Woody’s dispute could reach state’s high court

The California Supreme Court could hear arguments in a lawsuit between Newport Beach and a well-known Balboa Peninsula restaurant over its desire to have dancing and extended patio hours.

The Newport Beach City Council voted 4 to 3 during closed session Tuesday night to petition the state’s highest judicial body to review its case against Woody’s Wharf.

Mayor Ed Selich and Councilmen Kevin Muldoon and Scott Peotter dissented.

Woody’s Wharf and the city first headed into court in 2013 after the City Council denied permits needed by the restaurant for dancing and extended hours on its outdoor patio.

The city Planning Commission in September of that year had approved extending the hours and issued the permit for dancing. However, the commission’s decision was overturned by the City Council a month later on appeal by then-Councilman Mike Henn.

Woody’s Wharf sought to overturn the council action in Orange County Superior Court but was denied by Judge Derek Hunt in May 2014.

Woody’s attorney, Roger Diamond, appealed the judicial decision, and in January, a three-judge panel of California’s 4th District Court of Appeal reversed Hunt’s judgment, allowing patrons to once again boogie late into the night at the popular spot.

The panel determined that the council had violated city code by allowing Henn to appeal the Planning Commission decision without submitting an appeal form and paying a filing fee.

The code said an “interested party” could appeal to the City Council a decision of a subordinate commission. However, it didn’t specify that council members were considered an “interested party” or that they did not have to pay the filing fee, although that is how the code had always been interpreted, according to court documents.

Because of that, the court said Henn’s actions should not have been allowed.

In response to the court’s decision, the City Council directed the Planning Commission to draft a code provision that would explicitly allow council members to call for a review of lower-body decisions without following the requirements necessary for an appeal. The council could consider the code change at its meeting March 24.

In its petition to the California Supreme Court, submitted Wednesday, the city argues that Henn had the authority as a councilman to call up the Planning Commission decision for review and that the appeals court should have deferred to the council’s interpretation of its own municipal code.

The city also states in the filing that Henn wasn’t biased against Woody’s when he asked to review the decision.

“Review by this court is necessary to resolve this conflict … and to restore and confirm the rights of every council member throughout the state, as a resident and one who has an interest in orderly land use development within the city, to file an appeal of land use matter to the full council,” the city filing states.

The state high court’s possible review of the matter doesn’t necessarily mean the justices will side with the city, Diamond said.

“If they want to send a message, they could take the case and write an even stronger argument,” he said.

Woody’s Wharf has been operating at 2318 Newport Blvd. since 1965, when the property transformed from a boat repair and storage spot to a restaurant and bar, according to the eatery’s website.