By William W. Abbott
Adam Nick v. City of Lake Forest (December 23, 2014, G047115) ___ Cal.App.4th ___.
Due to over concentration of liquor licenses, the Department of Alcoholic Beverage Control referred an application for a determination of public convenience or necessity to the City of Lake Forest. A competitor then sought to overturn a city council’s findings in support of the license based upon four arguments: the city’s failure to act timely; improper determination by the planning commission; failure of the operator to provide a unique goods; and improper advocacy by the planning director.
As to the timely review by the city, the 90 day clock runs from when the city receives the referral from the ABC, not when the city is notified as to the pending referral. The city’s actions met the statutory period based upon when it finally recorded the referral. Second, although the findings made by the planning commission did not grammatically match the statute, the findings made by the city council conformed to the statute and were sufficient, overcoming any potential error below. Third, the appellate court rejected the competitor’s argument that case law mandated that the applicant provide a unique service or otherwise satisfied an unmet need. The court rejected the argument holding that such a determination may be relevant in the ABC’s rejection of a license due to overconcentration, but was not a mandatory consideration for a local government making a finding of necessity or convenience. Finally, there was no due process violation when the planning director provided corrected information to the ABC regarding location of a future park site. Providing this information did not deny the competitor a fair hearing on its objection. Overall, the court correctly followed a deferential standard of review to the city’s decision.
William W. Abbott is a partner 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.