Newport rescinds request for state Supreme Court review of Woody’s Wharf dancing ruling

A week after voting to ask the California Supreme Court to weigh in on the city’s legal dispute with Woody’s Wharf, the Newport Beach City Council decided Tuesday to withdraw its petition.

The council initially voted March 10 to ask the state’s highest court to review an appeals court decision allowing dancing and extended patio hours at the popular Balboa Peninsula restaurant and bar. The request was filed the next day.

But Mayor Ed Selich and council members Scott Peotter, Marshall “Duffy” Duffield and Kevin Muldoon voted in closed session Tuesday to withdraw the petition. Mayor Pro Tem Diane Dixon and council members Keith Curry and Tony Petros dissented.

In a closed session a week earlier, Duffield voted with Dixon, Curry and Petros in favor of petitioning the court.

The reason for the change in Duffield’s vote isn’t clear. He did not respond to a request for comment Wednesday.

City Attorney Aaron Harp declined to comment about the closed session.

The council’s decision Tuesday was a cause for celebration for Woody’s Wharf supporters.

“We didn’t believe the Supreme Court was going to accept the case anyway,” said Mark Serventi, one of the restaurant’s owners. “Our case didn’t break new ground. We were just trying to get the city to follow their own laws all along.”

Duffield received $4,400 in contributions from the four Woody’s Wharf owners during the 2014 City Council election campaign. Peotter, the only other successful council candidate last year to receive campaign funds from the restaurant, accepted $5,500 in contributions from the owners, according to disclosure statements published on the city’s website.

Peotter said Wednesday that he had spent time getting familiar with the Woody’s Wharf case before he was elected to the council.

“We violated their property rights,” he said of the previous council’s decision. “I don’t see any reason to spend more taxpayer money on this. I like to do what’s right.”

Woody’s Wharf and the city first went to court in 2013 after the council — which included four members who are no longer on the panel — denied permits for the restaurant to offer dancing and extended hours on its outdoor patio.

In September that year, the city Planning Commission approved extending the hours and issued a permit for dancing. However, the City Council overturned that decision 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 judge’s decision, and in January, a three-judge panel of California’s 4th District Court of Appeal reversed Hunt’s judgment, allowing patrons to dance at the restaurant.

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

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, according to court documents.

Because some California cities allow council members to appeal decisions of lower commissions without paying a fee — sometimes without specific wording in their codes that permits it — the appeals court ruling could have far-reaching effects.

In their petition to the state Supreme Court, lawyers for Newport Beach stated that the high court’s review was necessary 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.”

It is unclear how much money the city spent filing the petition to the Supreme Court.

“Our office hasn’t received the bill yet from outside counsel for matters related to the petition,” Harp said.

The city has spent more than $103,000 on the Woody’s case since 2013, according to city officials.