While the City had received letters opposing the gas station, the permit was approved by the Planning Commission, a decision appealed by the Sierra Curtis Neighborhood Association. The real issue arose due to the actions of City Council member Jay Schenirer, who was a member and representative of the Sierra Curtis Neighborhood Association. The appeal from the Planning Commission would be heard during a public hearing by the City Council, meaning Councilmember Schenirer would be a deciding vote for the appeal of the conditional use permit approval.
The Court made it clear that Councilmember Schenirer’s membership in the association and residence in the Curtis Park neighborhood did not disqualify him from voting. He had the ability to represent his constituents through the association and the gas station would not affect him more than others in his area. However, his “behind the scenes” activity constituted a severe Brown Act violation and showed inappropriate bias. Councilmember Schenirer created a list of “talking points” advocating against the gas station and providing other members of the Council with essentially a script with how to deny the use permit, who was to make the motion, and who was to second. This script was then circulated to the other council members the day before the hearing and followed in executing the vote to deny the permit. The Appellate Court held in favor of Petrovich that Schenirer was biased and issued the following ultimate holding:
“These ‘concrete facts’ establish that Councilmember Schenirer was biased. He took affirmative steps to assist opponents of the gas station conditional use permit and organized the opposition at the hearing. Councilmember Schenirer acted as an advocate, not a neutral and impartial decisionmaker, and should have recused himself from voting on the appeal. Because he did not, Petrovich did not receive a fair hearing.”
The City was ordered to provide a fair hearing to Petrovich, without Schenirer voting, and to pay for all Petrovich’s costs incurred due to the litigation.
The attorneys at Moore & Bogener focus a large portion of their practice on public entity representation, which assists elected officials in making the right and legal decision, and not ending up jeopardizing the credibility and finances of the public entity they represent.