Appeal from an order of the Superior Court of Orange County, David R. Chaffee, Judge. Reversed and remanded with directions. (Super. Ct. No. 30-2009-00119013).
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PUBLICATION
Musa Madain appeals the denial of his petition for a writ of mandate challenging denial by the City of Stanton (the City) of his application for a permit to operate an adult-oriented cabaret. The City denied the application on the basis the location selected by Madain was within 300 feet of a planned church. Although Madain challenged the authenticity of the church itself in the proceedings below, he does not do so here. Instead, he argues two things: first, that a church which has merely applied for a permit to operate at a particular location, but whose application has not yet been meaningfully processed, does not qualify for protection as a "planned" church under the City's "sensitive use" ordinance; and second, that the City failed to consider his contention he attempted to file his own permit application prior to the church's application -- which would have entitled him to priority under the City's interpretation of its sensitive use ordinance -- but was deterred in his effort by city employees.
We conclude the order denying the writ of mandate must be reversed, and the case remanded for further proceedings. Stanton's sensitive use ordinance is not a model of clarity, and the parties' arguments focus primarily on what it ought to mean, rather than providing us with any legal authority for what its words actually do mean.
We are inclined to agree that the ordinance establishes priority fairly only if interpreted as the City has done in this case - which is that priority, as between a sensitive use (in this case, a church) and a putatively "insensitive" one (Madain's cabaret) would be subject to potential manipulation if, as Madain argues, it were determined based upon when the City chose to commence its official consideration of the sensitive use permit application. Such an interpretation might assist Madain in this particular case, but would seem to create uncertainty and beg calamity as a general rule. And regardless of the wisdom of such an interpretation, we are not certain the ordinance before us was written that way.
We need not decide that issue, however, because Madain's second contention is persuasive. Even assuming that sensitive use priority is established objectively, by reference to the dates upon which the respective parties choose to file their permit applications, it is obviously incumbent upon the City to give all applicants an equal opportunity to do so. The goal is to prevent any manipulation of the process. And Madain offered evidence during the city council's hearing on his appeal from the denial of his permit application that he had attempted to file his permit application prior to date the church filed its own, but was deterred from doing so by a city employee -- thus, specifically raising the inference of manipulation. But the city council made no findings on that point. Because the issue of whether Madain's permit application was presented to, and should have been accepted by, the City prior to the date the church filed its own application was relevant to determining whether the church's application was legitimately entitled to priority (even under the City's own interpretation of the sensitive use ordinance) the city council abused its discretion by failing to address it. We consequently reverse the trial court's order denying the writ of mandate, and remand the case with directions to issue the writ.*fn1
On December 2, 2008, Madain filed tenant improvement plans with the City of Stanton, in connection with a contemplated "adult-cabaret" he proposed to operate at a property on Katella Avenue. The City accepted the plans, but on December 18, 2008, more than two weeks later, the City's planning manager, Omar Dadabhoy, mailed the plans back to Madain with a letter explaining that "as [Madain was] proposing to operate an adult oriented business on the subject property, an adult business application must be submitted and approved prior to plans for tenant improvements."
In response to the letter, Madain filed an "Adult-Oriented Business License Application" on January 6, 2009. By letter dated January 14, 2009, the City notified Madain that his application was denied. According to the letter, the denial was based upon the fact Madain's proposed business location was within 300 feet of a planned "religious institution," and thus was not in compliance with section 20.38.024, subdivision (A)(1)(b), of the Stanton Municipal Code.*fn2
On January 23, 2009, Madain appealed the denial of his permit to the city council. And on February 10, 2009, the city council conducted a "de novo hearing"*fn3 on the matter.
At the hearing, which was transcribed, Madain made several arguments, including the assertion that he had attempted to file his permit application on December 2, 2008, the date he filed his tenant improvement plans, but was deterred by a city employee from doing so. Specifically, Madain explained he had informed the city employee at the front desk that date -- a woman -- he had both the application and the requisite fee to file along with the plans, but that the woman told him she would take only the tenant improvement plans at that time, and that Dadabhoy would look at them and then send a letter or call Madain. Madain claimed after he received Dadabhoy's letter, more than two weeks later, informing him that the tenant improvement plans were being returned to him for lack of a permit application, he informed Dadabhoy of his effort to file the permit at the same time.
Madain also explained to the city council that the application itself would provide further evidence of his intent to file it on the earlier date, because the original date of December 1, 2008, had been simply covered over with white ink, so the document could be re-dated to correspond with the timing of his later filing attempt. He advised the city council that "[i]f you see the application in the bottom, if you peel the, it's like a, it's like a white ink, you know, if you peel it, you will see that application dated [12/1] of 2008 and was ready to be submitted along with the application."
Madain also explained to the city council that Dadabhoy had been aware of his intent to open his business at the Katella address for some weeks prior to the December 2, 2008 attempt to file his permit application, as the two men had discussed what steps Madain would need to complete for city approval. Moreover, he pointed to evidence that a city employee had communicated with the church on December 3, 2008, the day after he made his initial attempt at filing his permit application, and the church then quickly filed its own application on December 8, 2008.*fn4 However, it was not until 10 days after that, on December 18, 2008, that Dadabhoy got around to returning Madain's tenant improvement plans, informing him his project would not proceed until his own permit application was filed. Madain argued these facts gave rise to the inference that city employees had manipulated the events to ensure the church would have the opportunity to file its application first, and thus obtain priority under the sensitive use ordinance.
Dadabhoy also addressed the city council during the hearing. Although he was not present on December 2, 2008, when Madain claims he initially attempted to file his permit application, Dadabhoy nonetheless purported to dispute the claim, explaining to the city council that "[Kelly] Scott [the female employee who dealt with Madain on that date] was not aware of any business license application that . . . Madain wanted to submit, nor did he offer to pay any fees, nor would it have been a complete application, because there was only one piece of paper in his hand and it was not the business license application that the City gives out to applicants." Neither Scott, nor any other city employee with direct knowledge of the December 2, 2008 encounter, offered any evidence before the city council.*fn5
Immediately after Dadabhoy finished addressing the city council, it concluded the hearing and "call[ed] for the question." The city council then voted unanimously to reject Madain's appeal. The city council then issued formal written findings in support of its decision, as follows:
"WHEREAS, on January 6, 2009, . . . Madain filed an application for an Adult-Oriented Business License, together with appropriate fees, for a business to be located at 8351 Katella Avenue, Stanton. Pursuant to the application, the intent was to operate and [sic] adult cabaret (no alcoholic beverages served) featuring nude female dancers performing on a stage and operating under the fictitious business name 'Avalon Show Girls'; and,
"WHEREAS, on December 8, 2008, prior to the application of the adult cabaret, an application for a Provisional Use Permit was filed on behalf of the Branches Christian Church, Inc. to establish a storefront church at 8381 Katella Avenue, Unit J (the property line of which would be less than 2 feet from the building proposed to house the adult cabaret); and,
"WHEREAS, on January 14, 2009, the interim City Manager provided written notice to the applicant that the application for the adult cabaret was denied due to the fact that the location was within 300 feet of a planned religious institution and is not in conformance with the standards of Stanton Municipal Code section 20.38.024; and,
"WHEREAS, on January 26, 2009, the attorney for the applicant timely requested a hearing before the City Council to consider an appeal of the denial of the application; and,
"WHEREAS, on February 10, 2009, the City Council of the City of Stanton conducted a public hearing concerning the appeal; and
"WHEREAS, the City Council has carefully considered all pertinent testimony and information contained in the Staff report prepared for this application ...