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William D. Ross Kypros G. Hostetter Karin A. Briggs Isabel Birrueta Matthew S. Schuman

Law Office of

William D. Ross

520 South Grand Avenue, Suite 300 Los Angeles, CA 90071-2610 Telephone: (213) 892-1592 Facsimile: (213) 892-1519

VIA ELECTRONIC MAIL

July 26, 2010

Palo Alto Office:

400 Lambert Street Palo Alto, California 94306 Telephone: (650) 843-8080 Facsimile: (650) 843-8093

File No: 473/3

The Honorable Mayor Guy S. Bjerke And Councilmembers of the City of Concord 1950 Parkside Drive Concord, CA 94519

Re:

Request for Reconsideration; Appeal of Approval for Pop’s Bingo World to Establish Bingo Parlor Use 1505; Willow Pass Road; APN 126-300- 036; City Council Meeting, July 13, 2010; Agenda Item No. 4.a.; Resolution No. 10-71; City Council Meeting, July 27, 2010, Agenda Item No. 3.i. Proposed Resolution No. 10-71

Dear Mayor Bjerke and Councilmembers:

I. INTRODUCTION

This office represents Enea Court Properties and prospective lessee Pop’s Bingo World (collectively, the “Applicant”), the Applicant for an Administrative Application (Case No. AA 10-010) (the, “AA” or “Application”), which was the subject of an appeal to your Council from a June 2, 2010 Planning Commission (the “Commission”) decision, after a hearing (“June 2 Hearing”) which had approved the AA after an initial AA approval by the Planning Department on April 16, 2010. At your July 13, 2010 Council meeting (“July 13 Hearing”) your Council granted the Appeal of BD Performing Arts (the, “Blue Devils”), a competing bingo business, denying the AA as previously approved by both the Planning Director and the Commission.

This communication constitutes a request for reconsideration based on the inherent power of the Council to reconsider any action it has taken as well as your City Council Meeting Procedures Section 4.241. The July 27, 2010 Agenda Item 3.i, agendized under the

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Honorable Mayor Guy S. Bjerke And Councilmembers of the City of Concord

July 26, 2010 Page 2

City Council Con sent Calendar, presents a resolution which purports to confirm your July 13,

  • 2 010 decision.

The basis for reconsideration, detailed in this communication, is that your Council’s action was inconsistent with applicable law in that there is no requirement for conditional use permit (“CUP”) for a bingo parlor use in existing facilities within the City, as that use, as correctly and consistently advised by City Staff, is governed by the provisions of Chapter 6 of the City Municipal Code (“Municipal Code”) through administrative application. Further, the AA procedure was only implemented after extensive discussion with City Staff upon recommendation of a City Councilmember and is consistent with the plain meaning of the Municipal Code and the City Staff interpretations. Likewise, to the extent that it is claimed that there is a need to analyze the Application further under the California Environmental Quality Act (Pub. Res. Code § 21000 et seq., “CEQA”), this likewise is inconsistent with applicable law and prior Staff determinations. Finall y, cumulative procedural violations re sulted in a denial of a fair hearing to the Applicant.

Reconsideration, accordingly is appropriate, and should be authorized by the Council , s etting the matter for a reconsideration hearing at your next Regular or Special Meeting.

I I. FACTUAL BACKGROUND

On March 3, 2010, Enea Court Properties (“ECP”) submitted an Administrative Application, Case No. AA 10-010, with required plans for the Pop’s Bingo World use on their property located at 1505 Williow Pass Road (the “Property”). The Application was preceded by meeting with City Staff which occurred as a result of the direction of a City Councilmember 1 as to the precise procedure in which the proposed use would be processed b y the City.

The Application was approved by City Staff, consistent with the AA procedure with conditions as set forth in the communication of April 16, 2010 from a City Senior Planner. See, July 13 Hearing Staff Report, pp. 12-14, attached to this communication. This approval was appealed to the Commission on April 26, 2010 by the Law Firm of Andersen, Bonnifield & Roscha on behalf of the Blue Devils, the operators of a competing bingo parlor and charity in the City.

  • 1 The involved City Councilmember, after indicating to the Applicant that the Administration Application method was the procedure to authorize the Pop’s Bingo World Use, inconsistently voted to grant the Appeal at your July 13 Hearing ..

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July 26, 2010 Page 3

The Commission considered this appeal on June 2, 2010, and after recessing to review communications advanced by the referenced law firm, unanimously denied the Blue Devils appeal and upheld Staff’s approval of the use. The Commission decision was subsequently appealed on June 11, 2010 by the Blue Devils legal counsel to the City Council (the “Appeal”). An extensive Staff Report was prepared to the City Council, comprehensively addressing each of the seven claims purportedl y serving as a bas is for the Appeal. Among the conclusions set forth in the Staff Report was the following:

As Staff reported to the Planning Commission, and as the Commission unanimously agreed, the approval of this use at this location poses none of the legal concerns posited by Appellants. Rather, the proposed business model complies with state constitutional and statutory provisions, as well as the Concord Municipal Code. Furthermore, it is consistent with the Concord General Plan designation, as well as similar to other commercial recreation uses that have occupied the site, and will have no significant environmental effects. For all of these reasons, in addition to those discussed her ein, staff recommends that the C ity Council deny this appeal.

July 13 Hearing Staff Report, p. 1. At the July 13 Hearing, the City Attorney reminde d the City Council that its decision must be based on substantial evidence and land use regulations alone—and not based on economic competition or favoring one charity over a nother. Video, Part 1, 25:36,- 26:53, 27:20-27:55. 2

Despite the Staff’s thorough analysis and recommendation, supported by substantial evidence in the record, the Council approved the Appeal, overturning the Planning Department AA approval as upheld by the Commission, and agendized the proposed Resolution 10-71 (the “Resolution”), which purports to contain findings confirming and sustaining the Appeal. As the Resolution is substantively flawed, and was the product of a denial of a fair hearin g to the Applicant, the Applicant submits this reconsideration request to re ctify those errors.

  • 2 In addition to the City Staff Report referenced, we ha ve reviewed the taped video proceedings of the extensive July 13 Hearing. References to the online taped proceedings are necessarily approximate, and will be referenced a s

Video, Part

__

, 00:00/

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I II.

AUTHORITY FOR RECONSIDERATION

The Applicant respectfully requests reconsideration of the July 13, 2010 Council decision under the common law doctrine which provides that "[a]ny deliberative body - - administrative, judicial, or legislative -- has the inherent power to reconsider an action taken by it unless the action is such that it may not be set aside or unless reconsideration is precluded by law. [Citations.]" In re Fain (1983), 139 Cal. App. 3d 295, 298; see also Environmental Protection Information Center v. California Department of Forestry a nd Fire Protection et al. (2005) 134 Cal. App. 4th 1093, 1125-26; United States v. State Water Resources Control Board, (1986) 182 Cal.App.3d 82, 149; In Re Bray, (1979) 97 Cal.App.3d 506, 511; McConoughey v. Jackson (1894), 101 Cal. 265, 269 [[t]he right of reconsidering a last measure at the same meeting, or p ursuant to its rules at a subsequent on e, is a right inherent in all legislative assemblies].

Reconsideration is also sought consistent with Section 4.241 of the City Council Meeting P rocedures 3 such that reconsideration may be addressed at a subsequent Council

  • m eeting.

IV.

LEGAL STANDARD S APPLICABLE TO THE APPEAL HEARING AND THE RESOLUTION

  • A. Standard of Review for Quasi-Adjudicatory Hearing

The AA Appeal is a quasi-adjudicatory hearing as it involves the actual applica tion

of rules (here the Municipal Code) to a specific set of existing facts. Strumsky v. San

Diego County Employees Ret. Ass'n, (1974) 11 Cal.3d 28, 35.

Because the determinatio n

of the Appeal is quasi-adjudicatory, judicial review of the Council decision is governed by the Code of Civil Procedure (“CCP”) section 1094.5, which provides in relevant part:

The inquiry in such a case [as the Appeal] shall extend to the

  • 3 City Council Meeting Procedures Sec tion 4.241 sets forth in relevant part:

A motion to reconsider may be made at any time during the meeting at which the

action was taken, or any adjournment or continuance of that

meeting. . . .

provided

however that in response to a request for reconsideration made by a member of the public during the public comment period, a majority of the City Council may direct that the topic of reconsideration shall be placed on the agenda of the next City Council meeting.

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July 26, 2010 Page 5

questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by t he findings, or the findings are not supported by the evidence.

C CP § 1094.5(b) (brackets added); Gong v. Fremont (1967) 250 Cal.App.2d 568, 572.

  • B. Municipal Code Standards Applicable to Appeal

    • 1. Standard for Approving the AA

Under the City Municipal Code, determinations relating to development on Planned Development (“PD”) designated land, “minor, no ncontroversial matters” are c onsidered administratively. Municipal Code § 122-683.

  • 2. Standard for Requiring a CUP

Cor respondingly, the City Zoning Code section 122-71 provides when a CUP is re quired:

Use permits, revocable, conditional, or valid for a term period, may be issued for any of the uses or purposes for which such permits are required or permitted by the terms of this chapter.

  • 3. City Planning Staff Interpretation Of The City Zoning Code

The City’s interpretation of its own ordinance is a "contemporaneous administrative construction of a statute by an administrative agency, entitled to great weight unless clearly erroneous or unauthorized.” Flavell v. City of Albany (1993) 19

Cal.App.4th 1846, 1851. Also, interpretations of zoning ordinances by planning officials charged with their enforcement are persuasive as to the meaning of the ordinances an d are

entitled to substantial def erence.

See Hewlett v. Squaw Valley Ski Corp. (1997) 54

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July 26, 2010 Page 6

C al.App.4th 499, 526. 4

  • C. The City Land Use Powers Are Not Unlimited

Cali fornia Courts have made clear that a City may not arbitrarily apply land use s tandards:

While a city has broad authority over the regulation of land use within its territory, that authority is not unlimited. Where certain uses are permitted, a city cannot arbitrarily exclude others who would employ a similar use. (citation.) Zoning and building laws "cannot be used unqualifiedly to restrict competition" (citation), or simply to shield existing businesses from competition (citations). While valid zoning regulations may affect competition and have other economic effects, a city does not have carte blanche to exclude a retail m erchant that it, or some of its residents, do not like. (citation.)

F riends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1013 (“Friends of Davis”).

V .

COUNCIL SHOULD RECONSIDER THE RESOLUTION

  • A. The Council Has Proceeded in Excess of Its Jurisdiction by App roving the Resolution, As A CUP Is Not Required For A Bingo Parlor

A City’s land use pow ers are not un-restricted; a City must follow the rules set fo rth in its Municipal Code:

a [City] is a creature of limited powers, having only those powers which are delegated to it by the Constitution or the Legislature. And when a [City] acts as it does here under authority derived from a statute, it must strictly follow the

. . .

  • 4 See also Elysian Heights Residents Ass'n, Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21, 32 (“Elysian Heights”); Browning Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 866 (“BFI”); and Rasmussen v. City Council (1983) 140 Cal.App.3d 842, 851. (“Rasmussen”)

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statutory provisions; the mode of the power is also the measure of the power. [Citations.] (Alterations added)

C ity of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 567; see also, Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; Irwin v. City of Manhattan Beach (1 966) 65 Cal.2d 13, 20-21.

Thus when the Municipal Code provides a standard, the City must apply it. BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1221 & fn. 10; Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 1225-1227.

The City Municipal Code sets forth the requirements for when a CUP is r equired. As noted, supra, a CUP may be required where it is required by the Zoning Ordin ance. Municipal Code, § 122-71. Additionally, certain enumerated Municipal Code sections expressly specify a CUP requirement. See, e.g., Municipal Code Section 6-234 (Mechanical & Electronic Gam es); Section 58-60 (Interim use of vacated area of m obilehome park); Section: 82-113 (Recycling Facilities); Section 94-392 (Condominium Conversion Applications); Section 122-187 (use of abandoned drive-in facility); Section 122-906 (Adult Businesses).

But nowhere in the Zoning Ordinance is there a requirement that a bingo parlor use requires a CUP. However, the Municipal Code does set forth standards for the regul ation of bingo parlors, Chapter 6, sections 6-61 -- 6-64, and does not require a CUP. Thus, it i s clear the Municipal Code does not require a CUP for bingo parlors as the enumeration of acts or things as coming within the operation of a statute precludes the inclusion of implication of other acts or things not listed. 5 Elysian Height, supra, 182 Cal.App.3d at 29. Stated differently, because the Municipal Code sets forth specifically where a CUP is required, those provisions are the exclusive authority for requiring a CUP in the City. Despite Councilmembers’ concern expressed at the end of the July 13 hearing that it somehow does not feel right not to require a CUP for a bingo parlor [See, e.g., Video , Part 7, 19:49], the requirements of the Municipal Code must be followed. Accordingly, the Municipal Code does not provide the authority to require a CUP for a bingo parlor. Because the City Council must apply the Municipa l Code standards, it proceeded in excess of its jurisdiction when in Resolution section 3 it proposes to require the Applicant

5 Standard rules of statutory construction are applicable to interpretation of municipal ordinances. C.Y. Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 929.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 8

to file a CUP application for its bingo parlor which is not allowed by the Municipal

  • C ode,

    • 6 but instead is subject to the AA procedure.

If the City wishes to require a CUP for Bingo Parlors in the City it shoul d amend

its Municipal Code, consistent with the City General Plan, to so require-but it would still

be inapplicable to this Applic ation, as the Municipal Code may not be applied

re

trosp ctively. See, California Country Club Homes Assn. v. City of Los Angeles (1993)

e

18 Cal.App.4th 1425, 1433.

  • B. The Resolution Appro val Constitutes A Prejudicial Abuse Of Discretion As It Lacks Legally Sufficient Findings Supported by Substantial Evidence

    • 1. Legally Insufficient Findings

The proposed Resolution sets forth the following as findings, which are

legally insufficient and unsupported by substantial evidence:

* * *

  • b. The 1978 Use Permit approved for the change in use from a

theatre to a health club facility does not authorize the applicant's

proposed use of the subject property for charitable bingo games.

  • c. Additional analysis is needed to evaluate whether or not the

proposed bingo hall use would create any adverse environmental

or community impacts.

  • d. The City Council is unable to find that the proposed

development constitutes a minor, noncontrove rsial change from

the existing use of the subject property; and therefore it cannot

be approved adm inistratively. 7

  • 6 At the hearing, the project opponents stated that their bingo Parlor required a CUP at the time of its approval. This is irrelevant as the City must apply the law in effect at the time of the discretionary approval is sought. Additionally, at the July 13 Hearing, City Staff clarified that the Blue Devils CUP was required because the particular PD zoning where that bingo parlor use was sought, expressly required a CUP for all used not enumerated, unlike the PD zoning where the Property is located.

  • 7 Applicant does not challenge the Fin ding set forth in Section 1(a) as Applicant agrees that the 1979 Preliminary Development Plan is inapplicable to the subject property.

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And Councilmembers of the

City of Concord

July 26, 2010 Page 9

See, Resolution, Section 1.

It is well established that a quasi-adjudicatory decision, such as the AA, must be

supported by legally adequate findings which in turn must be supported by substa ntial

evidence in the record. Topanga Ass’n for a Scenic Community v. County of Los Angele s

(1974) 11 Cal.3d 506, 511, 512 (“Topanga”). The Resolution findings do not meet th e

Topanga Standard, as the City “must set forth findings to br idge the analytic gap between

th e raw evidence and ultimate decision or order.” Id. at 515. “Substantial evidence” is

“relevant evidence that a reasonable mind might accept as adequate to support a

conclusion or evidence of ponderable legal significance reasonable in nature, credi ble,

and or solid value.” Auburn Woods I Homeowners Assoc. v. Fair Employment and

Housing Commission (2004) 121 Cal.App.4th 1578, 1583.

Here, the Resolution “findings” do not bridge the analytical gap between the

decision of granting th e Appeal as they do not “trace and examine” the path from

e vidence to decision. Topanga, supra, 11 Cal.3d at 516. They do not reflect the repeated

  • C ity Pl

anning Staff findings, which interpret, cons

istent with the plain meaning of the

Municipal Code that proposals for a bingo parlor use are to be handled administratively,

does not require a CUP for a bingo parlor and that the change to a bingo parlor use is

exempt und er CEQA.

The detailed findings deficiencies follow:

  • 2. The Commission Approval Of The Application Was Not “Authorized” By The 1978 CUP.

Resolution finding Section 1.b. conclusionarily sets forth that the 1978 Use Perm it

approval for the change in u se from a theatre to a health club facility does not authorize

th e Applicant's proposed use of the Property for charitable bingo games. But the

Commission approval of the Application did not rely upon, as the Resolution implies, the

1978 CUP

, instead it found it consistent with that CUP. The July 13, 2010

Staff Report

sets forth t

hat the Bingo Parlor is consistent with the 1978 CUP; it does not

claim to be

approved u nder that CUP:

In evaluating the application, staff considered whether the

proposed use was consistent with the General Plan Do wntown

Mixed Use designation and with the uses that have previously

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 10

occupied the site. Prior uses included a health club and spa

facility approved by Use Permit in 1978 (UP 65-78), and most

recently, Velocity Sports which was approved administratively.

Indeed, use of the bingo hall satisfies these concerns.

July 13 Staff Report, p. 4.

Additionally the Staff proposed Resolution denying the

Appeal did not find that it relied upon the 1978 CUP. See, July 13 Staff Report,

Attachment 1.

The July 13 Staff Presentation too does not assert reliance upon that CUP ,

merely that the use is consistent with it. Video, Part 1, 21:30-23:16. The June 2 S taff

Report describes the 1978 CUP as part of the Project background, noting that uses since

then have been consistent with that CUP. Nowhere does the June 2 Staff Report assert

that the approval of the bingo parlor use relies upon the 1978 CUP still being valid. T hus

there is no substantial evidence in the Record to support the finding that implies that the

change to bingo parlor us e was “authorized” (i.e., relied upon) by the 1978 CUP.

Accordingly Resolution finding Section 1.b is legally insufficient and lacks substantial

evidence as it fails to bridge the analytic gap between the record evidence (here,

c onsistency with the 1978 CUP) in this case and the conclusion that implies that the

Comm ission approval of the bingo parlor use was authorized by it. Topanga, supra, 11

Cal.3d at 511, 512, 515.

  • a) An AA Is Appropriate

Pursuant to Municipal Code section 122-683(b), “at the discretion of the Plan ning

Manager, “minor, noncontroversial matters may be considered administratively.” State d

differently, subsequent uses/developments on land zoned PD maybe reviewed

administratively if the Staff, pursuant to the power granted to it under section 122-683,

believes that the pro ject is minor and noncontroversial in nature. The Municipal Code

confers upon the Planning Manager, the power to make such determinations. “The

constru ction and interpretation of a statute by officials charged with its administration

must be given great weight.” City of Walnut Creek v. County of Contra Costa County, e t

al. (1980) 101 Cal.App.3d 1012, 1021; Sanchez v. Unemployment Ins. Appeals Bd. (197 7)

20 Cal.3d 55, 67.

Here, Planning Staff determined the project to be minor and noncontroversial

initially, at the administrative level, then at the Planning Commission level and finally

upon appeal to City Council. Specifically, the Planning Staff determined the proposed

commercial recreation use is consistent with the intent and purpose of the PD zoning

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 11

despite not being covered under the 1979 PDP approval; the project is similar to prior

Commercial Recreation uses that have been administratively approved for the Property;

the proposed use is consis tent with the General Plan Downtown Mixed Use designation

and with the uses that have previously occupied the site, and will have no significant

environmental effects (June 2 Staff Report, page 4; July 13 Staff Report, page 3-7;

Proposed R

esolution No. 10-10 PC denying the Appeal). These determina

tions were

founded upon substantial Record evidence provided at both the June 2, 2010 Planning

Commission hearing as well as the July 13, 2010 City Council hearing. Planning Staff

persuasive ly concluded:

The stated purpose of PD zoning is to permit development which

generally enhances standards and is consistent with the General

Plan. This project does not involve any new development and

merely proposes to re-tenant a bui lding that has been occupied

by sim ilar commercial recreation uses over the years. More

importantly, the project is consistent with the General Plan's

Downtown Mixed Use designation and with policies promoting

Central Concord as the social center of Concord by encouraging,

among other things, entertainment uses mixed with office,

commercial and reside ntial uses.

As previously indicated, the interpretations of zoning ordinances by planning

officials char

ged with their enforcement are persuasive as to the meaning of

the

ordinances and are entitled to substantial deference. Hewlitt, supra, 54 Cal.App.4 th 499,

  • 526. Thus, the Planning Staff (as upheld by the Commission) were justified in using the

AA pr ocess for the Application.

  • b) The Proposed Bingo Parlor Use Is “Minor, and Uncontroversial"

The City Council, in the proposed Resolution declares that it is “unable to find that

the proposed finding that the project cannot be approved administratively.” This findin g

is both factually and legally inappropriate as it is unsupported by any evidence ten ding to

show that the project results in a significant or controversial change from the existing us e

of the subject property. Stated differently, again it fails the Topanga standard for le gally

adequate findings. It is a well established rule that that a party must present “all legitima te

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 12

issues before the admini strative tribunal in order to preserve the integrity of the

p roceedings before that body and to endow them with a dignity beyond that of a mere

shadow -play.” City of Walnut Creek v. County of Contra Costa et al., (1980) 101

Cal.App.3d, 1012, 1020-1021. Here, in effect, it appears that the City’s decision favors

the Blue Devils over the Applicant solely on the basis of economic competition or

suspicion of the motives or “organizational structure” of the proposed Property lessee.

Video, Part 6, 35:40. 8

First, the Record is replete with substantial factual evidence upon which the

Planning Staff has based its determination that the use change is minor with respect to its

consistency with the General Plan and other commercial recreation uses that have

occupied the site as well as with respect to environmental impacts. Second, it can hardly

be said that the project is controversial when Staff notified over 70 tenants and proper ty

owners of the Planning Commission appeal hearing and the only public testimony

provided at the hearing in opposition to the project was by the Blue Devils. July 13 Staff

Report, p. 7. As set forth in this communication, nowhere in the Record is there any

substantial evidence to support any contention that the Application would has any kin d of

negative effect resulting from the proposed land use—other than economic com petitive

harm to the Blue Devils. As proposed Resolution finding 1.d. is legally insufficient,

without any offer of substantial eviden ce as to why the proposed use change is not minor

o r non-controversial, one can only hypothecate that the sole basis of opposition is

economic competition and the respected position in the City society of the Blue Devils.

A nd indeed, the opposition presented by the Blue Devils is founded upon their own

economic

and competitive interests rather than on any factually substantial

or

demonstrab

le environmental concerns, as demonstrated in the Loewke Repo

rt, which is

legally and factually unsupportable.

Now

here is there authority to base a land use decision on economic

competition. 9

…even when the regulation of economic competition reasonably

  • 8 During the July 13 Hearing, Councilmembers pressed questions regarding whether the “organization structure” of

Pops Bingo World has been adequately scrutinized. The City Attorney and the Deputy City Attorney stressed that

they lacked the authority to do so.

  • 9 The only land use decisions assoc iated with economic factors are those dealing with economic blight. Health and Safety Code §§ 33030 et seq. Surely, the Blue Devils’ attorney’s oblique reference that somehow the Application approval will lead to blight without substantial evidence in support, may be dismissed as self-serving and at best, th e opinion of counsel, which does not constitute substantial evidence. See, Kransco v. American Empire Surplus Lines Ins. Co., (2000)23 Cal. 4th 390, 409.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 13

can be viewed as a direct and intended effe ct of a zoning

ordinance or action, so long as the primary purpose of the

ordinance or action—that is, its principal and

ultimate

objective—is not the impermissible private anticompetitive goal

of protecting or disadvantaging a particular favored or

disfavored business or individual, but instead is the

advancement of a legitimate public purpose…

Hernandez v. City of Hanford (2007) 41 Cal. 4

th

279, 296-297.

The

re is absolutely no Record evidence advancing any legitimate pu

blic purpose

relating to

a genuine environmental concern. The City appears to be basin

g its decision

on Blue De

vil’s opposition which is founded solely upon economic competit

ion. This is

not a factor that is appropriate for consideration in the context of CEQA

CEQA is not a fair competition statutory scheme. Numerous

find ings and declarations were made by the Legislature with

respect to CEQA. [Citation.] None of them suggest a purpose of

fostering, protecting, or otherwise affecting economic

competition among commercial enterprises.

Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal. App. 4th

825, 829-830

Specifically, it should be the use that is at controversy not the mere fact that the

A pplicant competes with another bingo parlor which is already in existence. Based on

the Re cord and the lack of substantial evidence proving otherwise, it appears that the only

plausible interpretation of the City’s actions in denying the AA is to further Blue Devils

purpose which is to stifle the competition posed by Pop’s Bingo World. Accordingly,

th

ere i

s no substantial evidence to support proposed Resolution finding 1.d, and as such

is a legally insufficient finding.

it

  • 3. The Staff Environmental Analysis That The AA Was Exem pt From CEQA Is Presumed Le gally Sufficient

Resolution finding Section 1.c. conclusionerily finds that “additional analysis is

needed to evaluate whether or not the proposed bingo hall use would great any adverse

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 14

environmental

. . .

impacts.” Initially, this finding is legally insufficient as it fails to

bridge the gap to any substantial evidence that call into question the City Staff’s

conclusions that the AA is exempt from CEQA.

First, it must be noted that CEQA has a well-defined purpose – to require public

decision-makers to consider the environmental implications of their actions and includ e

the public in that process. Pub. Res. Code §§ 21000, 21001. CEQA has an

environmental information function, not an economic one. See e.g. County of Orange v.

Superior Court (2003) 113 Cal.Ap p.4th 1, 6, 12-13. Stated differently, CEQA does not

c oncern itself with the financial competitive effects of “projects” – rather the

environme ntal effects.

The Resolution finding 1.c, thus, fails to acknowledge that City Planning Staff

conducted

extensive hours of study of the Application, drafted two compre

hensive Staff

Reports in

favor of the AA approval, and found the Application exempt fro

m CEQA

under two separate exemptions:

That is because as a general rule, CEQA only applies to projects

which have the potential for causing a significant effect on the

environment. The implementing regulations provide that CEQA

does not apply "where it can be seen with certainty that there is

no possibility that the activity in question may have a significant

effect on the environment." (14 Cal. Code Regs.

§ 15061) A

proposed project is nonetheless ex empt from CEQA when "[t]he

activity is covered by the general rule that CEQA applies only to

projects which have the potential for causing a significant effect

on the environment. Where it can be seen with certainty that

there is no possibility that the activity in question may have a

significant effect on the environment, the activity is not subject

to CEQA." (14 Cal. Code Regs. § 15060(c)(2)). 10

July 13 Staff Report,

p. 3. Staff supported these determinatio

ns by explaining that it met

with the Applicant and Staff from Planning, Economic Development, Building, and

10 CEQA is augmented by the CEQA Guidelines, codified at title 14 of the California Code of Regulations section 15000 et seq (“CEQA Guidelines”). When no party has challenged the legality of any of the applicable CEQA Guidelines and none of them appear to be " 'clearly unauthorized or erroneous under CEQA.' " [citations omitted], a Court will afford them " 'great weight.' " Ibid.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 15

Police at a meeting where the project was explained and potential issues discussed. 11 July

13

Staff Report, p. 3. Further, Staff explained the variables it took into account in

determining th e Application was CEQA exempt included:

 
 

consultation with the Transportation Division regarding

 

parking and traffic circulation;

 
 

consultation with Engineering Serv ices regarding

 

engineering-related permits;

 
 

working with the Police Department regarding a Crim e

 

Prevention Through Environ mental Design (CPTED)

analysis for the project, which considered such elements as

landscaping requirements, outdoor lighting, site

 

maintena nce, and access control;

 

consideration of qualitative factors such as hours of

 

operation, absence of impacts from construction and

outdoor activities, etc.; and

 
 

consideration of quantitative factors such as lighting levels

 

and compliance with parking ratios in evaluating the project

impacts

July 13 Staff Report, p. 3. Staff further explained that it found t he Project CEQA exempt

u nder the exemption for existing facilities, which categorically exempts projects that

involve “negligible or no expansion of an existing use.” CEQA Guidelines. § 15301. July

13

Staff Report, p. 4. Staff explained that it supported this finding by learning the

building is

"nearly turn-key" with regard to its amenability for use as a bing

o hall. July

13

Staff Report, p. 4. Thus, Staff found the bingo parlor use to be consistent with the

former use

at the location as a Commercia

l Recreation Use, as:

Staff has considered uses that provide participant or spectator

recreation or entertainment as commercial recreation uses. Uses

that have been approved under this working definition include

fitness clubs, video arcades, indoor miniature golf, and indoor

party/play rooms for children.

July 13 Staff Report, p. 4. Additionally, Planning Staff found that the bingo parlor use

  • 11 This meeting is authorized by CEQA Guidelines § 15060.5.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 16

was consistent with the City General Plan Downtown Mixed Use designation and with

the uses that have previously occupied the site. July 13 Staff Report, p. 4.

Application opponents presented an argument that disputes Planning Staff’s

determination of consistency with former uses on the property. This argument was

presented by a consultant, in a communication to the City (the “Loewke Report”) and a

oral presentation at the July 13 Hearing. The Loewke Report asserted that "bingo parlor"

uses are classified and distinguished from "health clubs", but cited to the NAICS – North

American Industry Classification System, which assigns different codes to those uses .

Loewke Report, p. 4. This national authority, however, does not overrule the

determinations of Planning Staff as the interpretations of the Zoning Ordinance use

classifications by City Planning Officials are entitled to substantial deference. See

Hewett, supra, 54 Cal.App.4th at, 526; Elysian Heights, supra, 182 Cal.App.3d at 32;

BFI, supra, 181 Cal. App. 3d at, 865; Rasmussen, supra, 140 Cal. App. 3d at 851. In fa ct,

rather than relying on a non-specific national classification system, City Staff supp orted

its use consistency determination with citations to simil ar classifications in neighboring

c ities (Walnut Creek, San Ramon and Pleasant Hill). July 13 Staff Report, pp. 4-5.

A dditi

onally, the Planning Staff analyzed consistency with the City General Plan, and its

General Plan’s Downtown Mixed Use designation, and the purpose of the PD zoning.

July 13 Staff Report, p. 5. Accordingly, Planning Staff presented the sort of evidence

meeting the definition of “substantial evidence”, i.e., “relevant evidence that a reason able

mind might accept as adequate to support a conclusion or evidence of ponderable legal

significance reasonable in nature, credible, and or solid value.” Auburn Woods I

Homeowners Assoc., supra, 121 Cal.App.4th at1583.

As Staff noted (July 13 Staff Report, p. 3), the determination of whether a project

is CEQA exempt is accomplished by a preliminary review. CEQA Guidelines §§ 15060,

  • 15061. Planning Staff supported these determinations with substantial evidence in the

Record. See, July 13 Staff Report. These determinations by Planning Staff and the

Commission are presumed correct as it is presumed that official duty has been regularly

performed [Ev. Code § 664], a presumption which applies to acts required of a City

Planning Commission. Bickel v. City of Piedmont (1995) 45 Cal.App.4th 313, 331; Mille r

v. Planning Commission (1956) 138 Cal.App.2d 598, 602.

This insufficient finding leaves the Applicant to surmise that the City relies on the

a rgum ents set forth in the Loewke Report, and the Appeal Letter, which criticizes the

Staff finding of CEQA exemptions for the Application, in which it was alleged that the

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 17

Application requested an entirely new use that requires ana lyzing potential environmental

im pacts, including impacts on traffic and circulation, noise, lighting, parking, and

crime/police services. July 13 Staff Report, pp. 56-57. Contrary to these arguments, the

Planning Staff, however, had properly analyzed those concerns as part of the preliminary

review [Sta

ff Report, p.3], and that analysis is entitled to substantial defere

nce.

With respect to the Loewke Report contentions that the CEQA exemptions cited

are inapplicable, those conclusions are unsupported by substantial evidence and thus m ay

be dismissed. First, the Loewke Report asserts that the City relied on a determination that

the Application was no t a “project” as defined by CEQA:

It is therefore clear that both the original Use Permit action to

authorize the Health Club and the proposed determination on the

Bingo Parlor are "Discretionary Actions" which are subject t o

CEQA.

Loewke Report, p. 12. This conclusion is simply a red herring: Planning Staff did not

assert that the Application is not a project under CEQA, but instead, after substantial

preliminary analysis:

Staff concluded this review by determining that the use does not

have the potential to cause a significant effect on the

environment and therefore falls under CEQA's general rule.

Staff Report, p. 3 (See, CEQA Guidelines §§ 15060(c)(2) 15061(b)(3)) . The Loewke

Report also misrepresents the evidence in concluding the Application is not subject to the

C EQA “existing facilities” exemption of CEQA Guidelines section 15301, as the bingo

parlor use change is not a “negligible or no expansion of an existing use.” Loewke

Report, p. 13. To the contrary, as Planning Staff clearly set forth, the existing facilities to

be used is nearly turn-key and will require almost no improvements to use as a bingo

parlor. Staff Report, p. 4. As noted, the Loewke Report relies on the general NAICS

classifications for the conclusion, without applying the facts of the Application, that the

bingo parlor is substantially different than the health club formerly operated. But,

Planning Staff was entitled to determine that the use was consistent with local standards

for use classifications, and that determination is entitled to substantial deference. 12

12 The Loewke Report conclusion that as the health club was not operated since 2008, the change in use is actually

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

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July 26, 2010 Page 18

Finally the Loewke Report conclusion that the Planning Staff CEQA exemptions

are inapplicable because of alleged evidence of parking, traffic, and public safety impac ts

(p. 14) may not be used by the Council to require further environmental analysis. As

noted, the Planning Staff specifically considered such impacts in their preliminary review.

More importantly, however, the Resolution finding Section 1.c does not assert which of

the Planning Staff’s environmental analyses were insufficient. The Applicant is left t o

guess, was it the parking? But evidence was presented that sufficient parking exists.

Video, Part 1, 08:04, 12:20-13:44, 24:30. Was it the traffic? But evidence was prese nted

that the Bingo Parlor will be operated after peak traffic, in order to avoid any traffic

difficulties. Video, Part 1, 14:30-14:48. Was it safety? But the record shows safety

issues were addressed in the extensive C rime Prevention Through Environmental Design

R eport Prepared by Concord Police [Staff Report, Attachment 5] and the conditions

im pose

d on the AA approval to mitigate any potential issues, consistent with Police

standards. Staff Report, pp. 12-14. Accordingly, it is unclear how, if at all, the Loewke

Report supports the Resolution finding.

In summary, the Loewke Report CEQA conclusions lack substantial evidence or

are inapplicable to the local standards or the facts of this matter and thus lack cred ibility.

Because expert opinions that lack credibility should be ignored [See, Bowman v. City of

Berkeley (2004) 122 Cal.App.4th 572, 583 ] it does not provide any evidence to support

Resolution finding Section 1.c. As the finding does not bridge the gap between any

record evidence and its conclusion, it is legally inadequate. Approving a legally

u nsupported finding requiring additional environmental analysis is an abuse of discretion,

as it can only lead to the conclusion that the AA is voided not for legitimate

environmental concerns, but because of the identity of the Applicant, something which is

strictly prohibited under CEQA.

Friends of Davis, supra, 83 Cal.App.4th at 1018-1019.

  • 4. A CUP Is Not Required

As set forth, supra, under the Municipal Code, City may not req uire a CUP for the

from an empty building to a bingo parlor is incorrect and misleading. Loewke Report, p. 13. Although the

Municipal Code may have an expiration date for an unused CUP for purposes of zoning, Planning Staff analyzed the

us

e the

existing facilities was s et up for on the Property-which remains a health club even though not currently used.

F

or purp

oses of CEQA, the analysis remains sound, and thus this Loewke Report conclusion is unfounded. Yet

another red herring is the Loewke Report refutation (Loewke Report, p. 13) of the use of the “small structures”

conversion CEQA exemption [CEQA Guidelines § 15303] as the Planning Staff did not cite or rely upon this exemption.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 19

b ingo parlor use. Thus, there is no evidence to support the Resolution section 3 finding

requiring the Applicant to apply for a CUP to obtain the bingo parlor use. Finally, this

fi nding is legally inadequate, because without any substantial evidence, it cannot bridge

the analytic gap between requiring a CUP and non-existent evidence.

  • C. The Applicant Was Denied A Fair H earing And Thus Denied Due Process

In addition to the City substantive violations in approving the Resolution, the City

departed from its own provisions for evaluating a minor land use application and in so

doing, denied Applicant a fair hearing.

  • 1. A Land Use Applicant Must Be Given Due Process

Tha t the Applicant should have been granted a fair hearing is undisputed as “a fair

tr ial in a fair tribunal is a basic requirement of due process…” Cohan v. City of Thousand

Oaks (1994) 30 Cal.App.4th 547, 559 (“Cohan”).

  • 2. The Applicant Was Mislead By Councilmember

As noted, supra, the Applicant’s good-faith submission of the AA, was made upo n

the recommendation of a City Councilmember as the appropriate manner by which to

seek the proposed use. Yet at t he July 13 Hearing, the same City Councilmember voted

a gainst upholding the use of the AA process, subjecting the Applicant to the much more

o nerous CUP requirements, which as demonstrated, supra, the Municipal Code does not

a uthorize.

  • 3. The Applicant Is Unaware Of The Extent of Ex Parte Communications With City Councilmembers

In another procedural violation, a City Councilmember had ex parte

communications with the Applicant. This leaves the Applicant to speculate as to other

unauthorized ex parte communications with Project opponents, which would constitute

another procedural violation.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 20

  • 4. The City May Not Now Deny Applicant The Use of the AA Process Where the Applicant Relied on City Councilmember and City Staff Assurances That The Process Was Correct

As noted, the Applicant submitted its requested use by the AA process, after

  • m eetin

gs with City Staff and the referenced City Councilmember, and after the

Commission upheld the form as well as the substance of the Application. The invo lved

conduct of the City in recommending and upholding the use of the AA process, is the

type of c onduct upon which the Applicant is entitled to justifiably rely on [See, City of

Lo ng Beach v. Mansell (1970) 3 Cal.3d 462, 497-498] which would now preclude

contrary City action such as reversing its position and declaring the AA the wrong

process to use.

  • 5. To The Extent That The City Considered Public Pol icy, It Would Be Bad Public Policy To Grant The Appeal Based O n A Competing Bingo Operator’s Opposition

Although the extent of the City Council’s reliance on the public policy of

protecting the Blue Devils, as a well-known charitable operation in the City, from

competition is unknown, the City Staff considered this issue as well and rejected it as bad

policy:

staff believes Pop's will have a b

enefi c ial im p act on charitable

organizations operating within the City by providing such

organizations an additional fundraising tool. According to Pop's,

local organizations such as East Bay Community Services and

Concord Youth Center (the Hoffman Foundation) have already

expressed interest in conducting bingo games. The only

charitable organization that could be imp acted in an adverse way

is the Blue Devils, who operate a competing bingo hall. While

the City wants all Concord businesses and charitable

organizations to succeed, it would be bad policy to make land

use decisions that interfere with open competition by effectively

granting one organization the exclusive right to operate a bingo

hall within the City of Concord.

Additionally, representatives for the charities that would benefit from the AA approval

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 21

te stified at the July 13 hearing as well of the importance of using the Property for charity.

Video

, Part 3, 30:25-40:10. Thus, since economic competition may not be used to ma

ke

zoning decisions, it would be bad policy -- indeed prejudicial policy to enforce a

m onopoly on charitable bingo parlors in the City.

  • 6. Any Procedural Violations Were Cured By The De Novo July 13 Hearing.

Finally it should be noted that Councilmembers expressed outrage and concern

with the alleged due process violations at the June 2 Commission Hearing. Accurat e or

not, as City Attorney clarified, the July 13 Hearing was a de novo hearing, w hich cured

any perceived violations at the June 2 Hearing. Video, Part 1, 29:21. Thus any relianc e

for the proposed Resolution based on June 2 Process violations lack legal authority.

  • 7. Cumulative Procedural Errors Constitute a Violation of Due Process and a Denial of Fair Trial

The sum total of City actions which as set forth, supra, includes selective review

of the record and a complete disregard to the substantial deference owed to the

determinations of Planning Staff and the Commission, and the sudden about face

regarding the correct application process after assurances to the Applicant, indicate,

c onsistent with the holding of former case Lacy Street Hospitality Service, Inc. v. City of

Los Angeles (2004) 125 Cal.App .4th 526 13 that the Applicant did not receive a fair

h earing because the City Council abused its discretion to purportedly show

noncompliance with the City Municipal Code, City regulations, and CEQA, therefo re

precluding procedural due process. Id., at 530. The inattention of the Council to the

advice of the City Attorney to strictly apply land use law deprived the Applicant of the

analysis necessary for resolution and a fair hearing before the Council. Additionally,

throughout the July 13 Hearing described and the administrative process, the City acte d in

flagrant violation of due process law, by overturning without substantial evidence the AA ,

and requiring a CUP without legal authority, confounding public trust in the planning

process, in gross violation of law and fairness. This conduct evidences a denial of due

process in the Application proceedings and a basis for reconsideration of the Resolu tion.

Cohan, supra, 30 Cal.App.4th at 555.

13 Although the Lacy Street Hospitality Service Opinion was withdrawn as an Appellant Court Opinion, it is indicative of the kind of unacceptable due process violations that the law prohibits.

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 22

VI. CONCLUSION

The Resolution approval constitutes a prejudicial abuse of discretion and is

unsupported by substantial evidence. Additionally the process used to overturn the AA

c onstituted procedural due process violations and a denial of a fair hearing prohibited by

law. No other conclusion exists than that the City has illegally granted the Appeal to

thwart a business that may be unpopular, or to regulate economical competition. The

Applicant acknowledges that the opponents to the Application argued that allowing the

AA to stand would result in economic competition to the Blue Devils, a well known City

organization. But it bears repeating, that as the Friends of Davis Court pointed out, this is

an abuse of the City’s land use powers as while a city has broad authority over the

regulation of land use within its territory , that authority is not unlimited. Where certain

u ses are permitted, a city cannot arbitrarily exclude others who would employ a similar

us e. Zoning and building laws cannot be used unqualifiedly to restrict competition or

s imply to shield existing businesses from competition. While valid zoning regulations

m ay affect competition and have other economic effects, a city does not have carte

b lanche to exclude a particular business that it, or some of its residents, do not like. 14

F riends of Davis, supra, 83 Cal.App.4th at 1014.

Due to the fatally flawed Resolution findings and the referenced violations of land

u se law

and CEQA, the Applicant respectfully requests the C

ouncil to set the matter for a

re consideration hearing at your next Regular or Special Meeting. Although the Applicant

believes that the only legal course is to uphold the granted AA, at a mini mum, the specific

a nalysis of the City Attorney should be accomplished by the Council Staff so that a court,

a member of public, or the Applicant can “trace and examine” the Council pathway to

decision based upon record evidence.

14 This is true, even where Councilmembers have been assured they have “political cover” to make the decision that residents want them to, despite the applicable law. Video, Part 7, 04:06,

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Honorable Mayor Guy S. Bjerke

And Councilmembers of the

City of Concord

July 26, 2010 Page 23

If you have any questions, please conta ct this office.

Very truly yours,

Honorable Mayor Guy S. Bjerke And Councilmembers of the City of Concord July 26, 2010 Page

William D. Ross

WDR:sf

cc:

Mr. Paul Lopez

plopezloneoak@comcast.net

Craig Labadie, City Attorney

Craig.Labadie@ci.concord.ca.us

Kathy Wisinski, Deputy City Attorney

Katherine.Wisinski@ci.concord.ca.us

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