The law is replete with references to famous passages from literature and poetry, perhaps to follow Mark Twain’s pithy observation that “plain clarity is better than ornate obscurity.” So began Hauser v. Ventura County Board of Supervisors, __ Cal.5th __ (2018), in which the Second District Court of Appeal’s February 20, 2018 opinion started with the following:
“This case calls to mind the poem ‘The Tyger’ from Songs of Experience by William Blake, the last stanza of which reads: ‘Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!’ ”
The case involved a quixotic challenge to the Ventura County Board of Supervisor’s 4-1 decision to deny a conditional use permit (“CUP”) to keep five tigers on a 19-acre property in the unincorporated Deer Creek Canyon area of the County, near Malibu. There are 46 homes within a mile, and two children’s camps within two to three miles, of the property. The project would include three tiger enclosures, a 13,500-square-foot arena, and an eight-foot-high chain link perimeter fence encompassing more than seven acres.
The project proponent or other members of her family, including children, would be on site at all times. Incidentally, the proponent apparently attended an eight-day class on animal husbandry, safety, and training, but she has no actual formal training. Moreover, the website for the course promised in advance that there is no written exam, no reading, and all students receive a certificate of completion.
Not surprisingly, neighbors opposed the proposed project. They presented news stories of numerous deaths and injuries from captive big cats. They also presented video showing two tigers uncaged in the backyard of the proponent’s Beverly Hills home and photographs of the proponent with the tigers uncaged on a beach.
In denying the application, the County found the proponent failed to prove two elements necessary for a CUP: (1) the project is compatible with the planned uses in the general area; and (2) the project is not detrimental to the public interest, health, safety or welfare. The trial court denied the proponent’s petition for writ of administrative mandamus.
On appeal the proponent argued that the County’s findings are not supported by substantial evidence in light of the whole record and that the Court is required to consider all relevant evidence, including evidence contrary to the County’s denial. The Court of Appeal readily disagreed, reasoning that the proponent misapprehends the substantial evidence rule. While substantial evidence would have to support the County’s findings if it ruled in her favor, as the applicant, she bears the burden of demonstrating her entitlement to the permit. Thus, according to the Court, “[t]he determination that a party has failed to carry her burden of proof is, by its very nature, not required to be supported by substantial evidence, or any evidence at all.”
The Court nevertheless considered the evidence in the 3,300 page administrative record and noted, among other things, “[i]t is reasonable to conclude that tigers do not belong in a residential area.” The Court also acknowledged that the record contains many examples of people who have been severely injured or killed by large cats, contrary to the proponent’s claim that an escaped captive-born tiger poses almost no risk to the public, and reasoned that the fact the proponent “apparently sees no such danger is itself a compelling reason to deny her a CUP.”
The proponent also pointed to pre-heading contact’s each Board member had with project opponents, in apparent conflict with the Board’s own rules providing that such contacts should be avoided. The Court noted that the Board members had appropriately disclosed those contacts and noted that existing caselaw provides that “[a] councilman has not only a right but an obligation to discuss issues of vital concern with his constituents . . . .” The Court thus held that the Board’s contacts with project opponents was ordinary, that there was no evidence of any bias, and the proponent received a full and fair public hearing.
While Hauser breaks no new legal ground and the result is wholly unsurprising, it provides a helpful reminder on the parameters of the substantial evidence rule and the latitude public officials have to meet with their constituents even during an ongoing land use process. Perhaps the only surprising aspect of the case, however, is that the Board vote to deny the CUP was not unanimous.
Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.
For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.