Hauser v. Ventura County Board of Supervisors

Filed 2/20/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
IRENA HAUSER, 2d Civil No. B276903
(Super. Ct. No. 56-2014-
Plaintiff and Appellant, 00455399-CU-WM-VTA)
(Ventura County)
v.
VENTURA COUNTY BOARD
OF SUPERVISORS,
Defendant and Respondent.
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!”
Irena Hauser applied for a conditional use permit (CUP) to
keep up to five tigers on her property. The county planning
commission and board of supervisors denied her application. She
petitioned the trial court for a writ of administrative mandate.
She appeals the trial court’s denial of the petition. We affirm and
decide, among other things, that substantial evidence supports
the findings of the Ventura County Board of Supervisors (Board).
FACTS
Hauser submitted an application to the County of Ventura
(County) for a CUP to keep up to five tigers on her 19-acre
property. The property is located in an unincorporated area of
the County near the City of Malibu. The project would include
three tiger enclosures, a 13,500-square-foot arena with a roof
over 14 feet in height at its highest point. It would be
surrounded by an eight-foot-high chain link fence encompassing
over seven acres.
Hauser’s property is located within a half-mile of 57
residential lots, 28 of which currently have residences on them.
There are 46 homes within a mile of the project. In addition,
there are two children’s camps within two to three miles of the
property. The rugged topography combined with the dense
vegetation would make retrieval of an escaped animal difficult
even with the use of GPS devices.
Hauser represented in her application that she, her sister,
their husbands or children would be on site with the tigers, with
at least one family member on site at all times. Hauser and her
sister have attended an eight-day class on animal husbandry,
safety and training. The website for the course states, “There is
no written exam nor any reading necessary for completing this
course. All students receive Certificates of Completion.” Their
husbands and children have no formal training.
The animals would be used in the entertainment business,
including movie sets, commercials and still photography. The
animals would be transported from the property by sport utility
vehicle or truck up to 60 times a year.
Neighbors opposed the project. They presented a petition
containing approximately 11,000 signatures in opposition. In
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addition, opponents presented news stories of numerous deaths
and injuries from captive big cats. Opponents also presented
video showing two tigers uncaged in the backyard of Hauser’s
Beverly Hills home and photographs of Hauser and her sister
with the tigers uncaged on a beach. Hauser claimed that for the
beach photographs there were barriers and safety personnel out
of camera view.
The planning commission denied Hauser’s permit
application, and Hauser appealed to the Board. After a hearing,
the Board voted four-to-one to deny Hauser’s application.
In denying the application, the Board found Hauser failed
to prove two elements necessary for a CUP: the project is
compatible with the planned uses in the general area, and the
project is not detrimental to the public interest, health, safety or
welfare.
DISCUSSION
I
Hauser contends the Board’s findings are not supported by
substantial evidence in light of the whole record.
Review of an administrative decision made as a result of a
proceeding in which a hearing is required is governed by Code of
Civil Procedure section 1094.5. The standard of review is abuse
of discretion. (Id., subd. (b).) Subdivision (c) of section 1094.5
provides that where, as here, the proceeding does not involve a
fundamental vested right, “abuse of discretion is established if
the court determines that the findings are not supported by
substantial evidence in light of the whole record.”
Hauser cites La Costa Beach Homeowners’ Assn. v.
California Coastal Commission (2002) 101 Cal.App.4th 804, 814,
for the proposition that: “‘“The ‘in light of the whole record’
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language means that the court reviewing the agency’s decision
cannot just isolate the evidence supporting the findings and call
it a day, thereby disregarding other relevant evidence in the
record. [Citation.] Rather, the court must consider all relevant
evidence, including evidence detracting from the decision, a task
which involves some weighing to fairly estimate the worth of the
evidence. [Citation.]”’”
Hauser misapprehends the substantial evidence rule. She,
as the permit applicant, bears the burden of demonstrating her
entitlement to the CUP. (BreakZone Billiards v. City of Torrance
(2000) 81 Cal.App.4th at p. 1224.) Had the Board decided in
Hauser’s favor, its findings would have to be supported by
substantial evidence. But the Board decided Hauser failed to
carry her burden of proof as to two required elements of the CUP:
the proposed development is compatible with planned land uses
in the general area where the development is located, and the
proposed development would not be detrimental to the public
interest, health, safety, convenience or welfare. The
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. It is the lack of evidence of
sufficient weight and credibility to convince the trier of fact that
results in such a determination.
Moreover, Hauser’s contention is based on a view of the
evidence most favorable to herself. But that is not how we view
the evidence. In viewing the evidence, we look only to the
evidence supporting the prevailing party. (GHK Associates v.
Mayer Group (1990) 224 Cal.App.3d 856, 872.) We discard
evidence unfavorable to the prevailing party as not having
sufficient verity to be accepted by the trier of fact. (Ibid.) Where
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the trier of fact has drawn reasonable inferences from the
evidence, we have no power to draw different inferences, even
though different inferences may also be reasonable. (9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 376, pp. 434-435.) The
trier of fact is not required to believe even uncontradicted
testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012,
1028.)
That there are 57 residential lots and 28 residences within
a half mile and 46 homes within a mile of the project is alone
sufficient reason to deny the project.
Hauser argues that the County never established a cutoff
point for residential density in an area where tigers are kept.
But no cutoff point is necessary. The area is undeniably
residential. In fact, Hauser points to no other use being made of
the surrounding parcels. It is reasonable to conclude that tigers
do not belong in a residential area. Hauser argues that to permit
a denial without standards is unfair. But the standard is
whether the proposed use is compatible with uses in the area.
Hauser points out the area is zoned “Open Space.” But she
does not explain how the open space designation is served by a
tiger compound that includes tiger enclosures, a 13,500-square-
foot arena, and an eight-foot-high chain link fence, 2,338 feet in
length, enclosing over seven acres. If anything, such a compound
eliminates open space.
Hauser claims that other similar projects for which a
permit was approved are in residential areas with even greater
density. But each project must be analyzed on its own merits.
Hauser cites no authority that requires the Board to approve her
project simply because others have been approved in different
locations.
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Hauser claims she has an unblemished safety record. But
the claim is belied by a video showing her tigers roaming freely in
the backyard of her Beverly Hills home. There is also a
photograph of Hauser and her sister with the tigers on a beach.
Hauser claims that when the photograph was taken, there were
security measures off-camera. But the Board was not required to
believe her claim. Moreover, even with the security measures
Hauser claims, the Board could still find that having uncaged
tigers on a beach is irresponsible.
Moreover, it is anything but comforting that Hauser’s only
formal training is an eight-day class in which students are
promised in advance that there is no written exam, no reading,
and all students receive a certificate of completion. It is even less
comforting that Hauser’s plan includes leaving family members
with no formal training alone on the premises with the tigers.
Hauser claims that the only credible evidence is that an
escaped captive-born tiger poses almost no risk to the public. But
Hauser fails to explain what makes such evidence credible. The
administrative record is replete with instances in which people
have been severely injured or killed by large cats, including a
highly experienced Las Vegas entertainer who was mauled
almost to death by his tiger. There is more than ample evidence
to support a finding that Hauser’s animals pose a danger to the
public. That Hauser apparently sees no such danger is itself a
compelling reason to deny her a CUP.
Hauser cites a Board staff report stating that it is not
reasonably foreseeable that a tiger would escape from her facility.
But the administrative record contains numerous instances
where tigers have escaped. In one instance, a tiger escaped from
an enclosure at the San Francisco Zoo. The enclosure had a 20-
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foot-wide moat and a 12-and-one-half-foot-high wall. The tiger
quickly killed a teenager and followed two other people for 300
yards before mauling them. No matter how well designed and
constructed the enclosure, no matter how stringent the safety
protocol, if there is one thing that is reasonably foreseeable,
indeed, almost inevitable, it is human error. The Board is not
bound by its staff’s opinion as to what is reasonably foreseeable.
Finally, Hauser claims the Board denied her appeal
because no matter how safe the proposed facility would be, no one
could eliminate the possibility of human error. Hauser argues
“Impossibilium nulla obligatio est,” that is, there can be no
obligation to do the impossible.
We are more impressed by the Latin than by the argument.
No one is suggesting Hauser is obligated to do the impossible.
The Board’s decision does not obligate her to do anything. Her
argument amounts to nothing more than that because it is
impossible to avoid human error, Hauser’s neighbors must bear
the risk. Applying Hauser’s logic, there is no limit to the risky
ventures that could be imposed on a residential neighborhood.
Hauser is not obligated to own tigers. Her well-intentioned
desire to own them does not trump her neighbors’ right to safety
and peace of mind.
II
Hauser contends she did not receive a fair hearing before
the Board.
At the hearing, before Hauser’s presentation, Board
members disclosed prehearing contacts concerning Hauser’s CUP
petition. Supervisor Peter Foy said he and his staff met with the
“people with the tigers” and attorney Michael Bradbury, who
represents project opponents. Supervisor Kathy Long disclosed
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she had one brief meeting with Bradbury and received e-mails.
Supervisor John Zaragoza disclosed he met with opponents and
had “some e-mails.”
Later in the hearing, the supervisors made additional
disclosures. Supervisor Linda Parks disclosed she met with five
residents in her office and they said they were “frightened of the
concept.” Parks also spoke to her staff about the 20/20 television
program that went to the site. Supervisor Foy said he spoke with
Bradbury for about a half-hour. Bradbury told Foy there is a
large group of neighbors opposing the project. Bradbury did not
present him with any evidence. Supervisor Zaragoza said he met
with two opponents of the project who told him that over 11,000
Ventura residents had signed a petition against it.
In response to interrogatories propounded by Hauser in her
petition for writ of administrative mandate, Supervisors
Zaragoza and Parks disclosed they met briefly with Tim
Gallagher and an unknown person when Gallagher dropped off a
voluminous petition at their offices. Supervisor Steve Bennett
disclosed that his senior aid met with Gallagher when he dropped
off the petition. Supervisor Parks disclosed she had a brief
telephone conversation with a project supporter who believed
Hauser was trying to establish an animal sanctuary.
Hauser argues the Board members violated their own
rules. The County of Ventura Administrative Policy Manual
provides in part:
“a. . . . [N]o member of the Board shall, after application
thereon has been filed, solicit or receive evidence outside of the
public hearing on a matter for which a public hearing is required
by State law or County ordinance; . . .
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“b. Members of the Board shall avoid personal contacts,
correspondence and telephone calls concerning substantive issues
relating to an agenda item outside of the public hearing and shall
inform persons contacting them to make their information or
objections known at the public hearing.
“c. Any member of the Board who received evidence
outside of the public hearing or has viewed the subject property,
or is familiar with the subject property, shall disclose at the
hearing such evidence and his/her observations and familiarity
with the property so that all interested persons may be aware of
the information upon which he/she is relying and have an
opportunity to respond to such information.”
Hauser points to nothing in the administrative policy
manual, or any other authority, that would prohibit a Board
member who received such information from participating in the
hearing and decision. The only sanction for receiving such
information is in paragraph c. of the policy: disclosure. The
Board members made such disclosures.
Hauser raised no objection until after the Board members
denied her CUP petition. In fact, Supervisor Foy disclosed that
he had met with the “people with the tigers.” Thus, Hauser
engaged in the same activity of which she now complains.
In any event, the standard of impartiality required at an
administrative hearing is less than that required at a judicial
proceeding. (Gai v. City of Selma (1998) 68 Cal.App.4th 213,
219.) Thus, in Todd v. City of Visalia (1967) 254 Cal.App.2d 679,
691, the court rejected the contention that councilmen who had
acquired information outside the hearing room concerning a
proposed assessment district were disqualified from voting at a
hearing to determine the validity of the district. In citing Todd
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with approval, our Supreme Court stated, “A councilman has not
only a right but an obligation to discuss issues of vital concern
with his constituents . . . .” (City of Fairfield v. Superior Court
(1975) 14 Cal.3d 768, 780.)
Unless a decisionmaker has a financial interest in the
outcome of the hearing, he or she is presumed to be impartial.
(Morongo Band of Mission Indians v. State Water Resources
Control Bd. (2009) 45 Cal.4th 731, 737.) Bias and prejudice must
be established by clear evidence. (BreakZone Billiards v. City of
Torrance, supra, 81 Cal.App.4th at p. 1237.) It is not enough to
overcome the presumption of impartiality for a party to show the
appearance of bias. (Gai v. City of Selma, supra, 68 Cal.App.4th
at p. 222.) A party must show either actual bias or show a
situation in which “‘experience teaches that the probability of
actual bias on the part of the . . . decisionmaker is too high to be
constitutionally tolerable.’’’ (Morongo, at p. 737.)
Here Hauser has shown neither. The contacts Board
members received from the public are the ordinary sort of
contacts with elected public officials approved in Todd and
Fairfield. There is no evidence that Board members had any
personal bias against Hauser or were in favor of the project
opponents. That Board members may have violated paragraphs
a. and b. of the policy manual is insufficient to show bias against
Hauser. They did not promise to vote a particular way. Finally,
they complied with paragraph c. of the policy manual by
disclosing the contacts.
Hauser received a full and fair hearing that covers over
3,340 pages of administrative record. She fails to show any
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evidence that her project was denied on any basis other than its
merits.
The judgment is affirmed. Costs on appeal are awarded to
respondent.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Rocky J. Baio, Judge
Superior Court County of Ventura
______________________________
Casselman Law Group, David B. Casselman, David
Polinsky, Kirk S. Comer for Plaintiff and Appellant.
Leroy Smith, County Counsel, Andrew Gschwind, Assistant
County Counsel, for Defendant and Respondent.
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