By Katherine J. Hart
This case involves a request for a permit to operate an adult cabaret and the interpretation of the City of Stanton “sensitive use ordinance.”
In Madain v. City of Stanton (2010) ____ Cal. App.4th _____) Petitioner/Appellant Madain submitted tenant improvement plans for the proposed adult cabaret on December 1, 2008. Notably, he allegedly also attempted to submit the appropriate application and fee at the same time, but was told by city staff at the planning counter that the application and fee were not necessary. Two weeks later, Mr. Madain received a letter from the city manager stating his tenant improvements were rejected on the grounds his application was incomplete and was proposed within 300 feet of a “planned” church. In the meantime, Mr. Madain purportedly learned that city staff had encouraged the church to file an application promptly (so as to preempt Mr. Madain’s application under the sensitive use ordinance). Mr. Madain appealed the city manager’s decision to the city council on the grounds the city improperly applied the sensitive use ordinance and because he had been unjustifiably deterred from filing his application and deprived of an opportunity to establish priority over the church.
At the city council hearing the council took testimony from Mr. Madain and the city manager, but no other city staff people with direct knowledge regarding the submittal of the application, closed the hearing and denied Mr. Madain’s appeal. Mr. Madain filed a petition for writ of mandamus in superior court, lost there, and filed this appeal.
On appeal, the Fourth Appellate District Court considered whether the city council proceeded without or in excess of its jurisdiction, whether there was a fair hearing, and whether the council abused its discretion. The court never answered the question as to whether the council erred in interpreting the city’s sensitive use ordinance as providing protection to the church (or any other religious institution) from the moment it applies for a permit to operate in a particular location. Instead, the court focused on whether the council properly considered Mr. Madain’s allegations that city staff had manipulated the process to ensure the church’s application was given priority over Mr. Madain’s application. Pointing to Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 859, the court held that the city council should have considered Mr. Madain’s assertions of wrong-doing and resolved the issue of whether Mr. Madain had in fact attempted to file a complete application on December 2, 2008, and that in the absence of that, the city abused its discretion in failing to make findings as to which application had priority.
A helpful concurring opinion was written by Justice Sills. In it, the Justice noted that while Part II of the opinion appears to endorse the rule that in the case of mutually incompatible land uses whichever land use is applied for first should have priority with a few minor conditions, it is dicta – not law. The Justice also correctly cautions two things. First, that the majority opinion should not be read for the proposition that the application for a permit means that land use is now “planned” – clearly that would be contrary to well-established land use law – and second, that the case should be limited to its facts given the record does not reflect the city’s general plan and to what extent the sensitive use ordinance could operate as a de facto amendment to the city’s general plan.
The key point of this case is that applications for the first amendment protected activity are entitled to certain protections which other applications are not. Specifically, where constitutional issues arise, local agencies may be requested to adopt findings on processing approval denials that would not otherwise be required.
Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.