Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BS 096771. Dzintra Janavs, Judge.
Cox, Castle & Nicholson and Stanley W. Lamport for Plaintiff and Appellant.
Aleshire & Wynder, Stephanie R. Scher and June S. Ailin for Defendant and Appellant.
WOODS, J.
Diana Gdowski sought a writ of mandate ordering the City of Palos Verdes Estates (City) to vacate its resolution approving construction of a new residence on land across the street from her home. The trial court entered judgment in Gdowski’s favor on the ground she was denied a fair hearing before the City council (Council). Gdowski contends the judgment (and writ) improperly include language allowing the City to limit the scope of evidence it might consider on remand. The City cross-appealed contending the judgment was improperly entered in Gdowski’s favor as she had a fair hearing and the disputed language was proper. We reverse and remand to modify the language in the judgment and writ.
FACTUAL AND PROCEDURAL SYNOPSIS
I. The Ordinance
In 1988, the City adopted its Neighborhood Compatibility Ordinance (Ordinance), which is codified in Palos Verdes Estates Municipal Code (MC), chapter 18.36. A permit pursuant to the Ordinance is required for development in the R-1 zone when any new structure or certain additions to existing structures are to be built. (MC § 18.36.010.) The Ordinance provides:
In order for a permit to be issued, four findings must be made:
B. That the proposed development is designed and will be developed in a manner which will be reasonably compatible with the existing neighborhood character in terms of scale of development in relation to surrounding residences and other structures;
D. That the proposed development is designed and will be developed in a manner to the extent reasonably practicable so that it does not unreasonably interfere with neighbors’ existing views. (MC § 18.36.045)
II. The Proposed Project
Mike Aulert and Ashai Design (real parties) proposed building a two-story single family spec-house at 2317 Via Acalones (the Property or Project). The Property is a vacant lot on a hillside that slopes downhill from Via Acalones. There is a home abutting the west side of the Property, and a vacant lot to the east. The rear of the Property abuts three homes that front on Via Del Monte, which is downhill and north of Via Acalones. Two of those lots have dense vegetation along their boundaries with the Property, including a strand of tall pine trees that screen those lots from the Property.
Gdowski’s home is across the street from the Property on Via Acalones. It is one of two homes that have a sweeping view over the Property; that view is the predominant view from Gdowski’s house. Gdowski’s view includes an unobstructed view of the Redondo Beach waterfront extending from King Harbor southward to the Esplanade and adjoining beaches and extends inland from the Esplanade and includes city lights, all of which would be blocked by the project approved by the Council.
III. City Proceedings
A. Events Prior to The Planning Commission (Commission) Hearing
The Ordinance requires a project applicant meet with surrounding property owners at least 14 days before the first planning commission meeting to attempt to resolve any differences. (§ 18.36.043.A.2.) The real parties initiated the process in November 2004, and the Project architect met with Gdowski and others on December 2 and presented a design. The neighboring property owners told the Project architect the proposed structure was too high and blocked the neighbors’ views and he needed to significantly lower the height of the structure. The property owners asked the architect to put more of the square footage on the first level and less on the second. There was a consensus among the neighbors present that moving the proposed structure to the rear yard setback would resolve the concerns of the property owners on both streets.
On February 5, 2005, the Project architect’s assistant met with Gdowski and other affected neighbors and presented a revised plan Gdowski claims failed to address any of the concerns raised at the December meeting. The revised design increased the size of the second story. The assistant stated the real parties would not make any further changes.
Following the February 5 meeting, Gdowski retained Russ Barto, an experienced architect in the City, to review the Project plans and recommend reasonably practicable measures to reduce the impact on her view. The measures Barto recommended included (1) moving the structure northward (and downslope) to the 15-foot minimum rear yard setback, and (2) minimizing the upper story by shifting 618 square feet from the rear of the second story to the first floor.
Gdowski claims those measures would resolve the privacy issues of the neighboring property owners below the Project on Via Del Monte and the view concerns of herself and her neighbor living across from the Project on Via Acalones, without reducing the square footage of the proposed residence because: (1) moving the structure to the rear yard setback would reduce the elevation of the house and its towering effect above the properties on Via Del Monte, allow the first floor to be screened from the houses on Via Del Monte by existing trees and vegetation, and open up the views from the properties on Via Acalones, and (2) shifting the mass of the second story to the first floor would push the second story away from the properties along Via Del Monte, eliminating the concern the house would loom over those properties and would have the least adverse effect on the views from the homes on Via Acalones.
B. Commission Hearing
The Commission considered the Project on February 15, 2005. The staff report described the Project and included the plans for the Project as well as letters from concerned property owners. The Project architect claimed there was no community consensus regarding moving the structure on the site. The commissioners discussed the Project and issues relating to grading, views and privacy; their greatest concern was the quantity of grading for the Project. Although the commissioners expressed an interest in having the real parties redesign the house to incorporate one or more of Gdowski’s recommendations, in the end the Commission voted to approve the Project without change.
C. Council Proceedings
1. Gdowski’s Appeal
On March 2, 2005, Gdowski appealed the Commission decision to the Council. The City noticed the hearing for April 12.
The four property owners living immediately below the Property submitted a jointly signed letter supporting Gdowski’s appeal. In part, the letter stated:
. . . .
Two of the owners who signed the letter reaffirmed their support at the Council meeting. Gdowski’s representative read into the record a statement from the property owner immediately to the west of the Property expressing his support for incorporation of Gdowski’s proposed measures. Gdowski’s next door neighbor expressed his support in writing. Another neighbor expressed support at the Council meeting.
2. Council Hearing
At the April 12 Council meeting, the Council was provided with a staff report, Gdowski’s appeal documents, a transcript of the Commission hearing, the draft minutes of the Commission hearing, the permit application and plans, correspondence received before the Commission hearing, photographs submitted by Gdowski at the Commission hearing, and correspondence received after Gdowski’s appeal was filed. Gdowski was afforded an opportunity to present her position and a rebuttal.
The hearing opened with a PowerPoint presentation by Allan Rigg, the City planning director. Then the mayor opened the public hearing. Gdowski’s counsel made a presentation, followed by the Project architect. The architect told the Council it was possible to move the structure to the rear yard setback and the real parties would do whatever the Council recommended. Surrounding property owners addressed the Council, and the Project architect gave a brief rebuttal regarding drainage.
Rigg is also the City’s Public Works Director.
Gdowski’s counsel gave a rebuttal. He noted the Project architect had acknowledged Gdowski’s proposed measures were feasible. Counsel explained the combined effect of moving the structure down hill and eliminating part of the second story, lowered the elevation of the house by three feet, which eliminated the towering effect of the house of concern to the property owners on Via Del Monte and opened up the views for Gdowski and her neighbors on Via Acalones.
3. The Mayor’s Presentation
The mayor then closed the public hearing and made a PowerPoint presentation which included a chart at the end. The chart had not been presented during the hearing, and Gdowski had not been shown the chart before the presentation. The chart was not part of the written staff report.
The mayor explained the chart showed that by moving the house northward to a point 18 feet from the property line, the elevation of the structure would be reduced by two feet, but the structure would appear larger to the property directly below. The mayor acknowledged the chart did not show the elevation at the 15 foot rear yard setback; but he stated he had analyzed moving the house back that far. The mayor stated moving the house back to the setback line would lower the elevation by three feet, but the house would appear larger. The mayor stated he had “confirmed the geometry” with the City’s planning director.
Gdowski was not afforded any opportunity to respond. Gdowski claims that once she and her consultants saw the chart, they realized it was wrong. In Barto’s declaration attached to Gdowski’s motion for a writ, he detailed the problems with the chart. First, the chart used a faulty perspective -- it was based on someone lying flat on the ground in the middle of the backyard of the Lee residence on Via Del Monte, which exaggerated the perspective. Second, the chart did not account for the dense landscaping along the boundary of the Lee property, which would obscure the first floor of the proposed house completely as well as much of the second floor so the house would not be visible from the properties on Via Del Monte. Third, the chart did not account for reducing the mass of the second floor away from houses along Via Del Monte, which would significantly reduce the view of the second floor from the Lee residence.
Gdowski asserts that when the chart is revised to show how moving the proposed residence to the 15-foot rear yard setback would appear to someone standing at a five-foot level at the rear of the Lee residence, the structure would not appear larger as the mayor stated. When one accounts for the proposal to reduce the northern portion of the second story mass, the visual effect is the opposite of what was depicted in the mayor’s chart and better than what the Council approved.
The Council adopted a motion to deny Gdowski’s appeal and approve the Project with certain conditions including a 15-foot landscape screen be added to the rear of the Property to screen the structure from the properties on Via Del Monte.
4. The Council Refuses to Reopen The Public Hearing
After the April 12 hearing, Gdowski made repeated attempts to get the mayor’s chart, which the City failed to provide until a week before the Council adopted the resolution for the project (Resolution) on April 26.
On April 25, Gdowski submitted a letter to the Council requesting it reopen the public hearing to allow her to rebut the mayor’s chart. Gdowski was also having trouble getting a copy of the draft Resolution approving the project. Even though the agenda was posted on Friday, April 22, there was no copy of the Resolution to review. The City clerk told Gdowski the Resolution had been mailed to her earlier in the week and a copy would be available for public review on the evening of the Council meeting. Gdowski did not receive the Resolution in the mail. When she went back to the City on Monday, the City refused to give her a copy and repeated a copy would be available for public viewing on the night of the hearing. The Resolution arrived in the mail two weeks after the hearing.
At the April 26 hearing, Gdowski’s counsel asked the Council to reopen the public hearing and informed the Council that Gdowski had not received the Resolution until just before the hearing and the Resolution appeared to contain items not supported by the record.
The Council refused to reopen the hearing and adopted the Resolution without change.
IV. Court Proceedings
A. Pleadings
On May 12, 2005, Gdowski filed her petition for writ of mandate and complaint for declaratory and injunctive relief, alleging she was denied a fair hearing in the proceeding before the Council. The parties filed cross-motions. Gdowski argued she was denied a fair hearing because the Council denied her appeal based on the mayor’s presentation which occurred after the close of the public hearing and she was not afforded an opportunity to rebut that evidence. Gdowski also maintained that at least one Council member stated his decision was influenced by backroom, ex parte communications with the City planning director and that there was no evidence in the record to support one of the findings required by the Ordinance. The motion included declarations from Gdowski and her architect explaining why they thought the mayor’s chart was inaccurate.
B. The Ruling
At the close of the hearing, the court adopted it tentative decision as its statement of decision. In part, the court stated:
“ . . .
“The City contends . . . that the Mayor’s chart was not evidence, but a visual aid for his discussion with members of the City Council. The facts do not support that contention. The Mayor, an engineer . . ., presented a technical analysis of perspectives on what was represented to be a scale drawing, but which had not been made part of the record during the evidentiary hearing. The chart was more than just a visual aid and the Mayor’s statements of opinion based on it also constituted more than mere discussion of evidence before the Council.
“. . . .
During the hearing, the court suggested it would allow the City to limit its consideration on remand to the declarations and exhibits Gdowski submitted with her motion and indicated the City might reach the same decision on remand.
At the conclusion of the hearing, the court granted Gdowski’s petition. When Gdowski’s counsel raised a concern the court could not direct the scope of the proceedings before the Council, the court responded it would not require the City to consider more than the information Gdowski had presented to the court.
The court ordered Gdowski to prepare a proposed judgment and writ of mandate. Following a round of objections, comments, revised and substitute proposed judgments, the court entered judgment using the City’s proposed judgment. The court issued a writ of mandate ordering the City to set aside its approval of the Resolution and:
Gdowski filed a motion to vacate the judgment, arguing authorizing the City to limit its consideration on remand was beyond the court’s authority. The court denied the motion.
Gdowski and the City filed timely notices of appeal from the judgment.
DISCUSSION
The City contends the judgment in favor of Gdowski was improperly entered as Gdowski was not denied a fair hearing. Gdowski contends the judgment contains language improperly permitting the City to have a limited hearing on remand.
I. Fair Hearing
Whether Gdowski had a fair hearing before the Council is a question of law, which we review de novo. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.)
A. Gdowski had a right to a fair hearing.
The City asserts Gdowski has not established due process guaranteed her any right of rebuttal reasoning that she had no protectible property right that would trigger a right of rebuttal in an informal administrative hearing. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 286 [“‘Due Process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest. . . . A formal hearing, with full rights of confrontation and cross-examination is not necessarily required.’”].)
The City seems to suggest that because Gdowski does not have a right to an unobstructed view (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 535), she did not have a right to a fair hearing. The City did not raise this argument below. (Curcio v. Svanevik (1984) 155 Cal.App.3d 955, 961 [a theory not raised in the trial court may not be raised for the first time on appeal].)
However, in this instance, referring to a right of rebuttal is misleading. If the City presented new evidence after the close of the public hearing, what Gdowski was denied was the right to refute that evidence. (See Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at pp. 1171-1172.) Such a denial falls under the due process rubric of notice and opportunity to be heard.
When a land use approval involves a quasi-adjudicatory decision such as the one here, affected property owners have a right to notice and opportunity to be heard. (See Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-615.) Moreover, even though the Council conducts a de novo review of the project application, i.e., whether it should be approved, the Ordinance provides an objecting homeowner the right to a public hearing. (MC § 17.04.100.F.) Thus, Gdowski had the right to a hearing and due process requires that it be a fair hearing, i.e., one that “‘requires that the party be apprised of the evidence against him so that he may have an opportunity to refute, test and explain it.’” (Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at p. 1172.)
B. Gdowski was not afforded a fair hearing.
In Clark, a city planning commission approved a project, and the city council denied permits for the project. On appeal, one issue was whether the petitioner had received a fair hearing before the city council. The court reasoned: “‘[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 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.’” (Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at pp. 1171-1172.)
After the public hearing, the mayor made the following presentation:
Now the same thing, of course, happens with the side of the truck, the side of the truck as it comes toward you gets wider. So you have to look at it at a wider angle to see the side of the truck. What I’m trying to depict here is that effect. As this house is moved back on the lot as it comes towards Via Del Monte, the house gets bigger just like the back of the truck. Now if the house gets lower, that helps, but [it] comes back at you faster than it gets lower, you can actually end up looking at a bigger house. And I went through the geometry here to show what the effect is. Based on the plans, it appears that from the present, it appears to me from the present location of the house, the proposed location, you can move it 12 feet to that rear property line. There’s another 18 foot setback, or should I say to the setback line, there’s another 18 feet to the property line.
The City argues the mayor’s chart was a graphic representation of his understanding of the impact on the neighbors of moving the project house toward the houses located downslope from the Property and that he was not testifying when he presented his chart but conveying his own understanding and analysis of the evidence. The City further asserts the chart was based on evidence (i.e., the plans filed as part of the application for the Project) before the Council and could have been visualized from his comments. However, the documents cited by the City, i.e., the vicinity map and plans, just show the setting of the proposed house and do not attempt to explain how the house would look larger if it was moved downslope.
In the case at bar, the court found the mayor’s chart and presentation constituted new evidence not just an illustration of evidence in the record. We agree with the court’s conclusion “[t]he chart was more than just a visual aid and the Mayor’s statements of opinion based on it also constituted more than mere discussion of evidence before the Council.” The mayor did more than simply demonstrate closer objects appear larger; he was attempting to prove the fact that moving the house downslope would not protect the downslope neighbor’s privacy. (Evid. Code, § 140.) The mayor’s presentation was more than a summary of the evidence in the record, the mayor’s reference to going through the geometry demonstrates he was giving a technical opinion as an engineer about the meaning of that evidence.
Citing Wagner v. Doulton (1980) 112 Cal.App.3d 945, 950-951, the City posits the mayor’s chart was the same as the diagram of the scene of an accident prepared by a juror who was an engineer, which the court found did not constitute misconduct or new evidence as it was the juror’s pictorial representation of his idea of the testimony he heard during trial. The mayor did not simply illustrate evidence in the record as did the engineer who drew a diagram of an accident scene in Wagner, he drew conclusions about the significance of the evidence and made geometric calculations, which were confirmed by the planning director. The basis of the planning director’s opinion was not only not presented at the public hearing, but also it was not even presented during Council discussions.
The mayor’s chart and explanation had an effect on other members of the Council. Councilwoman Humprey acknowledged the mayor’s clarification and agreed with his position about moving the structure. Councilman Sherwood relied on the mayor’s presentation and a conversation he had with the City planning director, that Sherwood did not disclose until after the public hearing. Sherwood stated the position of the home had concerned him, but after the explanation of the mayor and the planning director, he felt moving the house “doesn’t seem to make sense if it doesn’t help the neighbor below and it doesn’t help Ms. Gdowski.” Councilman Flood made a passing reference to the mayor’s presentation when he discussed preserving views and mentioned the theories for reducing view impacts “are being disproved by people who are suggesting that the facts as presented to us are wrong.”
Moreover, it does not matter whether or not the chart played a significant role in the Council’s decision; it played a role as reflected in the statements of Council members and the Resolution’s findings. (See Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at p. 1172.) Finding 5.e states: “If the proposed structures were moved to the rear lot line, the height and width of the structures would appear to increase significantly for those properties adjacent to the Propert[ies] which front on Via Del Monte. If the first floor was moved to the rear lot line and the second floor decreased, the second floor would continue to impose the same impact on the Via Del Monte properties, while the first floor would appear to increase significantly in width.” Finding 5.f states, “The present position of the project the Property minimizes privacy concerns of the Via Del Monte neighbors by creating the greatest distance possible from them while addressing the need for minimal impacts of views of the Appellant.”
In part, Finding 6.a asserts “the project has been sited on the Property so as to balance the conflicting view and privacy impacts on neighbors.” Finding 6.c states the project will preserve privacy “since the structure on the Property has been positioned to minimize such impacts.” Finding 6.d regarding views includes “the project has been positioned to assure the privacy of persons residing on adjacent properties.”
It is obvious the Council felt that no purpose would be served by moving the proposed structure to the rear setback. Moreover, even though we agree with the City that the discussions between council members and the planning director were not improper communications as the planning director is an employee of the City whose job is partly to assist the Council in making decisions, what was improper was that the substance of those discussions and the basis for the planning director’s opinion were not part of the record before the Council at the hearing.
In English v. City of Long Beach (1950) 35 Cal.2d 155, the case quoted in Clark, the city manager dismissed a patrolman on the basis he was physically unable to perform his duties, and the civil service board approved the action after a hearing at which English was present and represented by counsel. Both parties called witnesses who testified about English’s physical condition and its relation to the performance of his duties. The court determined English had been denied a fair hearing because the board relied upon evidence taken outside the hearing: “Some of [the board members] talked to one of the examining doctors, and one member questioned his personal physician concerning the relation of English’s asserted disability to the performance of his duties of his position. The information thus received was imparted to other board members, and was considered and relied upon by them in arriving at their decision.” (Id., at pp. 156-157, 159.) Similarly, the Council’s decision approving the project was based at least partly on the mayor’s chart and presentation and communications by two Council members with the planning director. Because that evidence was not presented at the public hearing, Gdowski was denied a fair hearing.
II. Judgment
The judgment ordered the City to set aside its approval of the Resolution and: “Reopen the public hearing on the Applications and conduct a further public hearing on the Applications in compliance with the Brown Act and other applicable law. The hearing may be limited to consideration of the Declaration of Diana Gdowski dated April 24, 2006 and the Declaration of Russell E. Barto dated April 24, 2006 and exhibits thereto that were submitted to the Court in support of Petitioner’s Motion for Writ of Mandate.” Gdowski contends the court was not authorized to enter such a judgment.
The City’s argument that Gdowski’s appeal should be dismissed as there is no final determination by the Council for this court to review makes no sense as City also appealed from the judgment. In any case, it is the judgment which this court is being called upon to review.
Gdowski posits the judgment was governed by Code of Civil Procedure section 1094.5, subdivision (f), which provides:
Whether the language was improper is a question of law we review de novo. (See Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1104.)
Because the questioned language was permissive, the judgment did not improperly limit or control the Council’s discretion, i.e., it did not direct the Council how to decide the matter. (See Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1124.) However, just as a court would be constrained by due process, the Council must operate within the bounds of due process, i.e., due process places legal limits on the discretion the Council may exercise. To avoid any suggestion that the trial court was ordering the Council to conduct only a limited hearing on remand or that it or we are deciding in advance the due process limits on the proper scope of the Council’s rehearing, we direct the trial court to issue a new judgment and writ of mandate eliminating the challenged language.
In Clark, the court concluded the Clarks had been deprived of a fair hearing in three respects, including a councilmember’s conflict of interest and the city’s bias in attempting to impose a “backdoor” construction moratorium by denying the Clarks’ permits. (Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at pp. 1172-1173 & p. 1173, fn. 21.) Finally, analogous to this case, the court determined the Clarks had also been deprived of fair hearing because the council raised issues for the first time after the public portion of the hearing was over, the Clarks were not permitted to adequately address the council on those subjects and the council denied the Clarks’ request to reopen the hearing. (Id., at p. 1173.) The Court of Appeal directed the trial court to issue a writ of mandate commanding the city (1) set aside its decision overturning the planning commission’s approval of the Clarks’ project, (2) rehear the appeal from the planning commission’s decision, and (3) provide the Clarks with a fair hearing on the matter. (Id., at p. 1187.)
In the instant case, the superior court issued a writ of mandate essentially directing the Council to set aside its decision and conduct a further public hearing. The court did not expressly direct the Council to provide a fair hearing. However, due process dictates the public hearing be a fair hearing. The question is what is the nature of the fair hearing the Council must provide on remand.
Gdowski argues that on remand, the Council must make a new decision on the Applications of the real parties, which requires new findings which in turn are tied to existing conditions so the Council will have to consider conditions on the date of the new hearing. The City contends the Council may hold a limited hearing on remand.
It may be that a limited hearing on remand fully satisfies the Council’s obligation to conduct a fair hearing. The superior court found Gdowski was denied a fair hearing because the Council considered evidence not adduced at the public hearing and she should be given an opportunity to rebut the mayor’s chart and his testimony. Accordingly, at the very least the Council must consider evidence from Gdowski and other interested parties responding to the mayor’s chart and presentation regarding the effect of moving the proposed house on the Property.
We are not convinced that on remand the Council should limit its consideration to only the declarations and exhibits attached to Gdowski’s motion for a writ of mandate as those documents were offered simply to demonstrate that a rehearing would not be futile and the Council erred in denying Gdowski a change to respond to the issue of the effect of moving the location of the proposed house.
As observed in a treatise, “Administrative mandamus is not a procedure by which a petitioner can retry his or her case before a possibly more sympathetic decision-maker. Even if the petitioner succeeds in establishing a fatal flaw in the administrative agency’s decision, the remedy is most likely to be an order of remand. Typically, this means a peremptory writ of mandate directed to the agency, directing it to vacate its prior decision and conduct further proceedings. In some cases, these ‘further proceedings’ can consist of simply reconvening the administrative hearing to give notice to interested parties, to hear testimony from a single witness, to consider a document, or to adopt proper and adequate findings.” (2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2007) § 145.35, pp. 540-541.)
However, it is for the Council in the first instance to exercise its discretion and to decide whether it should start afresh and rehear the entire appeal or reconsider all its findings pertaining to the real parties’ Applications or conduct a more limited hearing on remand. Accordingly, the court is directed to issue a new and different judgment and writ of mandate substituting the following paragraph for paragraph 2 in the writ and for paragraph 2B in the judgment: “Reopen the public hearing on the Applications and conduct a fair hearing on the Applications in accordance with the law. The Council should address those issues that, in its discretion, it determines to be appropriate, consistent with this opinion.”
DISPOSITION
The judgment is reversed. On remand, the superior court is directed to issue a new and different judgment and a new and different writ of administrative mandamus substituting the following paragraph for paragraph 2B in the judgment and paragraph 2 in the writ. “Reopen the public hearing on the Applications and conduct a fair hearing on the Applications in accordance with the law. The Council should address those issues that, in its discretion, it determines to be appropriate, consistent with this opinion.” The court should set a new date for return of the writ. Each side to bear its own costs on appeal.
We concur: PERLUSS, P.J. ZELON, J.