than
factual support therefor.
that presented here. As noted above, the regulations *588
material to this decision contain no such specifics, nor may

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 4

 Kurtz, Lauren 3/14/2023
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Grumman Ecosystems Corp. v. Gainesville-Alachua County..., 402 F.Supp. 582 (1975)
10 ERC 1863, 30 A.L.R. Fed. 702
reference be had to the bid invitation to furnish such specifics,
for the invitation itself is confusingly drawn. 4 Accounting Office a written finding by the head of the
Under the pertinent regulation and factual circumstances of
this case a distinction with a reasonable basis in law may
be drawn between the clarification of an ambiguity and
modification of a deviating bid.
D. Effect of the City's Failure to Provide Written Findings.
The City's failure to provide a written summary of its position
with supporting legal and engineering memoranda constitutes
a violation of EPA regulations. See 40 CFR 35.939(a).
However, Grumman was apprised of the City's position and
the supporting legal opinion at the hearing held before the
Regional Board. Grumman had a full opportunity to respond
at that hearing. Nothing in the record indicates any serious
engineering questions arising with respect to Norflor's bid.
Therefore, Grumman was not prejudiced by this technical
default by the City. Since no prejudice resulted, the Court is
unwilling to find a substantial violation of the regulation and
to thereupon set aside the totality of the agency action taken
in this case. See 5 U.S.C. § 706.
E. EPA's Actions Subsequent to Affirmance of the Award to
Norflor.
While EPA's affirmance of the award to Norflor was within
the law, its subsequent actions are another matter. It is
undisputed that the EPA decision was rendered on July 24,
1975 and that Grumman notified EPA of an appeal to the
Comptroller General on July 29. Yet on July 31, EPA advised
the City that it was free to execute a contract with Norflor.
The contract was executed upon that advice on August 1.
Such action by EPA was a clear violation of its own
regulations as well as those of the Comptroller General.
EPA regulations provide for a 10-day waiting period after its
decision before a grantee may execute a contract. 40 CFR
35-939(d). EPA ignored the regulation and advised the City
to proceed on July 31, only seven days after issuance, much
less receipt, of the EPA decision. Further, the Comptroller's
regulations provide:
‘When notice is given the agency that a protest has been
filed with the General Accounting Office, award shall not
be made prior to a ruling on the protest by the Comptroller
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
General, unless there has first been furnished to the General
agency, his deputy, or an Assistant Secretary (or equivalent),
specifying the factors which will not permit a delay in the
award until issuance of a ruling by the Comptroller General.’
4 C.F.R. 20.4.
F. Appropriate Relief.
In the opinion of the Court, nothing is more reprehensible,
nothing more capricious, than EPA's flagrant violation of its
own rules of procedure. EPA ignored not only its rules but
those of the Comptroller General, who has authority in such
matters and therefore the authority to set forth procedure to
be followed.
It has been aptly said that those who deal with the government
must turn square corners. The converse of that statement is
more compelling. The government must turn square corners
with those who deal with it. Citizens in the modern age of big
government have pitifully small influence upon the behemoth
structure of the government.
*589 Such as they are, procedural regulations, by which
the agencies are presumably bound, assuage the predicament
of the citizen somewhat. They are designed to insure that
the might of givernment is not used to overbear the citizens.
Specifically, the regulations violated by EPA in this case can
have no other purpose than to give a disappointed party time
to assess his options and pursue available recourse before the
government commits itself inexorably to a course of conducts.
The courts, or other disinterested adjudicating tribunals, are
the one place where the citizen stands equal with Goliath.
A continued pattern of such high-handedness as displayed
by EPA could well lead eventually to the shunning of
government business by reputable persons and firms, a
situation which would auger greatly to the public detriment,
and the public— the citizen in whom all power in this republic
ultimately reposes and whose taxes provide the only monies
governments have to spend— has the paramount interest in
requiring that the competitive integrity of the governmental
bid procedure be meticulously maintained.
Had these violations by EPA come to light at an earlier stage
in this litigation, the Court might have been more disposed
to enjoin further construction of the project, pending the
5
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Grumman Ecosystems Corp. v. Gainesville-Alachua County..., 402 F.Supp. 582 (1975)
10 ERC 1863, 30 A.L.R. Fed. 702
outcome of the Comptroller's decision. However, given the
present posture of the case and the positions of the parties
at this time, the equities will not bear up injunctive relief.
Grumman did not bring these matters to the Court's attention
at the initial hearing on its application for a temporary
restraining order. 5 Also, it must be noted that the City and
Norflor were not notified of the appeal to the Comptroller
General; while Grumman was not required to do so, that fact
certainly bears upon the equities of the parties. The matters
going to the procedural violations by EPA were raised for the
first time at the hearing on preliminary injunction, but the
opportunity to consider such matters on the merits was lost
due to the insufficiency of Grumman's notice of that second
hearing to the defendants, particularly to the City.
Thus, the Court must find that Norflor at least has been acting
in good faith in reliance upon an executed contract. It was
not under any legal duty to refrain from proceeding with
construction of the project. Norflor has at this time incurred
substantial liabilities in performing its obligations under its
contract with the City.
Arrogant as EPA's latter day actions are, the Court is
persuaded that it would now be unjust to penalize either
Norflor or the taxpayers, the latter having to ultimately bear
here, as in all projects funded from government monies, the
added cost of delay inherent in granting injunctive relief,
particularly since the initial bid award for this needed public
work was not unlawful. In short, EPA may thank the saving
grace of circumstance for the final outcome of this litigation.
The foregoing constitutes the Court's findings of fact and
conclusions of law. Judgment will be rendered accordingly.
JUDGMENT
STAFFORD, District Judge.
This cause came on for final hearing before the Court on
the 22nd day of September, 1975, and was duly submitted
for consideration and decision. Upon the findings of fact and
conclusions of law contained in the Court's opinion dated
October 1, 1975, it is
Ordered, adjudged and decreed:
1. Defendant Russell E. Train, as Administrator of the
Environmental Protection Agency, violated the regulations of
the Environmental Protection Agency and the regulations of
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
the Comptroller General in advising the City of Gainesville
*590 on July 31, 1975 that the City was free to award the
contract for the Kanapaha Wastewater Treatment Plant to
Norflor Construction Corporation-Sunshine Peninsula, Inc.,
without further delay.
2. Plaintiff's costs are hereby taxed against Russell E. Train, as
Administrator of the Environmental Protection Agency, to the
extent that the imposition of same may be permitted by law.
3. In all other respects, judgment is for the Defendants.
1 The regulation states in relevant part:
‘(f) Bid modifications. A firm which has submitted
a bid shall be allowed to modify or withdraw its bid
prior to the time of bid opening.
(g) Public opening of bids. Grantee shall provide
for a public opening of bids at the place, date and
time announced in the bidding documents.
(h) Award to the low responsive, responsible
bidder. (1) After bids are opened, they shall
be evaluated by grantee in accordance with the
methods and criteria set forth in the bidding
documents. (2) Unless all bids are rejected, award
shall be made to the low, responsive, responsible
bidder.'
2
At that hearing counsel for all parties stipulated
that a certified copy of the administrative record
constituted the entire record necessary for a
decision on the merits except insofar as the parties
wished to present evidence on the relative harm to
the parties from the grant or denial of injunctive
relief. The administrative record was received in
evidence on that stipulation.
3 See 40 CFR 3.938-4, quoted supra in Note 1.
4 Indeed, Norflor's bid could have been considered
unresponsive if Norflor had failed to note that
Dravo's guarantee was not that called for by the
invitation, even though all interested parties were
aware of Dravo's retrenchment. See the language of
‘Addendum No. 6’ set forth in text supra.
5 Nor does the Court recall that EPA advised the
Court at the August 7 hearing of Grumman's July
29 appeal to the Comptroller General.
6
 





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 Kurtz, Lauren 3/14/2023
For Educational Use Only

Chandler v. City of Vestavia Hills Planning and Zoning Com'n, 959 So.2d 1124 (2006)

J. Bentley Owens III and H. Thomas Wells III of Starnes &

959 So.2d 1124
Atchison, LLP, Birmingham, for appellee.
Court of Civil Appeals of Alabama.
Opinion
Jason CHANDLER and Sara Chandler
v. CRAWLEY, Presiding Judge.
CITY OF VESTAVIA HILLS PLANNING
Jason Chandler and Sarah Chandler appeal from the trial
AND ZONING COMMISSION.
court's denial of a petition *1126 for a writ of mandamus
2050403. instructing the City of Vestavia Hills Planning and Zoning
| Commission (“the Commission”) to grant the Chandlers
Oct. 20, 2006. permission to subdivide their residential lot into two parcels.
| One of the proposed parcels would be a “flag lot,” which,
Rehearing Denied Dec. 22, 2006. although not defined by the parties, is evidently a rectangular
parcel of land that is accessible only by a long narrow strip of
Synopsis property leading from a main road. 1
Background: Landowners appealed from decision of the
Circuit Court, Jefferson County, No. CV–2005–5251, G. 1
See, e.g., Bennett v. Zelinsky, 163 Md.App. 292,
William Noble, J., denying their petition for a writ
294, 878 A.2d 670, 671 (2005) (observing that
of mandamus instructing the city planning and zoning
a flag lot was defined by the City of Annapolis
commission to grant permission to subdivide their residential
Board of Appeals as “a lot with a narrow width
lot into two lots.
(the flag pole), bordering a street, which widens at
the rear (the flag),” and that “[t]he ‘flag’ portion
of the lot is then behind another lot, the full width
Holdings: The Court of Civil Appeals, Crawley, P.J., held of which borders on the same street”), and Tall
that: Trees Constr. Corp. v. Zoning Bd. of Appeals of
Huntington, 97 N.Y.2d 86, 89 n. 1, 761 N.E.2d 565,
denial of request to subdivide lot was not arbitrary or 567 n. 1, 735 N.Y.S.2d 873, 875 n. 1 (2001)(noting
capricious, and that a “flagstaff” lot “is an arrangement of adjacent
property where one lot maintains the appearance
decision to deny subdivision request was supported by of an ordinary rectangular parcel and the second
legitimate reasons. parcel is located almost entirely behind the first,
with only a narrow strip of land to access the road”).

Affirmed. The Commission denied the Chandlers' subdivision proposal

Bryan, J., concurred in the result and filed opinion in which
Thompson and Murdock, JJ., joined.
Procedural Posture(s): On Appeal.
Attorneys and Law Firms
*1125 Jesse P. Evans III and Amelia Robinson Killebrew
of Adams & Reese, LLP/Lange Simpson, Birmingham, for
appellants.
on August 18, 2005. The Chandlers then sued the
Commission, requesting that the trial court issue a writ
of mandamus instructing the Commission to approve their
proposal. The Chandlers alleged that the Commission had a
clear legal duty to approve the subdivision of their property
because, they alleged, the proposal complied with the
Commission's subdivision and zoning regulations. The trial
court denied the Chandlers' petition for a writ of mandamus
on December 6, 2005, and the Chandlers timely appealed to
this court.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

 Kurtz, Lauren 3/14/2023
For Educational Use Only
Chandler v. City of Vestavia Hills Planning and Zoning Com'n, 959 So.2d 1124 (2006)
I. Factual Background
The Chandlers are individual residents of Vestavia Hills, and
they reside on, and own, the property at issue in this case. The
Commission is a municipal planning commission organized
under and pursuant to the provisions of § 11–52–1 et seq.,
Ala.Code 1975. The Commission's powers include the power
to review and approve subdivision proposals.
The Chandlers proposed to subdivide their property into two
residential lots, one of which would be a “flag lot.” Testimony
at trial by Laurence Weygand, a civil engineer and surveyor,
indicated that the Commission has approved various other
flag lots in the past.
The Commission stated in its court filings that it adopted
the opinion of its legal counsel as a basis for denying
the Chandlers' subdivision request. That opinion stated in
relevant part:
“In my judgment it is the intent of the Vestavia Hills
Zoning Ordinance and Subdivision Regulations, when read
together, that a front yard is a yard extending the full width
of the front of a lot between the front (street) right of way
line and the front building line. Therefore, it is my legal
opinion that flag lots are not permitted Under the Vestavia
Hills Zoning Ordinance and Subdivision Regulations.
“I base my legal opinion upon the following reasons:
“1. Both the Subdivision Regulations and the Zoning
Ordinance contemplate that a lot in a subdivision will have
four boundaries, including front, rear, side and side. A
flag lot would have six boundary lines, including rear, two
fronts and three sides.
“2. Article 21 of the Vestavia Hills Zoning Ordinance
provides the following definitions:
“ ‘YARD An open space between a building or structure
and the adjoining lot lines, unoccupied and unobstructed
*1127 by any structure from the ground upward.
“ ‘YARD, FRONT A yard extending across the front of
a lot between the side lot lines. On corner lots the front
yard shall be considered as parallel to the street upon
which the lot has its least dimension.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
“ ‘YARD, REAR A yard extending across the rear of a
lot between the side lot lines.
“ ‘YARD, SIDE A yard between the main building and
the side lot line and extending from the required front
yard to the required rear yard.’
“3. Article 6, Section 601 of the Zoning Ordinance
provides that ‘the Planning and Zoning Commission shall
have the authority to approve irregularly shaped lots
having a minimum of 40 front footage, but all building
line restrictions shall remain in full force and effect on
irregularly shaped lots unless otherwise approved by the
Planning Commission.’ In my opinion, the Planning and
Zoning Commission has the authority to approve 40–foot
lots, but is not mandated to do so.
“4. Section 3.15 of the Subdivision Regulations provides
‘every lot shall abut on a public street.’ In my opinion, that
means that the entire lot on the front boundary shall abut
a public street.
“5. I recognize that the written language of the Subdivision
Regulations and Zoning Ordinance does not expressly
prohibit flag lots.
“6. I also recognize, however, that the written language
of the Subdivision Regulations and the Zoning Ordinance
does not expressly permit flag lots.
“7. In my opinion, the intent of the Zoning Ordinance
and Subdivision Regulations when read together is for lots
in subdivisions to be homogeneous in character. If flag
lots were permitted, then in such event there would be no
uniformity in subdivisions. Therefore, flag lots were not to
be permitted in my judgment.
“8. It is my opinion, based upon the reading of
the Subdivision Regulations, together with the Zoning
Ordinance, that both intend that the front yard of a lot is a
yard extending the full width of the front of the lot between
the front (street) right-of-way line and the front building
line. Therefore, flag lots are not permitted in my judgment.
“I feel that an ordinance can be drafted that prohibits flag
lots.”
The trial court's judgment stated, in part:
2
 Kurtz, Lauren 3/14/2023
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Chandler v. City of Vestavia Hills Planning and Zoning Com'n, 959 So.2d 1124 (2006)
“The Vestavia Hills Planning and Zoning Commission is
a municipal planning commission organized under and
pursuant to the provisions of Alabama Code § 11–52–
1 et seq. (1975) and thereafter exercised its authority
in adopting zoning and subdivision regulations. Once a
planning commission has properly exercised its authority
in drafting ordinances regulating subdivision development,
it is bound by such ordinances. Smith v. City of Mobile, 374
So.2d 305 (Ala.1979).
“It should be noted that a review of the Commission's
action is limited. The Commission's denial of approval
for the proposed subdivision should not be invalidated
unless it is clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals,
or general welfare. City of Mobile v. Waldon, 429 So.2d
945 (Ala.1983). A Developer must ordinarily demonstrate
complete compliance with all requirements in connection
with his subdivision plat for a Mandamus to issue to compel
approval. Smith v. Mobile, supra. Finally, in denying
approval, the commission must state the grounds for the
denial on its record. Noojin v. Mobile City *1128 Planning
Commission, 487 So.2d 587 (Ala.1985).
“On August 18, 2005 the City of Vestavia Hills
Planning and Zoning Commission denied approval of the
[Chandlers'] proposed subdivision and cited as grounds
the opinion from the City Attorney, that the proposed
subdivision would violate and not conform to the Vestavia
Hills zoning ordinance and subdivision regulations. In
particular, the opinion of the City Attorney opined that flag
lots are not permitted under the subdivision regulations
of Vestavia Hills. The [Chandlers'] proposed subdivision
would include a flag lot, which according to the City
Attorney would not be in conformance of the subdivision
regulations.
“Upon consideration of the Petition and Respondent, City
of Vestavia Hills Planning and Zoning Commission's brief
in opposition to said Petition and the evidence submitted
at the hearing, the Court finds that the action by the City
of Vestavia Hills Planning and Zoning Commission in
denying the [Chandlers'] request for subdivision approval
was based upon the opinion of the City Attorney which
cited legitimate reasons to deny the request, which
were related to the conformance with the Vestavia Hills
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
subdivision regulation and therefore, the action by the
Commission was not clearly arbitrary and unreasonable.”
II. Discussion
On appeal the Chandlers make two arguments: (1) that the
Commission's decision to deny their request to subdivide
their property is contrary to the statutory constraints on the
Commission's actions under § 22–52–31, Ala.Code 1975; and
(2) that the Commission exceeded the scope of the statutory
limitations imposed on the Commission when it failed to give
reasons for its denial of the Chandlers' subdivision proposal
as required under § 11–52–31, Ala.Code 1975.
As an initial matter, we note that this case is an appeal from
the denial of a petition for a writ of mandamus.
“Mandamus is an extraordinary remedy requiring a
showing that there is: ‘ “(1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4)
properly invoked jurisdiction of the court.” ’ Ex parte
Leigeber, 623 So.2d 1068, 1071 (Ala.1993) (quoting Ex
parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Because
it is an extraordinary remedy, the standard of review is
whether there has been a clear abuse of discretion by the
trial court. Ex parte State Dep't of Human Resources, 674
So.2d 1274 (Ala.Civ.App.1995).”
City of Birmingham Planning Comm'n v. Johnson Realty
Co., 688 So.2d 871, 872 (Ala.Civ.App.1997). Furthermore,
in an appeal from a trial court's denial of a petition for a
writ of mandamus, this court must indulge all reasonable
presumptions in favor of the correctness of the judgment
appealed from. Perry v. State Dep't of Corr., 694 So.2d 24, 25
(Ala.Civ.App.1997).
Additionally, this court must determine whether the trial
court's denial of the petition for a writ of mandamus was
an abuse of discretion in light of the standard of review
applied to the Commission's decision. As this court stated
in Mobile City Planning Commission v. Stanley, 775 So.2d
226 (Ala.Civ.App.2000), this court—and the trial court—
are limited in our review of the decision of a planning
commission.
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Chandler v. City of Vestavia Hills Planning and Zoning Com'n, 959 So.2d 1124 (2006)
“Judicial review of a city planning commission's action
is limited. Noojin v. Mobile City Planning Comm'n,
480 So.2d 587 (Ala.Civ.App.1985). When a *1129
planning commission exercises control over subdivision
lands within a municipality it acts in an administrative
capacity. Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977).
“ ‘There is no dispute that the proper standard of review
in cases based on an administrative agency's decision is
whether that decision was arbitrary or capricious or was
not made in compliance with applicable law.
“ ‘ “Our standard of review regarding administrative
actions is very limited in scope. We review the
circuit court's judgment without any presumption of
correctness since that court was in no better position
than this court to review the agency decision. The
special competence of the agency lends great weight
to its decision. That decision must be affirmed unless
arbitrary, capricious, or not made in compliance with
applicable law. Neither the circuit court nor this
court may substitute its judgment for that of the
administrative agency.” ’
“Ex parte City of Fairhope, 739 So.2d 35, 38 (Ala.1999),
quoting State Dep't of Revenue v. Acker, 636 So.2d 470,
473 (Ala.Civ.App.1994) (citations omitted). A planning
commission's decision should not be invalidated ‘unless it
is clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general
welfare.’ Noojin, 480 So.2d at 588.”
Stanley, 775 So.2d at 228.
“ ‘ “A determination ... is not ‘arbitrary’ or
‘unreasonable’ where there is a reasonable justification
for its decision or where its determination is founded
upon adequate principles or fixed standards. State
Department of Pensions and Security v. Whitney, 359
So.2d 810 (Ala.Civ.App.1978).
“ ‘ “If reasonable minds may well be divided as to
the wisdom of [the] administrative board's actions, or
there appears some reasonable basis for the classification
made by the board, such action is conclusive and the
court will not substitute its judgment for that of the
administrative body.” ’
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
“City of Huntsville v. Smartt, 409 So.2d 1353, 1357–58
(Ala.1982) (quoting Hughes v. Jefferson County Bd. of
Educ., 370 So.2d 1034, 1037 (Ala.Civ.App.1979)).”
Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119
(Ala.2006). “The term ‘arbitrary and capricious' is a technical
legal phrase meaning an administrative action not supported
by evidence or lacking a rational basis.” 73A C.J.S. Public
Administrative Law and Procedure § 418 (2004) (footnote
omitted).
The Chandlers argue that the standard of review of the
Commission's actions is in fact a two-step standard. The
Chandlers claim that first this court must review whether
the Commission acted within the bounds of its “authority
contained in the legislation authorizing it to act, as well as
any restrictions contained in its own regulations.” Following
this initial review, according to the Chandlers, a court
may then proceed to analyze the trial court's judgment as
to whether the decision of the Commission was arbitrary
and unreasonable. For these principles the Chandlers cite
Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979).
However, Smith does not stand for such a proposition. In
fact, Smith merely states that a planning commission has no
discretion to disapprove a subdivision plan that conforms to
the existing regulations. Id. Rather than compelling a two-
step standard of review, our caselaw implies that when a
planning commission does not approve a subdivision plan that
conforms to the regulations, the *1130 commission's actions
may be considered “arbitrary and unreasonable.” See Stanley,
775 So.2d at 228 (noting that “ ‘[t]here is no dispute that the
proper standard of review in cases based on an administrative
agency's decision is whether that decision was arbitrary or
capricious or was not made in compliance with applicable
law’ ” (quoting Ex parte City of Fairhope, 739 So.2d 35, 38
(Ala.1999))).
In making their substantive argument, the Chandlers rely
primarily upon § 11–52–31, Ala.Code 1975, and Smith v.
Mobile, supra. Section 11–52–31, Ala.Code 1975, does not
specifically address the issue presented here, and Smith
is distinguishable. In Smith, our supreme court reversed
a trial court's judgment affirming the Mobile Planning
Commission's denial of the plaintiff's request to subdivide
his real property. Smith, 374 So.2d at 306–07. The Mobile
Planning Commission's decision was based upon the fact that
4
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Chandler v. City of Vestavia Hills Planning and Zoning Com'n, 959 So.2d 1124 (2006)
the subdivision plans would be “ ‘out of character with other
lots in the area.’ ” Smith, 374 So.2d at 307. The Mobile
Planning Commission argued that its decision was authorized
by its regulations, and it argued that it had the discretion to
deny the proposed subdivision under its enabling statute. Id.
Our supreme court held that it would not construe the
Mobile Planning Commission's regulations as giving that
commission discretion to take into account aesthetic factors
and to disapprove subdivisions when they are “ ‘out of
character with other lots in the area.’ ” 374 So.2d at
309. In essence, our supreme court stated that the Mobile
Planning Commission was wrong to deny the approval of
the proposed subdivision on the ground that the subdivision
was out of character with other lots in the area when that
decision was “unrelated to [the subdivision's] conformance
with the [Mobile] Planning Commission's own regulations
and exceeded [the Commission's] statutory grant of power.”
Id.
In this case the trial court was presented with evidence
indicating that the Commission did not act arbitrarily or
capriciously and that it complied with applicable law.
Although it is true that the zoning regulations do not
specifically state whether flag lots are permitted, the
Commission based its decision on the advice of its legal
counsel and a reasonable interpretation of the planning
regulations. Those planning regulations indicate that four-
sided lots are typical. A flag lot would have at least six sides.
Additionally, a “front yard” is defined as “[a] yard extending
across the front of a lot between the side lot lines.” The city
attorney opined that a flag lot could not meet the definitional
requirement of a “front yard” because the front of the lot could
not possibly extend across the lot between the side lot lines;
that is, one part of the front of the lot would abut the street,
and there would be a second front-lot boundary line set back
from the street. The city attorney concluded that the entire
front boundary of the lot is required to abut a public street.
The Commission's denial of the requested subdivision can
hardly be called “ ‘ “arbitrary or capricious or ... not made
in compliance with applicable law,” ’ ” Stanley, 775 So.2d at
228, when the Commission based its denial of the subdivision
on an opinion from the city attorney, who stated that the
city's zoning ordinance and subdivision regulations do not
allow flag lots. See Green v. Johnson City Reg'l Planning
Comm'n, (No. E2003–02509–COA–R3–CV, Sept. 28, 2004)
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
(Tenn.Ct.App.2004) (not reported in S.W.3d), application
for permission to appeal denied March 21, 2005 (stating
that evidence of a commission's reliance on the advice of
a city attorney was more than adequate evidence *1131
to support the trial court's conclusion that the decision
of the commission was neither arbitrary nor capricious);
see also McKenzie v. City of Ocean Springs, 758 So.2d
1028 (Miss.Ct.App.2000)(holding that the city had not acted
arbitrarily and capriciously in granting a building permit
when the zoning ordinance expressly permitted the use of the
property for the proposed purpose, the city had considered the
recommendation of the city attorney, and the use of a water
area in front of the property was previously approved for the
proposed purpose by another state agency). Furthermore, we
can hardly say that the trial court's denial of the Chandlers'
petition for a writ of mandamus was a clear abuse of its
discretion. 2
2 Importantly, the Chandlers do not make any
argument alleging disparate treatment to this
court; in other words, they do not argue that
because other flag lots were approved in similar
situations the Commission's treatment of their
proposed subdivision is arbitrary. The Chandlers
did, perhaps, lay the appropriate foundation for
such an argument at the trial-court level by
introducing evidence of the Commission's approval
of other flag lots, but the Chandlers do not rely on
that evidence to make such an argument in their
appeal to this court.
The Chandlers' second argument to this court is that the
Commission exceeded the scope of the statutory limitations
imposed on the Commission when it failed to give reasons for
its denial of the Chandlers' subdivision proposal. However,
that argument is also unavailing to the Chandlers.
Although the Chandlers' draw a comparison to Mobile City
Planning Commission v. Southern Region Developers, Inc.,
628 So.2d 739 (Ala.Civ.App.1993), that case is not analogous
to the present case. In Mobile City Planning Commission,
the trial court granted a petition for a writ of mandamus to
the plaintiff landowner who sought to subdivide its property.
628 So.2d at 740. The trial court found that in denying
the plaintiff's request the Mobile Planning Commission had
stated no valid reason and had made “ ‘no adverse finding
whatsoever.’ ” Id. The only reason the Mobile Planning
5
 





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 Kurtz, Lauren 3/14/2023
For Educational Use Only

Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)

Robert A. Horn, K. Christopher Jayaram, Kansas City, for

189 S.W.3d 157
respondent.
Supreme Court of Missouri,
En Banc. Paul A. Campo, Lee's Summit, Stephen P. Chinn, Stinson
Morrison Hecker LLP, Kansas City, amicus curiae.
FURLONG COMPANIES, INC., Respondent,
v.
WILLIAM RAY PRICE, JR., Judge.
CITY OF KANSAS CITY, Missouri, Appellant.

No. SC 86741. I. Introduction

|
March 21, 2006.
| in mandamus directing that it grant a preliminary plat to
Rehearing Denied May 2, 2006.
Synopsis
Background: Developer brought mandamus action against
city, seeking an order compelling the city to approve its plat
application and seeking damages under § 1983. The Circuit
Court, Jackson County, Justine E. Del Muro, J., found in favor
of developer. City appealed.
Holdings: The Supreme Court, William Ray Price, Jr., J., held
that:
circuit court was not limited to review of evidence in
administrative record;
substantial evidence supported trial court's finding that city's
decision was unlawful, unreasonable, and arbitrary;
city's conduct violated § 1983; and
substantial evidence supported finding that developer
suffered $174,871 as a result of delay in plat approval.
Affirmed as modified.
Procedural Posture(s): On Appeal.
Attorneys and Law Firms
*160 Douglas M. McMillan, Galen Beaufort, Kansas City,
for appellant.
The City of Kansas City, Missouri, appeals from a judgment
Furlong Companies, Inc. and awarding actual damages of
$224,871.00 and attorney's fees in the amount of $148,435.20
against the city under 42 U.S.C. section 1983 arising from
the denial of the plat. The city complains that the trial
court improperly engaged in de novo review applicable to
noncontested case matters under the Missouri Administrative
Procedure Act. Section 536.150. 1 The city contends that the
review should have been limited to the record before the
city council because the proceeding was one in mandamus.
The city also contends that the evidence was not sufficient to
support the 42 U.S.C. section 1983 judgment against it.
1 All state statutory references are to RSMo 2000.
The trial court's judgment granting mandamus and awarding
actual damages and attorney's fees is affirmed as modified.
II. Facts
Furlong owned 2.76 acres of real property located in Kansas
City, Jackson County, Missouri, on the north side of Red
Bridge Road near Holmes Road. The property is located
in an area that is zoned for intermediate business, high
buildings. Furlong intended to subdivide the land into three
lots and develop it for commercial use, with the land
ultimately to contain two fast food restaurants and a car wash.
Furlong *161 purchased the property largely because of
the established favorable zoning, which would allow for the
intended uses without the difficulty of rezoning.
Furlong's plan for development of the land was to first
construct a car wash and, once the land was finally platted

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

 Kurtz, Lauren 3/14/2023
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
and properly subdivided, sell or lease the other two tracts
of land for the construction of fast food restaurants. The
proceeds from the sale or lease of the subdivided tracts
would then be used to repay or offset Furlong's purchase and
construction loans. Prior to completing the platting process,
Furlong entered into a contract to sell one of the tracts to a
developer for the construction of a Wendy's restaurant and
entered into a contract to lease the other tract to a developer
for the construction of a Sonic drive-in. The terms of these
contracts required that the land be properly and finally platted
and subdivided before construction.
On October 1, 1999, Furlong filed an application for approval
of a preliminary plat for the property with the city. On
November 3, 1999, Furlong and its engineers met with
the city's plats review committee to receive comments on
the preliminary plat. The committee reviewed Furlong's
application and suggested certain conditions that needed
to be met prior to approval. On December 7, 1999, at a
public hearing, city staff recommended that the city plan
commission approve the preliminary plat application subject
to the conditions. Furlong agreed to all of the conditions of
approval set forth by city staff. Notwithstanding the city staff's
recommendation, the commission voted to deny Furlong's
preliminary plat application. The commission did not issue
findings of fact and conclusions of law as to why Furlong's
application was denied.
City staff told Furlong that they could not discuss the denial of
the application “for fear of litigation.” Furlong attempted to
submit a revised preliminary plat reflecting compliance with
the conditions, but city staff refused to accept it. Furlong then
requested that the plat application be submitted to the city
council. On February 3, 2000, a proposed ordinance reflecting
Furlong's preliminary plat application was introduced to the
city council for first reading.
On March 1, 8, 15, and 29 of 2000, the Planning, Zoning &
Economic Development Committee (the “P & Z committee”),
a subcommittee of the full city council, held public hearings
regarding approval of Furlong's preliminary plat. During
the course of those hearings, the P & Z committee heard
comments from area residents both in favor of and in
opposition to the plat application. The city also requested a
traffic study to analyze the effect of Furlong's proposed plat
on the surrounding area. Furlong complied with the traffic
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
study request. The study ultimately concluded that Furlong's
plat would have little impact on the existing traffic system.
At the March 15, 2000, hearing the city requested more time
and information regarding the traffic study. On March 29,
2000, Furlong provided the P & Z committee with a revised,
more comprehensive traffic study, which also concluded that
Furlong's proposed plat would have little impact on traffic in
the surrounding area. At the March 29 meeting the P & Z
committee voted the matter “off the docket,” meaning that it
would not be reviewed again for up to six months.
On April 13, 2000, the chairman of the P & Z committee
called Furlong's preliminary plat ordinance out of committee
for docketing before the entire city council. The chairman
stated that the city's legal counsel had attended a closed
session and advised that there was no legal basis for rejecting
Furlong's application. On May 4, 2000, the city council voted
not to approve *162 Furlong's preliminary plat by a vote of
9 to 4. Again, no findings of fact or conclusions of law were
issued in regard to the city's denial of Furlong's preliminary
plat.
Furlong filed suit against the city on May 9, 2000, seeking
an order of mandamus compelling the city to approve its
plat application and also seeking damages under 42 U.S.C.
section 1983. After hearing evidence on Furlong's mandamus
claim, the trial court entered an order of mandamus against the
city on November 29, 2000, compelling the city to approve
Furlong's plat application immediately and without undue
delay. In so doing, the trial court expressly found that the city's
action in denying Furlong's preliminary plat application was
unlawful, unreasonable, arbitrary, and capricious. After the
entry of the mandamus order, Furlong moved forward with its
development plans. Today, the property has been completely
developed and contains a car wash, a Wendy's restaurant, and
a Sonic drive-in.
Subsequent to the mandamus trial, the trial court heard
evidence on Furlong's additional claim for damages under 42
U.S.C. section 1983. The trial court found “the City's conduct
to be more than a mere violation of the law but that the action
of the City rose to the level of truly irrational.” The trial
court awarded Furlong $224,871.00 in actual damages and
$148,435.20 for costs and attorney's fees. The city appeals.
2
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
III. Points of Error
The city seeks review asserting four points of error.
I. The trial court erred in granting a writ of mandamus
because it exceeded its permissible scope of review by
hearing the proceeding de novo in that review of a plat
application denial is limited to the information presented
to the city council.
II. The trial court erred in granting a writ of mandamus
because there was insufficient evidence to show that
the city council's decision was arbitrary or capricious
in that the information the city council reviewed was
sufficient to support the city council's decision to deny
the preliminary plat application.
III. The trial court's grant of judgment on the substantive
due process claim was clearly erroneous because there
was no substantial evidence to support a finding that the
city acted in a clearly irrational manner when its city
council denied Furlong's preliminary plat application in
that the trial court erroneously declared the law and in
that the plat did not comply with the city's subdivision
ordinance and this was a rational basis for the city's
denial and in that Furlong used the process available and
therefore was not denied due process
IV. The trial court's award of damages was clearly
erroneous because there was no substantial evidence to
support a finding that the city proximately caused the
damages award to Furlong.
IV. General Legal Background
A. Zoning and Plat Approval
Zoning and plat approval for subdivision development are
crucial tools for the orderly development of our cities and
counties. Yet, these tools impact significantly on the freedom
of landowners to do what they might want with their real
property and on the relative value that any particular piece of
property might have.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
*163 Zoning and plat approval represent different types of
authority in political subdivisions. “Zoning” is the exercise
of legislative authority as to what land uses are in the
interest of the public for particular areas within the political
subdivision. The governmental body has great latitude in
this regard. “Plat approval” is the ministerial application
of zoning requirements, uniformly, to all particular parcels
within the zoned area. Far less latitude exists in this regard, as
each landowner is entitled to equal application of the zoning
and planning laws applicable to his property. See generally,
Yokely, E.C., Law of Subdivisions 217–318 (2d ed.1981).
B. Missouri law regarding subdivision plat approval
Sections 445.030 and 89.410 set forth the procedures and
mechanisms by which Missouri cities may govern the
subdividing of land. Section 445.030, in relevant part, states:
... that if such map or plat be of land
situated within the corporate limits
of any incorporated city, town or
village, it shall not be placed of record
until it shall have been submitted to
and approved by the common council
of such city, town or village, by
ordinance, duly passed and approved
by the mayor, and such approval
endorsed upon such map or plat under
the hand of the clerk and the seal of
such city, town, or village ...
Section 89.410.1 states:
The planning commission shall
recommend and the council may by
ordinance adopt regulations governing
the subdivision of land within
its jurisdiction. The regulations, in
addition to the requirements provided
by law for the approval of plats,
may provide requirements for the
coordinated development of the city,
3
 Kurtz, Lauren 3/14/2023
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
town or village; for the coordination
of streets within subdivisions with
other existing or planned streets or
with other features of the city plan
or official map of the city, town or
village; for adequate open spaces for
traffic, recreation, light and air; and
for a distribution of population and
traffic; provided that, the city, town or
village may only impose requirements
for the posting of bonds, letters of
credit or escrows for subdivision-
related improvements as provided for
in subsections 2 to 5 of this section.
These two statutes were harmonized by the decision in City of
Bellefontaine Neighbors v. J.J. Kelley Realty & Building Co.,
460 S.W.2d 298 (Mo.App.1970). In that case, the court held:
The specificity of [section 89.410]
may be considered to restrict the
broad grant of power given by
section 445.030 and to establish
the procedures for carrying out
the regulation of subdivisions
authorized by section 445.030. Where
the legislature has authorized a
municipality to exercise a power and
prescribed the manner of its exercise,
the right to exercise the power in any
other manner is necessarily denied.
Id. at 303–04.
Section 89.410.1 requires that regulation of subdivisions
be accomplished in municipalities by ordinance. State of
Missouri ex rel. Schaefer v. Cleveland, 847 S.W.2d 867,
871 (Mo.App.1992). Chapter 66 of the Code of Ordinances
of the City of Kansas City, Missouri, contains the rules
and regulations regarding the subdivision of land located
in the city. Section 66–42 of the code establishes a three-
step process for ultimate approval of subdivision plats: (1)
preliminary plat phase, (2) final plat phase review before the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
city plan commission, and (3) final plat phase review before
the city council. Each phase has a number of steps within it.
*164 The dispute at issue herein occurred at the preliminary
plat phase. The preliminary plat phase is defined as follows:
During the preliminary plat phase, the applicant will hold
preapplication conferences with the secretary to the city
plan commission, or his designated staff representative,
to discuss in general the procedures and requirements
for platting, and more specifically the basic plans of
the applicant. It is recommended that the applicant's
engineer meet with the city engineer, or his designated
staff representative, to review the physical features of
the development relative to the public improvements.
The product of the preapplication conference will allow
the applicant to complete a preliminary plat and submit
it formally for review by the plats review committee.
The plats review committee shall have the authority to
approve or disapprove any preliminary plat; provided the
preliminary plat must comply with all of the requirements
of this chapter. The developer may elect to submit the
preliminary plat to the city plan commission and city
council. Generally, the election to proceed before the city
plan commission and city council is recommended when:
a. The plats review committee disapproves the preliminary
plat;
b. The developer is requesting a variance or conditional
exception from this chapter; or
c. The development is planned to be platted in two or more
phases If the developer elects to proceed to the city plan
commission and city council, the plats review committee
will review and forward its recommendations to the city
plan commission and city council.
Kansas City Code section 66–42. The stated purpose of
the preliminary plat is to convey the developer's “ideas and
intentions in platting the proposed subdivision.” Kansas City
Code section 66–43(a).
The developer may also elect to submit his preliminary
plat to the city plan commission and the city council for
approval. Kansas City Code section 66–43(e). It appears
from the testimony at trial that submitting a preliminary plat
to the city plan commission is the standard procedure in
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
Kansas City. When the developer elects to proceed before
the city plan commission, the plats review committee issues
a recommendation as to approval or denial to the city plan
commission. Kansas City Code section 66–43(f). There is
then to be a public hearing before the city plan commission.
Id. If the commission approves the preliminary plat, it is
submitted to the city council for approval as an ordinance.
Kansas City Code section 66–43(g). If the plan commission
rejects or withholds approval, the developer may request in
writing that the plan be submitted to the city council. Id. There
is then another public hearing before the city council. Id.
When proceeding under the subdivision ordinance, the
plan commission and the city council are acting in an
administrative capacity and not in a legislative capacity. State
ex rel. Westside Development Co., Inc. v. Weatherby Lake, 935
S.W.2d 634, 640 (Mo.App.1996). The law does not permit
administrative bodies to exercise an arbitrary and subjective
authority over the granting or denying of subdivision plats.
Schaefer, 847 S.W.2d at 873. The exercise of discretion and
judgment vested in the administrative body is to determine
whether a plan meets the zoning or subdivision requirements.
Id. It is not a discretion to approve a plan that does not meet
the requirements. Id. Nor do the statutes and the ordinance
grant the commission or the council the authority to deny a
subdivision plat that complies with the subdivision ordinance.
Id. If the *165 plat complies, then it is the ministerial duty of
the commission and the council to approve it, and they have
no discretion to deny it. Id. The approval of a preliminary
plat that meets the subdivision and zoning requirements is a
ministerial act, and mandamus is the proper remedy in seeking
to review the denial of such a plat. See Weatherby Lake, 935
S.W.2d at 640; State ex rel Menkhus v. City of Pevely, 865
S.W.2d 871, 874 (Mo.App.1993); Schaefer, 847 S.W.2d at
871.
C. Missouri Administrative Procedure Act
The Missouri Administrative Procedure Act provides for two
types of cases: contested cases and non-contested cases. The
distinction between these two types of cases is an often-
litigated issue. A “contested case” is defined in the MAPA as
“a proceeding before an agency in which legal rights, duties
or privileges of specific parties are required by law to be
determined after hearing.” Section 536.010(4). The MAPA
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
does not explicitly define a “non-contested case,” but it has
been defined by this Court as a decision that is not required
by law to be determined after a hearing. State ex rel. Wilson
Chevrolet, Inc. v. Wilson, 332 S.W.2d 867, 870 (Mo.1960).
Contested case review is controlled by sections 536.100
to 536.140. Contested cases provide the parties with an
opportunity for a formal hearing with the presentation of
evidence, including sworn testimony of witnesses and cross-
examination of witnesses, and require written findings of fact
and conclusions of law. Hagely v. Board of Education of the
Webster Groves School District, 841 S.W.2d 663, 668 (Mo.
banc 1992). The review of a contested case is a review by
the trial court of the record created before the administrative
body. Section 536.140. The trial court's decision upon such
review is appealable, but the appellate court also looks back
to the record created before the administrative body. City of
Cabool v. Missouri State Board of Mediation, 689 S.W.2d 51,
53 (Mo. banc 1985).
Non-contested cases do not require formal proceedings or
hearings before the administrative body. Farmer's Bank of
Antonia v. Kostman, 577 S.W.2d 915, 921 (Mo.App.1979). As
such, there is no record required for review. Phipps v. School
District of Kansas City, 645 S.W.2d 91, 94–5 (Mo.App.1982).
In the review of a non-contested decision, the circuit court
does not review the administrative record, but hears evidence,
determines facts, and adjudges the validity of the agency
decision. Id. Under the procedures of section 536.150, the
circuit court conducts such a hearing as an original action. Id
at 96; section 536.150.1.
In either a contested or a non-contested case the private
litigant is entitled to challenge the governmental agency's
decision. The difference is simply that in a contested case the
private litigant must try his or her case before the agency, and
judicial review is on the record of that administrative trial,
whereas in a non-contested case the private litigant tries his
or her case to the court. Depending upon the circumstances,
this difference may result in procedural advantages or
disadvantages to the parties, but in either situation, the litigant
is entitled to develop an evidentiary record in one forum or
another.
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
D. Mandamus
The purpose of the extraordinary writ of mandamus is to
compel the performance of a ministerial duty that one charged
with the duty has refused to perform. *166 State ex rel.
Phillip v. Public School Retirement System, 364 Mo. 395,
262 S.W.2d 569, 574 (1953). The writ can only be issued to
compel a party to act when it was his duty to act without it.
Id. It confers upon the party against whom it may be issued
no new authority, and from its very nature can confer none.
Id. A litigant asking relief by mandamus must allege and
prove that he has a clear, unequivocal, specific right to a
thing claimed. He must show himself possessed of a clear and
legal right to the remedy. Id. Mandamus does not issue except
in cases where the ministerial duty sought to be coerced
is definite, arising under conditions admitted or proved and
imposed by law. State ex rel. Bunker Resource Recycling and
Reclamation, Inc. v. Mehan, 782 S.W.2d 381, 389 (Mo. banc
1990).
If a subdivision plat complies with the requirements of
the subdivision statute or ordinance, mandamus may compel
approval of the plat. If the plat does not comply, mandamus
is unavailable and improper.
V. Analysis
A.
In its first point of error, the city alleges that “the trial court
erred in granting a writ of mandamus because it exceeded
its permissible scope of review by hearing the proceeding de
novo in that review of a plat application denial is limited to
the information presented to the city council.” 2
2 Mo.App. 349, 250 S.W. 927 (1923).
The parties do not explain the significance of the
fact that the plat has now been approved and the
project has been completed. Neither argues that this
issue is moot. Neither explains the consequences of
this decision beyond its impact upon the 42 U.S.C.
section 1983 claim.
The city fails to point to any specific evidence that was
admitted in error or to any prejudice resulting from the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
admission of such evidence. The city makes a singular, non-
specific reference to “expert testimony on the compliance
of the plat.” Other evidence in the record indicates that
Mr. Furlong told city staff members that he would comply
with all of their conditions; that city staff members told Mr.
Furlong that they would not discuss with him the denial of
his preliminary plat “for fear of litigation;” that Mr. Furlong
attempted to submit a revised preliminary plat but was not
allowed to do so; that Mr. Furlong was subjected to various
delays during the process; and that the city was advised that
it had no legal basis to deny the preliminary plat.
“By both statute and rule, an appellate court is not to reverse
a judgment unless it believes the error committed by the
trial court against the appellant materially affected the merits
of the action.” Lewis v. Wahl, 842 S.W.2d 82, 84–5 (Mo.
banc 1992) (citing section 512.160(2) and Rule 84.13(b)).
Merely asserting error without making a showing of how that
error was somehow prejudicial is not sufficient for reversal.
Nonetheless, there was no error in admitting the evidence.
Neither party contends that the City should have conducted
Furlong's preliminary plat hearing as a contested case and
we do not address that question. The parties concede that
mandamus was the proper procedure to challenge the denial
of a preliminary plat. See Weatherby Lake, 935 S.W.2d at 640;
Menkhus, 865 S.W.2d at 874; Schaefer, 847 S.W.2d at 871.
The standard for admission of evidence in a mandamus
proceeding is the same whether at common law or under
the MAPA. At common law, it is well established that
the ordinary principles relating to admissibility of evidence
in civil actions generally are applicable in mandamus
proceedings. 55 C.J.S. Mandamus § 352 (1998). Any
competent evidence tending *167 to establish, or in any way
affecting, the right of the relator or duty of respondent, and
within the allegations of the petition and writ, is admissible.
Id., see also, State ex rel. Rawlings v. Kansas City, 213
Under the MAPA, mandamus is generally not available
if the proceeding was tried as a “contested case” before
an administrative body. State ex rel. Keeven v. City of
Hazelwood, 585 S.W.2d 557, 560 (Mo.App.1979); State ex
rel. Dodson v. McNeal, 552 S.W.2d 34, 36 (Mo.App.1977);
section 536.150. Section 536.150.1 provides for review of
non-contested cases as follows:
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)

(emphasis added). The evidentiary standard “as may be

properly adduced” is not limited to a review of the
When any administrative officer or
administrative record. This is because in proceedings such as
body existing under the constitution
the one here, the parties were not afforded the ability to create
or by statute or by municipal charter
a record upon which viable review could occur. See Hagely,
or ordinance shall have rendered a
841 S.W.2d at 668.
decision which is not subject to
administrative review, determining the
In making its argument that the review in the circuit court
legal rights, duties or privileges of
is limited to the record, the city makes the simple mistake
any person, including the denial or
of confusing Furlong's burden of proof with the standard for
revocation of a license, and there is
determining the admissibility of evidence. Although Furlong
no other provision for judicial inquiry
was required to prove that it presented the city with sufficient
into or review of such decision, such
evidence to show that it met the requirements for preliminary
decision may be reviewed by suit
plat approval, it had the right, before the circuit court, to
for injunction, certiorari, mandamus,
adduce any evidence relevant to proving such facts.
prohibition, or other appropriate
action, and in any such review
The driving idea behind administrative law in Missouri is that
proceeding the court may determine
the citizen is entitled to a fair opportunity to present the facts
the facts relevant to the question
of his or her case. If this occurs in the context of the procedural
whether such person at the time of
formality and protection of a “contested case” before the
such decision was subject to such
administrative agency, the review in the courts can be limited
legal duty, or had such right, or was
to the record. If the citizen is denied this opportunity before
entitled to such privilege, and may
the agency, then he or she is entitled to present such evidence
hear such evidence on such question
as is necessary before the courts to determine the controversy.
as may be properly adduced, and the
court may determine whether such
The city relies on Weatherby Lake as support for a more
decision, in view of the facts as they
limited review. Although Weatherby Lake correctly notes
appear to the court, is unconstitutional,
“the reviewing court is not authorized to *168 substitute
unlawful, unreasonable, arbitrary, or
its judgment for the judgment of the administrative body
capricious or involves an abuse
if such findings of fact are supported by competent and
of discretion; and the court shall
substantial evidence,” nothing in Weatherby Lake precludes
render judgment accordingly, and may
the introduction of evidence to establish what actually
order the administrative officer or
occurred in the administrative process.
body to take such further action
as it may be proper to require;
but the court shall not substitute
its discretion for discretion legally B.
vested in such administrative officer or
body, and in cases where the granting In its second point of error, the city argues that “the trial
or withholding of a privilege is court erred in granting a writ of mandamus because there was
committed by law to the sole discretion insufficient evidence to show that the city council's decision
of such administrative officer or body, was arbitrary or capricious in that the information the city
such discretion lawfully exercised council reviewed was sufficient to support the city council's
shall not be disturbed. decision to deny the preliminary plat application.”

The trial court found that the city's decision was “unlawful,
unreasonable, arbitrary, and capricious in that the [city] failed

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 7

 Kurtz, Lauren 3/14/2023
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
to perform its ministerial duty, given that this court finds that
[Furlong] met the subdivision regulations and the preliminary
plat is consistent with the zoning ordinance.” The standard of
review for a bench-tried case is well-established. An appellate
court must sustain the decree or judgment of the trial court
unless there is no substantial evidence to support it, unless
it is against the weight of the evidence, unless it erroneously
declares the law, or unless it erroneously applies the law.
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Despite the language of its point relied on, the city
apparently only challenges the sufficiency of Furlong's
evidence regarding four conditions for approval. First, the city
argues that the project had a “potential impact on traffic.”
The record reflects, however, that the city council required
Furlong to conduct a traffic study to examine the impact
of the proposed development based on Furlong's intended
uses of the land. Furlong hired a traffic-engineering firm
to conduct such a study. The city council questioned the
findings of the initial study, and Furlong then asked the
traffic engineers to perform a more comprehensive study. The
studies ultimately concluded that the proposed development
would have little or no impact on existing traffic patterns.
There was substantial evidence for the trial court to find that
the proposed development would not have a “potential impact
on traffic.”
The city also argues that “a reasonable person could doubt”
that Furlong's plat complied with the “stacking” requirements
for cars at a car wash. 3 However, at trial, the city planner
and Furlong's engineer testified that the stacking requirement
had been satisfied. Moreover, the staff report recommending
approval of Furlong's preliminary plat indicates that the
stacking requirement was satisfied. There was substantial
evidence for the trial court to find that Furlong complied with
section 80–140(b)(1)d.4 of the zoning ordinance.
3 There was substantial evidence for the trial court to find that
Stacking refers to the space occupied by a motor
vehicle waiting to enter a car wash bay.
The city argues that Furlong did not comply with the
requirement that the ratio of the lot depth to width generally
not exceed three to one when subdividing large parcels.
Under one method of measurement, lot 2 as shown on the
preliminary plat before the city council had a ratio of 3.07 to 1.
Other methods of measurement, such as taking the average lot
depth as compared to average lot width, would generate a ratio
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
well within the three to one requirement. Regardless, there
is substantial evidence that this issue was easily correctable
through a simple revision of one of the lot boundary lines.
*169 In fact, Furlong made such a revision and attempted
to submit that revised preliminary plat to the city, but was
not allowed to do so. There was also evidence at trial that
the three to one ratio requirement was not even applicable
to Furlong's preliminary plat because the ratio was intended
to apply only to the subdivision of “large tracts or parcels.”
There was testimony at trial that this provision typically was
only applied to tracts of ten acres or more, whereas Furlong's
parcel was only 2.76 acres. There was substantial evidence for
the trial court to find that Furlong's preliminary plat complied
with the requirement that the lot depth not exceed three times
the lot width.
Finally, the city argues that Furlong's preliminary plat did not
comply with one of the proposed conditions recommended
by the city staff because it did not eliminate the easterly
drive on proposed lot 3. However, there was evidence that
the easterly drive had already been approved by Kansas
City parks and recreation such that the city staff could not
properly require its elimination. There was also evidence that
Furlong had agreed to satisfy the conditions as proposed by
the city staff and was specifically willing to address the issues
surrounding the easterly drive on proposed lot 3. There was
substantial evidence for the trial court to find that Furlong's
preliminary plat complied, or could easily comply through
simple revision, with all of city staff's conditions for approval.
It also appears that the city's attorney advised, in closed
session, that the city could not legally deny Furlong's
preliminary plat. A member of the city council indicated that,
although he thought Furlong's plan was “terrible,” he argued
in favor of Furlong's preliminary plat to the other members of
the city council based on the advice of the city attorney.
the city's decision to deny approval of Furlong's preliminary
plat was unlawful, unreasonable, arbitrary, and capricious.
C.
In its third point of error, the city argues that “the trial court's
grant of judgment on the substantive due process claim was
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
clearly erroneous because there was no substantial evidence
to support a finding that the city acted in a clearly irrational
manner when its city council denied Furlong's preliminary
plat application in that the trial court erroneously declared
the law and in that the plat did not comply with the city's
subdivision ordinance and this was a rational basis for the
city's denial and in that Furlong used the process available and
therefore was not denied due process.”
Furlong alleged that the city violated 42 U.S.C. § 1983 in
denying its preliminary plat in contravention of its ministerial
duty to approve it upon compliance with the subdivision
regulations. Section 1983 states:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of Columbia,
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress, except that in
any action brought against a judicial
officer for an act or omission taken
in such officer's judicial capacity,
injunctive relief shall not be granted
unless a declaratory decree was
violated or declaratory relief was
unavailable. For the purposes *170
of this section, any Act of Congress
applicable exclusively to the District
of Columbia shall be considered to be
a statute of the District of Columbia.
There are two elements that must be established to prevail on
a claim under section 1983. First, a claimant must establish
“a protected property interest to which the Fourteenth
Amendment's due process protection applies.” Bituminous
Materials, Inc. v. Rice County, Minn., 126 F.3d 1068, 1070
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
(8th Cir.1997). A claimant must also establish that the
governmental action was “truly irrational.” Id. The truly
irrational standard has been further defined as “something
more than ... arbitrary, capricious, or in violation of state law.”
Chesterfield Development Corp. v. City of Chesterfield, 963
F.2d 1102, 1104 (8th Cir.1992); Frison v. City of Pagedale,
897 S.W.2d 129, 132 (Mo.App.1995). As stated previously,
the standard of review for a bench-tried case in Missouri
is well-established. An appellate court must sustain the
judgment of the trial court unless there is no substantial
evidence to support it, unless it is against the weight of the
evidence, unless it erroneously declares the law, or unless it
erroneously applies the law. Murphy, 536 S.W.2d at 32.
The city apparently does not dispute that Furlong had
a protected property interest, and asserts only that the
city's conduct in denying Furlong's preliminary plat was
not truly irrational. The city argues that because it
believed that Furlong's preliminary plat did not comply
with the subdivision regulations, its conduct in denying
the preliminary plat could not technically be considered
irrational. In part V.B of this opinion, the city asserted four
bases for its belief that Furlong's preliminary plat did not
comply with the subdivision regulations. As discussed in that
part, there was substantial evidence for the trial court to find
not only that Furlong's plat did comply with the subdivision
regulations as to each of the city's four arguments but that
there was no rational basis for any of those arguments.
The city also appears to argue that there could be no violation
of section 1983 because the trial court ultimately remedied
the improper denial of Furlong's preliminary plat. The fact
that a trial court remedied the city's wrongful and irrational
conduct has no bearing on whether that conduct was violative
of section 1983.
As previously stated, 42 U.S.C. section 1983 liability requires
evidence that exceeds an arbitrary and capricious standard and
rises to the “truly irrational” level. Unfortunately, there was
sufficient evidence on which the trial court could determine
that the city's conduct was truly irrational.
The city plan commission ignored the advice of the
plats review committee recommending approval and denied
Furlong's preliminary plat. Furlong's attempts to learn the
reasons for denial were rebuffed and Furlong was never
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Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (2006)
afforded any opportunity to amend or correct the preliminary
plat.
Once Furlong requested that the preliminary plat be brought
before the city council, the city council subjected Furlong to
numerous delays. On March 1, 2000, the P & Z committee
of the city council held a public meeting to determine the
fate of Furlong's preliminary plat. No vote was taken and
the issue was continued until March 8, 2000. During the
March 8, 2000, meeting no vote was taken, the issue was
continued for one week, and the committee ordered Furlong to
undertake a traffic impact study. During the March 15, 2000,
meeting the committee requested that a more detailed traffic
study be performed, no vote was taken, and the issue was
continued for two weeks. Finally, on March *171 29, 2000,
after completing two waves of a traffic impact study finding
that the proposed development would have little or no impact
on existing traffic conditions, 4 the committee again failed to
vote on Furlong's preliminary plat, instead voting it “off the
docket,” where it could be held in legislative limbo for several
months with no final decision. Ultimately, the preliminary plat
was presented to the full city council for a final vote on May
4, 2000.
4 When government acts with intentional disregard of its own
The city's own engineer reviewed the traffic impact
study and agreed with the findings.
The city's attorney advised, in closed session, that the city
could not legally deny Furlong's preliminary plat. A member
of the city council indicated that, although he thought
Furlong's plan was “terrible,” he argued in favor of Furlong's
preliminary plat to the other members of the city council
based on the advice of that city attorney. Nonetheless, the city
council voted to deny the preliminary plat application.
In the ten years leading up to and including Furlong's plat
application, there were 197 plat applications submitted to the
city for review. Of those, 196 were approved, typically within
one week of submission. Only Furlong's preliminary plat was
denied during that ten-year time period. Such a deviation both
from the standard treatment of preliminary plats over a ten-
year period and from the advice of staff and counsel leaves no
question as to the sufficiency of evidence on which the trial
court based its decision.
The Court's role is not to weigh the evidence, but only to
review the decision for sufficiency of evidence. See Murphy,
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
536 S.W.2d at 32. All plat denial cases do not give rise to an
action for violation of section 1983. Bituminous Materials,
126 F.3d at 1070.
Mere delay or mistaken application of the law is not alone
sufficient to meet the “truly irrational” standard. In dicta, the
Eighth Circuit has even suggested that bad faith enforcement
of an invalid law would not be sufficient to state a claim. Id.,
Chesterfield Development, 963 F.2d at 1105.
The facts of this case go beyond mistaken, arbitrary, or
capricious application of the law. It is clear from the record
that all or nearly all of the members of the city council
believed that Furlong's proposed project would be bad for this
area of Kansas City. To this extent, they were acting in good
faith and with the best intentions of serving those who elected
them. However, it is equally clear that under the existing and
valid ordinances of Kansas City and the established law of
this State that Furlong was entitled to have its preliminary plat
approved. Further, there was evidence from which the trial
court could find that, despite the recommendations of staff
and legal counsel, and ultimately the arguments of a fellow
city council member, the city council intentionally delayed
and denied Furlong its property rights in disregard of the law.
valid law, knowing that its actions deprive individuals of their
property rights, such action is “truly irrational.”
The overall course of conduct that the city undertook as it
reviewed and ultimately denied Furlong's preliminary plat
was substantial evidence for the trial court to find that the city
acted in a “truly irrational” manner.
D.
In its fourth point of error, the city argues that “the trial court's
award of damages was clearly erroneous because there was
no substantial evidence to support *172 a finding that the
city proximately caused the damages awarded to Furlong.”
Causation is an essential element of a section 1983 action.
Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). In order to
award damages, the trial court had to determine that the city's
conduct in denying Furlong's preliminary plat proximately
caused the economic damage for which Furlong seeks to
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 Kurtz, Lauren 3/14/2023
For Educational Use Only
Esquibel v. City of Santa Fe, Not Reported in P.3d (2009)
2009 WL 6560437
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
Court of Appeals of New Mexico.
Art ESQUIBEL, Camera and Darkroom, Linda and
Henry Sandoval, Performance Tire, Robert Chapman,
Santa Fe Hardware Margaret Duran, Street Feet
Shoes, Marissa Moya, Danny's Cleaners, Kennedy
Saez, Laundramutt, Delfina Chavez, Delfina's Beauty
Salon, Lawrence Romero, New Method Cleaners,
Art Pedley, Ace Mountain Wear & Bikes, Louie
Quintana, Quintana Optical, Bruno Carillo, Santa
Fe Glass and Mirror, Gabriel A. Garcia, The Auto
Angel Inc., Jill Heppenheimer and Barbara Lanning,
Santa Fe Weaving Gallery, Ken Luckie, Amigo Tire,
Darby McQuade, Jackalope, Dan McCarty, Santa Fe
Mountain Sports, Kevin Quinn, Quinn Tire, Larry
Keller, Design Warehouse, Kent Little, Sangre De
Cristo Mountain Works, Joey Gonzales, Stewart Udall,
and Max and Catherine Coll, Petitioners–Appellants,
v.
CITY OF SANTA FE, Herrera and Associates, Steve
Johnson Development, LLC, Frontera Development, Inc.,
as agents for the real parties in interest for the Entrada
Contenta Development Plan, Respondents–Appellees.
No. 27,548.
| also allege that an instruction by the City attorney to the
June 17, 2009.
Appeal from the District Court of Santa Fe County, Freddie
J. Romero, District Judge.
Attorneys and Law Firms
Patrick A. Casey, Stephen Durkovich, Santa Fe, NM,
Anthony Lopez, Taos, NM, William E. Snead, Albuquerque,
NM, for Appellants.
Long, Pound & Komer P.A., Nancy R. Long, Santa Fe, NM,
for Appellee Herrera & Associates.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
Michelle Henrie, LLC, Michelle Henrie, Atkinson & Thal,
P.C., Clifford A. Atkinson, Albuquerque, NM, for Appellee
Frontera Development, Inc.
City of Santa Fe, Frank Katz, Maureen Reed, Santa Fe, NM,
for Appellee City of Santa Fe.
MEMORANDUM OPINION
ROBLES, Judge.
*1 In this case, Petitioners allege that the Santa Fe
City Council (Council) improperly limited its scope of
review in considering a new commercial development—
Entrada Contenta—proposed for the south side of Santa
Fe. The district court upheld the Council's approval of
the development, which would be comprised of seventeen
businesses, including a new Wal–Mart Superstore. Petitioners
are small business owners and others who oppose the
development. Respondents are the City of Santa Fe (City) and
landowners and developers who favor the development. The
case is before this Court on petition for certiorari pursuant to
Rule 1–074 NMRA.
Petitioners primarily argue that the district court, in reviewing
the Council's action, should not have stricken affidavits of
three City councilors. The affidavits stated that, at the time
of the hearing on Entrada Contenta, the councilors believed
the scope of their review was limited to whether the project
complied with the land development code, and that they
could not consider such additional factors as the economic
effect of the development on existing businesses. Petitioners
Council limited the Council's scope of review, thus rendering
approval of the development arbitrary and capricious. Finally,
Petitioners argue that the public was not given notice of what
the scope of the Council's review would be, and this resulted
in a violation of their due process rights. We address each
issue in turn and affirm the district court.
I. BACKGROUND
In 1994, Ordinance No. 14–1994 was passed by the City in
connection with the rezoning of the relevant property from R–
1 residential to C–2 commercial use. The provision states in
Part 4 of the Ordinance that “prior to submittal for a building
1
 Kurtz, Lauren 3/14/2023
For Educational Use Only

Esquibel v. City of Santa Fe, Not Reported in P.3d (2009)

permit, the applicant shall submit a development plan for
review and approval by the Development Review Committee.
Such review shall be made only to determine compliance with
the Land Development Code and shall not include changes
of usage, density, or developable area.” Immediately after the
above provision, Part 5 of the Ordinance states that “[p]rior
to submittal for a building permit, the applicant shall submit
a development plan for review and approval by the City
Council.” Petitioners contend, and the district court agreed,
Part 4 of the Ordinance's limited review applied only to the
Development Review Committee, and that there was no such
limitation on the full Council's review addressed in Part 5 of
the Ordinance.
The public hearing on Entrada Contenta was held on August
15, 2005 at the Santa Fe High School gym in order to
accommodate the crowd and lasted from 7:00 p.m. until 4:30
a.m. Numerous persons spoke against and in favor of the
development and addressed many issues beyond whether the
development complied with the land development code. In
general, the public comments addressed the reputation of
Wal–Mart, the adverse economic effects on existing small
businesses, and the need for jobs and low-priced shopping in
the area.
*2 The extent to which Petitioners were organized at the
time of the 2005 public hearing is somewhat unclear. One
of their present attorneys testified and was identified in the
minutes as “attorney for the Small Business Alliance.” At
least four of the present Petitioners testified.
The City attorney's statements that set forth the purported
limitation on the scope of the Council's review do not
appear in the public hearing record. Two pro-development
attorneys—one representing Herrera and Associates and the
other representing Frontera Development—referred to this
purported limitation in their remarks at the Council's public
hearing. Herrera's attorney noted in her statement before
the public comments began that the Council was acting
in a quasi-judicial capacity, not a legislative capacity, and
that the Council was to consider whether the development
complied with the criteria that were in place. She stated that
“[t]he Code does not allow you, nor should it, discretion
to regulate business competition by the approval or denial
of development plans. To do so would be to read criteria
and standards into the Code that do not exist.” She also
referred to an earlier project in which the Council had agreed
not to consider the potential adverse economic impact of
a proposed boutique hospital. The hearing minutes indicate
that Frontera's attorney “reminded the Council that Mayor
Delgado earlier ... asked the City [a]ttorney if this [was] a
land use case, and the City [a]ttorney responded yes. He then
stated ‘[t]hat means you can't consider the alleged negative
economic impact on other businesses.’ “
Councilor Ortiz noted that an attorney for the development
had instructed the Council as follows:
[T]his is a land use issue only and that the Council is
not supposed to make any decision based on business
comparisons or economics, but the Wal–Mart side is saying
to the Council that “it makes good policy sense to have
businesses and services located in a particular place.”
On the morning of August 16, 2005, the Council approved the
development by a 5–4 vote after the mayor broke a 4–4 tie
among the councilors.
In the appeal to the district court, Respondents moved to
strike the affidavits of three City councilors—Patti Bushee,
David Coss, and Rebecca Wurzburger—that Petitioners
had submitted to the court to supplement the record as
evidence that the Council's vote had been influenced by
the purportedly incorrect advice from the City attorney.
Councilor Wurzburger's affidavit states that she would have
presented a summary entitled, The Coming of Wal–Mart,
at the public hearing had she not been led to believe the
Council was prohibited from considering the types of issues
the articles raised. The district court granted Respondents'
motion to strike the supplemental affidavits. Absent the
three affidavits, the only evidence in the record that the
City attorney had given the purportedly incorrect advice was
Frontera's attorney's reference to it mentioned above. While
remarks from Herrera's attorney and Councilor Ortiz also
stated that the Council's review was limited to compliance
with land use regulations, neither one mentioned the City
attorney as having instructed the Council accordingly.
II. DISCUSSION
*3 NMSA 1978, Section 3–21–9 (1999) states that “[a]
person aggrieved by a decision of the zoning authority or any
officer, department, board or bureau of the zoning authority
may appeal the decision pursuant to the provisions of [NMSA

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2

 Kurtz, Lauren 3/14/2023
For Educational Use Only
Esquibel v. City of Santa Fe, Not Reported in P.3d (2009)
1978, Section 39–3–1.1 (1999) ].” That section addresses the
procedure for appeal to the district court and specifies the
nature of the district court's review.
In a proceeding for judicial review of a final decision by an
agency, the district court may set aside, reverse or remand
the final decision if it determines that:
(1) the agency acted fraudulently, arbitrarily or
capriciously;
(2) the final decision was not supported by substantial
evidence; or
(3) the agency did not act in accordance with law.
Section 39–3–1.1(D); see Rule 1–074(Q). Section 39–3–
1.1(E) specifies that the district court's decision is reviewable
in the discretion of this Court upon petition for certiorari.
This Court applies the same standard of review applied by
the district court. Rio Grande Chapter of Sierra Club v.
N.M. Mining Comm'n, 2003–NMSC–005, ¶ 17, 133 N.M.
97, 61 P.3d 806 (filed 2002). “A ruling by an administrative
agency is arbitrary and capricious if it is unreasonable or
without a rational basis, when viewed in light of the whole
record.” Id. “Generally, courts should not attempt to supply
a reasoned basis for an agency's decision, but may uphold
a decision of less than ideal clarity if the agency's path
may reasonably be discerned.” Archuleta v. Santa Fe Police
Dep't, 2005–NMSC–006, ¶ 17, 137 N.M. 161, 108 P.3d
1019 (internal quotation marks and citation omitted). “[I]n
resolving ambiguities in the statute or regulations which an
agency is charged with administering, the Court generally
will defer to the agency's interpretation if it implicates agency
expertise.” Rio Grande Chapter, 2003–NMSC–005, ¶ 17, 133
N.M. 97, 61 P.3d 806 (internal quotation marks and citation
omitted). We will not, however, defer to an agency's or the
district court's interpretation of an ordinance as that is a matter
we review de novo. N.M. Indus. Energy Consumers v. N.M.
Pub. Regulation Comm'n, 2007–NMSC–053, ¶ 19, 142 N.M.
533, 168 P.3d 105.
A. Affidavits
Petitioners argue that the district court erred in refusing
to allow the affidavits of the three City councilors to
supplement the record. They argue that the affidavits were
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
needed to establish that the City attorney had, in fact, given
the instruction before the public hearing commenced, and
because some of the Council assert that they considered the
instruction in their deliberations, the record should include the
affidavits as evidence that the instruction occurred.
The parties agree that this appeal is guided by Rule 1–
074. A record on appeal from an administrative agency
consists, in pertinent part, of “all papers and pleadings filed
in the proceedings of the agency ... [and a] transcript of the
proceedings.” Rule 1–074(H). Corrections to the record may
be made “[i]f anything material ... is omitted from the record
on appeal by error or accident, the parties by stipulation, or the
agency on request, or the district court, on proper suggestion
or on its own initiative, may direct that the omission be
corrected and a supplemental record transmitted to the district
court. Rule 1–074(I); see Martinez v. N.M. State Eng'r Office,
2000–NMCA–074, ¶ 48, 129 N.M. 413, 9 P.3d 657 (stating
that only material that was in fact presented below, but was
mistakenly or inadvertently omitted from the record, may be
included in a supplemental record). Additionally, a record that
is inadequate may be remanded to an administrative body for
the purpose of creating a record that is adequate for review.
Lewis v. City of Santa Fe, 2005–NMCA–032, ¶ 20, 137 N.M.
152, 108 P.3d 558.
*4 We primarily note that the affidavits themselves were
not papers or pleadings filed in the proceedings that were
considered by the Council, but were documents created for
the purpose of appeal. See Rule 1–074(H). Petitioners argue
that the instruction by the City attorney was considered by
the Council and should be viewed as part of the proceedings.
They further argue that the instruction was inadequately
represented in the record, and citing Lewis, they suggest that
the case be remanded to the Council, so that an adequate
record may be made.
We need not decide whether an instruction by the City
attorney before the public hearing began was part of the
proceeding to determine that the record should not be
supplemented by the affidavits. In Lewis, the Council denied
Wal–Mart's application to build a gas station at its Sam's Club
location. 2005–NMCA–032, ¶ 2, 137 N.M. 152, 108 P.3d
558. Wal–Mart appealed to district court, upon which the City
then settled the matter by approving the station subject to
certain conditions. Id. ¶ 3. The petitioner in Lewis appealed,
citing the absence of further opportunity for public comment
3
 Kurtz, Lauren 3/14/2023
For Educational Use Only
Esquibel v. City of Santa Fe, Not Reported in P.3d (2009)
following the Council's reversal of its earlier rejection of
the application. Id. The district court dismissed both Wal–
Mart's and the petitioner's appeals. Id. ¶ ¶ 4–5. The petitioner
appealed to this Court. Id. ¶ 5. The City and Wal–Mart argued
that the record was inadequate for an appeal pursuant to Rule
1–074. Lewis, 2005–NMCA–032, ¶ 20, 137 N.M. 152, 108
P.3d 558. This Court stated that “the district court is at liberty
to remand for the purpose of creating a record that is adequate
for review.” Id. In Lewis, the possibility of an inadequate
record arose because the City's discussions in reaching the
settlement had occurred in an executive (non-public) session
and represented a complete change in position. Id. ¶ 3, 20.
Unlike in Lewis, in the present case, an extensive record
exists and includes mention of the basis for the appeal—the
purported limitation on the Council's scope of review. The
record is sufficient to consider whether the Council acted
fraudently, arbitrarily, or capriciously, without substantial
evidence or not in accordance with the law. See id.
There are strong policy considerations behind the rules for
limiting supplementation of a record on appeal. In Swisher
v. Darden, 59 N.M. 511, 515–16, 287 P.2d 73, 76 (1955),
superseded by statute on other grounds as stated in Sanchez
v. Board of Education, 80 N.M. 286, 454 P.2d 768 (1969),
our Supreme Court noted that, in the absence of a statute,
“review is limited to the record made in the administrative
proceeding, and the courts [should] decline to hear new ...
evidence ... especially where the evidence was available and
could have been introduced in the administrative tribunal. To
allow [otherwise] would [be to] substitute the court for the
administrative tribunal.” Swisher, 59 N.M. at 515–16, 287
P.2d at 77–76 (internal quotation marks and citation omitted).
*5 Because neither party is arguing whether the instruction
from the City attorney occurred, and evidence of the
instruction exists in the record, we see little need in
supplementing the record with affidavits to prove that the
event happened. The references in the minutes are sufficient
for Petitioners to raise the argument that the City attorney
advised the Council to limit its scope of review, and for a court
to review the Council's action.
B. Arbitrary and Capricious Decision
Petitioners next argue that the instruction by the City attorney
to the Council was a command that limited their scope of
review, thus rendering the Council's action of approving the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
development arbitrary and capricious. Thus, they seem to
argue that the purported incorrect advice may have caused
councilors to vote differently than they otherwise would have
had the instruction not occurred. However, Petitioners do
not argue that the Council failed to consider issues that it
was legally obligated to consider under Ordinance No. 14–
1994. Instead, they argue that three of the eight councilors
incorrectly believed they were prohibited from considering
matters that they had discretion to consider.
Because we conclude that it is speculative that the Council
did not consider issues other than land use, we need not
address whether it would have been arbitrary and capricious
had the Council only considered land use issues. After
hours of testimony from citizens in favor of the commercial
development, Councilor Ortiz made remarks at the August 15
hearing that demonstrate considerations other than land use.
He stated: “I believe Wal–Mart is a bad corporation. I believe
they're bad to their employees. I think they're bad to the
environment. They're bad to this country. But my constituents
want their cheap gas, so I have to vote yes.” Councilor Lopez
expressed concern that Wal–Mart would abandon its other
location in Santa Fe and leave the property vacant if the
new Wal–Mart was approved. Councilor Heldmeyer asked
if the other buildings in the project would be franchises or
independent businesses. Mayor Delgado stated that approval
of the project would let it be known to residents in the area
that “[f]inally[,] we're going to recognize what your needs are
out there. Finally[,] we're going to give you a place to shop.”
Councilor Chavez moved for approval subject to conditions,
one of which was that Wal–Mart should pay the living wage.
Five weeks later at the hearing on traffic planning for the
development, Councilor Ortiz stated:
I believe that the corporate philosophy
of Wal–Mart that it has practiced over
the last twenty years has been to the
detriment of the communities they
have been involved with and to the
detriment of our country. The more
things that they import from China,
the more small businesses that they
push out of towns, the worse it is
for our country. I also believe that
their employee policy has much to be
4
 Kurtz, Lauren 3/14/2023
For Educational Use Only
Esquibel v. City of Santa Fe, Not Reported in P.3d (2009)
desired. However, here in Santa Fe
we've got an economic and income
divide, and those people I represent
and have listened to on this issue by an
overwhelming basis want to have the
ability to get goods and services and
even gas cheaper than at other places.
*6 Councilor Chavez stated that there were people in Santa
Fe who could not afford to support small businesses and
others with discretionary spending that would find themselves
going to places like Sam's Club or Wal–Mart. Mayor Delgado
stated in casting his vote that the southwest part of town
continued to grow, and people there needed more services.
In light of the record, we are not convinced that the Council
took the City attorney's advice and limited its scope of
review to land development code issues. The record reveals
reasonable and rational consideration of the project by those
who voted for it. Had the three affidavits not been stricken,
they would have tended to show that at least some of
the councilors believed their review was limited. However,
there is nothing in the record affirmatively tending to show
that any of the pro-development councilors either believed
their review was limited or would have voted against the
development had they so believed. Moreover, we note that it
would appear that the three councilors, whose affidavits are
at issue, apparently considered matters other than compliance
with the land regulations, as there was little indication that
the development did not satisfy the regulations. We therefore
hold that there is no affirmative showing of prejudice by
Petitioners. The record does not indicate that anyone speaking
about the development was restricted from expressing their
views and, therefore, there is no indication that there was not
full discussion. The record does suggest that a majority of
councilors considered matters beyond the land development
code. “[A]n assertion of prejudice is not a showing of
prejudice.” In re Stein, 2008–NMSC–013, ¶ 44, 143 N.M.
462, 177 P.3d 513.
C. Due Process
Finally, Petitioners claim that the public was not given
adequate notice of the scope of the hearing, thus resulting
in a denial of their due process rights. We note two points.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
First, as stated above, the Council did appear to have taken
issues other than compliance with the land development
code into consideration in voting for the development.
Second, after Herrera's attorney spoke about the scope of the
Council's review being limited to the land development code,
a member of the public speaking against the project stated
that the Council had broad discretion to deny development
applications that are not in the public interest even if they meet
all conditions established under zoning regulations. Ouida
MacGregor, a former Council member, referenced the earlier
project of the proposed boutique hospital in Santa Fe, and the
decision by the Council not to consider the potential adverse
economic impacts of the project. In explaining why she
thought the current project was undesirable for the city, she
stated: “You, as a Council, have the legal and constitutional
right and responsibility to look at the overall impact of this
project on the city.”
When members of the public began speaking in favor of the
development project, Frontera's attorney reiterated that this
was a land use case, and the Council could not “consider
the alleged negative economic impact on other businesses.”
Given the facts in the record, it would appear that members
of the public spoke their minds about issues beyond the land
development code, and members of the Council voted based
on issues outside that scope as well.
III. CONCLUSION
*7 The district court correctly struck the three councilors'
affidavits on the basis that Rule 1–074 provides no
mechanism for adding this type of evidence to an
administrative record. Given the extensive record, including
the citizens' testimony on both sides of a broad range of issues,
and given indications that the councilors did not entirely
limit their review as advised, the Council's decision was not
arbitrary and capricious, and is affirmed.
IT IS SO ORDERED.
WE CONCUR: CYNTHIA A. FRY, Chief Judge and
JONATHAN B. SUTIN, Judge.
All Citations
Not Reported in P.3d, 2009 WL 6560437
5
 





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 Kurtz, Lauren 3/14/2023
For Educational Use Only

Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)

56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...

Attorneys and Law Firms

48 Cal.App.4th 1152
Court of Appeal, Second District, Division 1, California.
Douglas A. CLARK et al., Plaintiffs and Respondents,
v.
CITY OF HERMOSA BEACH
et al., Defendants and Appellants.
**226 *1158 Richards, Watson & Gershon, Rochelle
Browne, Roxanne M. Diaz, Los Angeles, and Michael
Jenkins, City Attorney, for Defendants and Appellants.
*1159 Rutan & Tucker, M. Katherine Jenson and Jeffrey M.
Oderman, Costa Mesa, for Plaintiffs and Respondents.

No. B089504. Opinion

|
Aug. 21, 1996.
| Douglas and Cheryl Clark own a duplex in the City of
Certified for Partial Publication. *
* to demolish the duplex and replace it with a two-unit
Pursuant to California Rules of Court, rules 976(b)
and 976.1, this opinion is certified for publication
with the exception of parts III and IV.
|
As Modified on Denial of Rehearing Sept. 11, 1996.
|
Review Denied Nov. 13, 1996.
Synopsis
After landowners' application for development project
permits was denied by city council, landowners filed action
seeking writ of administrative mandate and alleging violation
of federal civil rights. The Superior Court, Los Angeles
County, No. YS002665, Jean E. Matusinka, J., granted
writ petition, directed city to rescind council decision and
reinstate planning commission's approval of project permits,
found for landowners on civil rights claim, and awarded
landowners damages, attorney fees, and litigation expenses.
City appealed. The Court of Appeal, Masterson, J., held that:
(1) landowners were deprived of fair hearing; (2) proper
remedy was order requiring council to rehear matter and
provide fair hearing; and (3) landowners' due process rights
were not violated.
Reversed and remanded with directions.
Procedural Posture(s): On Appeal.
MASTERSON, Associate Justice.
Hermosa Beach, California (the “City”). In 1992, they applied
to the Hermosa Beach Planning Commission for permits
condominium. The commission approved the project. The
matter was appealed to the City Council (the “Council”). By
a 3–2 vote, the Council denied the permits, finding the size of
the proposed structure to be excessive.
The Clarks filed this action, seeking a writ of administrative
mandate (Code Civ.Proc., § 1094.5) and alleging a violation
of federal civil rights (42 U.S.C. § 1983). The trial court
granted the writ petition, directing the City to rescind the
Council decision and to reinstate the planning commission's
approval of the project permits. The court also found for the
Clarks on their civil rights claim, awarding them $213,300
in damages and $133,895.21 in attorney fees and litigation
expenses.
On appeal, the City challenges the trial court's determination
of liability, the award of damages, and the calculation of
attorney fees and costs. In the published portion of this
opinion, we conclude that the Clarks were deprived of a
fair hearing before the City Council and were accordingly
entitled to a writ of mandate. However, the trial court erred
in directing that the planning commission's decision be
reinstated. Instead, the court should have ordered the Council
to rehear the matter and provide a fair hearing. We further
conclude that the trial court erred in finding that the City
violated the Clarks' civil rights. In the unpublished portion of
the opinion, we conclude that the trial court should not have
awarded damages or attorney fees and should have disallowed
certain cost items.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

 Kurtz, Lauren 3/14/2023
For Educational Use Only
Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
BACKGROUND
In 1982, the Clarks bought a duplex in the City, located
at 2902 Hermosa Avenue, a block from the ocean. They
rent out one of the units and use the other unit as their
second home, making frequent visits to California from their
primary residence in Phoenix, Arizona. The property is in an
area designated as an R–3 zone, which is a multiple-family
residential zone.
After purchasing the property, the Clarks hired an architect
and developed plans to demolish the existing duplex and
replace it with a two-unit condominium. In 1989, they applied
to the planning commission for permits to *1160 build
a structure 35 feet high, with lot coverage of 65 percent
—the maximum height and lot coverage allowed under
City law. (Hermosa Beach Mun.Code, §§ 601, 606.) 1 The
commission approved the project, finding that “[t]he site
is ... physically suitable for [the] type and density of the
proposed development,” and “[t]he project will conform to
all zoning and condominium criteria and will [be] compatible
with adjacent residential properties.”
1 Unless otherwise indicated, we refer to section 601
of the Hermosa Beach Municipal Code as it existed
from October 1986 to September 1992. It stated:
“No building shall exceed thirty-five (35) feet in
height....”
A local resident, Robert Benz, who lived a block inland from
the Clarks, sought to overturn the commission's decision.
He gathered signatures on five petitions, which stated that
“the undersigned, being residents of the city of Hermosa
Beach, hereby ... appeal the issuing of the building permit
for the [proposed **227 project] on the basis that the
construction of the building will adversely affect the views
of neighboring homes.” In a letter to the Council dated
February 11, 1989, Benz stated: “The action taken by the City
Planning Commission ... is unacceptable to the wishes of the
petitioners. The 35 foot height of the projected condominium
proposal will further constrict the view of the ocean from
homes that are located behind and to either side [of] the lot.
[¶] ... [¶] There seems to be a wanton disregard for the rights
of others in the City of Hermosa Beach when it comes to the
building of homes and condominiums. For their own financial
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
gain, developers and speculators have continually proposed
the building of high structures in order to maximize the
incident view of the ocean for their own projects. The building
of these structures limits the view of the neighboring homes
solely to the sight of these excessively high structures.... It
is time to stop the issuing of building permits that ignore the
restriction of the view of others.”
By letter of March 19, 1989, Benz requested that the City
waive the fees for his appeal of the commission's decision.
In a March 23, 1989 memo to the City Council, Planning
Director Michael Schubach advised against granting Benz's
request: “Attached is a request to waive the fees for an
appeal of a proposed 2 unit condo at 2902 Hermosa Avenue.
[¶] The condo is in compliance with all zoning ordinance
requirements; the City has no view ordinance, and the
Planning Commission did not believe view blockage was so
significant that conditions related to view should be imposed.
[¶] ... [¶] The staff can find no grounds to waive the appeal
fees....” Based on Schubach's memo, the Council declined to
waive the fees, and Benz apparently did not further pursue the
appeal.
After the approval of the Clarks' 1989 project, the City
adopted a new setback requirement, necessitating that the
Clarks revise their plans. In the *1161 interim, the 1989
permits expired. In January 1992, the Clarks submitted
another application for the requisite “permits” (i.e., a
conditional use permit, precise development plan, and
tentative parcel map) and paid $1,261 in processing fees.
The proposed structure, a two-unit condominium, was—in
the words of Planning Director Schubach—“very similar” to
the one approved in 1989. For example, it had the same height
(35 feet), though slightly smaller lot coverage (63.7 percent
instead of 65 percent). 2
2 These figures on height and lot coverage were
determined by the planning commission staff. We
also note that, at the time of the Clarks' 1992
application, the maximum height and lot coverage
allowed under City law had not changed since the
approval of the Clarks' 1989 plans.
By report dated January 28, 1992, the planning commission
staff recommended approval of the project, noting that
the Clarks' architect “consulted with staff early in the
design process to ensure compliance with applicable code
2
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requirements.” According to the report, “[l]ot coverage is at
63.7%, all the required setbacks have been met, and the height
on the sloped lot is held within the 35 foot limit.” The report
concluded that the project complied with all planning and
zoning conditions.
At the public hearing before the planning commission on
February 4, 1992, Planning Director Schubach presented the
staff report on the Clarks' plans and urged approval of the
permits. Two City residents spoke against the project, arguing
that new buildings should not exceed 30 feet in height. The
commissioners then discussed the possibility of asking the
City Council to adopt a moratorium on construction in R–3
zones until a decision could be made about reducing the 35–
foot height limit to 30 feet. On that subject, one commissioner
remarked: “I have somewhat of a problem with the idea that
this project, which does conform to all the requirements,
has been singled out.... I would much more favor dealing
with this on its merits and recommending an action. I can
understand the 30 ft. height limit as a policy. I think we should
recommend action on that, but separate from action on this. I
think that we're holding the [project] hostage to the other and
that doesn't seem equitable.” Another commissioner stated:
“I think what I see here is an applicant that responded to the
guidelines that we developed over time, in fact, this is the
best response I've seen in the time I've been here of somebody
**228 really trying to do what we've asked them to do. I
have a problem with trying to chang[e] the rules in midstream,
that really creates a problem for me.... [W]e don't make zone
changes based on an individual problem.”
The commission ultimately voted, without dissent, to approve
the Clarks' conditional use permit, tentative parcel map,
and precise development plan. *1162 In doing so, the
commission found that (1) the “[s]ite is zoned R–3 and is
physically suitable for the type and density of the proposed
development,” (2) the “[d]esign of the proposed subdivision
is compatible and consistent with the City's General Plan,
and is compatible with the immediate environment,” and (3)
the “project will conform to all zoning and condominium
criteria and will be compatible with neighboring residential
properties.” The commission also recommended that the City
Council consider enacting a moratorium on construction in
R–3 zones so that the planning staff could study the height
issue.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
On February 12, 1992, several residents appealed the
commission's approval of the Clarks' project to the
City Council. The appeal, accompanied by petitions
bearing numerous signatures, objected to “the spread of
condominiums, and the ability of these new developments to
build higher than thirty feet.”
On or about February 25, 1992, the Council debated whether
to impose a moratorium on the construction of buildings
taller than 30 feet in R–3 zones, pending further study of
the height issue. To be approved, such an interim ordinance
required a four-fifths vote of the Council. (Gov.Code, §
65858.) The measure garnered three out of the five possible
votes and therefore failed. Absent a moratorium, the Council
directed that the planning commission hold public hearings
to determine whether the R–3 height limit should be reduced
to 30 feet.
Meanwhile, in connection with the appeal of the commission's
decision on the Clarks' project, the planning staff gathered
additional information for the City Council. In a March 17,
1992 memo to the Council, the commission stated: “The
subject location is in an area that has not had a considerable
amount of development in the last 7 years. From staff's
research, the last 7 years is the approximate time frame
that development projects started to be constructed to the
maximum height allowed. [¶] Also, from a ‘window survey’
of this area, it is estimated that most development in this
area is 30 feet, or under. 3 [¶] In regard to view blockage,
staff is unable to determine whether views from development
would be any less blocked at 30 feet than at 35 feet.... [¶]
If a significant impact is noted, a finding could be made,
and as a condition of approval, a reduction in height could
be required. [¶] However, it should be considered that if the
adjacent property were to be recycled and built also to 35′,
any view lost may be restored.”
3 In the one block area east of the Clarks' property,
approximately 75 percent of the houses are 30 feet
in height or lower.
A follow-up memo dated March 24, 1992, provided more
specific information on the Clarks' project: “The residence
directly adjacent to the north *1163 [of the Clarks' property]
reaches the 35' height limit at the east half of the property. [¶]
The height of the structure directly to the east is between 25′
and 30′.... [T]he dwellings in the general area are 30 feet or
3
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less. However, there are some dwellings that reach as high as
40′.... [¶] The R–3 area in question, between Manhattan Ave.
and Hermosa Ave., drops down an average of 24' below
the R–1 and R–2 zones that are east of Manhattan Avenue.
Therefore, in this case, allowing a 35′ height limit in front of
areas with 25′ and 30' limits would not necessarily create view
blockage. [¶] In the particular case of 2902 Hermosa Avenue,
the building only reaches the 35 foot limit at the west end
along Hermosa Avenue, and the east end of the building is
only 28' above grade.” (Boldface in original.)
On March 24, 1992, the City Council held a public
hearing on the appeal in the Clark matter. Present at
the hearing were Councilmembers Robert Essertier, Sam
Edgerton, **229 Albert Wiemans, and Robert Benz. 4
(Councilmember Kathleen Midstokke was absent.) At the
beginning of the hearing, Planning Director Schubach spoke
against the appeal and in favor of sustaining the commission's
decision. Immediately thereafter, a resident (and apparently a
former councilmember), Jim Rosenberger, raised a “point of
order,” asking whether Councilmember Benz should recuse
himself because he lived in close proximity to the proposed
project and had opposed the Clarks' 1989 plans. In response,
City Attorney Charles Vose stated that the location of Benz's
apartment did not create a conflict of interest because Benz
leased, rather than owned, his residence. Nor, according
to Vose, did Benz's opposition to the Clarks' 1989 project
establish bias. After Vose rendered this advice, the hearing
proceeded. Benz did not recuse himself.
4 §§ 607(2), 7.2–6(e)(1).) That space “shall not
Benz was elected to the Council in 1990. He was
the same person who, as a private citizen, had
opposed the Clarks' 1989 permits by circulating
petitions and attempting unsuccessfully to appeal
the commission's approval of the project. As of
March 1992, Benz still lived in the same location
(2901 Manhattan Avenue), where he leased a three-
bedroom apartment on a month-to-month basis.
From the audience, 13 individuals (including Mr. Clark)
spoke in favor of the project; five spoke against it. Those
opposing the project thought that the proposed structure was
too high and did not “fit” into the neighborhood. Mr. Clark
stated that if the Council imposed a 30–foot height limitation
on the structure, it would be “impossible” to build and would
have to be “completely redesigned.”
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
When the public portion of the hearing had concluded,
Councilmember Essertier raised for the first time a concern
with the lot coverage of the project. That issue is governed
by section 229.1 of the Hermosa Beach Municipal Code,
which states: “ ‘Lot coverage’ shall include the footprint of
*1164 the building plus cantilevers and decks higher than
thirty (30) inches above grade....” Essertier believed that the
planning commission had not included the Clarks' “deck”
in calculating lot coverage. Under his interpretation of the
municipal code, the lot coverage for the structure, including
the “deck,” exceeded the allowed amount (65 percent). In
response to Essertier's statement, Planning Director Schubach
explained that for over seven years, the planning commission
had not treated courtyards or landings above subterranean
garages—like the Clarks'—as “decks” and had not included
them in determining lot coverage. 5 Councilmember Essertier
further expressed his view that the project did not have
sufficient “usable open space.” 6
5 According to the City, while the planning
commission had consistently interpreted the lot
coverage provision not to apply to “decks” like
the Clarks', the Council had never reviewed
or approved the commission's interpretation.
Apparently, the Council had not considered the
issue until the present case.
6 The municipal code requires a minimum of 300
square feet of usable open/private space per
condominium unit. (Hermosa Beach Mun.Code,
be enclosed on more than two (2) sides.” (Id.,
§ 607(2).) The planning commission determined
that the Clarks' project had 300.5 square feet of
open space per unit—just barely over the required
minimum. However, Councilmember Essertier
asserted that since the structure's courtyard was
enclosed on three sides, the commission had erred
by treating it as open space. Such an error would
have reduced the open space per unit by 85
square feet, clearly below what City law required.
Planning Director Schubach believed that the
courtyard had not been counted toward the open
space requirement.
Councilmember Wiemans summed up his position on the
appeal as follows: “First, this is an R–3 neighborhood and
4
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we ought to consider it as R–3. We should not start to come
up with a new method of prospective downsizing. What we
need here is certainty of development, I mean, when people
come here to build a home, they ought to know what they can
expect. It shouldn't get every time down to the same point that
these same five illustrious people here are going to come up
with different standards, this is absolutely asinine.”
At the end of the meeting, Councilmembers Essertier,
Edgerton, and Benz voted to deny the permits without
prejudice and to refer the matter back to the planning staff
to develop findings consistent with the Council's **230
views on the height, lot coverage, and open space issues. 7
Councilmember Wiemans voted against the appeal. The
Council scheduled final action on the permits for April 14,
1992, and so informed the Clarks in writing.
7 R–3 height change from 35 to 30 feet immediately. There
By denying the permits “without prejudice,” the
City allowed the Clarks to submit revised plans (in
accordance with the Council's height, lot coverage,
and open space demands) without having to pay
additional processing fees.
By letter dated April 10, 1992, the Clarks' attorneys objected
to the Council's having considered new issues—lot coverage
and usable open *1165 space—after the close of the March
24 public hearing. The letter noted that the Council had
not applied the lot coverage requirement in accordance
with the seven-year interpretation adopted by the planning
commission and that the Clarks had not been given an
opportunity to address the Council on the issues of lot
coverage or open space.
At the April 14, 1992, Council meeting, the Clarks' attorney
requested that the appeal be reheard. In a similar vein,
Councilmember Wiemans moved to reopen the appeal and
hold another public hearing. As Wiemans explained: “[Clark]
was basically within the mill and then at the very tail end
we, as a council, proposed additional requirements. Now, I'm
suggesting to you that this is not the way to give people
the benefit of the law—this is not the way to dispense
equal justice.... I believe we are on the wrong side of the
argument and my suggestion to this council would be we are
to reconsider our entire line of reasoning.... [¶] ... [¶] ... [T]his
applicant is in the final stages of what he wanted to do. He
complied with what was the law at the time and what we are
doing is taking away from him what the law provided.”
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
Councilmember Midstokke had this to say: “As you know,
recently we did attempt to implement an urgency ordinance
regarding not allowing height over 30 feet while we study
the height issue to be implemented and it could not reach
four votes with this council.... I see a terrible precedent being
set by this council in that they couldn't get four votes for an
urgency ordinance so by a three vote majority on a project
by project basis, they're going to deny anything that's 35
feet in theR–3 until they change the height down to 30 feet.
They have denied this project. At the Planning Commission
meeting last Tuesday night, two more projects were denied
that were 35 feet in the R–3 zone. If the urgency ordinance
had been adopted, all three of these projects would have
been grandfathered. They would not have been stopped. The
result of this council action and the action by the Planning
Commission last Tuesday is that you are implementing an
is no notice, there's no public hearings, there's no urgency
ordinance.... I think the Clarks deserve a rehearing on the
issue of lot coverage and usable open space which was not
brought up before, if they do not also deserve one on the
height issue.”
The motion to rehear the appeal failed, with Councilmembers
Essertier, Edgerton, and Benz voting against it. Those three
councilmembers then approved a resolution denying the
Clarks' permits. The resolution stated in part that (1) “the
requested development at the height and lot coverage ratio
proposed is likely to interfere with the property values
in the vicinity or interfere with the use or enjoyment of
property in such area,” (2) “[t]he *1166 project exceeds the
permissible lot coverage,” (3) “the development, including,
but not limited to, height and open space is not in character
with the development standards of the surrounding area,” and
(4) “[t]he type of development proposed ... would negatively
impact the neighborhood's integrity and the character of
the community.” The resolution stated that the permits
were denied without prejudice to the Clarks' submitting
revised plans correcting the alleged deficiencies in height,
lot coverage, and open space. Councilmembers Wiemans and
Midstokke voted against the resolution.
On July 13, 1992, the Clarks filed this action against the City,
the Council, and Councilmembers Essertier, Edgerton, and
Benz. Two weeks later, the Clarks filed an amended pleading
asserting two claims: (1) a petition for a writ of administrative
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mandate, alleging that the City had deprived the Clarks of
a fair hearing and had abused its **231 discretion (Code
Civ.Proc., § 1094.5); and (2) a complaint alleging a violation
of procedural due process (42 U.S.C. § 1983). 8 In September
1992, the Clarks dismissed the individual defendants without
prejudice. 9
8 Section 1983 provides: “Every person who, under
color of any statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or causes to be
subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.”
9 heard testimony on the Clarks' civil rights claim. Witnesses
On September 8, 1992, the City adopted a new
ordinance restricting the height of buildings in
R–3 zones to 30 feet unless specified conditions
are satisfied, i.e., an extension above 30 feet is
necessary to take advantage of a scenic view over
surrounding structures and a substantial number of
existing buildings in the vicinity are higher than 30
feet. (Hermosa Beach Ord. No. 92–1074, § 1.)
On August 29, 1994, the trial court heard argument on the
writ petition. The next day, after reviewing the administrative
record and the parties' arguments, the trial court granted the
petition on the grounds that: (1) the Clarks did not receive
a fair hearing; (2) the City abused its discretion, in that it
had not proceeded according to law and its decision was not
supported by legally adequate findings, nor were the findings
supported by the evidence; (3) the Clarks were denied due
process; (4) Councilmember Benz had a conflict of interest
under the Political Reform Act (Gov.Code, § 81000 et seq.) 10
and under common law, such that “[h]e was legally precluded
from participating in the decision on the Project [p]ermits”;
(5) the City applied standards to the Clarks' project that were
not in effect at the time their application was complete, thus
violating the Subdivision Map Act ( *1167 Gov.Code, §
66410 et seq.); 11 and (6) the City's actions against the Clarks
were discriminatory. The trial court ordered the City to set
aside the Council's resolution denying the Clarks' permits and
to reinstate the planning commission's decision approving the
project.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
10 In part, the Political Reform Act prohibits
public officials from making, participating in, or
attempting to use their official position to influence
a governmental decision in which they know or
have reason to know they have a financial interest.
(Gov.Code, § 87100.)
11 With exceptions not applicable here, the pertinent
section of the Subdivision Map Act provides that
“in determining whether to approve or disapprove
an application for a tentative map, the local
agency shall apply only those ordinances, policies,
and standards in effect at the date the local
agency has determined that the application is
complete....” (Gov.Code, § 66474.2, subd. (a).)
In early October 1994, the trial court, sitting without a jury,
included the Clarks and Councilmembers Essertier, Edgerton,
and Benz. 12 At the close of the evidence, the court took the
matter under submission. By minute order dated October 20,
1994, the court found for the Clarks, ruling that their right
to due process had been violated. The court also awarded
$213,300 in damages ($93,300 for increased development
costs, $20,000 for emotional distress, and $100,000 for loss
in property value).
12 A portion of the trial focused on Benz's personal
animosity toward the Clarks, which developed
before his election to the Council. For example,
according to Mr. Clark, it was fairly common
for Benz to run by their windows and yell
“loud, obnoxious noises in the morning.” On one
occasion at the beach, Benz and some of his
friends were “horsing around” near the Clarks'
children. Concerned for the children's safety, Mrs.
Clark asked Benz to stop or go elsewhere. Benz
refused and began mocking her. Further, Mrs. Clark
testified that on a Friday night, Benz “walked over
to our house and urinated on the house and in
the planter.” She called the police, who arrived
promptly and directed Benz toward his apartment.
The local press (the Daily Breeze) ran an article
on this incident and quoted Benz as saying that
Mrs. Clark wanted to see him urinate. At trial, Benz
stated that his comment in the newspaper had been
taken out of context, and he denied having urinated
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on the Clarks' property. However, the trial court
expressly found that Benz had engaged in such
conduct.
In its statement of decision, the court explained that the City
had violated the Clarks' rights to procedural and substantive
due process because it had arbitrarily denied their permit
application without a fair hearing. The court also found
that the City had violated the Brown Act (Gov.Code, §
54950 et seq.) since Councilmember Edgerton had held
private discussions with three other councilmembers before
the public hearing on **232 the appeal from the planning
commission. 13 Consistent with its ruling on the writ petition,
the trial court again found that Councilmember Benz had a
conflict of interest (under the Political Reform Act and the
common law) which disqualified him from voting on the
Clarks' project. The court *1168 also found a violation of the
Subdivision Map Act on the theory that the City had applied
standards to the Clarks' project that were not then in effect
(e.g., a more restrictive, 30–foot height limitation and a new
interpretation of the lot coverage requirement). The trial court
based its award of damages on federal (42 U.S.C. § 1983) as
well as state (Code Civ.Proc., § 1095) law. It authorized the
Clarks to recover attorney fees and other litigation expenses,
including expert witness fees, pursuant to title 42 United
States Code, section 1988(b), Code of Civil Procedure section
1021.5, and Government Code sections 800 and 91012. 14
13 In general, the Brown Act requires that all meetings
of the legislative body of a local agency be open
and public. (Gov.Code, § 54953, subd. (a).) To
that end, the act prohibits “a series of nonpublic
contacts at which a quorum of a legislative body
is lacking at any given time ... if the contacts are
‘planned by or held with the collective concurrence
of a quorum of the body to privately discuss the
public's business'....” (Stockton Newspapers, Inc.
v. Members of Redevelopment Agency (1985) 171
Cal.App.3d 95, 103, 214 Cal.Rptr. 561.)
14
The prevailing party in a federal civil rights action
is entitled to reasonable attorney fees. (42 U.S.C.
§ 1988(b).) Under Code of Civil Procedure section
1021.5, fees may be awarded where the successful
party has enforced an important right affecting
the public interest. Government Code section 800
permits an award of fees (not to exceed $7,500)
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
if a party establishes that a public entity has
engaged in arbitrary or capricious conduct. Finally,
Government Code section 91012 authorizes the
prevailing party in an action under the Political
Reform Act to recover costs of litigation, including
attorney fees.
In October 1994, the Clarks filed a motion seeking attorney
fees (in the approximate amount of $180,000), expert witness
fees (in the amount of $6,762.50), and costs (in the amount of
$6,211.20). 15 The City opposed the motion. At a November
18, 1994 hearing, the trial court made clear that, despite its
previous ruling in the statement of decision, it would not
award attorney fees pursuant to Code of Civil Procedure
section 1021.5. 16 However, the court reserved decision on
whether to award fees pursuant to the other statutes mentioned
in the statement of decision. By minute order dated November
23, 1994, the trial court awarded the Clarks $120,921.51 in
attorney fees and the requested amounts for expert witness
fees and costs. On November 14, 1994, the court entered
judgment in favor of the Clarks, incorporating the order
granting the writ of mandate and awarding $213,300 in
damages and a total of $133,895.21 in attorney fees and costs.
The City filed a timely appeal from the judgment.
15 The request for costs included expenses for
photocopying, telephone calls, telecopier use, and
computer-assisted research.
16
As the trial court stated, referring to section
1021.5: “That doesn't apply. CCP 1021.5, this is
not attorneys fees in [the] public interest. This is
not a public interest case. It was a private citizen
situation. I will not grant attorney fees under that
section.”
DISCUSSION
The City contends that the trial court erred in issuing a writ
of mandate and that, even if a writ were appropriate, the trial
court should have sent the matter back to the City Council
for another hearing instead of simply reinstating the planning
commission's approval of the permits. We conclude that the
Clarks were deprived of a fair hearing before the Council,
and, thus, a writ *1169 was proper. However, the trial court
erred in reinstating the decision of the planning commission.
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Instead, the writ should have directed the City Council to
provide a second, fair hearing on the matter.
As to the Clarks' federal civil rights claim, the City argues that
it did not violate the due process clause. We agree. Because
the Clarks did not have a protected property interest in the
requested permits, the City did not violate the Clarks' right to
procedural or substantive due process. In addition, as to the
substantive due process claim, we find that the City did not
engage in arbitrary or irrational conduct. Consequently, we
reverse the finding of liability on the claim **233 brought
under title 42 United States Code, section 1983.
I whether the Council's decision was supported by
Writ of Mandate
A trial court may issue a writ of administrative mandate
where an agency has (1) acted in excess of its jurisdiction,
(2) deprived the petitioner of a fair hearing, or (3) committed
a prejudicial abuse of discretion. (Code Civ.Proc., § 1094.5,
subd. (b).) “Abuse of discretion is established if the [agency]
has not proceeded in a manner required by law, the order or
decision is not supported by the findings, or the findings are
not supported by the evidence.” (Ibid.)
As we see it, this case concerns whether the Clarks received
a fair hearing before the City Council. That question is
one of law, which we review de novo: “ ‘There might be
foundational matters of fact with respect to which the trial
court's findings would be conclusive on appeal if supported
by substantial evidence. However, the ultimate questions,
whether the agency's decision was ... unlawful or procedurally
unfair, are essentially questions of law. With respect to these
questions the trial and appellate courts perform essentially
the same function, and the conclusions of the trial court
are not conclusive on appeal.’ ... The review of procedural
issues, whether presented in mandamus proceedings brought
under Code of Civil Procedure section 1085 or 1094.5, should
be the same. That is, foundational factual findings must
be sustained if supported by substantial evidence; however,
the ultimate determination of whether the administrative
proceedings were fundamentally fair is a question of law to
be decided on appeal.” (Rosenblit v. Superior Court (1991)
231 Cal.App.3d 1434, 1443, 282 Cal.Rptr. 819, citations
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
omitted.) The trial court's “fair hearing finding *1170 was
a conclusion of law, not a finding of fact, and requires a de
novo review of the administrative record.” (Id. at p. 1442, 282
Cal.Rptr. 819.) 17
17 In reviewing the propriety of the trial court's writ of
administrative mandate, the City contends that we
cannot consider any evidence that was not before
the City Council at the time of its decision, i.e.,
not part of the formal administrative record. In
particular, the City objects to evidence concerning
the approval of, and Mr. Benz's opposition to, the
Clarks' 1989 permit application. Such an objection
might be well taken if we were determining
substantial evidence. (See Housman v. Board of
Medical Examiners (1948) 84 Cal.App.2d 308,
313, 190 P.2d 653.) However, where the challenge
involves one of procedural fairness, including the
potential bias of a councilmember, we are not
necessarily limited to the evidence that was before
the Council. (See Cal. Administrative Mandamus
(Cont.Ed.Bar 1989) § 4.36, p. 120; id., § 4.120,
pp. 171–172; see also Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559,
573, 575, fn. 5, 578–579, 38 Cal.Rptr.2d 139,
888 P.2d 1268 [in reviewing quasi-legislative
administrative decision, extra-record evidence may
be admissible in determining issue of “procedural
unfairness”]; Code Civ.Proc., § 1094.5, subd.
(e) [court may consider extra-record evidence
where trial court reviews agency decision under
independent judgment test].)
A. Right to a Fair Hearing
By statute, a writ is appropriate where the petitioner has
been deprived of a fair hearing. (Code Civ.Proc., § 1094.5,
subd. (b).) In applying this statutory principle, courts have
recognized that “an individual has the right to a tribunal
‘which meets ... standards of impartiality.’ ... Biased decision
makers are ... impermissible and even the probability
of unfairness is to be avoided.... The factor most often
considered destructive of administrative board impartiality
is bias arising from pecuniary interests of board members....
Personal embroilment in the dispute will also void the
administrative decision ..., although neither prior knowledge
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of the factual background which bears on a decision nor
prehearing expressions of opinions on the result disqualifies
an administrative body from acting on a matter before
it.... [¶] ... Our Supreme Court has declined to fix rigid
procedures for the protection of fair procedure rights ...,
but it is inconceivable to us that such rights would not
include impartiality of the adjudicators.” (Applebaum v.
Board of Directors (1980) 104 Cal.App.3d 648, 657–658,
163 Cal.Rptr. 831, citations omitted; accord, Delta Dental
Plan v. Banasky (1994) 27 Cal.App.4th 1598, 1607–1609,
33 Cal.Rptr.2d 381 [writ of administrative mandate ensures
right to “impartial tribunal”]; **234 Rosenblit v. Superior
Court, supra, 231 Cal.App.3d at p. 1448, 282 Cal.Rptr. 819
[“The right to a fair procedure includes the right to impartial
adjudicators.”].)
Over 60 years ago, one Court of Appeal discussed the
common law prohibition on conflicts of interest, stating: “A
public officer is impliedly bound to exercise the powers
conferred on him with disinterested skill, zeal, and diligence
and primarily for the benefit of the public.... [¶] ... [¶] *1171
Actual injury is not the principle the law proceeds on. Fidelity
in the agent is what is aimed at, and as a means of securing
it the law will not permit him to place himself in a position
in which he may be tempted by his own private interests to
disregard those of his principal. This doctrine is generally
applicable to private agents and trustees, but to public officers
it applies with greater force, and sound policy requires that
there be no relaxation of its stringency in any case that
comes within its reason....” (Noble v. City of Palo Alto (1928)
89 Cal.App. 47, 51, 264 P. 529, citations omitted.) “[T]he
common law doctrine against conflicts of interest ... prohibits
public officials from placing themselves in a position where
their private, personal interests may conflict with their official
duties.” (64 Ops.Cal.Atty.Gen. 795, 797 (1981); accord, 70
Ops.Cal.Atty.Gen. 45, 47 (1987).) 18
18
While the Political Reform Act focuses on
financial conflicts of interest, the common law
extends to noneconomic conflicts of interest.
(64 Ops.Cal.Atty.Gen., supra, at p. 797; 70
Ops.Cal.Atty.Gen., supra, at p. 47.) The common
law may be abrogated by express statutory
provisions (70 Ops.Cal.Atty.Gen., supra, at p. 47;
67 Ops.Cal.Atty.Gen. 369, 381 (1984)), but that is
not the situation here.
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
A leading treatise on municipal law acknowledges the same
concept: “The public is entitled to have its representatives
perform their duties free from any personal or pecuniary
interest that might affect their judgment. Public policy forbids
the sustaining of municipal action founded upon a vote of
a council member ... in any matter before it which directly
or immediately affects him or her individually.... A finding
of self-interest sufficient to set aside municipal action need
not be based upon actual proof of dishonesty, but may be
warranted whenever a public official, by reason of personal
interest in a matter, is placed in a situation of temptation to
serve his or her own purposes, to the prejudice of those for
whom the law authorizes that official to act.... [A]n individual
member ordinarily cannot vote on a matter in which that
member ... is interested. If the member does, the action taken
by the body of which he or she is a member is invalidated....
Where the vote of a member interested is necessary to pass
an ordinance or bylaw, such ordinance or bylaw is void,
irrespective of how beneficial the ordinance may be.” (4
McQuillin, The Law of Municipal Corporations (3d ed. rev.
1992) § 13.35, pp. 840–841, italics added, fns. omitted.)
Moreover, “[i]n conducting the hearing, the [Council] ...
has power to make final adjudications of fact in connection
with matters properly submitted to it. The action of such
an administrative board exercising adjudicatory functions
when based upon information of which the parties were not
apprised and which they had no opportunity to controvert
amounts to a denial of a hearing.... Administrative tribunals
which are required to *1172 make a determination after a
hearing cannot act upon their own information, and nothing
can be considered as evidence that was not introduced at
a hearing of which the parties had notice or at which they
were present.... The fact that there may be substantial and
properly introduced evidence which supports the [Council's]
ruling is immaterial.... A contrary conclusion would be
tantamount to requiring a hearing in form but not in substance,
for the right of a hearing before an administrative tribunal
would be meaningless if the tribunal were permitted to
base its determination upon information received without the
knowledge of the parties. A hearing requires that the party be
apprised of the evidence against him so that he may have an
opportunity to refute, test, and explain it, and the requirement
of a hearing necessarily contemplates a decision in light of
the evidence there introduced....” (English v. City of Long
Beach (1950) 35 Cal.2d 155, 158–159, 217 P.2d 22, citations
omitted.)
9
 Kurtz, Lauren 3/14/2023
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
**235 Applying these principles, we conclude that the
Clarks were deprived of a fair hearing in three respects.
First, under the common law, Councilmember Benz had
a conflict of interest in voting on the Clarks' project. In
denying the requested permits, the Council majority (which
included Benz) found that the height and lot coverage of the
proposed structure would interfere with the use or enjoyment
of other property in the area. Also, in opposing the Clarks'
1989 application, Benz stated his belief that the project would
“further constrict the view of the ocean from homes that are
located behind ... the lot.” Because Benz lived one block
inland of the Clarks, he stood to benefit personally by voting
against the Clarks' project. It is irrelevant that Benz did
not own his residence; an interest in preserving his ocean
view was of such importance to him that it could have
influenced his judgment. 19 Of course, a public official may
express opinions on subjects of community concern (e.g., the
height of new construction) without tainting his vote on such
matters should they come before him. (See City of Fairfield v.
Superior Court (1975) 14 Cal.3d 768, 780–781, 122 Cal.Rptr.
543, 537 P.2d 375.) Here, Benz's conflict of interest arose,
not because of his general opposition to 35–foot buildings,
but *1173 because the specific project before the Council, if
approved, would have had a direct impact on the quality of his
own residence. In addition, Benz's personal animosity toward
the Clarks contributed to his conflict of interest; he was not a
disinterested, unbiased decisionmaker. (See fn. 12, ante.) 20
19 We disagree with the trial court's conclusion
that Benz violated the Political Reform Act.
That act generally prohibits public officials from
participating in matters where they have a financial
interest in the outcome. (Gov.Code, § 87100.) No
such interest existed here because the act excludes
any financial interest in real property leased by an
official on a monthly basis. (Gov.Code, §§ 87103,
subd. (b), 82033; Cal.Admin.Code, tit. 2, § 18233.)
In addition, we reject the contention that Benz's
rent was less than fair market value and that this
alleged “gift” from his landlord created a conflict
of interest under the act. (See Gov.Code, §§ 87103,
subd. (e), 82028.) The Clarks' evidence that Benz's
rent was discounted consisted of the rental figures
for their respective dwellings. In this context, rental
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
information on only two dwellings in the City does
not establish the fair market value of either one.
20 We note that “[a] councilman who is disqualified
by reason of a conflict of interest in any matter shall
not, once the conflict is ascertained, participate in
the discussion in any way or comment on the matter
in any way to any person including any councilman
and shall not vote on such matter.” (Hermosa Beach
Mun.Code, § 2–2.19.)
The City committed a second procedural error in denying
the Clarks' permits. The Council's concerns about excessive
lot coverage and insufficient open space were raised for
the first time after the public portion of the March 24,
1992 hearing was over. The Clarks were not permitted to
adequately address the Council on those subjects, and their
request to reopen the hearing was denied. Accordingly, the
Clarks did not receive proper notice or an opportunity to
be heard on those two issues, both of which were resolved
against them and were cited by the Council as grounds for
denying the permits.
Finally, the City exhibited bias in connection with its
unsuccessful effort to impose a construction moratorium. In
February 1992, the Council had attempted, but failed, to enact
a moratorium on the construction of buildings higher than 30
feet. The measure fell one vote short of the four votes needed.
(See Gov.Code, § 65858.) Consequently, the City's 35–foot
height restriction remained in effect in R–3 zones. Yet, shortly
after the moratorium failed, the Council and the planning
commission denied permits on three projects (including the
Clarks') involving 35–foot structures. This sequence of events
indicates that the City was attempting to do—by a majority
vote on a project-by-project basis—what the law required
a four-fifths vote of the Council to accomplish. 21 At a
minimum, this evidence establishes that the **236 Council
was not impartial to the Clarks' project.
21
Our conclusion that the City was implementing an
unlawful “backdoor” moratorium is supported by
the fact that two of the three grounds for denying
the Clarks' permits—excessive lot coverage and
inadequate usable open space—were first raised by
the Council after the public hearing had concluded,
without ever giving the public or the Clarks an
opportunity to address those issues.
10
 Kurtz, Lauren 3/14/2023
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
In sum, because the City Council deprived the Clarks of a fair
hearing, the trial court properly issued a writ of administrative
mandate. 22
22
Because we find that the Clarks did not receive
a fair hearing, we do not reach any alternative
grounds for writ relief (e.g., whether substantial
evidence supported the Council's decision or
whether the Council violated the Subdivision Map
Act (Gov.Code, § 66410 et seq.)).
*1174 B. The Remedy for Denial of a Fair Hearing
The trial court set aside the City Council's decision and
ordered the City to reinstate the planning commission's
approval of the Clarks' permits. This was error. The trial court
should have ordered the Council to rehear the matter and to
provide the Clarks with a fair hearing. 23
23
On remand, when the Council rehears the
appeal from the planning commission, the
requirement of a “fair” hearing necessarily
precludes Councilmember Benz from participating
in or voting on the matter. (See pt. I.A., ante
[discussing disqualification based on conflicts of
interest].) The Clarks urge us to find that, in
addition to Benz, Councilmember Edgerton is
biased against them and should be disqualified.
However, because this issue was not raised below
on the petition for writ of mandate, we decline
to reach it on appeal. (See California Indemnity
Ins. Premium Finance Co. v. Fireman's Fund
Ins. Co. (1995) 40 Cal.App.4th 1633, 1641,
47 Cal.Rptr.2d 743.) If the Clarks believe that
any councilmember other than Benz should be
disqualified in connection with the new hearing,
they can raise that point during the administrative
proceedings after remand.
The necessity of another hearing follows from the language of
the statute authorizing a writ of administrative mandate: “The
court shall enter judgment either commanding [the council] to
set aside the order or decision, or denying the writ. Where the
judgment commands that the order or decision be set aside, it
may order the reconsideration of the case in the light of the
court's opinion and judgment and may order [the council] to
take such further action as is specially enjoined upon it by
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
law, but the judgment shall not limit or control in any way the
discretion legally vested in the [council].” (Code Civ.Proc., §
1094.5, subd. (f).)
In English v. City of Long Beach, supra, 35 Cal.2d 155,
217 P.2d 22, the petitioner, Henry English, was dismissed
from his position as an officer in the Long Beach Police
Department. During the subsequent civil service proceeding,
the members of the board took evidence outside the hearing.
The board upheld English's dismissal. He then sought a writ
of administrative mandate.
The superior court found that the civil service board had
deprived English of a fair hearing and issued a writ of mandate
directing that he be reinstated. The Supreme Court agreed
that the hearing had been unfair but disagreed with the trial
court's remedy, stating: “Since the board, in arriving at its
decision sustaining the order dismissing English, relied upon
information taken outside the hearing, which English had
no opportunity to refute, the trial court properly concluded
that he was denied a fair hearing. The judgment, however,
should not have ordered the reinstatement of English but
instead should have remanded the cause to the civil service
board for proper proceedings. (Code Civ.Proc., § 1094.5(e)
[now subdivision (f) ];....) The fact that the board has heard
and decided the matter does not preclude another hearing
even though the charter does not provide for a rehearing,
*1175 and the board cannot be said to have exhausted
its power to act until it has given English a fair hearing.”
(English v. City of Long Beach, supra, 35 Cal.2d at pp.
159–160, 217 P.2d 22, citations omitted; accord, Kumar v.
National Medical Enterprises, Inc. (1990) 218 Cal.App.3d
1050, 1056, 267 Cal.Rptr. 452 [“the setting aside of a final
administrative decision because of unfair hearing practices
requires a remand for further proceedings”]; Zurn Engineers
v. State of California ex rel. Dept. of Water Resources (1977)
69 Cal.App.3d 798, 835–838, 138 Cal.Rptr. 478 [discussing
cases], cert. den. 434 U.S. 985, 98 S.Ct. 612, 54 L.Ed.2d 479.)
We recognize that there may be situations in which a superior
court can properly direct that a city council's decision be set
aside and that no further administrative hearings be held in the
case, e.g., where the council had no authority to hear an appeal
in the first place **237 (Cohan v. City of Thousand Oaks
(1994) 30 Cal.App.4th 547, 556–559, 35 Cal.Rptr.2d 782) or
where the issuance of a building permit is a purely ministerial
act, such that the council has no discretion in the matter
11
 Kurtz, Lauren 3/14/2023
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
(Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d
183, 190–191, 140 Cal.Rptr. 619). However, neither of those
exceptions applies here. (See pt. II.A., post [discussing City's
discretion in ruling on permit applications].)
Finally, the Clarks contend that another hearing before the
Council would be improper because Councilmember Benz
should have recused himself during the April 14, 1992
meeting, when the Council voted on the resolution denying
the Clarks' permits. According to the Clarks, without Benz's
participation at that meeting, the resulting tie vote (2–2)
would have affirmed the planning commission's decision to
approve their project. We disagree. While a tie vote might
have affirmed the commission's decision to approve the
tentative parcel map, it would not have had that effect as to the
conditional use permit. This result is dictated by the different
appeal provisions applicable to the two types of permits.
On appeal from a planning commission decision regarding
a conditional use permit, the City Council does not merely
review the commission's decision for error. Rather, the
Council hears the matter de novo, takes additional evidence
at a public hearing, and decides whether it should grant or
deny the permit. (Hermosa Beach Mun.Code, §§ 1411, 1412;
Gabric v. City of Rancho Palos Verdes, supra, 73 Cal.App.3d
at p. 191, 140 Cal.Rptr. 619; Lagrutta v. City Council (1970)
9 Cal.App.3d 890, 894–895, 96 Cal.Rptr. 627.) In deciding
an appeal, the Council “shall order that the conditional use
permit be granted, denied or modified,” and “[t]he action
by the city council ... shall be by three (3) affirmative
votes.” (Hermosa Beach Mun.Code, §§ 1412, 1413, italics
added.) In other words, the Clarks needed three affirmative
*1176 votes in the Council to obtain a conditional use
permit. A tie vote would not suffice. “[A]s a general rule
an even division among members of an administrative
agency results in no action.” (Graves v. Commission on
Professional Competence (1976) 63 Cal.App.3d 970, 976–
977, 134 Cal.Rptr. 71.) Indeed, in construing an ordinance
virtually identical to the one here, we have previously held
that a city council's tie vote does not affirm the underlying
decision of a planning commission. (Anderson v. Pittenger
(1961) 197 Cal.App.2d 188, 194–195, 17 Cal.Rptr. 54 [on
appeal from planning commission's decision to grant a zoning
variance, city council's tie vote constituted “no action” and
“was not an affirmance of the order of the commission”]; see
also REA Enterprises v. California Coastal Zone Com. (1975)
52 Cal.App.3d 596, 605–609, 125 Cal.Rptr. 201 [on appeal
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
from regional commission's decision to issue a development
permit, state commission's tie vote was not an affirmative
majority vote to approve permit and therefore constituted
denial of permit].) 24
24 Under City law, “[t]ie votes shall be lost motions
and may be reconsidered.” (Hermosa Beach
Mun.Code, § 2–2.21.) Here, a tie vote arguably
would have been tantamount to “no action” on
the appeal. With the votes evenly divided between
granting and denying a conditional use permit, a
motion either way would have failed for lack of a
third vote. In this scenario, the appeal could have
remained in perpetual limbo, absent a successful
motion for reconsideration or a renewed motion.
On the other hand, because the Council was hearing
the matter de novo, a tie vote might have had
the effect of denying the conditional use permit,
assuming the Clarks had to prove they were entitled
to it. (See Committee for a Rickel Alternative v. City
of Linden (1988) 111 N.J. 192, 196–203, 543 A.2d
943, 945–949 [where affirmative vote of majority
of city council was required to reverse, remand,
or affirm decision of board of adjustment, and
council heard matter de novo with burden of proof
on applicant, tie vote resulted in denial of use
variance].) In any event, without deciding whether
a tie vote would have denied the conditional use
permit, we conclude that it would not have affirmed
the planning commission's decision in that respect.
The Clarks' reliance on Woodland Hills Residents Assn.,
Inc. v. City Council (1975) 44 Cal.App.3d 825, 830–831,
118 Cal.Rptr. 856, and Pacific Palisades Property Owners
Assn. v. City of Los Angeles (1974) 42 Cal.App.3d 781, 786,
117 Cal.Rptr. 138, is of no avail. Those decisions construed
provisions of the Subdivision Map Act which provide that
a tentative map shall be deemed to be approved where (1)
the city council has “failed to act” upon an appeal within
the statutorily specified time period, and (2) the planning
commission has already approved **238 the map. (See
former Bus. & Prof.Code, § 11553, as amended by Stats.1961,
ch. 194, § 4, pp. 1202–1203, now Gov.Code, § 66452.4;
former Bus. & Prof.Code, § 11552, as amended by Stats.1973,
ch. 306, § 1, pp. 721–723, now Gov.Code, § 66452.5.)
In both cases, the courts found that the city council's tie
vote constituted a “failure to act” upon the appeal, thereby
12
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
affirming the planning commission's approval of the tentative
map.
Even assuming—as the Clarks contend—that the City
Council's tie vote would have affirmed the planning
commission's decision with respect to their *1177 tentative
parcel map and precise development plan, this argument
overlooks the significance of the tie vote as to the conditional
use permit. The language of the Hermosa Beach Municipal
Code, not the Subdivision Map Act, would govern the
outcome on that issue. As discussed above, a tie vote of the
Council does not affirm the planning commission's decision
on a conditional use permit, nor does it operate to grant the
permit. The critical provision in the Subdivision Map Act
—deeming the map approved if the council fails to act by
a certain deadline—does not appear in the municipal code.
Rather, City law mandates three affirmative Council votes
for a conditional use permit; there is no “deemed approval”
provision, nor is there a time limit for acting on the appeal. 25
25
Although the Council is supposed to announce its
decision within 60 days after the public hearing,
it is authorized to give notice to the parties that
the decision will be announced at some later
time. (Hermosa Beach Mun.Code, § 1412.) The
municipal code does not impose any ultimate
deadline where the Council gives notice that the
decision will take more than 60 days.
Unquestionably, the Clarks needed all three permits—
a tentative parcel map, precise development plan, and
conditional use permit—to proceed with the project. (See
Hermosa Beach Mun.Code, §§ 7.2–4, 29.5–1 to 29.5–18,
1431.) Because a tie vote of the Council would not have
affirmed the planning commission's decision as to all three
permits, it follows that the Clarks' project would not have been
approved even if Councilmember Benz had recused himself.
Accordingly, on remand, the trial court shall direct the City
Council (1) to vacate its decision on the appeal from the
planning commission and (2) to rehear the appeal and provide
the Clarks with a fair hearing. 26
26
In September 1992, five months after the Clarks'
permits were denied, the City Council enacted an
ordinance imposing a 30–foot height limitation in
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
R–3 zones. (See fn. 9, ante.) The question thus
arises as to whether the new height restriction
applies to the Clarks' project. Significantly, the
new limitation was formally proposed and adopted
after the Council heard the appeal on the
Clarks' permits. To allow the City to invoke the
new height limitation now would sanction the
Council's mishandling of the administrative appeal
and would leave the Clarks without a remedy.
Accordingly, the height ordinance in effect at the
time of the Council's prior decision should apply
to the future development of the Clarks' project,
absent some state statute dictating otherwise. (See
Ross v. City of Yorba Linda (1991) 1 Cal.App.4th
954, 968–970, 2 Cal.Rptr.2d 638; Gabric v. City
of Rancho Palos Verdes, supra, 73 Cal.App.3d at
pp. 202–203, 140 Cal.Rptr. 619; Keizer v. Adams
(1970) 2 Cal.3d 976, 980–981, 88 Cal.Rptr. 183,
471 P.2d 983; see also Gov.Code, §§ 66474.2,
65961; Golden State Homebuilding Associates v.
City of Modesto (1994) 26 Cal.App.4th 601, 606–
610, 31 Cal.Rptr.2d 572.)
II
Federal Civil Rights Claim
The trial court properly found that the City Council had
deprived the Clarks of a fair hearing under state law (Code
Civ.Proc., § 1094.5, subd. *1178 b)). The Clarks' civil rights
claim was premised on the theory that the lack of a fair
hearing also violated the due process clause of the United
States Constitution.
Given that state law mandates a “fair” administrative
proceeding and that the due process clause is similarly based
on the concept of fairness (Applebaum v. Board of Directors,
supra, 104 Cal.App.3d at p. 657, 163 Cal.Rptr. 831), it may
appear at first blush that a violation of state law in this case
should give rise to liability under the federal Constitution.
Obviously, this is not the first time a plaintiff has attempted to
convert a state law claim into a federal case of constitutional
proportions. (See, e.g., Stivers v. Pierce (9th Cir.1995) 71
F.3d 732, 740–741 & fn. 4 [applying due process clause
where Nevada state law recognized property interest **239
13
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
in occupational license].) 27 However, we conclude that while
the City violated state law by failing to provide a fair hearing,
it did not offend the federal Constitution, on either procedural
or substantive due process grounds. 28
27 The trial court's resolution of the Clarks' civil
rights claim followed a three-day bench trial.
Accordingly, we apply the substantial evidence test
to its findings of fact and independently review its
conclusions of law. (See 9 Witkin, Cal. Procedure
(3d ed. 1985) Appeal, §§ 278–286, pp. 289–
298; Masonite Corp. v. Superior Court (1994)
25 Cal.App.4th 1045, 1050–1051, 31 Cal.Rptr.2d
173.)
28
As the Supreme Court has explained: “This Court
has held that the Due Process Clause protects
individuals against two types of government
action. So-called ‘substantive due process' prevents
the government from engaging in conduct that
‘shocks the conscience,’ ... or interferes with rights
‘implicit in the concept of ordered liberty,’ ...
When government action depriving a person of
life, liberty, or property survives substantive due
process scrutiny, it must still be implemented in
a fair manner.... This requirement has traditionally
been referred to as ‘procedural’ due process.”
(United States v. Salerno (1987) 481 U.S. 739, 746,
107 S.Ct. 2095, 2101, 95 L.Ed.2d 697, citations
omitted.)
A. Procedural Due Process
A state law requirement that a public entity conduct hearings
in a fair manner does not automatically implicate the federal
due process clause. The Fourteenth Amendment provides
that “[n]o State shall ... deprive any person of life, liberty,
or property, without due process of law....” Nonetheless,
before reaching any question about the fairness of a particular
proceeding under the federal Constitution, we must first
address whether a protected interest—life, liberty, or property
—is implicated. If no such interest is involved, then the
procedural protections of the due process clause do not
come into play. (Board of Regents v. Roth (1972) 408 U.S.
564, 569–578, 92 S.Ct. 2701, 2705–2710, 33 L.Ed.2d 548;
Zorzi v. County of Putnam (7th Cir.1994) 30 F.3d 885, 895.)
Because the Clarks do not contend that the Council's decision
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
implicated an interest involving life or liberty, we examine
whether they had a federally protected property interest in the
development of their project.
*1179 At the outset, we note that several federal courts
have cautioned against applying title 42 United States Code,
section 1983 (“section 1983”) to state and local land-use
disputes. As the Fourth Circuit Court of Appeals has noted: “
‘[T]he regulation of land subdivision is ... a fundamental legal
tool for municipal guidance of land development.’ ... Indeed,
land-use decisions are a core function of local government.
Few other municipal functions have such an important and
direct impact on the daily lives of those who live or work
in a community. The formulation and application of land-use
policies, therefore, frequently involve heated political battles,
which typically pit local residents opposed to development
against developers and local merchants supporting it....
[¶] Resolving the routine land-use disputes that inevitably
and constantly arise among developers, local residents, and
municipal officials is simply not the business of the federal
courts. There is no sanction for casual federal intervention
into what ‘has always been an intensely local area of the
law.’ ... [A]llowing ‘every allegedly arbitrary denial by a
town or city of a local license or permit’ to be challenged
under § 1983 would ‘swell[ ] our already overburdened
federal court system beyond capacity.’ ... Accordingly, federal
courts should be extremely reluctant to upset the delicate
political balance at play in local land-use disputes. Section
1983 does not empower us to sit as a super-planning
commission or a zoning board of appeals, and it does not
constitutionalize every ‘ “run of the mill dispute between a
developer and a town planning agency.” ’... In most instances,
therefore, decisions regarding the application of subdivision
regulations, zoning ordinances, and other local land-use
controls properly rest with the community that is ultimately
—and intimately—affected.” (Gardner v. Baltimore Mayor
& City Council (4th Cir.1992) 969 F.2d 63, 67–68, followed
in Sylvia Development Corp. v. Calvert County, Md. (4th
Cir.1995) 48 F.3d 810, 828–829, citations omitted.)
Similarly, the First Circuit Court of Appeals has commented:
“Virtually every alleged legal or procedural error of a local
planning authority or zoning board of appeal **240 could
be brought to a federal court on the theory that the erroneous
application of state law amounted to a taking of property
without due process. Neither Congress nor the courts have,
to date, indicated that section 1983 should have such a reach.
14
 Kurtz, Lauren 3/14/2023
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
[¶] ... [¶] ... Plaintiffs would thus have us rule that the
due process clause to the United States Constitution was
violated when [the Town of] Bolton's Planning Board, for
the purpose of protecting what it viewed as the town's basic
character, openly interpreted state subdivision laws and a
state court decision in ways which frustrated plaintiffs' large-
scale housing development of a particular design. [¶] ... Every
appeal by a disappointed developer from an adverse ruling by
a local ... planning board necessarily involves some claim that
the board exceeded, abused or ‘distorted’ its legal authority
in some manner, often for *1180 some allegedly perverse
(from the developer's point of view) reason. It is not enough
simply to give these state law claims constitutional labels
such as ‘due process' or ‘equal protection’ in order to raise
a substantial federal question under section 1983. As has
been often stated, ‘[t]he violation of a state statute does not
automatically give rise to a violation of rights secured by
the Constitution.’ ” (Creative Environments, Inc. v. Estabrook
(1st Cir.1982) 680 F.2d 822, 831, 832–833, cert. den. 459 U.S.
989, 103 S.Ct. 345, 74 L.Ed.2d 385, followed in Chesterfield
Dev. v. City of Chesterfield (8th Cir.1992) 963 F.2d 1102,
1104–1105.)
With these cautionary words in mind, we turn to the
Supreme Court's analysis in Board of Regents v. Roth,
supra, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, to
determine what qualifies as a property interest for due process
purposes: “Certain attributes of ‘property’ interests protected
by procedural due process emerge from [our] decisions. To
have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon
which people rely in their daily lives, reliance that must not be
arbitrarily undermined.... Property interests, of course, are not
created by the Constitution. Rather they are created and their
dimensions are defined by existing rules or understandings
that stem from an independent source such as state law—rules
or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” (Id. at p. 577, 92 S.Ct.
at p. 2709.)
“When analyzing whether a plaintiff presents a legitimate
claim of entitlement, we focus on the degree of discretion
given the decisionmaker and not on the probability of the
decision's favorable outcome.” (Jacobs, Visconsi & Jacobs
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
v. City of Lawrence (10th Cir.1991) 927 F.2d 1111, 1116.)
“Under this approach, whether a property-holder possesses
a legitimate claim of entitlement to a permit or approval
turns on whether, under state and municipal law, the local
agency lacks all discretion to deny issuance of the permit or
to withhold its approval. Any significant discretion conferred
upon the local agency defeats the claim of a property
interest. Under this standard, a cognizable property interest
exists ‘only when the discretion of the issuing agency is so
narrowly circumscribed that approval of a proper application
is virtually assured.’ ... Moreover, the standard focuses on
the amount of discretion accorded the issuing agency by
law, not on whether or to what degree that discretion is
actually exercised. ‘Even if in a particular case, objective
observers would estimate that the probability of issuance was
extremely high, the opportunity of the local agency to deny
issuance suffices to defeat the existence of a federally *1181
protected property interest.’ ...” (Gardner v. Baltimore Mayor
& City Council, supra, 969 F.2d at 68, citations omitted;
accord, Crowley v. Courville (2d Cir.1996) 76 F.3d 47,
52; Bateson v. Geisse (9th Cir.1988) 857 F.2d 1300, 1303,
1305.) 29
29 This standard “appropriately balances the need
for local autonomy in a matter of paramount
local concern with recognition of constitutional
protection at the very outer margins of municipal
behavior. The standard represents a sensitive
recognition that decisions on matters of local
concern should ordinarily be made by those
whom local residents select to represent them in
municipal government—not by federal courts. It
also recognizes that the Fourteenth Amendment's
Due Process Clause does not function as a general
overseer of arbitrariness in state and local land-use
decisions.” (Gardner v. Baltimore Mayor & City
Council, supra, 969 F.2d at p. 69.)
**241 In this case, we cannot say that the discretion
of the City Council was so narrowly circumscribed that
approval of the Clarks' application was virtually assured.
The planning commission and the City Council were vested
with sufficient discretion to defeat any expectation that the
Clarks' application would be approved as submitted. In
that regard, we think it important to define as precisely as
possible the property interest at stake. The Clarks do not
(and cannot) claim that the City has infringed their interest
15
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
in constructing a home per se. The City did not bar the
Clarks from building their condominium project altogether;
it denied their application without prejudice to submitting a
revised plan reflecting the Council's concerns about height,
lot coverage, and usable open space. Thus, the interest at
issue is not that of a landowner to construct a roof over his
head; rather, it is the Clarks' interest in building a structure
having the specific dimensions they find desirable. The due
process inquiry therefore requires us to examine the discretion
accorded the City in placing restrictions on the size of a
structure.
As a prerequisite to building their project, the Clarks had to
obtain a conditional use permit, a precise development plan,
and a tentative parcel map. Under City law, a conditional use
permit must “assure that the degree of compatibility shall be
maintained with respect to the particular use on the particular
site and in consideration of other existing and potential uses
within the general area in which such use is proposed to
be located.” (Hermosa Beach Mun.Code, § 1404.) A precise
development plan is designed “to achieve a reasonable level
of quality, compatibility, in harmony with the community's
social, economic and environmental objectives, and to protect
existing and potential developments, and uses on adjacent and
surrounding property.” (Id., § 1430.) 30
30
A tentative parcel map is required “to insure
that the costs of land divisions and the burdens
thereof are borne by the property owners and
those interested in the land and not by the general
public.” (Hermosa Beach Mun.Code, § 29.5–1.)
“All development shall be in compliance with minimum
standards of the zoning ordinance.” (Hermosa Beach
Mun.Code, § 1432(A).) However, *1182 “[o]n a case basis,
the planning commission may impose standards above the
minimums designated by the zoning ordinance to improve the
quality of development and to mitigate any environmental
impacts.” (Ibid., italics added.) Further, the decisions of
the planning commission are subject to appeal to the City
Council. (Id., §§ 29.5–5, 1409, 1435.) Where an appeal
involves a conditional use permit, the Council “shall order
the ... permit be granted, denied or modified subject to such
conditions or limitations that it may impose.” (Id., § 1412,
italics added.)
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
Here, the Council's reasons for denying the Clarks' project
concerned minimum standards, not absolutes or guarantees.
Under City law, “[n]o building shall exceed thirty-five feet
in height” (Hermosa Beach Mun.Code, § 601, italics added);
“[a]ll buildings ... shall not cover more than sixty-five (65)
percent of the area of the lot” (id., § 606, italics added); and
“there shall be a minimum of two hundred (200) square feet
of usable open space per dwelling unit,” plus an additional
100 square feet per condominium unit (id., §§ 607, 7.2–6(e)
(1), italics added).
In our view, these provisions do not create a legitimate
expectation or claim of entitlement to a structure having any
particular dimensions. For instance, the municipal code does
not create a right to a 35–foot structure; it simply allows a
maximum height of 35 feet. In examining permit applications
on a case-by-case basis, the City is expressly authorized
to consider numerous factors in imposing more restrictive
conditions on a specific project. 31 Moreover, **242 in this
case, even if the Council misinterpreted or misapplied the
ordinances concerning lot coverage and usable open space,
nothing in the municipal code guaranteed that the Clarks
could build to the maximum lot coverage of 65 percent or
get by with the minimum open space of 300 square feet
per condominium unit. Indeed, in hearing the appeal on the
Clarks' project, the Council had the broad authority to modify
the conditional use permit “subject to such conditions or
limitations that it may impose.”
31 Some of those factors, as listed in the municipal
code, include the distance of the project from
existing residential uses and the impact of the
proposed use to the City's infrastructure. (Hermosa
Beach Mun.Code, § 1432(B).) Of importance, the
last of these “general criteria” reads as follows:
“Other considerations that, in the judgment of
the planning commission, are necessary to assure
compatibility with the surrounding uses, and the
city as a whole.” (Id., § 1432(B)(10).) This
language grants the City substantial discretion in
deciding whether, and under what conditions, to
approve a development project.
In sum, the municipal code vests significant discretion in
the City in reviewing project applications and in imposing
conditions on development permits. (See Smith v. County of
Los Angeles (1989) 211 Cal.App.3d 188, 197, 259 Cal.Rptr.
16
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
231 [“a conditional use permit ... is, by definition, *1183
discretionary”]; Guinnane v. San Francisco City Planning
Com. (1989) 209 Cal.App.3d 732, 736, 257 Cal.Rptr. 742
[“compliance with the zoning laws and building codes did
not entitle [plaintiff] to a building permit as a matter of
course”], cert. den. 493 U.S. 936, 110 S.Ct. 329, 107
L.Ed.2d 319; Gardner v. Baltimore Mayor & City Council,
supra, 969 F.2d at p. 67 [land-use control “is an inherently
discretionary system”].) 32 We therefore join those federal
courts recognizing that, in these circumstances, there is no
federally protected property interest on which to base a
procedural due process claim. (See, e.g., Jacobs, Visconsi &
Jacobs v. City of Lawrence, supra, 927 F.2d at pp. 1115–
1118; Bateson v. Geisse, supra, 857 F.2d at p. 1305; Creative
Environments, Inc. v. Estabrook, supra, 680 F.2d at pp. 829–
834; Arroyo Vista Partners v. County of Santa Barbara
(C.D.Cal.1990) 732 F.Supp. 1046, 1052–1053.)
32
We reject the Clarks' argument that the City's
discretion is substantially restricted by the
municipal code's criteria for denying a precise
development plan. The code states that such a plan
can be denied where “[t]he proposed development
would substantially depreciate property values
in the vicinity or interfere with the use or
enjoyment of property in such area, because of
excessive dissimilarity or inappropriateness of
design in relation to the surrounding vicinity,
and there are no known conditions of approval
which can be imposed that could resolve such
problems.” (Hermosa Beach Mun.Code, § 1432(C)
(1), italics added.) If anything, this provision
indicates that the City has substantial latitude in
developing and imposing restrictions on a project
in order to avoid denying an application altogether.
Accordingly, the trial court erred in finding a violation of
procedural due process.
B. Substantive Due Process
As a substantive limitation on governmental action,
the due process clause precludes arbitrary and irrational
decisionmaking. (Crowley v. Courville, supra, 76 F.3d at p.
52; Zorzi v. County of Putnam, supra, 30 F.3d at p. 895;
Gardner v. Baltimore Mayor & City Council, supra, 969 F.2d
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
at p. 68.) However, not every governmental error constitutes
a violation of substantive due process.
In fact, given the nebulous contours of substantive due
process, courts have begun to restrict its reach to certain
“core” values. The Supreme Court has noted: “ ‘As a general
matter, the Court has always been reluctant to expand the
concept of substantive due process because the guideposts
for responsible decisionmaking in this unchartered area are
scarce and open-ended.’ The protections of substantive due
process have for the most part been accorded to matters
relating to marriage, family, procreation, and the right to
bodily integrity.” (Albright v. Oliver (1994) 510 U.S. 266,
271–272, 114 S.Ct. 807, 812, 127 L.Ed.2d 114.)
*1184 The Ninth Circuit Court of Appeals, sitting en
banc, has recently echoed this same sentiment: “We are all
painfully aware that the area of substantive due process
‘has at times been a treacherous field’ for the courts....
In an effort to scale back what had become an apparently
unbounded source of judicial authority, the Supreme Court
in recent decades has restricted the scope of substantive
due process. [¶] There can be no doubt that the Due
Process Clause of the Fourteenth Amendment confers both
procedural and substantive rights.... However, the use of
substantive due process to extend constitutional protection to
economic and property rights has been largely discredited.
**243 ... Rather, recent jurisprudence restricts the reach
of the protections of substantive due process primarily
to liberties ‘deeply rooted in this Nation's history and
tradition.’ ... Thus, the Fourteenth Amendment protects
against a State's interferences with ‘personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education,’ as well as with
an individual's bodily integrity.” (Armendariz v. Penman (9th
Cir.1996) 75 F.3d 1311, 1318–1319, citations omitted, italics
added.) Consequently, there is some question as to whether
substantive due process even applies to the type of case before
us.
In any event, assuming that substantive due process remains
a viable check on state and local land-use decisions, “a party
asserting a deprivation of substantive due process must first
establish a valid property interest within the meaning of the
Constitution.” (Crowley v. Courville, supra, 76 F.3d at p. 52;
accord, Zorzi v. County of Putnam, supra, 30 F.3d at p. 895;
Gardner v. Baltimore Mayor & City Council, supra, 969 F.2d
17
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
at p. 68.) If a cognizable property interest is implicated, a
court must then determine whether the government's action
was arbitrary or irrational. (Crowley v. Courville, supra, 76
F.3d at p. 52; Zorzi v. County of Putnam, supra, 30 F.3d at p.
895; Gardner v. Baltimore Mayor & City Council, supra, 969
F.2d at p. 68.)
As indicated in our discussion of the Clarks' procedural
due process claim, they have no protected property interest
in their requested permits. (See pt. II.A, ante.) Accordingly,
the substantive due process claim fails for that reason alone.
Alternatively, even if a constitutionally recognized property
interest is involved, we find that the City did not engage in
arbitrary or irrational conduct.
In PFZ Properties, Inc. v. Rodriguez (1st Cir.1991) 928 F.2d
28, cert. dism., 503 U.S. 257, 112 S.Ct. 1151, 117 L.Ed.2d
400, a developer (“PFZ”) brought a section 1983 action
against a Puerto Rico agency for refusing to process its
building plans. In rejecting PFZ's substantive due process
claim, the First Circuit Court of Appeals stated: “[R]ejections
of *1185 development projects and refusals to issue building
permits do not ordinarily implicate substantive due process....
Even where state officials have allegedly violated state law or
administrative procedures, such violations do not ordinarily
rise to the level of a constitutional deprivation.... The doctrine
of substantive due process ‘does not protect individuals
from all [governmental] actions that infringe liberty or injure
property in violation of some law. Rather, substantive due
process prevents “governmental power from being used for
purposes of oppression,” or “abuse of government power that
shocks the conscience,” or “action that is legally irrational
in that it is not sufficiently keyed to any legitimate state
interests.” ’ ” (928 F.2d at pp. 31–32, citations omitted, quoted
with approval in Stubblefield Construction Co. v. City of
San Bernardino (1995) 32 Cal.App.4th 687, 709–710, 38
Cal.Rptr.2d 413, cert. den., 516 U.S. 913, 116 S.Ct. 300, 133
L.Ed.2d 205.)
Applying these principles in PFZ Properties, the First
Circuit concluded: “[W]e hold that PFZ's allegations
that [government] officials failed to comply with agency
regulations or practices in the review and approval process
for the construction drawings are not sufficient to support
a substantive due process claim under the Fourteenth
Amendment to the United States Constitution.... Even
assuming that [the agency] engaged in delaying tactics
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
and refused to issue permits for the ... project based on
considerations outside the scope of its jurisdiction under
Puerto Rico law, such practices, without more, do not rise
to the level of violations of the federal constitution under a
substantive due process label.” (928 F.2d at p. 32, citation
omitted.)
In Uhlrig v. Harder (10th Cir.1995) 64 F.3d 567, cert.
den., 516 U.S. 1118, 116 S.Ct. 924, 133 L.Ed.2d 853,
the Tenth Circuit Court of Appeals explained that “the
standard for judging a substantive due process claim is
whether the challenged government action would ‘ “shock
the conscience” of ... judges.’ ... [¶] ... [¶] ... [T]o satisfy the
‘shock the conscience’ standard, a plaintiff must do more than
show that the government actor intentionally or recklessly
caused injury to the plaintiff by abusing or misusing
government power. That is, the plaintiff **244 must
demonstrate a degree of outrageousness and a magnitude of
potential or actual harm that is truly conscience shocking. The
level of conduct required to satisfy this additional requirement
cannot precisely be defined, but must necessarily evolve
over time from judgments as to the constitutionality of
specific government conduct. We do know, however, that
the ‘shock the conscience’ standard requires a high level of
outrageousness, because the Supreme Court has specifically
admonished that a substantive due process violation requires
more than an ordinary tort....” (Id. at pp. 573–574, citing
*1186 Collins v. Harker Heights (1992) 503 U.S. 115, 126,
128, 112 S.Ct. 1061, 1069, 1070, 117 L.Ed.2d 261.) As the
high court has recognized, “The Due Process Clause ‘is not
a guarantee against incorrect or ill-advised [governmental]
decisions.’ ” (Collins v. Harker Heights, supra, 503 U.S. at p.
129, 112 S.Ct. at p. 1070.)
In this case, regardless of whether the City Council's decision
was proper under state law, we cannot say that its conduct,
for due process purposes, was arbitrary or oppressive or that
it “shocks the conscience.” Although we have concluded that
Councilmember Benz had a conflict of interest in voting
on the project, the city attorney advised the Council at the
public hearing that there was no conflict. That advice was
incorrect, but it was not irrational. In light of the city attorney's
opinion, the Council did not act irrationally by allowing Benz
to participate in the proceedings. 33
18
 Kurtz, Lauren 3/14/2023
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Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)
56 Cal.Rptr.2d 223, 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229...
33
The city attorney's advice was limited to whether
there was a conflict of interest based on (1)
the proximity of Benz's residence to the Clarks'
property and (2) Benz's opposition to the Clarks'
1989 project. No one raised the issue of Benz's
personal animosity toward the Clarks (see fn. 12,
ante ), and the city attorney, apparently unaware of
that basis for disqualification, did not address it. As
far as we can tell, none of the other councilmembers
knew about that issue either.
Plainly, the Council erred in considering and deciding
issues raised for the first time after the public hearing was
over. Further, it may have misconstrued or misapplied the
provisions of the zoning ordinance concerning lot coverage
and usable open space. Nonetheless, the Council's ultimate
decision to deny the permits did not lack a rational basis.
The Council's application of the zoning ordinance was not
wholly without reason. With respect to limiting the height
of the Clarks' structure to 30 feet, there was evidence that
most of the homes in the area were 30 feet in height or
lower. Similarly, the Council's interpretation and application
of the provisions on lot coverage and usable open space
were not irrational. 34 Moreover, we cannot overlook the fact
that several members of the community opposed the Clarks'
project, signing petitions to appeal the planning commission's
decision and speaking against the project at the City Council
hearing. “After all, a legislator is supposed to respond to the
concerns of his or her constituents.... Whether their concerns
were proper or justified is not the issue here. The point is that
their elected representative[s] decided to oppose the project....
‘The opinion of area residents concerning neighborhood
preservation is an appropriate factor for consideration in
zoning decisions.’ ” (Stubblefield Construction Co. v. City
of San Bernardino, supra, 32 Cal.App.4th at p. 711, 38
Cal.Rptr.2d 413.)
34
We agree with the City that the planning
commission's interpretation of the lot coverage
provision is not binding on the Council. To hold
otherwise would defeat the purpose of allowing an
appeal from the commission to the Council.
*1187 In sum, because the Council's decision did not
implicate a protected property right, and because its conduct
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
was not irrational, the trial court erred in finding a violation
of substantive due process. 35
35 As stated, in addition to finding that the Clarks'
due process rights were violated, the trial court
also found that Councilmember Benz had violated
the Political Reform Act and that the Council
had violated the Brown Act and the Subdivision
Map Act. Even if these state statutes were
violated, such misconduct would add nothing to
the Clarks' section 1983 claim. “Only federal
rights, privileges, or immunities are protected by
the section. Violations of state law alone are
insufficient.” (Ybarra v. Bastian (9th Cir.1981)
647 F.2d 891, 892, cert. den. 454 U.S. 857, 102
S.Ct. 309, 70 L.Ed.2d 153, italics added; accord,
Ebmeier v. Stump (8th Cir.1995) 70 F.3d 1012,
1013 & fn. 6; Love v. Pepersack (4th Cir.1995) 47
F.3d 120, 124, fn. 5, cert. den., 516 U.S. 813, 116
S.Ct. 64, 133 L.Ed.2d 27.)
**245 III–IV **
**
See footnote *, ante.
DISPOSITION
The judgment is reversed. On remand, the trial court
is directed to issue a writ of administrative mandate
commanding the Hermosa Beach City Council (1) to set aside
its decision overturning the planning commission's approval
of the Clarks' project, (2) to rehear the appeal from the
planning commission's decision, and (3) to provide the Clarks
with a fair hearing on the matter. The trial court is further
directed to recalculate the costs recoverable by the Clarks in
accordance with Code of Civil Procedure section 1033.5. The
parties are to bear their respective costs on appeal.
SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.
19
 





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 Kurtz, Lauren 3/14/2023
For Educational Use Only
McKenzie v. City of Ocean Springs, 758 So.2d 1028 (2000)
758 So.2d 1028
Court of Appeals of Mississippi.
Alma P. McKENZIE, Karen A. Delzell, William H.
Lucas, Richard K. Yerger, Nancy G. Yerger, Laura P.
Smith, Howard L. Smith and Karen K. Lott, Appellants,
v.
CITY OF OCEAN SPRINGS, Mississippi, Appellee.
No. 98–CP–00257–COA.
|
Feb. 15, 2000.
|
Rehearing Denied May 9, 2000.
Synopsis
Residents of a neighborhood that was also home to yacht
club sought review of city's decision to grant building
permit allowing yacht club to expand its pier. The Circuit
Court, Jackson County, James W. Backstrom, J., upheld
decision. Residents appealed. The Court of Appeals, Bridges,
J., held that: (1) city was not arbitrary and capricious in
granting building permit, and (2) technical error in amending
comprehensive zoning ordinance to permit use of residential
property for a yacht club did not warrant striking down
ordinance 20 years later.
Affirmed.
Procedural Posture(s): On Appeal.
Attorneys and Law Firms
*1029 William H. Lucas, Pro Se.
Karen A. Delzell, Pro Se.
Oscar Robert Jordan, Ocean Springs, Patrick A. Sheehan,
Mark D. Lumpkin, Biloxi, Attorneys for Appellee.
BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.
Opinion
BRIDGES, J., for the Court:
¶ 1. This case appears before the Court on appeal from
the Circuit Court of Jackson County. Appellants contest the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
validity of a building permit issued to the Ocean Springs
Yacht Club by the City Planning Commission and approved
by the Mayor and Board of Aldermen of Ocean Springs. The
appellants assail the procedure followed by the City of Ocean
Springs in determining whether or not to grant the *1030
permit as well as the quality of evidence considered by the
trial court sitting in review of the Board of Aldermen and City
Planning Commission. The appellants allege the following as
error
I. WHETHER THE CIRCUIT COURT OF
JACKSON COUNTY HAD SUBSTANTIAL CREDIBLE
EVIDENCE TO SUPPORT THE CITY'S DECISION TO
ISSUE A BUILDING PERMIT FOR THE OSYC.
II. WHETHER THE CITY OF OCEAN SPRINGS
MAY RELY UPON THE VALIDITY OF
A TECHNICALLY NON–COMPLIANT ZONING
ORDINANCE AMENDMENT PASSED IN 1977
Finding no merit in either allegation of error, we affirm.
FACTS
¶ 2. The appellants, acting pro se in this action, live in Ocean
Springs in a residential neighborhood that is also home to
the Ocean Springs Yacht Club (OSYC). In 1959, the City
enacted a comprehensive zoning ordinance that designated
the property that the OSYC occupies as “Residential ‘A’ ”.
In 1970, the City enacted an ordinance which amended the
1959 ordinance to include the operation of a yacht club as
an approved use of ‘Residential A’ property. In 1976, the
City enacted a new Comprehensive Zoning Ordinance to
replace the 1959 ordinance, zoning the property in question
as “R–1 Residential”. Fourteen days later, the City approved
City Ordinance 1–1977, which specifically authorized the
operation of a yacht club on the subject property.
¶ 3. The OSYC has operated on the property in question
continuously since 1977. In 1988, the City granted a permit
to OSYC to reconstruct a 400 foot pier after the previous
one was destroyed by Hurricane Elena. In 1993, OSYC
sought permission from the City to expand the 400 foot
pier. Appellants in this case objected vigorously to the
proposed expansion and to the general operation of the
OSYC in that particular location, alleging the zoning of
1
 Kurtz, Lauren 3/14/2023
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McKenzie v. City of Ocean Springs, 758 So.2d 1028 (2000)
the property is inconsistent with its use. The City Planning
Commission discussed the request with the city attorney
and the city attorney issued an opinion letter expressing
his belief that the extension of the pier was appropriate
under the current R–1 status, making re-zoning unnecessary.
Immediately thereafter, the City Planning Commission denied
OSYC's rezoning request and recommended that the City
approve a building permit for the pier extension instead. A
building permit was issued in 1997 and the issuance of the
permit was upheld by the Circuit Court of Jackson County.
STANDARD OF REVIEW
¶ 4. The Mississippi Supreme Court stated that neither
they nor the circuit court should sit as a super-zoning
commission. City of Biloxi v. Hilbert, 597 So.2d 1276,
1281 (Miss.1992). The appellate court should not determine
whether it would adopt the ordinance in question, instead
it should determine whether the City's decision to adopt
the ordinance is reasonable and supported by substantial
evidence. City of Biloxi, 597 So.2d at 1281; Ridgewood Land
Co. v. Simmons, 243 Miss. 236, 137 So.2d 532 (1962). The
decisions of municipal authorities in zoning matters, because
they are legislative decisions, are presumed valid. Woodland
Hills Conservation Ass'n, Inc. v. City of Jackson, 443 So.2d
1173, 1180 (Miss.1983). In examining a zoning order issued
by a city council, the circuit court sits as an appellate
court, with a restricted scope of judicial review. Ridgewood
Land Co. v. Moore, 222 So.2d 378, 379 (Miss.1969). To be
reversed, the order must be shown to be arbitrary, capricious,
discriminatory, beyond the legal authority of the City Board
or unsupported by substantial evidence. Ridgewood Land Co.,
222 So.2d at 379.
*1031 LEGAL ANALYSIS
I. WHETHER THE CIRCUIT COURT OF
JACKSON COUNTY HAD SUBSTANTIAL CREDIBLE
EVIDENCE TO SUPPORT THE CITY'S DECISION TO
ISSUE A BUILDING PERMIT FOR THE OSYC.
¶ 5. The record reflects that the Mayor and Board
of Aldermen were anything but arbitrary and capricious
in determining the fate of the pier extension. It appears
that they followed existing statutory law by heeding the
© 2023 Thomson Reuters. No claim to original U.S. Government Works.
Comprehensive Zoning Ordinance regulations and seeking
the advice of the city attorney on the proper application
of those regulations to the instant case. Section 401 of the
Comprehensive Zoning Ordinance (CZO) of Ocean Springs
governs areas zoned as R–1. Of course, while the principle
use of R–1 land is single family dwellings, other uses are
expressly permitted, like a country club. Yacht clubs and
country clubs are defined identically under this section of the
CZO. City ordinance 1–1977, unanimously approved by the
Mayor and Board of Aldermen, specifically states that the
parcel of land on which the OSYC sits can be used for country
club purposes, which is synonymous with yacht club purposes
as defined in other CZO sections.
¶ 6. Section 409.2 of the CZO defines a zone called C–4–
B, which applies to commercially limited marinas and allows
yacht clubs to operate in those areas. Appellants seem to argue
that because there is a C–4–B zone, that area should be the
only zone where a yacht club can operate. Nothing in the
CZO dictates a yacht club designation must be and can only
be placed in a C–4–B zone. This is glaringly apparent when
considered in light of other ordinances passed to the contrary
specifically allowing the OSYC to operate in their current
location.
¶ 7. Appellants also argue that the pier will be extended into
the water, which is not zoned for R–1 use and not really zoned
at all. All of the riparian rights aside, the OSYC has used the
water in front of the property since the early 1970's, and the
use of water areas falls under the purview of the Mississippi
Bureau of Marine Resources which has already approved the
pier extension in question.
¶ 8. Much of what appellants argue in their brief is irrelevant
and has no bearing on the 1997 building permit, but
rather the process and procedures that were followed years
earlier in regard to securing the location for the OSYC in
their neighborhood. After applying existing zoning law and
considering the recommendation of the City attorney, the
Mayor and Board of Aldermen denied the zoning request
as unnecessary. Another administrative agency issued the
building permit based upon the same guidelines and evidence.
Certainly this evidence presented to the trial court far and
away meets the arbitrary and capricious standard set forth
above.
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