Opinion
B159658.
10-28-2003
NEW WAY RECYCLING CENTER, INC., Plaintiff and Respondent, v. CITY OF PASADENA et al., Defendants and Appellants.
Michele Beal Bagneris, City Attorney, and Frank L. Rhemrev, Assistant City Attorney, for Defendants and Appellants. Wallin, Kress, Reisman & Kranitz, Cary S. Reisman and Lisa A. Kranitz for Plaintiff and Respondent.
The trial court granted New Way Recycling Center, Inc.s ("New Way") petition for writ of mandate and ordered the City of Pasadena and its City Council (collectively, the "City) to set aside the decision revoking New Ways conditional use permit. The City contends the trial court erred when it (1) exercised its independent judgment in reviewing the evidence, and (2) determined the weight of the evidence does not support the Citys findings. We conclude the trial court properly applied the independent judgment standard of review, and its decision is supported by substantial evidence. Accordingly, we affirm the judgment.
FACTS AND PROCEEDINGS BELOW
In 1996, the City granted New Way a conditional use permit to operate a small collection facility/recycling center in the parking lot of Farmers Family Foods Grocery Store. The center accepts recyclable beverage containers. Under the Pasadena Municipal Code, a small collection facility is "[a] recycling center of 500 square feet or less for the deposit or drop-off of recyclable materials." It is undisputed New Way falls within the scope of this classification. The City describes the neighborhood where New Way is located as "residential" although it is zoned a "Limited Commercial" district. Next to New Way is a church outreach center which ministers to homeless persons among other groups. Further down the block is a senior citizens residential facility.
Pasadena Municipal Code section 17.16.050, paragraph FF(2).
Sometime in 1999, the City received two complaints about the "unmaintained appearance" of New Way. The City concedes New Way responded to those complaints by cleaning up the property and by providing additional landscaping. Sometime in 2000, the City received new complaints about persons "loitering in front of [New Way] before and during business hours, blocking the driveway to the adjacent grocery store, littering, drinking [alcoholic beverages], and creating noise." After New Way learned about these complaints in or about November 2000, it hired a business consultant. At the consultants suggestion, New Way hired a full-time security guard. Once the security guard began patrolling the premises during the hours of operation, New Way believed it had adequately addressed all of the Citys concerns.
On March 15, 2001, the City Zoning Administrator conducted a fact-finding hearing "to determine whether there [were] reasonable grounds to consider revocation or revision" of New Ways conditional use permit. An employee in the Citys planning division testified about a site investigation in December 2000 during which he observed (unspecified) activity related to the prior complaints. He also noted "the high volume of recyclables being dropped off at" New Way. He saw persons bringing truck-loads of recyclable materials to the facility. At the hearing, New Ways business consultant told the Zoning Administrator New Way collected 61 percent of the beverage containers recycled in the City in 2000, which is about 157 percent more than all of the other small collection facilities in the City combined.
Besides the business consultant, four other people testified on New Ways behalf at the hearing. An employee of the neighboring church outreach center and another resident of the City both said the loitering problem existed before New Way commenced operations. They identified the loiterers as day laborers and homeless persons waiting around for services from the church outreach center. They noted, even though the loiterers were not customers of New Way, fewer people were loitering in the area due to New Ways vigilance and its response to the Citys concerns.
The owner of the grocery store property and the head of the security firm New Way hired also testified on the recycling centers behalf. The property owner had observed day laborers loitering in front of nearby residential properties. He testified about a lack of cooperation from the police concerning loiterers who frequented his store. He did not attribute the loitering problem to New Ways presence, and stated he was satisfied with the way New Way was run. He believed New Way had cooperated with the City in every way. In response to a citizen complaint, the head of the security firm said there was no way he or New Way could prevent homeless persons from walking up and down the street at night (after New Way was closed), collecting beverage containers from residents recycling bins.
Three concerned citizens testified in opposition to New Way. Two of them were representatives from nearby residential complexes. One of them criticized New Way for breaking bottles "in the open," which she claimed created a noise problem and a safety issue. This woman also said on her walks past the recycling center she would often trip over "drunks" who urinated in public. She claimed these loiterers would recycle their containers at New Way and then purchase alcohol in the adjacent grocery store.
She did not recount any incident of a piece of glass or other debris actually leaving the recycling bin and hitting someone.
The other neighborhood representative testified about what goes on in the area at night. She noted people would loiter in the area after New Way and the grocery store were closed. She said senior citizens from nearby residential living complexes no longer took walks at night (she referenced the 8:00 to 10:00 p.m. time frame, which is after New Way closed). She also commented on a "problem" with day laborers, which she conceded was not related to New Way. She said senior citizens were afraid to go to the grocery store.
The third concerned citizen who testified owned a residential property near New Way, but he did not live there. He said "the clinking of the bottles and the breaking of the bottles" at New Way would bother him if he did live there. New Ways business consultant explained the noise and occasional breakage occurred when New Way would transfer bottles from one container to another in order to inspect them, which it was required to do by state regulation. The consultant said New Way could minimize the noise by insulating the containers.
The Zoning Administrator said he had noticed the loitering problem when he drove by New Way, but acknowledged he "ha[d] not looked at what [was] going on more recently with the security guard." He noted he could hear the "clinking" of bottles from his car, even with the windows rolled up. He was "surprised" by the amount of recyclable materials New Way collected, and the fact many of its customers lived in other cities. He characterized New Way as "a regional facility" rather than a "neighborhood recycl[ing] center." He questioned whether the small grocery store site was an appropriate location for New Way. He complimented New Ways owners for their honesty and responsiveness.
The Zoning Administrator took the matter "under advisement" and later issued findings. He cited evidence of noise, littering, drinking in public and loitering at New Way. He concluded, "The site attracts loitering because the facility provides immediate cash for recycling materials without having to go into the market and redeem a receipt. The market also sells single cans of beer, which encourages persons to come to the facility, cash in their cans and buy single cans or bottles of alcohol." The Zoning Administrator also found New Way "is not operating as a small collection facility/neighborhood recycling center, but a regional recycling center that attracts clients from an area outside of the local neighborhood. As such, due to the large quantities of recyclable materials taken in at the site, the land use impacts typically associated with this type of facility are further compounded by its high volume. This is not in keeping with the intent of a neighborhood oriented recycling center that is designed to be convenient to the surrounding neighborhood, not the region." For all of these reasons, the Zoning Administrator concluded New Ways use of the property constituted a nuisance.
On March 22, 2001, the Zoning Administrator informed New Way the City had decided to revoke New Ways conditional use permit based on the Zoning Administrators findings. New Way appealed the decision to the Board of Zoning Appeals (the "BZA"). In its appeal application, New Way argued the Zoning Administrator improperly referenced in his findings (1) citizen complaints which New Way already had "addressed and eliminated" and (2) conditions which New Way had no "authority to control," such as customers drinking alcoholic beverages inside of a vehicle while waiting to have their recyclable materials weighed.
On May 16, 2001, the BZA held a public hearing to address this matter. Before the hearing, New Way collected signatures from about 1160 people who supported the recycling center and did not want to see it closed down. Aside from New Ways business consultant and attorney, 11 people testified in favor of New Way. They described New Ways customers as hardworking people who rely on recycling to feed and otherwise support their families. They praised the recyclers for cleaning up the neighborhood by collecting cans and bottles which otherwise would litter the streets. They emphasized the day laborers and homeless persons who loiter in the area are not New Ways customers. Twenty people who did not testify at the hearing raised their hands in a show of support for New Way.
According to an employee in the Citys planning division, about one-sixth of these people were not residents of the City.
Two people testified in opposition to New Way. The first was a man who lived "a couple doors down" from New Way. He said he used to patronize the recycling center but found "[i]t was rowdy" and "[i]t smelled" like alcohol. Based on the conditions at New Way, he cut down on his trips to the adjacent grocery store. He also commented on the traffic in the area due to the volume of New Ways business.
The other person who testified in opposition was a representative from one of the nearby residential complexes who had testified at the March 15 hearing. She complained about New Way customers pouring the contents from their recyclable beverage containers onto the sidewalk, and said she avoided walking by New Way because of the smell. She acknowledged New Way was cleaner than before, and the loitering and nuisance issues were "vastly diminished" since New Way had hired the security guard. She said she and others were victims of unpleasant (and sometimes) violent encounters with persons "hanging around" New Way.
We do not summarize here testimony which relates to issues this woman also raised at the March 15 hearing.
An employee from the Citys planning division conceded he observed less loitering around New Way at a recent site visit. But he pointed out the City was still concerned about "some of the odors and some of the noise problems" as well as the "high volume" of business at the recycling center.
On May 21, 2001, the BZA informed New Way it had decided to overturn the revocation of New Ways conditional use permit. All five members of the BZA voted in favor of New Way. According to the City Manager, the BZA found "there was not enough supportive evidence on the part of concerned residences [sic] to revoke the permit." It determined the imposition of three conditions on the permit would "alleviate the problems currently experienced by the neighborhood." The BZA required New Way (1) to provide a full-time uniformed security guard during the hours of operation, (2) to "[i]nsulate the inside of the large storage bin to reduce the noise level," and (3) to keep the facility "free and clear of trash and debris at all times" and to "wash down the area on a regular basis to prevent odors and vermin."
The City Council called the BZAs decision for review and held a public hearing on the matter on June 30, 2001. The opening comments by an employee of the Citys planning division and members of the City Council focused on the volume of New Ways business and whether it is really a "small collection facility." The employee acknowledged the physical size of a recycling center, and not its volume of business, determines whether it qualifies as a small or large collection facility. The City Attorney informed the Council it would not be appropriate to review and change the Municipal Codes definition of "small collection facility" in this proceeding. She explained: "This is a public hearing based on our existing definition of what a small recycling facility is, and the question before you this evening is whether the manner in which [New Way] is operated constitutes a public nuisance."
Based on this interchange, the Citys contention its Council properly interpreted the Municipal Codes definition of "small collection facility" to relate to volume as well as size is without merit.
Two people testified in opposition to New Way. The first was the woman who had testified at both of the prior hearings. The second was a representative from a nearby senior citizens residential facility who brought a petition signed by more than 100 of the facilitys residents. She said her fellow residents were afraid to go to the grocery store adjacent to New Way: "Two of them were struck and hit by someone loitering in that area" and one of them had her purse snatched. She claimed these types of incidents did not occur before New Way began its operations.
More than 20 people showed their support for New Way either by giving substantive testimony or by making a public statement of support. By and large, the testimony was similar to that given at the May 16 hearing before the BZA. Supporters commented on New Ways contributions to the community and the welfare of its residents. Some who lived in, worked in or frequented the area disputed the charges about loud noise and breaking bottles.
At the conclusion of the public hearing, the City Council again focused on the volume of New Ways business. One of the members commented New Way "has created a business thats too successful for the site." City employees concluded there was no appropriate location in the area for New Way to relocate.
On August 8, 2001, the City Council informed New Way it was overturning the BZAs decision and revoking New Ways conditional use permit on the ground New Way "has been operating in a manner which constitutes a public nuisance." The City Council ordered New Way to cease its business operations within 120 days and to comply with the three additional conditions imposed by the BZA during the interim. The City Council also required New Way to provide a security guard one hour before opening and one hour after closing the recycling center.
The City Councils findings are similar to those made previously by the Zoning Administrator.
In January 2002, New Way filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5, challenging the Citys decision to revoke New Ways conditional use permit. New Way alleges the City "abused its discretion as there is not substantial evidence in the record to support the findings of the Council."
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
The trial court heard oral argument in the matter and ruled in favor of New Way. Applying the independent judgment standard of review, the court found the weight of the evidence does not support the Citys findings and its decision to revoke the conditional use permit. The court issued a peremptory writ of mandate, ordering the City to set aside its decision revoking New Ways conditional use permit and to reinstate the BZAs decision.
DISCUSSION
I. THE TRIAL COURT PROPERLY APPLIED THE INDEPENDENT JUDGMENT STANDARD OF REVIEW.
The City contends the trial court should have reviewed this matter under the more deferential substantial evidence standard because the revocation of the conditional use permit affected only New Ways economic interests and not its fundamental rights. New Way disagrees, arguing a conditional use permit, once granted, is a fundamental vested right and the trial court reviews a decision revoking it under the independent judgment standard.
A trial court reviewing an administrative decision under section 1094.5 must decide whether the administrative agency abused its discretion. Before undertaking its review of the evidence, the trial court must determine whether the appropriate standard of review is independent judgment or substantial evidence. Section 1094.5, subdivision (c) provides: "Where it is claimed that the findings [of an administrative agency] are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record."
Section 1094.5, subdivision (b).
Section 1094.5, subdivision (c).
A trial court applies the independent judgment standard where an administrative decision "substantially affects" a fundamental vested right. "In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation." For example, trial courts typically review administrative decisions revoking a professional license under the independent judgment standard because "the opportunity to continue the practice of ones trade or profession" is a fundamental vested right. In contrast, "[a]dministrative decisions which result in restricting a property owners return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights."
Bixby v. Pierno (1971) 4 Cal.3d 130, 144.
Bixby v. Pierno, supra, 4 Cal.3d at page 144.
Bixby v. Pierno, supra, 4 Cal.3d at pages 144-145; Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 321 (trial court properly exercised its independent judgment in reviewing Department of Motor Vehicles decision revoking the plaintiffs vehicle salespersons license).
E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325-326 (trial court properly applied the substantial evidence test to its review of a zoning ordinance which restricted the hours of operation of an adult bookstore).
A trial court reviews an "initial denial" of a conditional use permit under the substantial evidence standard because there is no vested right before an administrative agency issues a permit. A vested right is "acquired" once an agency grants a permit and the permittee "act[s] upon the grant to his or her detriment." "Interference with the right to continue an established business is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance." California appellate courts have held the proper standard of review for a trial court reviewing the revocation of a conditional use permit (upon which the permittee has relied) is the independent judgment standard.
Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367.
Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th at page 367; OHagen v. Board of Zoning Adjustment of the City of Santa Rosa (1971) 19 Cal.App.3d 151, 158 ("Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled").
Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529.
Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th at page 368; see also Goat Hill Tavern v. City of Costa Mesa, supra, 6 Cal.App.4th at page 1530 (like the revocation of a conditional use permit, the "[d]enial of an application to renew a permit merits a heightened judicial review" under the independent judgment standard).
As set forth above, the City contends the trial court should have applied the substantial evidence test because the revocation of the conditional use permit impacted only New Ways economic interests. In analyzing this issue, the City notes New Way did not purchase any property or enter into a long-term lease in reliance on the permit. The City also points out New Way can easily move its recycling container from one location to another. Based on the foregoing, the City argues New Way has not substantially relied on the permit or acted upon the permit to its detriment. The City concludes "a roll-away metal container sitting in a parking lot cannot constitute a fundamental vested right."
The City ignores the fact a revocation of the conditional use permit would force New Way to shutter its recycling operations at the subject location. Regardless of the ease with which New Way could move its personal property to another site, New Way could not lawfully set up shop wherever it might choose. It would first need to find a suitable location and secure a new use permit before commencing operations.
A revocation decision would interfere with New Ways right to continue to operate its established business — a fundamental vested right. Accordingly, the trial court properly applied the independent judgment standard of review.
II. THE TRIAL COURTS DECISION IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
"After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial courts findings are supported by substantial evidence." "`In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. [Citation.]"
Bixby v. Pierno, supra, 4 Cal.3d at page 143, footnote 10; Goat Hill Tavern v. City of Costa Mesa, supra, 6 Cal.App.4th at pages 1525, 1531.
Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at page 321; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.
In ruling on New Ways petition for writ of mandate, the trial concluded "the weight of the evidence does not support the findings to revoke the [conditional use permit]." The court also concluded the weight of the evidence does not support a finding "that anything over and above what might come inherently with the business is due to the business." Noting New Way qualifies as a small collection facility based on the definition in the Pasadena Municipal Code, the court stated: "[S]imply having increased volume with what appears to be occasional situations that may indeed amount to nuisance is not sufficient for a [conditional use permit] revocation."
The City revoked New Ways conditional use permit based on findings of loitering, drinking alcoholic beverages in public, littering, excessive noise, and the high volume of business at New Way. Applying the substantial evidence standard, we find the trial court did not err when it concluded the weight of the evidence does not support the Citys decision to revoke New Ways conditional use permit based on these findings.
With respect to the Citys finding of loitering, one witness claimed the loiterers were New Way customers, who would recycle their containers, go to the adjacent grocery store, purchase alcoholic beverages, and then drink and urinate in public. Many witnesses, including representatives from the neighboring grocery store and church outreach center, testified the area had a loitering problem before New Way moved in. They described the loiterers as day laborers and homeless persons waiting to receive services at the outreach center. According to these witnesses, New Way ameliorated a problem it did not create by hiring a security guard. Both the City and New Ways most vocal opponent conceded the loitering problem greatly improved after the security guard began his patrol. There is no direct evidence linking New Ways customers with any of the violent encounters residents described. Accordingly, substantial evidence supports the trial courts conclusion the City could not properly rely on the loitering (and related drinking in public) finding to revoke the conditional use permit.
On a site visit, the Zoning Administrator observed two men drinking alcoholic beverages in their vehicle while they were waiting to weigh their recyclable materials. Such an isolated instance will not support a public nuisance determination. See Pasadena Municipal Code section 14.50.040, paragraph (34) (discussing drinking in public in the context of "[r]epeated" activities which may constitute a public nuisance).
It is undisputed New Way responded to complaints about the cleanliness of the site before the City instituted these proceedings. New Ways most vocal opponent conceded the recycling center was much cleaner than it had been in the past. The alleged littering problem was not a focal point at any of the public hearings. A couple of witnesses testified about an odor problem. One of these witnesses said the conditions at New Way, including the smell, caused him to stop patronizing New Way and to cut back on his trips to the adjacent grocery store. It is not clear from his testimony how long it had been since he walked by New Way and/or whether he could testify about current conditions based on personal knowledge. Another witness testified New Way has an odor problem because customers pour the contents of their recyclable beverage containers onto the ground. Again we find substantial evidence supports the trial courts conclusion the City could not properly rely on a littering/odor finding to revoke the conditional use permit. Some odor will be incidental in any recycling operation. Based on the testimony, it is not at all clear the odor problem was so excessive as to constitute a public nuisance.
One witness who lives in the area and one witness who owns property in the area testified about a noise problem caused by the clinking and breaking of bottles at New Way. The Zoning Administrator heard this noise when he drove by the recycling center with his windows rolled up. Other witnesses who live or work in the area said the noise did not bother them. Employees from the neighboring church outreach center said the noise did not interfere with any of their services or group activities. It is doubtful the City issued a permit for a recycling center and did not contemplate there would be some noise from bottles rubbing against each other and breaking. Moreover, New Way is operating in an area of the City zoned for limited commercial use. Substantial evidence supports the trial courts conclusion it would have been improper for the City to revoke New Ways commercial use permit based on the equivocal testimony about a noise problem.
At each of the public hearings, the City focused primarily on the high volume of New Ways business. The City seems to argue high volume automatically translates into conditions which create a public nuisance. But the City has never explained what particular negative conditions are caused or heightened by the high volume. Increased traffic was never a focal point in these proceedings.
For the foregoing reasons, we find substantial evidence supports the trial courts conclusion the weight of the evidence does not support the Citys findings and its decision to revoke New Ways conditional use permit.
Because we affirm the judgment on this basis, we need not address the other issues raised by the City, including whether the trial court made a finding a nuisance existed at the recycling center.
DISPOSITION
The judgment is affirmed. Respondent is entitled to recover its costs on appeal.
We concur: PERLUSS, P.J. and MUNOZ (AURELIO), J.