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

Opinion

MASTERSON, J.

Douglas and Cheryl Clark own a duplex in the City of Hermosa Beach, California (the City). In 1992, they applied to the Hermosa Beach Planning Commission for permits to demolish the duplex and replace it with a two-unit condominium. The commission approved the project. The matter was appealed to the city council (the Council). By a three-to-two 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 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 In the unpublished portion of the opinion, we conclude that the trial court should not have awarded damages or attorney fees and should have disallowed certain cost items.

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 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.) 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.”

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 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. flD . . . ffl] 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 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 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, [’ll] 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. [^D - • • [*3D 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 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).

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 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 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. 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.

On February 12, 1992, several residents appealed the commission’s approval of the Clarks’ project to the 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 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. [U Also, from a ‘window survey’ of this area, it is estimated that most development in this area is 30 feet, or under.[] [U 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. [H 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.”

A follow-up memo dated March 24, 1992, provided more specific information on the Clarks’ project: “The residence directly adjacent to the north [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 less. However, there are some dwellings that reach as high as 40’. . . . [U The R-3 area in question, between Manhattan Ave. and Hermosa Ave., drops down an average of 24’ below the R-l 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. HQ 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 Council held a public hearing on the appeal in the Clark matter. Present at the hearing were Councilmembers Robert Essertier, Sam Edgerton, Albert Wiemans, and Robert Benz. (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.

From the audience, 13 individuals (including Mr. Clark) spoke in favor of the project; 5 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.”

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 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. Councilmember Essertier further expressed his view that the project did not have sufficient “usable open space.”

Councilmember Wiemans summed up his position on the appeal as follows: “First, this is an R-3 neighborhood and 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 views on the height, lot coverage, and open space issues. 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.

By letter dated April 10, 1992, the Clarks’ attorneys objected to the Council’s having considered new issues—lot coverage and usable open 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. . . . [H . . . [DD . . . [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.”

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 the R-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 R-3 height change from 35 to 30 feet immediately. There 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 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 mandate, alleging that the City had deprived the Clarks of a fair hearing and had abused its discretion (Code Civ. Proc., § 1094.5); and (2) a complaint alleging a violation of procedural due process (42 U.S.C. § 1983). In September 1992, the Clarks dismissed the individual defendants without prejudice.

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.) and under common law, such that “[h]e was legally precluded from participating in the decision on the Project [pjermits”; (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 (Gov. Code, § 66410 et seq.); 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.

In early October 1994, the trial court, sitting without a jury, heard testimony on the Clarks’ civil rights claim. Witnesses included the Clarks and Councilmembers Essertier, Edgerton, and Benz. 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).

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 Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.) since Councilmember Edgerton had held private discussions with three other councilmembers before the public hearing on the appeal from the planning commission. 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 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.

In late 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). 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. 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.

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 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 was proper. However, the trial court erred in reinstating the decision of the planning commission. Instead, the writ should have directed the 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 brought under title 42 United States Code section 1983.

I

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 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 omitted.) The trial court’s “fair hearing finding was a conclusion of law, not a finding of fact, and requires a de novo review of the administrative record.” (Id. at p. 1442.)

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 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. . . . ['JO . . . 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”]; Rosenblit v. Superior Court, supra, 231 Cal.App.3d at p. 1448 [“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 .... [H ... [TD 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).)

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 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, 18 A.L.R.2d 547], citations omitted.)

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. 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 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.)

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. At a minimum, this evidence establishes that the Council was not impartial to the Clarks’ project.

In sum, because the Council deprived the Clarks of a fair hearing, the trial court properly issued a writ of administrative mandate.

B. The Remedy for Denial of a Fair Hearing

The trial court set aside the 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.

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 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, 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 fhir hearing and issued a writ of mandate directing that he be reinstated. The Couri qf Appeal 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-á fair hearing. [