INJ, LLC v. City of Belvedere
| Docket Number | A164314 |
| Decision Date | 22 November 2023 |
| Parties | INJ, LLC et al., Petitioners and Appellants, v. CITY OF BELVEDERE, Respondent, DAVID MCCLOSKEY, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV2000065
The owner of a luxury waterfront home in Belvedere, California sought a writ of administrative mandamus to overturn a decision by the City of Belvedere approving the construction of a private residential pier and boat dock on the shoreline of his neighbor's property.
The trial court denied his petition, and he now appeals raising three issues. He asserts that: (1) two of the city council members were biased against him, thereby denying him a fair hearing; (2) the city violated his due process rights by evaluating the project under generalized design standards prescribed by local code rather than more specific standards applicable to a specially designated waterfront zone in which the project is not located; and (3) the city prejudicially abused its discretion in granting the conditional use permit because the pier invades his privacy.
We reject his contentions and affirm the judgment.[1]
Anthony Piazza, through his limited liability company INJ, LLC of which he is the managing member (collectively "Piazza"), owns and resides in a 6,000-square foot waterfront home located at 125 Belvedere Avenue in Belvedere California that he purchased for $13 million. It boasts sweeping views of Richardson Bay and the Golden Gate Bridge and amenities including a private pier with a boathouse 12,000-pound boatlift and 30-foot floating dock.
On February 12, 2018, Piazza's next-door neighbor at 121 Belvedere Avenue, David McCloskey, submitted applications to the City of Belvedere for design review and approval of a general use permit for the construction of a private boat pier off the shoreline of his own property, along with access stairs leading down to the pier, a hill elevator ("hillavator") and a new rear yard deck.
After two hearings before the Planning Commission and an appeal to the City Council, the Planning Commission on April 16, 2019, approved design review for the land-based features of the project (the deck, stairs and hillavator) but denied design review and a use permit for the boat pier itself. By this point, the project's design had undergone a number of changes, and three of McCloskey's neighbors, including Piazza, opposed the currently proposed location of the pier. The Planning Commission found that the size and location of the proposed pier would "crowd the shoreline, negatively impacting the views of the water for the neighborhood and the public." The Planning Commission's decision effectively meant McCloskey had been granted a permit to build stairs and a hillside elevator to nowhere.
McCloskey appealed the Planning Commission's decision to the City Council which, on June 10, 2019, remanded the project to the Planning Commission for further consideration at McCloskey's request. He was negotiating with some of his neighbors and, to accommodate their concerns, wanted to revert to the originally proposed location for the pier and allow the Planning Commission to consider that. The neighbors, through counsel, supported the remand request. Piazza, through counsel, objected to a remand and asked the City Council to deny McCloskey's appeal on the merits. During the June 10, 2019 appeal hearing, two members of the City Council, Mayor Bob McCaskill and Nancy Kemnitzer, made comments on the record that Piazza would later claim reflected their bias against him. We discuss that hearing in greater detail below.
On August 20, 2019, the Planning Commission on remand granted design review approval and approval of a conditional use permit for the pier.
Piazza appealed the decision to the City Council and sought to disqualify Councilmember Kemnitzer and Mayor McCaskill from participating in the appeal on the ground they were biased against him, as reflected by some of their comments at the previous City Council hearing. His disqualification request was implicitly denied. At a public hearing held on October 14, 2019, the City Council denied his appeal and affirmed the design review approval and issuance of a conditional use permit for the pier.
Piazza then filed a petition for a writ of administrative mandamus to challenge and set aside the City Council's decision, and the trial court denied his petition in a 16-page statement of decision.
This timely appeal followed.
Piazza argues, first, that Councilmember Kemnitzer and Mayor McCaskill should have been disqualified from participating in his appeal to the City Council of the Planning Commission's approval of the pier, because they had prejudged the issues and were biased against him, as reflected by comments they made at the earlier hearing (on June 10, 2019), at which the City Council remanded the project back to the Planning Commission to consider McCloskey's revised proposed location for the pier.
We conclude he has failed to demonstrate bias. We will begin by setting out the comments allegedly reflecting bias in context.
As noted, the June 10, 2019 City Council meeting was a hearing on McCloskey's appeal of the Planning Commission's refusal to approve the pier itself despite approving the onshore aspects of the project (i.e., the deck, stairs and elevator).
Mayor McCaskill presided over the City Council hearing.
The hearing opened with planning staff reporting that McCloskey's counsel had recently communicated that McCloskey was working with two of the other neighbors to discuss a revised location for the pier, which was the location he had originally proposed, and had asked that the project be remanded back to the Planning Commission to consider that revised pier location. Staff recommended that the City Council remanded the appeal to the Planning Commission to consider the revised location and advised the City Council that it "may give guidance to the Planning Commission for its consideration, which guidance may include possible project location and configuration suggestions." Various council members asked questions about the current state of negotiations and revised pier location, following which the hearing was opened to public speakers.
McCloskey made a brief presentation explaining the evolution of the pier design (taking questions from City Council members), explained that he was currently proposing to build the pier in the originally proposed location, and explained that he wanted to work out as much as he could with his neighbors.
Piazza's counsel then spoke. He objected to the remand request, arguing it was a "complete surprise," and that "[e]ither we have an appeal or we don't have an appeal from a due process point of view." He asserted that either McCloskey had to withdraw his appeal or the City Council had to render a decision. He argued the Planning Commission already rejected the pier location that McCloskey was now reverting back to, and urged the Commission not to remand the project, affirm the Planning Commission's decision and require McCloskey to file a new application for a use permit.
Counsel for two of the neighboring properties spoke in favor of remanding the project to the Planning Commission. She argued the neighbors supported approval of a pier for McCloskey and that the question was really finding "the right balance," and urged a remand so the neighbors could try to work out a more logical placement because they now supported the previously proposed location.
Then followed brief questions of the planning staff, which reiterated its support for a remand so McCloskey could work with his neighbors.
Mayor McCaskill then asked for advice from the city attorney about the City Council's procedural options, including if the matter were remanded whether it would be permissible for individual council members to "make individual recommendations for the record, for the benefit of the Planning Commission, as to what we think may be the preferred alternative," given the council's lengthy involvement and familiarity with the project to date. The city attorney confirmed the City Council had discretion either to remand the issue back to the Planning Commission or decide the appeal. The city attorney also confirmed that individual council members could state their recommendations ("Yes, of course"). She explained that, "[w]hen the Planning Commission reviews these issues on remand, they're very diligent as far as going through the Minutes and the Record and understanding your individual concerns and take those into account when they again review the project."
Piazza's counsel then asked to speak again. He did not state any objection to City Council members expressing individual recommendations. He merely reiterated Piazza's opposition to a remand and asked the City Council to deny the appeal. He argued McCloskey was not foreclosed from "start[ing] over again and hav[ing] a new submission with this," but asserted that a second remand would be "unfair" given the amount of time and money already spent.
Mayor McCaskill then opened the hearing up for discussion by the City Council members.
Councilmember Kemnitzer spoke first. She indicated she had "read through all the materials," and expressed the view it was a "very unusual situation" because the Planning Commission had denied approval for the pier even though it approved the onshore improvements. She then elaborated, and we italicize those comments that Piazza asserts reflects her bias against him:
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