It is usually easy to understand when a local legislative body approves a given motion.  Indeed, a simply majority vote is all that is required for a motion to pass in most communities.  Thus, obtaining a four to one vote of a city council granting an appeal of a planning commission denial of a given development project would typically warrant celebration.  The appeal would have prevailed and the project would be approved.

But vote counting can become complicated in certain circumstances, particularly in communities that have their own unique appeal provisions.  Understanding applicable land use procedural requirements and “reading the tea leaves” is critical.

The Madera Municipal Code, for example, sets forth the minimum number of City Council votes required to overturn the Planning Commission’s denial of an application for a conditional use permit:

“A five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.”

This provision was at issue in Lateef v. City of Madera, __ Cal.App.5th __ (Case No. F076227) (2020), a Fifth District Court of Appeal opinion published on February 14, 2020, in which a Madera small business owner sought conditional use permits to operate a neighborhood convenience store and to sell tobacco products, beer, and wine.  The Planning Commission denied the use permit applications and the applicant timely appealed the denial to the City Council.

At the appeal hearing one of the seven City Council seats was vacant and another member recused himself for having emailed the planning commission to vote against the applications.  After hearing all of the evidence, the Council voted four to one to grant the appeal.  The City Clerk initially announced that the motion had passed, but the City Attorney corrected that under the City’s stringent and atypical rules the appeal motion needed five-sevenths of the entire seven-member City Council to pass.

The applicant filed suit against the City arguing the City Council was required to grant his appeal because the ordinance requires only a five-sevenths vote of those councilmembers present and voting, and he received five-sevenths of the five votes that were cast, namely four votes.  The applicant also contended he was denied a fair trial because the recused councilmember and vacant seat were improperly included in determining the number of votes needed to grant his appeal.  The trial court ruled in favor of the City and the Court of Appeal affirmed.

The Court of Appeal’s opinion turned on well-established “three-step” rules of statutory construction.  In the first step, the court looks to the “plain meaning” of the statutory language.  The words of a statute are given “a plain and commonsense meaning” unless the statute specifically defines the words to give them a special meaning.

If the text’s plain meaning does not resolve the interpretive decision, the court proceeds to the second step and considers the cannons of statutory construction and extrinsic aids, including the statute’s legislative history.

Even if a statute is unambiguous on its face, however, it must be interpreted to avoid an absurd result that does not advance the legislative purpose.  Courts may refuse to enforce a literal interpretation of a statute where that interpretation would produce result at odds with the legislative objective.

Applying these legal steps to the facts, the Court held that the City’s requirement of “five-sevenths vote of the whole of the Council” is straightforward and unambiguous given that nothing in the ordinance’s language suggests that “whole of the Council” means those members present and voting.  It requires a five-sevenths vote of the “whole of the Council”—of every member—not five-sevenths of those who voted.  So even though the applicant got five-sevenths of those who voted, he didn’t get five-sevenths of the “whole of the Council.”  The Court explained that it could not ignore the word “whole” and render it mere surplusage.

The Court also held that the staff report prepared for the municipal code amendment that created the five-sevenths vote requirement intended “whole of the Council” to mean the entire seven-member Council.  Before 2016, the City had a five-member Council, and under a 1961 ordinance an appellant needed four of the five (i.e., 80%) to overturn a Planning Commission decision.  But in early 2016, the City increased the size of the Council to seven.  The legislative history showed that to maintain a similar appeal standard, but not create a more onerous standard, the City adopted the five-sevenths vote requirement (i.e., 71%).

And the Court rejected the argument that absurd consequences flow from this interpretation of the ordinance because an applicant appealing an adverse Planning Commission decision could be before the City Council with only four members voting, which is sufficient for a quorum under the municipal code, but the appeal would be denied because it would be impossible to receive five votes.  The Court reasoned that interpreting the code in this fashion would require it to rewrite the code in contravention of the City’s expressed intent, which it has no power to do.

But the Court’s reasoning on this last point is itself absurd.  There are myriad reasons why a seven-member council might not have enough members who could be present at a meeting to vote on an appeal.  Perhaps the most compelling would be a circumstance in which three of seven members must recuse because of a conflict of interest that prevents participation.  In such a circumstance the applicant could not simply seek a continuance so that at least five members could vote.  The Council could have a quorum but never enough members eligible to vote to grant an appeal.  An aggrieved applicant could never win.  And interpreting the ordinance to avoid such absurdity—i.e., reading the ordinance so it makes sense—is what the “avoid absurdity” doctrine requires and is not rewriting anything.

By this point, however, it is clear the applicant is going to lose, and lose he does.  The Court goes on to reject his argument that if the City’s interpretation of the ordinance is correct, he was deprived of a fair hearing because the recused councilmember and vacant council seat were included when determining the number of votes needed to grant his appeal. The applicant could find little to support his argument and so cited the Federal Rules of Appellate Procedure, which has nothing to do with valid voting methods for California public agencies and is not binding on California courts in any event.  Moreover, the Court reasoned, correctly, if unfairly, that the applicant could have requested a continuance of the hearing until the vacant seat was filled to increase his chance of prevailing.

Lateef is an unusual decision that turned on the atypical provisions of one city’s municipal code.  The Court could easily have interpreted Madera’s ordinance to mean the “whole of the Council” who are present and voting at the hearing so that an 80% supermajority vote of the City Council—the City’s elected officials—could defeat a decision of the unelected Planning Commission.


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