Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV031905
CANTIL-SAKAUYE, J.
Redrose Singh and his wife Preet Mehra (collectively the Singhs) appeal from denial of their petition for a writ of administrative mandamus to set aside the Stockton City Council’s decision revoking the nonconforming use status of their store that permits them to sell alcoholic beverages for off-site consumption. The Singhs operate New Grand Save Mart in south Stockton; the market has been selling alcohol for about 60 years as a legal nonconforming use. Located in a high crime area, its parking lot has been a center of criminal activity, from loitering, public drunkenness, gambling and narcotics activity to assaults, robberies and homicides. In an attempt to reduce crime, the Stockton Police Department requested that the City revoke the Singhs’ right, as a legal nonconforming use, to sell alcohol at the store. The Planning Commission voted unanimously to revoke that right and the City Council unanimously denied the Singhs’ appeal. The trial court denied their petition for a writ of mandate and the Singhs appeal.
The parties dispute whether the City followed the proper procedure in revoking the nonconforming use status. The Singhs contend the City was too hasty in seeking revocation without first attempting to impose conditions to reduce the problems. The Singhs contend the City violated due process, statutory law, and the City’s municipal code in revoking their fundamental vested right to sell alcohol. They contend the City could revoke their legal nonconforming use status only if the City found a compelling public necessity, which required finding both a nuisance and that the operator refused to comply with reasonable conditions. The City contends recent improvements by the Singhs were “a little bit too late.” The City disagrees with the Singhs as to the law, but further contends the City was justified in revoking the legal nonconforming use because the evidence showed any attempt at abatement would be futile due to the Singhs’ poor history of cooperation and compliance. The City contends that since substantial evidence supports the trial court’s finding of futility, the judgment must be affirmed.
“The inquiry for the issuance of a writ of administrative mandamus is whether the agency in question prejudicially abused its discretion . . . .” (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1495.) “A prejudicial abuse of discretion is established if the agency has not proceeded in a manner required by law, . . .” (Ibid.) The trial court found the City proceeded in the manner required by law. We review this legal question de novo and agree with the Singhs on the law. The City did not proceed as required by law and thus there was a prejudicial abuse of discretion. By revoking the vested fundamental interest without considering whether less drastic steps were feasible, the City violated the dictates of due process, as well as its own municipal code. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
New Grand Save Mart
The Singhs began operating the New Grand Save Mart in 2004. The building was constructed before 1946 and the “off-sale” of alcoholic beverages began soon thereafter. The Singhs did not have a use permit, but continued to sell alcohol as a vested nonconforming use. In 2004, the market was primarily a liquor store; the Singhs’ plan was to turn it into a neighborhood grocery store with fresh produce and meat, eventually reducing the sale of alcohol.
Off-sale refers to the sale of alcoholic beverages to be consumed off premises.
Police Request Revocation
On May 22, 2006, the Stockton Police Department requested the Planning Commission set a hearing date to consider revocation/modification of the current use permit for the New Grand Save Mart. The police reported they had responded to the market 581 times in the last two years. The problems included narcotics use/sales, vandalism, robbery, battery, drinking in public, fighting, and murder. The department had compiled a comprehensive history of criminal violations which would establish that the business operation was a public nuisance.
The Planning Commission determined the business did not have a use permit, so the appropriate hearing would be to determine if the business was a nuisance. Several months before, in September 2005, Planning Division staff had “determined that the existing use is not subject, at this time, to any administrative or enforcement actions under the provisions of Chapter 16 of the SMC [Stockton Municipal Code], because the use is considered a legal nonconforming use. In the event that the use was to cease operation for more than 180 days, the legal nonconforming [use] status would be lost and any subsequent use of the structure or property would be subject to full compliance with applicable provisions of the SMC.”
Planning Commission Hearing
The staff report prepared for the hearing stated the market had become a public nuisance and recommended revocation of the legal nonconforming off-sale of general alcoholic beverages at 2318 South Airport Way. The staff report cited SMC section 16-750.040.C.2 as providing authority for the City to take action regarding legal nonconforming uses when such use constitutes a nuisance.
At the beginning of the hearing, staff informed the Planning Commission that to approve the requested revocation of legal nonconforming use status, the Commission must find the operation has become a public nuisance. Staff believed that finding could be made.
Police Sergeant Blake Tatum presented a PowerPoint presentation to establish that the market was a nuisance. He stated the request for revocation was based on the number of calls for service at the location, the number of code violations, noncompliance with conditions of the Department of Alcoholic Beverage Control (ABC) license, neighborhood outcry, and that the market detracts from the overall neighborhood health. There had been 523 calls for service in 2004-2005 and 254 calls as of September 2006. The majority of the calls were police initiated due to suspicious activity. By comparison, that was four to eight times the number of calls for service at nearby markets.
A summary of crimes occurring at the location revealed problems with loitering, gambling, and narcotics. In the summer and fall of 2004, men loitering in the parking lot were found in possession of rock cocaine. In November 2004, a man was found in possession of two glass pipes used to smoke narcotics. He had purchased the pipes from Redrose Singh. In March 2006, an employee possessed a crack pipe.
There were several incidents of violent crime. In March 2004, there were two robberies in the parking lot. In April 2006, a patron was kicked, beaten and robbed as he left the store. In August 2005, one person was killed and three others were shot in the parking lot, where gambling was taking place. In July of 2006, a man was shot several times in his car in the parking lot; he then drove away and crashed, dying at the hospital. Singh heard four or five shots but did not call the police, even though several people ran into the store after the shooting.
In addition to calls for service, there were many code enforcement violations. The code enforcement officer had issued two warnings, nine citations to the property owner, and 13 citations to the tenant. There were so many violations, he called in the health department, which immediately shut the store down. Once the officer was refused entrance for an inspection and had to get a warrant. He found garbage, debris, dead rodents and droppings throughout the store. He found unsanitary restrooms that were not operational and a box containing human feces. On one occasion, the inspector found illegal bathrooms installed. He told the owners to remove them, which they did, but the illegal bathrooms were later reinstalled.
The merchandise was in poor condition. Items for purchase were open, spoiled or damaged; some had expired. Some food was infested with insects or had been opened by rodents.
ABC had mandated several conditions on the license to sell alcohol. These included adequate lighting, preventing loitering, regularly policing the area, prohibiting consumption of alcohol around the premises, and having a licensed security guard on duty from 8:00 p.m. until closing on Fridays and Saturdays. (The last homicide occurred on a Saturday night.) The market had two violations for selling alcohol to minors and one for failure to have security.
The ABC license summary indicated Satnam Kaur, the landlord, was the primary owner; Kaur, Mehra and Singh were listed as licensees.
There had been numerous complaints by neighbors about conditions at the market and criminal activity in the parking lot.
The police were targeting the liquor license because they believed it was the initial attraction and contributed to the loitering around the market. Video surveillance showed frequent single purchases of alcohol.
Neighborhood groups such as the Airport Corridor Team and Stocktonians Taking Actions to Neutralize Drugs (STAND) were mostly concerned about the crime rate in the area and pointed to the New Grand Save Mart as unsafe. Residents were concerned about both violent crime and visual crime, such as gambling, loitering and drug sales on the street.
Several people from the neighborhood spoke in favor of revoking the legal nonconforming use status. They complained about the conditions near and in the store and safety concerns.
Vittoria Bossi, an attorney representing the Singhs, presented a petition with over 800 signatures opposing the revocation. Bossi explained the Singhs had spent $58,000 in the last year to improve the store. Three times they brought lawsuits against their landlord who refused to make necessary improvements. Bossi argued there were 21 stores in a two-mile radius that sold alcohol, so shutting down alcohol sales at New Grand Save Mart would only displace the problem to somewhere else.
Bossi asked the Planning Commission to postpone a decision and review the situation later. The Singhs, who had expended over $200,000 to turn the store around, offered a proposal under which they would (1) provide on-site security; (2) post necessary signs; (3) establish officer-friendly biweekly visitations; (4) require all employees to attend ABC-certified classes; (5) purchase point-of-sale proof-of-identification machines; and (6) reduce the parking lot size. Bossi argued the Singhs needed more time and if the financial infrastructure of alcohol sales was removed, they would fail.
The attorney who represented the Singhs in their litigation against their landlord declared they had won each trial. The landlord was irresponsible and recalcitrant and the Singhs were required to make repairs that were the responsibility of the landlord. He claimed the Commission had been presented with an obsolete picture of what was going on at the store.
Several people spoke in favor of the Singhs. They attested to their good character and argued they should be given an opportunity to clean up the business.
In rebuttal, Sergeant Tatum stated the landlord’s other tenants had no problems. He acknowledged the outside of the store had been cleaned up, but claimed it was probably just “window dressing.” The code enforcement officer testified he had inspected the property two days earlier and found the first few rows in very nice condition, but the perimeter and last rows contained garbage. There was an illegal structure in the store and several permits still outstanding. The market continued to fail inspections. Lighting was repaired, but then deteriorated. Two days ago there was graffiti.
The Commissioners found the condition of the market was “unacceptable” and “deplorable.” Both the police and the Planning Commission were frustrated about how long it took to bring such conditions to the Commission’s attention. One commissioner stated he could not “with a clear conscience say no; give them another chance. I really can’t.”
The Planning Commission voted 6-0 to revoke the nonconforming use status.
Appeal to City Council
The Singhs appealed the decision of the Planning Commission to the City Council.
At the hearing, staff summarized the Planning Commission meeting and recommended the council uphold the Planning Commission’s decision. In response to the mayor’s question about whether there were conditions attached to the business, staff said since there was no use permit, there were no conditions. “Normally, with a use permit, you would impose conditions, including hours of operation; you know, requirement for security; surveillance cameras. All those sorts of things could be added. However, you do [not] have that before you this evening, since there is no use permit.”
An attorney for the Singhs stated they shared the desire to lower the crime rate in the area. The Singhs were being proactive and investing to improve the property. They were making progress; they had security and were responding to loitering and alcohol consumption on the property. Due to their naiveté, the first camera was destroyed. They were in the process of installing a better security system. The Singhs were not absentee owners, but worked at the store every day, having invested all they had in it. The attorney asked the City Council to reconsider the matter in six months, with fresher statistics.
Several people, including Preet Mehra, spoke in support of the Singhs, asking they be given more time to clean up the store.
Sergeant Tatum again gave his PowerPoint presentation about the problems at the market. The commander for that district testified the store was a magnet for crime and community police officers spent 50 to 60 percent of their time on its premises. There was enforcement action for gambling, loitering, and narcotics. The commander believed owners and operators had failed to meet their responsibilities for two years and ignored the efforts of the police, code enforcement, and the ABC in meeting those responsibilities. Revocation would be a major step in addressing the problems.
Several people spoke in favor of revocation, declaring the location the hub of nuisance. The president of the Stockton NAACP argued the owners had not seen fit to cooperate with the community and they had been given opportunities and warnings.
In rebuttal, the Singhs’ attorney argued the police and STAND had unfairly targeted the market and the police statistics were old. One store could not be charged with cleaning up a neighborhood. Revoking the nonconforming use status would not make crime disappear, only move it. The Singhs had made progress and would continue to do so.
One councilmember called the condition of the store a blight on Stockton and said it was time to step up. The owners had been given opportunities, but in some cases did not do anything. He had been to the store and found it a liquor store, not a grocery store, and any progress was “a little bit too late.” Another agreed with this assessment, noting businesses had a responsibility to handle crime on their property. The mayor noted he had visited the store and found its food products more in tune with a mini mart than a grocery store. He questioned the amount of beer as opposed to soft drinks and he had found no vegetables, fruit, meat or poultry. He believed the council should support the community.
The City Council voted 7-0 to deny the appeal. The resolution denying the appeal made several findings. It found the current uses conflicted with the general findings for use permits by endangering and jeopardizing health, safety and general welfare in the neighborhood. The operation was likely to interfere with comfortable enjoyment and encouraged deterioration and blight. The off-sale of general alcoholic beverages was incompatible with surrounding land uses and contributes to increased crime, loitering and vandalism in the area. The number and type of crimes attributed to the business created a compelling public necessity to revoke the nonconforming use.
Trial Court Proceedings
The Singhs petitioned the trial court for a writ of mandate to set aside the City Council’s decision. The Singhs alleged the City failed to provide a fair trial and proceed in the manner provided by law because the City failed to apply strict constitutional due process standards in revoking fundamental vested property rights. They argued there were two required findings for revocation: (1) the business was a nuisance, and (2) it refused to comply with reasonable conditions to abate the nuisance. Here the City had made only the first finding of nuisance.
The trial court granted a stay of the decision revoking the nonconforming status.
A year later, the City moved for judgment in its favor on the Singhs’ petition.
The trial court granted the motion. The court agreed with the Singhs the City could revoke a legal nonconforming use only if the City showed a compelling public necessity, which required finding both a nuisance and that the permittee refuses to comply with reasonable conditions to abate the nuisance. The court found, however, that the record supported the City’s contention that additional conditions were not feasible. The Singhs ran afoul of ABC laws and failed to comply with ABC conditions designed to abate the nuisance. Further, they violated the municipal code with respect to health and safety. The court found, due to the Singhs’ poor history of cooperation, the City had no obligation to consider, pursue, negotiate or impose new conditions prior to revocation.
The trial court further found the Singhs received a fair trial, there was no prejudicial abuse of discretion, and the City proceeded in the manner required by law.
Proceedings in this Court
The Singhs appealed. They petitioned this court for a writ of supersedeas to stay enforcement of revocation of the nonconforming use status.
This court issued a temporary stay. Upon full consideration of the petition and opposition, we granted the writ of supersedeas and ordered the previously issued stay to remain in effect pending further order.
DISCUSSION
I.
Standard of Review
The parties agree that because the New Grand Save Mart was in the business of selling alcohol off-site before the requirement of a use permit, the continued sale of alcohol was a legal nonconforming use. (Bus & Prof. Code, § 23790.) They further agree the administrative decision to revoke that status involved a vested fundamental right and the trial court properly applied the independent judgment test in ruling on the petition for a writ of mandate. (See Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1525-1531.) “Even when . . . the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court’s determination is the substantial evidence test.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)
We review purely legal questions independently. (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.) The question of whether the administrative proceeding was conducted as required by law is subject to de novo review. (Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 134.) “[T]he ultimate determination of whether the administrative proceedings were fundamentally fair is a question of law to be decided on appeal. [Citations.]” (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443; see also Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 205; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170.)
II.
Due Process Permits Revocation of a Vested Fundamental Right Only Where There Is a Compelling Public Necessity
The Singhs contend they were denied due process because the City revoked their nonconforming use status after finding only that the business constituted a nuisance. They contend the City was also required to find the Singhs would not comply with reasonable conditions to abate the nuisance. Because the City had not yet imposed reasonable conditions to abate the nuisance, the Singhs contend the revocation was premature.
Because the New Grand Save Mart had been selling alcoholic beverages before Stockton’s zoning ordinance was enacted, it operated as a legal nonconforming use with grandfathered rights. (See City of Oakland v. Superior Court (1996) 45 Cal.App.4th 740, 747, fn. 1.) “The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected. [Citation.] Accordingly, a provision which exempts existing nonconforming uses is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses. [Citation.]” (Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 651.)
Business and Professions Code section 23790 recognizes the grandfathered rights of retail liquor licensees operating legally when zoning ordinances are enacted, provided they operate continuously without substantial change. The Legislature intended that section 23790 “protect the vested rights of the proprietors of premises engaged in the lawful, licensed sale of alcoholic beverages.” (City of Oakland v. Superior Court, supra, 45 Cal.App.4th at p. 756.)
Although grandfathered businesses selling alcohol have vested rights, a municipality can still take actions against the business if it constitutes a nuisance. A city, in the proper exercise of its police power, may abate even a grandfathered business if it constitutes a nuisance. (Jones v. City of Los Angeles (1930) 211 Cal. 304, 311.) City ordinances that permit the imposition of certain conditions, relating to sales, operation and the condition of the premises, upon grandfathered liquor licensees to abate nuisances have been upheld against challenges such ordinances are preempted by Business and Professions Code section 23790. (City of Oakland v. Superior Court, supra, 45 Cal.App.4th at p. 757; Suzuki v. City of Los Angeles (1996) 44 Cal.App.4th 263, 280.)
The Singhs agree the City has the right to revoke nonconforming use status, but contend due process requires a two-step process and here the City took only the first step. They rely on Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376 (Korean American) for the requirements of due process. In Korean American, owners and operators of retail stores licensed to sell alcoholic beverages sought to prevent the City of Los Angeles from imposing conditions upon rebuilding their businesses after the civil disturbance of 1992. They also sought to prevent the City from imposing conditions on the operation of existing businesses under the threat of revoking their deemed approved status. The court held the ordinance imposing such conditions was not preempted by article XX, section 22 of the California Constitution, that gave the state exclusive power to license and regulate the sale of alcoholic beverages, or provisions of the Business and Professions Code that regulate the sales of alcoholic beverages. (23 Cal.App.4th at pp. 388-389, 397.) In discussing the different purposes of ABC regulations and the ordinance, the court noted that the ordinance’s ultimate sanction of revocation of permit or “deemed approved” status “could have the effect of prohibiting the sale of alcoholic beverages at a particular offending location.” (Id. at p. 390, fn. omitted.) The court noted the City’s power to revoke a permit or deemed approved status is limited: “Once a licensee has acquired a conditional use permit, or has ‘deemed approved’ status, a municipality’s power to revoke the conditional use is limited. [Citation.] If the permittee has incurred substantial expense and acted in reliance on the permit, the permittee has acquired a vested property right in the permit and is entitled to the protections of due process before the permit may be revoked. [Citation.]” (Ibid., fn. 5.)
The footnote continued to set forth the requirements of due process: “‘When a permittee has acquired such a vested right it may be revoked if the permittee fails to comply with reasonable terms or conditions expressed in the permit granted [citations] or if there is a compelling public necessity. [Citations.] A compelling public necessity warranting the revocation of a use permit for a lawful business may exist if the conduct of a business as a matter of fact constitutes a nuisance and the permittee refuses to comply with reasonable conditions to abate the nuisance. In these circumstances a municipality has the authority to remove such a business under its police power to prohibit and enjoin nuisances. [Citation.] However, in order to justify the interference with the constitutional right to carry on a lawful business it must be clear the public interests require such interference and that the means employed are reasonably necessary to accomplish the purpose and are not unduly oppressive on individuals. [Citations.]” (Korean American, supra, 23 Cal.App.4th at p. 392, fn. 5.)
The court noted the Los Angeles ordinance at issue codified these requirements of due process, permitting revocation of the use only upon a finding that prior governmental efforts to get the owner or lessee to eliminate the problems have failed and the owner or lessee has failed to demonstrate a willingness and ability to eliminate the problems. (Korean American, supra, 23 Cal.App.4th at p. 392, fn. 5.)
From this language, the Singhs contend the two-step process--first, a finding of nuisance, and second, the licensee’s failure to comply with reasonable steps to abate the nuisance--must always be followed before revocation. The Singhs note both the ordinances at issue in City of Oakland and Suzuki provided for the imposition of conditions as the first step before revocation. (City of Oakland v. Superior Court, supra, 45 Cal.App.4th at p. 748; Suzuki v. City of Los Angeles, supra, 44 Cal.App.4th at p. 267, fn. 2.) They argue even Stockton’s Municipal Code requires that they be given an opportunity to abate the nuisance before revocation. Section 16-750.040, subdivision C.2 of the Stockton Municipal Code provides, “In the event that a legal nonconforming use or structure is found to constitute a public nuisance, appropriate action shall be taken by the City, in compliance with Section 1-063 of the Municipal Code.” Section 1-063 provides the City may abate a nuisance after the period for compliance has lapsed and the nuisance remains. Section 1-062 requires the City to give an abatement notice, which “shall describe the action required to abate the public nuisance” and shall explain the consequences of failure to comply.
Despite the clear language of section 16-750.040, C.2 that it applies when “a legal nonconforming use or structure is found to constitute a nuisance,” the City contends that provision applies only to a physical condition of property, not a use. The City ignores that the Planning Commission staff cited this section as the authority for the City to take action regarding the nonconforming use in this case. Since we reject the City’s argument as to the applicability of section 16-750.040, we deny, as unnecessary, the City’s request we take judicial notice of the Stockton Municipal Code, Uniform Codes section, Part IV, Division I.
The City responds it was not required to impose conditions before revocation, dismissing the Korean American footnote as dicta. The City, however, makes no argument--compelling or otherwise--that the footnote is an incorrect statement of the dictates of due process. Indeed, we view it as simply recognizing that in using its police power to abate a nuisance, the means must be reasonably necessary and not unduly harsh. In many cases of nuisance, the least restrictive means requires giving a chance to abate the nuisance before the drastic step of prohibiting the sale of alcoholic beverages at the business.
Over 100 years ago, the United States Supreme Court recognized the limitations on police power in abating nuisances. In Lawton v. Steele (1894) 152 U.S. 133, 137 [38 L.Ed.2d 385, 388-389], the court stated: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The [L]egislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations; in other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.” The Stockton Municipal Code recognizes this principle: “The Director shall pursue only the minimum level of correction or abatement as necessary to eliminate the immediacy of the hazard.” (Stockton Mun. Code, § 1-066, A.)
The requirement that the City first pursue additional conditions before revocation is not absolute, as the Korean American footnote indicates: “Nevertheless, it is clear revocation of a use permit could have the effect of putting the licensee completely out of business. It is consequently a very harsh remedy which requires the strictest adherence to principles of due process. Whenever alternate remedies can achieve the same goal, such as the imposition of additional conditions or controls, these avenues ought to be pursued if feasible. [Citation.]” (Korean American, supra, 23 Cal.App.4th. at pp. 392-393, fn. 5, italics added.)
To revoke the Singhs’ nonconforming use status, which was a vested fundamental right, the City was required to find a compelling public necessity. A compelling public necessity requires a finding of both nuisance and the failure to comply with reasonable conditions, if the imposition of such conditions is feasible.
III.
In Revoking Without First Determining Alternate Remedies Were Not Feasible, The City Did Not Proceed As Required By Law
The Singhs contend the City’s action in revoking their nonconforming use status cannot stand because, by failing to recognize the need to first impose conditions as a way to abate the nuisance, the City abused its discretion by not proceeding in a manner required by law. (Code Civ. Proc., § 1094.5, subd. (b).) The Singhs argue the City was required first to try imposing conditions or consider a less drastic remedy or to make a finding that any remedy short of revocation was not feasible.
The City contends there was no error because the requirement to try less onerous measures before revocation has an exception for futility. We agree there is a futility exception: the “if feasible” qualification in Korean American. The trial court found additional conditions were not feasible due to the Singhs’ poor record of cooperation and compliance. The City argues that substantial evidence supports that finding and therefore the judgment must be affirmed.
“[P]roceed[ing] in the manner required by law” (Code Civ. Proc., § 1094., subd. (b)) requires applying the proper law. The City, rather than the trial court, was to make the finding of futility. The issue is not whether there is substantial evidence of futility, but whether the Singhs were afforded an administrative process at which the law was properly applied. The Singhs are not challenging the factual basis of the revocation decision, but the law applied in making the decision. While substantial evidence supports the trial court’s determination on the question of feasibility of less onerous steps than revocation, the evidence is not so overwhelming that we can say imposing additional conditions first before revocation of the vested fundamental right was futile or not feasible as a matter of law.
In this case two years went by with serious problems at the New Grand Save Mart. Other than code inspections, the record reveals no action by the City to dispel the problems. Further, it is unclear which problems were the responsibility of the Singhs, as tenants, and which were the responsibility of the landlord. There was evidence the Singhs had continual battles with the landlord and had successfully brought suit several times. Although the Singhs were cited once for a violation of the ABC conditions for failure to have security, there was no evidence this problem continued unabated or that the ABC had further concerns. Finally, several people spoke in support of the Singhs and their efforts at both hearings and the Singhs presented petitions signed by hundreds in support of the store.
It is true that the Singhs raised the issue of imposing further conditions at the hearing before both the Planning Commission and the City Council. They presented a list of suggested conditions. The record indicates, however, that the decision makers believed they did not have that authority. In 2005, a staff report from the Planning Commission stated: “the existing use is not subject, at this time, to any administrative or enforcement actions” under the municipal code. The report continued that the store would be subject to code provisions if it ceased operation for 180 days or more. Before the City Council, staff responded to the mayor’s questions about conditions. Staff said that because there was no permit, there was no ability to impose conditions such as limiting hours of operation or requiring security.
The City argues the various comments of both commissioners and council members indicate they would not have chosen to impose further conditions, but would have found such a course of action futile. A Planning Commissioner stated he could not with a clear conscience give them another chance. Another saw no improvements. A councilmember stated it was time for the City to step up; the owners had been given opportunities and in some cases had not done anything. Any progress was “a little bit too late.” Other council members who had visited the store agreed. These comments, however, were made in the context of a decision between revocation or the status quo. There was no discussion as to whether additional steps short of revocation could be tried, what such steps should be, or what time period would be appropriate for expecting improvement.
The City argues that any error in failing to send an abatement notice was harmless because the Stockton Municipal Code did not require the City “to devise steps short of revocation to abate a nuisance.” Regardless of what the code requires, due process requires the least restrictive means to abate a nuisance where a fundamental vested interest is at stake. (Korean American, supra, 23 cal.App.4th at p. 392, fn. 5.) In exercising its police power, the City cannot “arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” (Lawton v. Steele, supra, 152 U.S. at p. 137 [38 L.Ed.2d at p. 388].)
The City’s failure to recognize that, where a vested fundamental interest is at stake, due process, as well as its own municipal code, requires that only the least onerous steps to abate a nuisance be taken is troubling. For two years, the City did not take any steps to abate the nuisance at the parking lot of the New Grand Save Mart until it had continued and increased to the point that revocation seemed appropriate. Faced with such inaction, the City placed the blame entirely on the Singhs and sought revocation without regard to what the law required. The City’s failure to proceed in the manner required by law was a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).)
DISPOSITION
The judgment is reversed with directions to the trial court to issue a writ of mandate commanding the City to set aside its decision of December 12, 2006 revoking the Singhs’ nonconforming use status. The previously issued stay, having served its purpose, is dissolved. The Singhs shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: SCOTLAND, P. J., RAYE, J.
“No retail license shall be issued for any premises which are located in any territory where the exercise of the rights and privileges conferred by the license is contrary to a valid zoning ordinance of any county or city. Premises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation under the follow conditions:
“(a) The premises retain the same type of retail liquor license within a license classification.
“(b) The licensed premises are operated continuously without substantial change in mode or character of operation.
“For purposes of this subdivision, a break in continuous operation does not include:
“(1) A closure for not more than 30 days for purposes of repair, if that repair does not change the nature of the licensed premises and does not increase the square footage of the business used for the sale of alcoholic beverages.
“(2) The closure for restoration of premises rendered totally or partially inaccessible by an act of God or a toxic accident, if the restoration does not increase the square footage of the business used for the sale of alcoholic beverages.”