WOODLAND HILLS RESIDENTS ASSOCIATION INC v. CALIFORNIA WESTERN CONCEPTS (1979)

I

The Procedural Background

This is Chapter Three^[FN1] in the litigation over the attempt of the real party in interest to secure approval for a development of a tract of land in the Santa Monica Mountains, involving the construction of 123 homes on 123 lots, at a density of 3.3 units per acre. The proposal involves extensive grading and fill, which it is contended would severely alter the rugged hill configuration of the area.

After that proposal had been approved by the Los Angeles City Council, and a writ of mandate to vacate that approval had been denied by the Superior Court, Division One of this court reversed the denial and ordered a writ to issue on the ground that the City Council had failed to make adequate findings on the issue of whether the proposed development complied with the city's general plan for the area. (Woodland Hills Residents Assn., Inc. v. City Council (1975) 44 Cal.App.3d 825, 118 Cal.Rptr. 856.) (Woodland Hills I.)

The Woodland Hills I court set forth its desired result in the following terms: “In the present case the judgment should be reversed and the cause remanded to the superior court with the direction that the superior court remand the matter to the city council for proceedings in the manner required by law, particularly as required by section 11526, subdivision (c), of the Business and Professions Code, with respect to finding whether the proposed subdivision map is consistent with that part of the general plan adopted by the council as the Canoga Park-Winnetka-Woodland Hills District Plan; and as required by the case of Topanga Assn. For a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12, with respect to making findings.” (Woodland Hills I, supra, 44 Cal.App.3d 825, 838-839, 118 Cal.Rptr. 856, 864.)

Thereafter, the Los Angeles County Superior Court, in obedience to the directions of Woodland Hills I, issued its peremptory writ of mandate in part as follows: “We command you immediately upon receipt of this writ to set aside your decisions approving Tentative Tract 28569 (which proceedings are hereby remanded to respondent City Council which may in its discretion further remand these proceedings, if necessary, to respondents Planning Commission and Advisory Agency), and to reconsider your actions in light of this Court's findings of fact and conclusions of law, and to take any further action specially enjoined upon you by law; but nothing in this Writ shall limit or control in any way the discretion legally vested in you.”

Pursuant to this peremptory writ of mandate, the City caused to be prepared an Environmental Impact Report (EIR), again approved the proposal, and sought to have the peremptory writ discharged. The citizen petitioners objected to the discharge, contending that the action of the City Council did not comply with the writ in several particulars hereinafter discussed, including a contention that the EIR was improperly prepared because it had been prepared and presented to the City Council without preliminary submission for public discussion, and because the City had, in the interim, also caused to be prepared a separate EIR relating to an alternative plan of development submitted by the developer. After a hearing, the trial court gave judgment granting a Supplemental Peremptory Writ of Mandamus. The Supplemental Writ of Mandamus, issued pursuant to the judgment, read as follows:

“THEREFORE, WE COMMAND YOU, immediately upon receipt of this writ, to set aside and vacate your April 19, 1977 decision approving tentative tracts 28569 and 30570, and certifying the completion of the environmental impact report on said tracts, and to reconsider the matter in accordance with this writ and the Court's findings of fact and conclusions of law and to proceed further in the manner required by law:

“(a) In the event the real party in interest or any of its successor(s) in interest seeks to secure approval of tracts 28569 and 30570, or any alternative development of the land covered by said tracts which requires the exercise of respondent City Council's discretion and which may have a significant effect on the environment, respondent City Council shall first cause to be prepared a draft EIR that incorporates in a single, integrated EIR all of the reasonably available alternative methods of developing this property, including any and all alternatives which the real party in interest or its successor(s) in interest propose, and all reasonable alternatives which the petitioners or their successor(s) in interest propose.

“(b) As early as possible in the preparation of the draft EIR, and throughout the process leading to its publication, the agency of the City of Los Angeles charged with the responsibility for preparing such EIR shall consult with petitioners and other citizens who have formally notified the City of their interest in the matter to secure their contributions in preparation of the draft EIR.

“(c) Following completion of the draft EIR, the City of Los Angeles shall then comply with the remaining provisions of the California Environmental Quality Act, and the State Guidelines and the City Guidelines issued to implement it, to provide adequate circulation and review of the draft EIR prior to preparation of the final EIR, and any decisions by respondents.

“(d) Upon completion of the circulation, revision and review periods provided for by CEQA and its Guidelines, and completion and review of a final EIR respondent City Council (or respondents Advisory Agency or Planning Commission, if the matter is properly before them) shall then consider the matter of tracts 28569 and 30570, or any other alternative properly before respondent for approval or disapproval.

“(e) In reconsidering the matter of tracts 28569 and 30570 as provided herein, respondent City Council may either remand the matter to original respondents Advisory Agency and/or Planning Commission or it may make further findings and decisions itself as it shall in its discretion determine. Nothing contained herein shall preclude respondent City Council from referring such matter to its Planning Committee for appropriate action by such Committee concerning such matter.”

The petitioners Woodland Hills Residents Association and Save the Hills have appealed from a portion of the judgment ordering that supplemental writ. The portion appealed from is described as that portion embraced in supplemental conclusions of law 3, 4, 5, 6, 7, 8, and 9. Respondents City Council of the City of Los Angeles and the named members thereof have appealed from the judgment as a whole.

II

Is the Appeal of the City Council and its Members Moot?

Petitioners now contend that the appeal of the City Council and its members is moot, because the Council has, since its appeal was filed, caused to be prepared a new EIR following the procedure dictated in the Supplemental Writ. So far as we are advised, the new EIR has not yet been presented to, or acted on by, the respondent City Council and, of course, no proceedings have been held before the trial court on the question of whether, in fact, the City Council's action does comply with the Supplemental Writ. However, assuming that the City Council's action so far renders the appeal technically moot, we conclude nevertheless that we should proceed to decide the appeal of the City Council and its members on its merits. The issues raised relate to important procedural problems in the application of the Environmental Quality Act that are of continuing concern. Not only do the parties to this litigation, but future citizens and city councils as well, need definitive advice on them.

III

There is No Merit in the Appeal of the City Council and Its Members

The issues raised on the appeal of the City Council and its members relate to the facts as found by the trial court in its findings of fact numbered 19, 20, 21, 27 and 28, and the conclusions of law numbered 2 and 10 drawn therefrom. Those findings of fact contested by the City Council and its members read as follows:

“19. On or about March 1976, the City of Los Angeles' Bureau of Engineering commenced the preparation of a separate EIR concerning a 73 dwelling unit project proposed by real party in interest CALIFORNIA WESTERN CONCEPTS on the same property which was the subject of Tract 28569.

“20. The proposed final EIR on Tract 28569 asserted that:

“(a) During the preparation of the draft EIR on Tract 28569, the City Planning Department was in regular communication with representatives of the WOODLAND HILLS RESIDENTS ASSOCIATION and on numerous occasions discussed the proposed project and Draft EIR with Mrs. Hazard.

“(b) During the preparation of the draft EIR Mrs. Hazard was given and had access to the City's EIR file and reproduced portions thereof, and both she and Mr. Rossmann were sent copies of the draft EIR approximately one month prior to commencement of the formal circulation period.

“(c) The items of environmental concern to the WOODLAND HILLS RESIDENTS ASSOCIATION were documented and known to the Planning Staff involved in the preparation of the draft EIR and were addressed in such draft.

“21. Notwithstanding the EIR's assertions described in the previous finding, the City failed to seek the citizens' comments in time to influence the preparation and content of the draft EIR. Although the City's planning staff had prior knowledge of the petitioners' prior opposition to Tract 28569, the City failed prior to publication of its draft EIR to solicit the citizens' specific environmental comments or objections for use in preparation of that EIR. The citizens, and not the City, initiated the contacts with the planning staff prior to publication of the draft EIR.

“27. During the preparation of the final EIR, original petitioners objected to its adequacy and procedure on the following grounds, among others: That petitioners, who have opposed the tentative tract many years, were not consulted in preparation of the draft EIR; that the geological hazards of the tentative tract were inadequately assessed and evaluated; that the EIR failed to develop a true alternative that minimized grading; that the EIR failed to include a full description of the developers' own 73-unit alternative, which instead was the subject of a separate EIR; and that the overall deficiency of the EIR and its procedures was caused by ‘political pressure which the developers, their consultants and attorneys can all too easily impress through the recipients of their campaign contributions.’

“28. Petitioners requested and received a one month extension in the public circulation period of the draft EIR on Tract 28569. At petitioners' request, in October, 1976, the City's Commission on Environmental Quality conducted a public hearing on the issue of the adequacy of the draft EIR. At such hearing petitioners objected to the draft EIR's adequacy and procedure on the grounds set forth in finding 27. The Commission on Environmental Quality recommended that the draft EIR on Tract 28569 and the 73 lot draft EIR be combined in a single EIR.”

The conclusions of law attacked by the City Council and its members read as follows:

“2. Notwithstanding respondents' determination that an EIR was required on Tract 28569, the EIR concerning Tract 28569 failed to comply with the California Environmental Quality Act in two respects:

“(a) Respondents failed to consult with petitioners early in the preparation of the draft EIR, as required by the California Administrative Code, title 14, section 15085(b), and the City of Los Angeles, CEQA Guidelines, article VI, section 2, paragraph d.

“(b) Respondents prepared two separate EIRs on the land covered by proposed Tract 28569, one EIR for a 123 unit development, and one EIR on a 73 unit development, and thereby failed to prepare a single integrated EIR on these developments as required by California Administrative Code, title 14, section 15061(f).

“10. Respondent CITY COUNCIL'S findings required by the California Environmental Quality Act concerning the existence and feasibility of alternatives and mitigation measures are matters of degree and subjective analysis. The Court considers that the presence of two EIRs on this land, one on a 123 unit project and one on a 73 unit project, has precluded respondent CITY COUNCIL from fully, fairly and openly determining whether there are feasible alternatives to Tract 28569 and whether specific economic, social or other considerations make infeasible such alternatives.”

As we understand it, it is the contention of the City Council and its members that: (1) The informal communications between the agency preparing the EIR and the fact that public hearings were held on the draft EIR after it was prepared, were adequate to satisfy the requirements of the Act and the Guidelines issued thereunder; and (2) that it was proper to prepare separate EIRs on the original and the alternative proposals for development. We reject both contentions.

The policy of the California Environmental Quality Act is to secure as much input into the preparation of an EIR as is possible. That policy is best met by requiring the agency to secure all possible factors as early as possible and before the pros and cons have become crystalized in a draft report. It imposes no serious burden on the preparer to formally solicit input from the beginning. Such solicitations at this stage will speed up the final EIR by allowing the preparer to consider and weigh the comments of interested citizens before, rather than after, it has prepared a draft EIR.

[2] The governing statute and guidelines require an Environmental Impact Report (EIR) to consider not only the environmental impact of a proposal but to consider and report on all alternatives to that proposal. The statute and guidelines speak of a report for each “project.” The City argues that there were two “projects” herein involved the original 123 lot proposal and the later 73 units proposal. We disagree. The “project” was the development of Tract 28569; the developer's later proposal was no more, or less, than its own suggestion for a possible alternative for that development. Since the preparer of an Environmental Impact Report, and a city council in acting on it, must, by law, consider and weigh every responsible alternative, all of them must be included in a single impact report.

IV

Application of the Law-of-the-Case Doctrine To Certain Points in the Petitioner-Citizens' Appeal

On their appeal, petitioner citizens contend that the trial court erred in not requiring the City Council to start the approval process anew, beginning with the advisory agency, followed by an appeal to the Planning Commission followed by an appeal to the City Council. We consider it unnecessary to determine whether, if this case had come before us without its prior history, we would agree with that contention.

On the facts of the case before us, the contention is barred by the doctrine of the “law of the case.” We have quoted above both the language of the court in the Woodland Hills I opinion, and the language of the writ of mandate issued pursuant to that decision. That writ expressly left it open to the City Council either to direct that proceedings on the proposal start anew, or, to merely renew consideration of the application at the councilmanic stage. Petitioners attacked that permissive language in the writ when it appeared in a proposed judgment and expressly sought the direction that they here again seek. Their former attack was rejected and the writ issued with the permissive language intact. Petitioners made no effort to seek review of the writ as issued or of the judgment on which it rested. The proceedings now under attack before us followed an alternative granted in the writ. The City Council expressly declined to send the application back to the advisory committee or to the commission.^[FN2] Having failed to seek review of the permissive language contained in the original writ, petitioners cannot, at this subsequent stage, attack the councilmanic decision to follow an alternative authorized in the writ.

V

The Effect of Campaign Contributions Made to City Council Members by the Developer, Its Engineering Firm and Its Attorneys

Petitioner citizens contend that the fact that the developer, its engineering firm and its counsel, made campaign contributions to members of the city council created such an appearance of bias and unfairness that petitioners were denied a fair trial before the City Council; that these councilmen became disqualified from voting on the proposal as members of the City Council. The trial court rejected the contention. The basis for the trial court's view is set forth in its conclusions of law numbered 3, 4, 5 and 6. We hold that these conclusions of law are erroneous in light of the trial court's findings of fact numbered 11, 12, 13, 14, 15, 16, 32 and 36. These findings of fact are as follows:

“11. At all times since January 23, 1975, and prior thereto, CALIFORNIA WESTERN CONCEPTS engaged as its representatives before respondent CITY COUNCIL, and other agencies of the City of Los Angeles, the law firm of LATHAM & WATKINS (whose members include H. RANDALL STOKE), and the engineering consulting firm of SPINDLER ENGINEERING CORPORATION (whose members include RONALD SPINDLER and LARRY GRAY).

“12. During the period January 23, 1975, to the date of filing the supplemental petition challenging respondent CITY COUNCIL'S approval of Tract 28569, CALIFORNIA WESTERN CONCEPTS, LATHAM & WATKINS and its members, and SPINDLER ENGINEERING CORPORATION and its members, made contributions of money to campaign committees controlled by each member of respondent CITY COUNCIL except campaign committees controlled by Councilman Bernardi and Councilman Wachs. The sum of these contributions exceeded $10,000.00.

“13. On February 16, 1977, CALIFORNIA WESTERN CONCEPTS contributed $500.00 to a campaign committee controlled by respondent Councilman DONALD LORENZEN. On February 22, 1977, LATHAM & WATKINS contributed $250.00 to a campaign committee controlled by Councilman LORENZEN. On March 16, 1977, SPINDLER ENGINEERING CORPORATION contributed to a campaign committee controlled by Councilman LORENZEN $250.00. On March 25, 1977, both CALIFORNIA WESTERN CONCEPTS' president, RON BOWITZ, and LATHAM & WATKINS, each contributed to a campaign committee controlled by Councilman LORENZEN $125.00. On May 11, 1977, LATHAM & WATKINS contributed to a campaign committee controlled by Councilman LORENZEN an additional $250.00, and on May 16, 1977, SPINDLER ENGINEERING CORPORATION contributed to a campaign committee controlled by Councilman LORENZEN an additional $250.00.

“14. On October 29, 1975, LATHAM & WATKINS contributed to a campaign committee controlled by respondent Councilman ROBERT M. WILKINSON $120.00. On October 30, 1975, RON SPINDLER contributed to a campaign committee controlled by Councilman WILKINSON an additional $120.00.

“15. On January 17, 1977, SPINDLER ENGINEERING CORPORATION contributed to a campaign committee controlled by Councilman JOHN S. GIBSON, JR., $500.00. On January 18, 1977, LATHAM & WATKINS contributed to a campaign committee controlled by Councilman GIBSON $250.00. On May 11, 1977, SPINDLER ENGINEERING CORPORATION contributed to a campaign committee controlled by Councilman GIBSON an additional $100.00, and on May 17, 1977, LATHAM & WATKINS contributed to a campaign committee controlled by Councilman GIBSON an additional $100.00.

“16. CALIFORNIA WESTERN CONCEPTS or LATHAM & WATKINS or SPINDLER ENGINEERING CORPORATION contributed to a campaign committee controlled by each and every member of respondent CITY COUNCIL who voted in favor of Tract 28569, two members who were absent from the vote on Tract 28569 and three members who voted against Tract 28569.

“32. On April 19, 1977, respondent CITY COUNCIL considered the majority and minority reports of its Planning Committee. At said meeting of April 19, petitioners raised all of the objections as previously stated except that petitioners did not raise the issue of campaign contributions or seek to disqualify any member of respondent CITY COUNCIL on any grounds including receipt of campaign contributions from real party in interest or its representatives or for indicating an inability to fairly consider the merits of the issue of Tract 28569.

“36. Prior to and at the April 19, 1977 meeting, petitioners knew that some campaign committees controlled by some members of respondent CITY COUNCIL had received campaign contributions from real party in interest and its representatives. Petitioners intentionally decided at the Council hearing not to seek to disqualify those members of respondent City Council whose campaign committees had received campaign contributions from real party in interest and its representatives from voting on the issue of whether Tract 28569 should be approved.”

The conclusions of law alluded to earlier are as follows:

“3. The participation and voting by members of respondent CITY COUNCIL whose campaign committees had received campaign contributions from real party in interest CALIFORNIA WESTERN CONCEPTS or its representatives in the court-mandated reconsideration of Tract 28569 did not deny petitioners a fair trial within the meaning of Code of Civil Procedure Section 1094.5 or otherwise invalidate respondent CITY COUNCIL'S approval of Tract 28569. Absent a showing of bribery or conflict of interest, the law does not render it improper for members of respondent CITY COUNCIL to vote on projects of developers who have given campaign contributions to committees controlled by those members, and the law does not require such council members to disqualify themselves in such circumstances.

“4. The failure of petitioners to raise the issue of campaign contributions at the Council hearing of April 19, 1977, in light of their prior knowledge that such contributions had been made, constituted either or both of a waiver of that claim or a failure to exhaust administrative remedies with respect to that claim.

“5. The evidence does not establish that respondents LOUIS R. NOWELL and GILBERT W. LINDSAY failed to reconsider or exercise discretion in the reconsideration of Tentative Tracts 28569 and 30570. Councilman NOWELL'S position at the hearing was consistent with his position at the Planning Committee. Councilman LINDSAY (and other Council members) cannot be required to read every page of everything that is put before them. The entire record of the proceedings before respondent CITY COUNCIL demonstrates that Councilmen NOWELL and LINDSAY exercised discretion and fairly considered the matter of Tract 28569.

“6. Petitioners' failure to seek the disqualification of respondents NOWELL and LINDSAY on the ground that such respondents had failed to reconsider or exercise discretion in the reconsideration of Tract 28569 constituted either or both a waiver of that claim or a failure to exhaust their administrative remedies with respect to that claim.”

The trial court's conclusions of law numbered 3, 4, 5 and 6, are not supported by the findings of fact set forth above; nor are they supported by any other findings.

The findings of fact set forth above mandate as a conclusion of law that petitioners appellants herein were denied a fair trial within the meaning of Code of Civil Procedure section 1094.5. This necessarily invalidates respondent City Council's April 19, 1977 decision approving Tentative Tracts 28569 and 30570. Section 1094.5, which deals with judicial review of administrative decisions, requires that, on such a review, the trial court's inquiry shall extend to “whether there was a fair trial.” A fair trial was denied to petitioners because respondent City Council, the tribunal which decided in favor of Tracts 28569 and 30570 cannot be deemed an impartial tribunal by virtue of the contributions to the campaign committees of the members of the City Council made by California Western Concepts, real party in interest, and its agents.

The concept of a fair trial which requires a fair tribunal has been stated in the following terms: “ ‘A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the Probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ” ‘ “every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law. (Citation.) Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ . . .” ‘ “ (American Cyanamid Company v. F.T.C. (6th Cir. 1966) 363 F.2d 757, 763-764.) (Emphasis added.) ”It is fundamental that both unfairness and the appearance of unfairness should be avoided.“ (American Cyanamid, supra, 363 F.2d 757, 767.)

The American Cyanamid court points out that this rule that defines the meaning of a “fair trial” applies not only to court tribunals but Administrative Tribunals as well. Nor is the size of the tribunal a factor. “Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we may know of whereby the influence of one upon the others can be quantitatively measured.” (Berkshire Employees Ass'n, etc. v. National Labor R. Bd. (3rd Cir. 1941) 121 F.2d 235, 239.)

In the case at bench, it is not a question of whether the members of the City Council who voted in favor of the real party in interest California Western Concepts were biased in that party's favor because of the campaign contributions made to these Council members. Bias in fact or bad faith on the part of the voting Council members is not the test of whether petitioners were denied a fair hearing. “It is fundamental that both unfairness and the appearance of unfairness should be avoided. Wherever there may be reasonable suspicion of unfairness, it is best to disqualify.” (American Cyanamid, supra, 363 F.2d 757, 767.)

In Swift v. Island County (1976) 87 Wash.2d 348, 552 P.2d 175, 183, in declaring invalid a decision made by an administrative agency, the court remarked: “(W)e conclude that the deliberations and vote cast by the board of county commissioners, are void for lacking an ‘appearance of fairness.’ This doctrine has been developed to preserve the highest public confidence in those governmental processes which bring about Zoning changes or which formulate property use and land planning measures.” (Emphasis added.)

There can be no doubt that, “(a)lthough the rule is clear, its application in particular cases presents practical difficulties.” (American Cyanamid, supra, 363 F.2d 757, 764.) But in the case at bench, it is abundantly apparent that the vote by the respondent City Council is lacking in an “appearance of fairness” and must be declared void.

The argument is advanced that it was perfectly legal for California Western Concepts and its agents to make contributions to the campaign committees of the City Councilmen running for election. But the legality of the acts of a party to the administrative proceedings in making campaign contributions to the members of the administrative tribunal, and the legality of the acts of the City Councilmen who made up the administrative tribunal in accepting the contributions and receiving the benefit therefrom, cannot nullify the right of petitioners to a “fair trial” as required by Code of Civil Procedure section 1094.5. The legal acts by California Western Concepts and the members of the City Council in making and accepting campaign contributions, respectively, as set forth in the trial judge's findings, resulted nevertheless in a tribunal the City Council which could not be described as an impartial tribunal in assessing the conflicting rights between the campaign contributors, California Western Concepts, and petitioner citizens herein. The “appearance of fairness” doctrine has been clearly violated in the case at bench, thus denying to petitioners their right to a fair trial before the City Council.

In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518, 113 Cal.Rptr. 836, 843, 522 P.2d 12, 19, the court, in discussing the fact that “the membership of some zoning boards may be inadequately insulated from the interests whose advocates most frequently seek variances,” aptly observed: “Vigorous judicial review thus can serve to mitigate the effects of insufficiently independent decision-making.” Such a review in the case before us mandates a voiding of the right of those members of the City Council who reaped the benefits of campaign contributions made by the party seeking their vote California Western Concepts to sit in judgment over the dispute between that party and petitioners-appellants herein.

The argument is advanced that, to preclude the affected members of the City Council from voting on the issue involved in the case at bench, would prevent all action by the City Council, the only body vested with jurisdiction over the particular issue, and that jurisdiction cannot be divested from such a tribunal. (See Johnson v. State Bar (1935) 4 Cal.2d 744, 52 P.2d 928; Nider v. Homan (1939) 32 Cal.App.2d 11, 89 P.2d 136.) This argument lacks merit in the situation where the party asserting jurisdiction of the tribunal to grant him relief has, by his own acts and conduct, caused the disqualification of members of the tribunal. That is the situation presented in the case at bench.

VI

Waiver and Exhaustion-of-Administrative-Remedies Doctrines No Bar to Petitioners' Obtaining Judicial Review of Whether They Obtained a Fair Trial Before the City Council

The contention is made that petitioners are precluded from raising the “appearance of fairness” issue because petitioners did not raise this issue before the City Council. It is asserted that this failure constitutes a waiver and brings into play the doctrine of exhaustion of administrative remedies.

Neither the doctrine of waiver nor the doctrine of exhaustion of administrative remedies is a viable principle to prevent petitioners from obtaining relief in a judicial review of the City Council's actions.

The doctrine of exhaustion of administrative remedies “contains its own exceptions, as when the subject matter of the controversy lies outside the administrative agency's jurisdiction (citation), when pursuit of an administrative remedy would result in irreparable harm (citations), when the administrative agency cannot grant an adequate remedy (citations), and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be (citations).” (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834, 112 Cal.Rptr. 761, 763.) In similar vein, it has been said that “(e)xhaustion of remedies is not required when the administrative agency involved is biased (citations); or where exhaustion would be futile. (Citations.)” (Writers Guild of America, West, Inc. v. F.C.C. (C.D.Cal.1976) 423 F.Supp. 1064, 1081; fn. omitted.)

Petitioners' case falls within the last-mentioned exception to the doctrine of exhaustion of administrative remedies. It would have been futile for petitioners to have sought disqualification of individual members of the City Council in light of the position that a majority of the total membership of the City Council is required for the Council to act on the matter involved in this dispute. We conclude that petitioners in the instant case “were not required to pursue futile administrative remedies in order to invoke the jurisdiction of the courts.” (Ogo Associates, supra, 37 Cal.App.3d 830, 834, 112 Cal.Rptr. 761, 763.) Furthermore, the clear mandate of Code of Civil Procedure section 1094.5, subdivision (b), that the judicial review of an administrative decision shall extend to the question of “whether there was a fair trial,” would be violated by the adoption of a principle of waiver or exhaustion of administrative remedies in the situation presented before us.

We hold that the affected members of the City Council in the instant case cannot be permitted to vote on the issue of approval of Tentative Tracts 28569 and 30570 or any alternative development of the land covered by said tracts, proposed by real party in interest or any of its successors in interest.

The Judgment Granting Supplemental Peremptory Writ of Mandamus is affirmed except that the trial court is instructed to modify said Judgment and the Supplemental Writ of Mandamus issued pursuant thereto only to the extent of (1) excepting therefrom any instruction to the City Council to reconsider any matter in accordance with the court's conclusions of law numbered 3, 4, 7, 8 and 9, all in accordance with the views expressed herein, and (2) providing therein that any action taken by the City Council shall not be taken as a result of votes for such action by members of the City Council whose campaign committees received contributions from real party in interest, its engineering consulting firm, or its attorneys, as set forth in findings of fact numbered 12, 13, 14, 15 and 16.

Petitioners-appellants shall recover their costs on appeal. Petitioners-appellants shall also recover attorney's fees on appeal, the amount to be determined by the trial court.

I dissent from the result. I concur in the portions of the majority opinion under Rubrics I, II, III and IV; I dissent from the portions appearing therein under Rubrics V and VI.

The supplemental writ now before us vacated all of the prior approvals of the proposal. It follows that the city council must receive and act upon the new EIR prepared under the supplemental writ, again take formal action to approve or reject the proposal, and then make its return to the supplemental writ. That stage has yet to be reached. When such a return has been made, the petitioners will, again, have an opportunity to attack the return and, if appropriate, raise the present objections. It follows that the petitioners' other attacks on the present judgment and writ are premature and we could decline to rule on them. However, those contentions appear likely, if not certain, to become available when the city makes its return to the supplemental writ. They have been fully briefed here, and, in the interest of judicial economy, I, with the majority, conclude that we should give to the city and to the trial court some guidance on those matters.

(1) Petitioners contend that the fact that the developer, its engineering firm and its counsel, have made campaign contributions to members of the city council creates such an appearance of bias as to disqualify all councilmen receiving such contributions from voting on the proposal. The trial court rejected that contention on the ground that it had been waived because not raised in the first instance before the council itself. The city and the real party in interest rely here on that same theory. I believe that we need not determine whether that theory was correct because I conclude that the contention is without merit whenever it was raised. Admittedly, the contributions made were lawfully made under the law governing campaign contributions. There is no suggestion that those lawful contributions were either made or received as bribes for favorable votes. The entire electoral process in this state not only implies but sanctions the giving and receiving of campaign contributions, although such contributions may (and usually are) made in the hope that the recipient, if elected, will act in a way desired by the contributor.

The practical and ethical problems inevitably involved in that process have, for some time, been the subject of concern, study and legislation. The People of California, by the initiative process, have adopted legislation the so-called Political Reform Act representing their solution of the conflict between a federally protected right to make political contributions and the possible persuasive effect of those contributions. The solution adopted by the People was to require the recipients of substantial political contributions to make such receipt a matter of public record, so that the candidate, if elected, will know that his official actions will be scrutinized by his constituents in the light of any personal interest resulting from the contribution. It is possible, as petitioners suggest, that more controls might have been imposed by the People, but I conclude that this court should not, on its own, impose restrictions that the People did not see fit to impose.

There is an additional reason for rejection of petitioners' contention. If it were to be adopted, it would follow that, in this case, there would not be a quorum of the city council eligible to act. But the law requires action by the city council on applications such as are herein involved. There exists a long established rule that, where no alternative body exists to determine an issue, the possibility of personal interest must be ignored and the only lawful agency must proceed.^[FN1] Absent some legislation by which the application could be referred to another body, I do not agree that petitioners may, by their present objection, keep forever at a stalemate the approval or rejection of the application of the Real Party in Interest.

I

Consequently, I decline to hold that the mere receipt of a lawful campaign contribution can operate to disqualify the recipient from ever thereafter voting on a matter of concern to the contributor.

(2) Petitioners contend that the action of the city council in approving a report of its planning committee, was against the law in that it thereby found that the proposal did not conflict with the general plan for the district. The evidence before the council on that issue was sharply conflicting. It showed that there was an inconsistency between the map forming part of that plan and the text accompanying it, over whether it required, for the area herein involved, a “minimum” density of .5 to 1 unit per acre or a greater density permitting the 3.3 density involved in the proposal. The trial court found that the evidence supported the council's determination that the map, and not the text, controlled and approved the greater density. That finding, being supported on the record, is beyond our power to reject.

I would affirm the judgment on both the appeal and the cross-appeal.

FOOTNOTES

1.  Chapter Two was an appeal raising the question of the rights of counsel for petitioners to attorney fees for pursuing the appeal in Woodland Hills I. That case is still pending before the Supreme Court and nothing involved therein is material to this appeal.

2.  The petitioners also contend that certain remarks by two members of the council show actual bias. The trial court found that that contention was unfounded. We do not review that factual finding.

1.  “. . . (A) practical exception to the rules of disqualification, recognized by dicta in California cases, refutes the contention that no valid judgment can be rendered: Disqualification cannot be asserted against a tribunal where the result would be wholly to prevent any determination. (See Johnson v. State Bar (1935) 4 Cal.2d 744, 760, 52 P.2d 928 (after decision on another ground, court remarks: ‘It might be well to add, however, that the discharge of the exclusive jurisdiction of this court cannot be prevented by the disqualification of all or a majority of its members'); Nider v. Homan (1939) 32 Cal.App.2d 11, 17, 89 P.2d 136 (dictum, quoting 39 A.L.R. 1476: '(A) judge or an officer exercising judicial functions may act in a proceeding wherein he is disqualified by interest, relationship, or the like if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would prevent absolutely a determination of the proceeding.’); 29 Harv.L.Rev. 103.)” (1 Witkin, Cal.Procedure (2d ed. 1971), Courts, s 61, p. 340.)

JEFFERSON, Associate Justice.

ALARCON, J., concurs.