Court ruling in Woody’s Wharf dancing case may have statewide effects

A California court’s opinion that the Newport Beach City Council violated municipal code in an appeal involving a popular Balboa Peninsula restaurant could have ripple effects in cities throughout California, according to a Sacramento advocacy group.

A three-judge panel of the 4th District Court of Appeal issued a ruling Jan. 29 that reinstated the Newport Beach Planning Commission’s approval of dancing and extended patio hours at Woody’s Wharf.

The commission’s decision in September 2013 was appealed to the City Council by then-Councilman Mike Henn, and the council banned dancing and late patio hours at the restaurant. Woody’s Wharf sought to overturn the council action in Orange County Superior Court but was denied by Judge Derek Hunt in May 2014. The 4th District decision reversed that judgment.

The panel determined that the council had violated city code by allowing Henn to appeal the Planning Commission decision without submitting an appeal form and paying a filing fee.

The code said an “interested party” could appeal to the City Council a decision of a subordinate commission. But it didn’t specify that council members were considered an “interested party” or that they did not have to pay the filing fee. Because of that, the court said Henn’s action should not have been allowed.

“The City Council violated its own municipal code by entertaining Henn’s appeal even though he didn’t follow the procedures laid out in the code, and then retroactively tried to justify that violation by claiming the city has a custom of extending such lenity to council members,” Judge William Bedsworth wrote in the decision.

Newport Beach has spent more than $100,000 on the Woody’s Wharf litigation, according to City Attorney Aaron Harp. It is unclear whether the City Council will petition the California Supreme Court for review.

The 4th District Court of Appeal said it also took issue with Henn’s appeal because he had already voiced “strong opposition” to Woody’s application and therefore should not have been able to participate in the City Council discussion and vote.

“A person cannot be a judge in his or her own cause,” Bedsworth wrote.

Many California cities allow council members to appeal decisions of lower commissions, said Patrick Whitnell, general counsel for the League of California Cities in Sacramento.

However, not all of them may be safe from litigation.

Whitnell couldn’t point to a specific number of municipalities that allow such appeals based on ordinances or by past practice and policy, as Newport Beach did.

“Those cities in the latter category will need to review this decision and decide whether to amend their appeals ordinances to explicitly authorize the council and individual council members to initiate appeals,” he said.

In response to the court’s decision, the Newport Beach council on Tuesday unanimously directed staff to provide specific wording for the municipal code that would allow council members to appeal decisions of lower commissions and state that council members will be exempt from paying the filing fee.

The initiation of the code amendment is a procedural first step, City Manager Dave Kiff said. The proposed change would go to the Planning Commission for approval and ultimately be decided by the City Council in coming months, he said.

Some nearby cities, like Huntington Beach, specifically state in their codes that council members are exempt from paying a filing fee to appeal a lower commission’s decision.

Others aren’t as clear.

Costa Mesa’s code states that “the City Council or any council member may request that a decision of any city employee, committee or commission be reviewed by filing an application with the city clerk stating the reasons for the requested review.”

Council members do not have to pay the filing fee required of others, city spokesman Bill Lobdell said, though, like Newport Beach, Costa Mesa’s municipal code does not specifically address whether council members can bypass the charge.

Roger Diamond, attorney for Woody’s Wharf, said he is opposed to council members filing such appeals.

“It gives them too much authority and invites the possibility of abuse and corruption,” he said. “If the parties involved don’t want to appeal, there’s no reason the City Council should be able to do it.”