Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07-0352204
Jenkins, J.
This is an appeal from a judgment by the trial court denying appellant U-Haul Company of California’s petition for writ of mandate (the writ petition). Appellant’s unsuccessful writ petition challenged a decision by respondents City of Berkeley and the Berkeley City Council (collectively, the City) to revoke a use permit the company was granted in 1975 to operate a truck and trailer rental business. Appellant seeks reversal of the judgment on the grounds that the evidence was insufficient to support the trial court’s decision to uphold revocation of the use permit, and that its due process rights were violated during the revocation process. We affirm.
The individual members of the Berkeley City Council are also named as respondents in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 1975, appellant submitted a use permit application requesting the right to operate a U-Haul facility for renting trucks and trailers at the property located at 2100 San Pablo in the City of Berkeley. The property, less than three miles from the University of California’s Berkeley campus, was in an area zoned as a limited commercial district abutting a residential district. The use permit application proposed the following use: “To conduct a U-Haul Moving Center—Renting of U-Haul Trucks, Trailers, furniture pads, hand trucks, etc. Sale and installation of permanent frame hitches. Approximately 20 Rental Trucks and 30 Rental Trailers. Two full-time and two part-time employees – open from 8:00 a.m. to 7:00 p.m.”
On July 15, 1975, the City issued the use permit to appellant. The use permit set forth several general conditions, including that “the plans submitted with the application shall be followed and that all of the assurances and commitments contained in the original application shall be met except as they may be modified by the special conditions listed below.” Relevant here, the use permit set forth as a special condition that “the use permit shall be subject to review, attaching of additional conditions, or revocation if persistent complaints are received that the operation is detrimental to the neighborhood.”
Not long after the City issued the use permit to appellant, tension arose between appellant and its neighbors, particularly due to the parking of appellant’s trucks on streets adjacent to the property. Eventually, in 1996, complaints regarding appellant’s use of neighborhood streets for parking its vehicles came to the City’s attention, leading it to issue a First Notice and Order to Correct to appellant. Such notice, among other things, warned appellant that all uses granted pursuant to the permit were “ON THE PROPERTY ONLY,” and that violations of said restriction could lead to review and revocation of the permit.
In response to the notice, appellant advised in October 1997 that it would “attempt to reduce the inflow of equipment” by, among other things, opening a new facility in a nearby city with more parking, placing a premium on outgoing rates to Berkeley from other facilities, and insisting that customers renting at the Berkeley facility return the vehicles elsewhere. It is unclear whether such corrective steps were actually implemented, however, it does appear that complaints from the neighbors “sort of subsided” around this time period.
In June 2000, the City again issued a warning to appellant regarding its improper use of adjacent streets for parking its vehicles after receiving complaints from neighbors. When the violations continued, the City issued a criminal citation to appellant, which again promised to take corrective steps to address the complaints, including applying for a variance to the use permit to increase the number of trucks and decrease the number of trailers permitted on the property. There is no evidence, however, that appellant applied for such a variance at that time.
Again in 2004, the City received complaints regarding appellant’s violations of its use permit by parking trucks on the public right of way, and thus issued a Notice of Violation on September 15, 2004.
In 2006, the City initiated weekly investigations of appellant following its receipt of “aggressive complaints” regarding the company’s violations of the use permit. The City’s investigation revealed that appellant was consistently parking as many as 30 of its vehicles on neighborhood streets adjacent to its property (sometimes blocking cross walks or fire hydrants), and that it consistently had between 40 to 50 trucks on its property in violation of the permit’s 20-truck restriction. The City thus began to issue citations for the violations, which totaled $52,900 as of September 18, 2007.
In August 2006, appellant met with the City to discuss its proposed corrective steps for addressing the violations of its use permit. Following the meeting, the City agreed to a 30-day moratorium on its enforcement of the use permit, conditioned on appellant taking certain actions, including applying for modification of the permit, meeting with neighbors, reducing the number of trucks on the property to 20, and refraining from parking its vehicles on adjacent streets. However, after warning appellant that the moratorium was set to expire in two days and that the corrective steps were not yet implemented, the City resumed issuing citations.
In November 2006, appellant applied for a use permit modification to increase the number of trucks and decrease the number of trailers permitted on the property. However, appellant twice failed to comply with the City’s requirements for applying for such a modification, and its submission was ultimately rejected.
During this time, the City continued to observe and to receive complaints of appellant’s violations of the use permit. Between August 2006 and June 2007, the City had notice of at least 24 incidents of appellant’s use of adjacent streets for parking its vehicles. On four occasions, the City counted between 29 and 39 trucks parked on the streets. As such, the City’s staff asked the Zoning Adjustments Board (ZAB) to address appellant’s violations of the use permit, as well as possible remedies under the Berkeley Municipal Code (BMC), such as modification or revocation of the use permit. (BMC, § 23B.60.020.)
On June 28, 2007, ZAB held a hearing in the matter, receiving both oral and written testimony from individuals who included appellant’s neighbors and the City’s staff. Appellant did not appear or submit a response to the alleged violations and, following the hearing, ZAB recommended that the City Council revoke the company’s use permit.
On September 18, 2007, the City Council held a public hearing on the matter, at which it considered the administrative record and received testimony from, among others, appellant’s district vice-president, Jeremy Frank, the City’s supervisor of code enforcement, Gregory Daniels, and several of appellant’s neighbors. During his testimony, Frank acknowledged and apologized for appellant’s repeated violations of its use permit, and for its failure to implement steps to correct them in a timely fashion. Following the hearing, the City Council voted unanimously to revoke the use permit, finding that appellant’s “apology at the September 18, 2007 public hearing does not negate its serious violations of Use Permit No. 7575 and is insufficient in light of the evidence which shows [appellant’s] longstanding failure to comply with the use permit.”
On October 19, 2007, appellant filed a complaint and petition for writ of mandate (the writ petition) against the City. The complaint contained causes of action for injunctive relief, declaratory relief and inverse condemnation.
On January 31, 2008, the trial court issued a tentative order denying the writ petition, which appellant failed to contest in a timely manner. Nonetheless, the next day, appellant appeared in court to challenge the order. The trial court declined to hear appellant’s challenge on the ground that the company failed to give formal notice of an intent to appear in accordance with California Rules of Court, rule 3.1308(a)(1). Accordingly, on February 7, 2008, the trial court adopted its tentative order denying the writ petition and entered judgment against appellant.
On February 8, 2008, appellant sought a stay of the judgment for 60 days to consider its options on appeal, which the trial court granted. Thereafter, on May 21, 2008, appellant filed for voluntary dismissal of the remaining causes of action for injunctive relief, declaratory relief and inverse condemnation. This appeal of the judgment denying appellant’s writ petition followed.
DISCUSSION
On appeal, appellant challenges the trial court’s denial of its writ petition. Appellant reasons that its due process rights were violated during the revocation process, that revocation of the use permit was unwarranted based upon the record as a whole, and that substantial evidence failed to support any of the factual findings that the trial court relied upon in affirming the revocation. We address each contention in turn.
In its responding brief, the City asks that we dismiss the appeal as untimely and for lack of jurisdiction. This court, however, has already ruled on the City’s motion for dismissal of the appeal, which was denied on July 18, 2008. As such, we decline to revisit the issue.
I. Standard of Review.
In reviewing a decision of an administrative agency, the trial court exercises its independent judgment on the evidence presented in the administrative hearing and determines whether the weight of the evidence supports the agency’s decision. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 369-370.) In doing so, the trial court must employ a “strong presumption of correctness” to the agency’s findings. (Fukuda, supra, 20 Cal.4th at p. 817.) Further, the party challenging the agency’s decision – in this case, appellant – bears the burden of proving that such findings were against the weight of the evidence. (Ibid.; see also Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077-1078 [Breslin] [“In the trial court, [appellants] had the burden of proof to show that the [agency’s] decision was not supported by the weight of the evidence—that is, that the decision was not supported by the preponderance of the evidence.”].)
In applying the independent judgment test, “[t]he findings of a board where formal hearings are held should and do come before the [trial] court[] with a strong presumption in their favor based primarily on the [rebuttable] presumption contained in section 1963, subsection 15, of the Code of Civil Procedure [currently Evidence Code section 664] ‘That official duty has been regularly performed.’ Obviously, considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing, especially in cases involving technical and scientific evidence.” (Fukuda, supra, 20 Cal.4th at p. 812; see also Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1131.)
On appeal, we must determine whether the trial court’s judgment is supported by substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824; see also Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72-73 [“the question before this court turns upon whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court’s conclusion that the weight of the evidence does not [support the agency’s findings]”].) We thus must uphold the trial court’s factual findings unless they “so lack evidentiary support that they are unreasonable. . . . [Citation.]” (Breslin, supra, 146 Cal.App.4th at p. 1078; see also City of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1387.)
II. Did Appellant Receive Due Process?
Applying the standard of review set forth above, we first address appellant’s claim that it did not receive due process from the City or the trial court during the proceedings to revoke its use permit.
With respect to the proceedings before the local agency, appellant suggests for the first time on appeal that the “factual circumstances [of the revocation process] raised some suspicions of an agenda or bias against [it] . . . .” In particular, appellant relies upon two circumstances to argue that the administrative tribunal was not impartial – the fact that ZAB disregarded the recommendation of its staff that the use permit be modified rather than revoked, and that the City’s Mayor commented negatively on appellant’s nonattendance at the ZAB hearing before the City Council voted to revoke the permit.
We conclude that, by not challenging the City’s revocation decision below on due process grounds, appellant has waived the right to do so here. (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 [“an issue not raised at an administrative hearing, including a claim of bias, may not be raised in later judicial proceedings”].) Moreover, even were we to disregard this waiver, we would find no violation of due process in the administrative proceedings on this record. Procedural due process in an administrative setting requires notice and the right to appear before a “reasonably impartial, noninvolved reviewer.” (Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219; see also Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 391 fn. 5 [Korean American].) Here, appellant undoubtedly had notice that the administrative agency was considering revoking its use permit. After several years of citing appellant for repeated violations of the use permit, the City issued a public notice on June 14, 2007 that a public hearing would be held before ZAB on June 28, 2007 “to consider recommendation to City Council as to whether the U-Haul business at 2100 San Pablo Avenue is in violation of Use Permit #7575 under BMC 23B.60.020.” BMC 23B.60.020 expressly provides for a decision to “revoke or modify the permit” if certain conditions (which are discussed in great detail below) are met. Under these circumstances, we reject appellant’s claim that proper notice was lacking.
We likewise reject the claim that the City’s disregard of a recommendation by ZAB staff to modify the use permit or the Mayor’s comment on appellant’s nonattendance at the hearing rendered the revocation process fundamentally unfair. First, as appellant admits, a staff recommendation is not binding on an administrative agency, particularly where, as here, the agency provided detailed reasons on the record why such recommendation should not be followed. (Cf. Bam, Inc. v. Board of Police Comrs. (1992) 7 Cal.App.4th 1343, 1348-1349 [reversing the trial court’s denial of a writ of mandate directing the Board to vacate an order suspending a use permit where, in so ordering, the Board rejected a staff recommendation not to revoke the permit despite the lack of any evidence supporting suspension or revocation].) Indeed, both the City Council and ZAB staff agreed in this case that appellant had violated the terms and conditions of its use permit; their only disagreement was over the appropriate remedy to order pursuant to BMC section 23B.60.020.
Second, there must be actual bias, not as here the mere suggestion of bias, to render a hearing before a disinterested tribunal unfair. (Southern Cal. Underground Contractors, supra, 108 Cal.App.4th at p. 549 [“a party claiming that the decision maker was biased must show actual bias, rather than the appearance of bias, to establish a fair hearing violation”]; ibid. [“Bias in an administrative hearing context can never be implied, and the mere suggestion or appearance of bias is not sufficient.”].) Here, the City’s Mayor, like other City Council members, was justifiably concerned about appellant’s failure to attend the hearing to address its alleged violations of the use permit. This concern, however, does not indicate the tribunal was actually biased against appellant, much less that it failed to provide appellant with a fair hearing on the matter.
With respect to the trial court proceedings, appellant claims that the absence of a hearing on its writ petition deprived it of due process. Referring to language in Code of Civil Procedure section 1094.5, subdivision (a) that “the case shall be heard by the court,” appellant claims it had a right to such hearing. We disagree.
In declining appellant’s untimely request to argue against adoption of the tentative order denying the writ petition, the trial court relied upon California Rules of Court, rule 3.1308(a)(1) (rule 3.1308(a)(1)) and Alameda County Superior Court Local Rule 3.30, subdivision (c) (local rule 3.30(c)). Rule 3.1308(a)(1), which Alameda County Superior Court has adopted pursuant to local rule 3.30(c), provides: “The court must make its tentative ruling available by telephone and also, at the option of the court, by any other method designated by the court, by no later than 3:00 p.m. the court day before the scheduled hearing. If the court desires oral argument, the tentative ruling must so direct. The tentative ruling may also note any issues on which the court wishes the parties to provide further argument. If the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear. A party must notify all other parties by telephone or in person. The court must accept notice by telephone and, at its discretion, may also designate alternative methods by which a party may notify the court of the party’s intention to appear. The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given.” (See also California Rules of Court, rule 3.1103(a)(2) [defining “a law and motion proceeding” to include “[an] application for an order regarding . . . writs of . . . mandate”].)
Local rule 3.30(c) provides: “The court has adopted the tentative ruling procedure set out in California Rules of Court, rule 3.1308(a)(1). Prior to the hearing of a law and motion matter, a tentative ruling or indication that the parties are to appear will be issued. The tentative ruling will be available by 4:00 p.m. two court days prior to the scheduled hearing. The tentative ruling may direct the parties to appear for oral argument and may specify the issues on which the court requests the parties to provide further argument. The tentative ruling may be obtained by calling the department’s tentative ruling number or by accessing the court’s website. The telephone number for the department and the court’s website will be provided in the Notice of Assignment. Whenever a tentative ruling has not been issued, the parties are to appear at the hearing unless otherwise ordered.”
Here, pursuant to these rules, the trial court made a tentative order on the writ petition based upon the written submissions without directing the parties to appear for further argument. Appellant thereafter failed to “notif[y] all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear.” (Rule 3.1308(a)(1); see also local rule 3.30(c).) As such, the trial court properly denied appellant the opportunity to argue the matter when appellant nonetheless appeared unannounced before the court the next day. Given the legal basis for the trial court’s action, we cannot conclude appellant’s due process rights were violated in this regard.
In concluding that no due process violation occurred, we further reject appellant’s suggestion that the trial court judge was biased against it as evidenced by the fact that “he had lived four blocks from the property and . . . had concluded that [appellant] was ‘abus[ing] everybody.’ ” In raising this issue, appellant takes the trial court judge’s statements out of context. While the judge indeed acknowledged living four blocks from the property for about 17 years, he then added “that was a long time ago . . . ” The judge also stated: “I know that business has been there. But that really has very little to do with a City’s decision to revoke a permit based on the activities of the business. No matter how long you’ve been there you still can’t abuse everybody. And the standard that I used, which was the independent judgment test, resulted in the tentative ruling.” Considered in the proper context, the judge’s statements accurately reflect the law regarding permit revocation, not, as appellant suggests, actual bias. Had appellant believed otherwise, the legal recourse was to file a motion to disqualify the judge pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1), before entry of the judgment against it.
III. Was Revocation of the Use Permit Warranted?
We next address appellant’s claim that the record, viewed as a whole, was insufficient to justify revocation of the company’s 30-year-old use permit.
Citing BMC section 23B.60.020, the trial court found that the “City Council may revoke a use permit if it finds that either (1) the holder of the permit has failed to comply with one or more of the conditions set forth therein; or (2) the permitted use has been substantially expanded or changed in character beyond that set forth in the permit.” The trial court then affirmed the City Council’s decision to revoke appellant’s permit under both prongs of BMC section 23B.60.020. In doing so, the trial court relied upon four findings of fact. First, the use permit limited appellant to “approximately 20 trucks and 30 trailers” on the property at any given time, which limit appellant exceeded by “a wide margin.” Second, appellant used public rights of way for staging activities, and “failed to respond meaningfully to Respondent’s unequivocal notices that the [use permit] did not permit public staging, going back to at least 1997.” Third, the record reflected a pattern of persistent complaints that appellant’s improper staging activities were detrimental to the neighborhood, which, by its terms, subjected the use permit to review, revocation or modification. And fourth, appellant had no right under the use permit to expand its operations beyond its own premises and onto adjacent property.
On appeal, appellant disputes that BMC section 23B.60.020 provides the relevant standard for deciding whether revocation of its use permit was proper. Rather, appellant argues that, “[t]o justify interference with the constitutional right to carry on a lawful business, the following must be clearly established: (1) the public’s interest requires such interference; (2) the means employed are reasonably necessary to accomplish the purpose; and (3) the means employed are not unduly oppressive on individuals. Korean Am. Legal Adv. Found. v. City of Los Angeles, 23 Cal.App.4th 376, 390 n.5 (1994).”
We disagree with appellant’s statement of the applicable standard. The appellate court in Korean American, indeed held that a municipality’s power to revoke a conditional use permit is limited, but not necessarily in the manner appellant suggests. First, the court noted that, if the permittee has incurred substantial expense and acted in reliance on the permit, the permittee has a vested interest in the property and thus is entitled to the protections of due process prior to the permit’s revocation. (Korean American, supra, 23 Cal.App.4th at pp. 391-392 fn. 5.) The court then continued: “ ‘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.] (O’Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151, 157 [96 Cal.Rptr. 484].)’ 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 not unduly oppressive on individuals. (Lawton v. Steele (1894) 152 U.S. 133, 137 [38 L.Ed. 385, 388, 14 S.Ct. 499]; Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 717 [97 Cal.Rptr. 840].)” (Korean American, supra, 23 Cal.App.4th at pp. 391-392 fn. 5 [emphasis added].)
Interpreting this language in Korean American, we conclude two distinct grounds exist for revoking a use permit: (1) if the permittee fails to comply with reasonable terms or conditions expressed in the permit, or (2) if there is a compelling public necessity such as a nuisance. (Korean American, supra, 23 Cal.App.4th at pp. 391-392 fn. 5.) Moreover, the three requirements upon which appellant relies – that the public interest require municipal interference, that the means employed are reasonably necessary to accomplish the purpose, and that the means employed are not unduly oppressive – relate to the second ground (the existence of a compelling public necessity) rather than to the first ground (the failure to comply with the permit’s reasonable terms or conditions). (Ibid. See also Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal.App.2d 776, 783 [a municipality may properly exercise its police power to revoke a use permit where the permittee fails to comply with the permit’s conditions of use and existing zoning regulations.)
Applying this standard to this case, the City revoked appellant’s use permit, not upon a showing of a compelling public necessity, but rather pursuant to BMC section 23B.60.020 after finding appellant had repeatedly failed to comply with certain of the permit’s terms and conditions and had substantially expanded its use. Appellant has made no claim that the permit’s terms and conditions were unreasonable, nor is there any doubt that, as discussed above, appellant received due process before the permit was revoked. As such, so long as substantial evidence established appellant’s noncompliance with or substantial expansion of the permitted use, revocation of the permit was justified. (Korean American, supra, 23 Cal.App.4th at pp. 391-392 fn. 5; Trans-Oceanic Oil, supra, 85 Cal.App.2d at p. 783. Cf. O’Hagen, supra, 19 Cal.App.3d at pp. 159-160; City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 670 [“The facts constituting proof of an actual breach of conditions or of a clearly stated intention not to comply with the terms of a lawfully issued permit may only be determined upon a proper hearing before a duly constituted body. Until such time as these facts are presented to a proper tribunal of the city and that body has acted upon them, no valid revocation can be accomplished.”].) We thus turn to the relevant evidence.
IV. Does Substantial Evidence Support the Trial Court’s Findings?
As we just explained, the trial court found substantial evidence supported the City’s decision to revoke appellant’s use permit pursuant to BMC section 23B.60.020 because (1) appellant failed to comply with one or more of the conditions set forth in the permit; and (2) appellant substantially expanded the permitted use in a manner beyond that set forth in the permit. We agree.
BMC section 23B.56.010 provides that “[a]ny approval permits only those uses and activities actually proposed in the application and excludes other uses and activities.” Consistent with this provision, appellant’s use permit set forth as a general condition that “the plans submitted with the application shall be followed and that all of the assurances and commitments contained in the original application shall be met except as they may be modified by the special conditions listed below.” In addition, the use permit set forth as a specific condition that “the use permit shall be subject to review, attaching of additional conditions, or revocation if persistent complaints are received that the operation is detrimental to the neighborhood.”
Here, undisputedly, appellant’s use permit application did not propose to use public areas adjacent to the property for conducting the company’s business operations. Nonetheless, there is ample evidence in the record that appellant did just that, resulting in persistent complaints from neighbors concerned about the welfare of their neighborhood.
In particular, the record proves that the City first issued appellant a Notice and Order to Correct in 1997 after receiving complaints from neighbors regarding the company’s use of public streets for parking its vehicles. This first notice expressly warned appellant that all uses granted pursuant to the permit were “ON THE PROPERTY ONLY,” and that violations of such restriction could lead to review and revocation of the permit. While there was evidence that complaints from neighbors regarding appellant’s use of adjacent public property “sort of subsided” after the 1997 notice, the City issued a similar warning in June 2000 when such complaints resurfaced.
In 2004, the City received even more complaints regarding appellant’s violations of the use permit by parking its trucks on the public right of way, leading the City to issue a Notice of Violation on September 15, 2004. Then, in 2006, the City began an investigation into appellant’s operations after receiving “aggressive complaints” regarding the company’s continued permit violations. During that investigation, the City discovered appellant was consistently parking as many as 30 of its vehicles on neighborhood streets adjacent to its property, sometimes blocking cross walks and fire hydrants. Citations for these and other violations totaled $52,900 as of September 18, 2007.
Confronted with this evidence of recurring permit violations and persistent complaints, appellant argues that “nearly all of these vehicles [on the adjacent public streets] were parked by returning customers,” and, thus, that the company was not responsible for it. We disagree. Ample evidence exists that appellant, not just its customers, parked the vehicles on the neighborhood streets. For example, the record reflects that appellant’s employees were observed on numerous occasions storing or servicing its vehicles or even driving them recklessly on the adjacent public streets. Moreover, even if some of the vehicles parked on the adjacent streets were left by returning customers, it does not follow that appellant bears no responsibility. As a hearing officer observed after reviewing one of appellant’s many citations, “it is a foreseeably cyclical, if not constant, result of [appellant’s] conceded inability to absorb rental returns on its own lot” that led customers to park appellant’s vehicles on adjacent public streets. Further, appellant “benefit[ted] from the volume of vehicles rented while at the same time operationally allowing rental vehicles to be frequently parked on the street[s].” As such, we reject appellant’s attempts to shirk responsibility for using public rights of way for parking its vehicles.
We likewise reject appellant’s argument that it “solved this problem” years before the City’s decision to revoke its use permit. In doing so, we acknowledge the evidence in the record that appellant considered certain corrective measures, such as opening a new facility in a nearby city with more parking and insisting that customers renting at the Berkeley facility return the vehicles elsewhere. However, there is no evidence that appellant in fact implemented each of the proposed corrective measures. Rather, the record reflects that, in August 2006, appellant met with the City to discuss proposed steps for addressing the violations of its use permit. The City thereafter agreed to a 30-day moratorium on its enforcement of the use permit, conditioned on appellant taking certain actions, including meeting with neighbors and stopping the parking of its vehicles on adjacent streets. However, after warning appellant that the moratorium was set to expire in two days and that the corrective steps were not yet implemented, the City resumed issuing citations. Thereafter, between August 2006 and June 2007, the City noted at least 24 incidents of appellant’s use of adjacent streets for parking its vehicles, including four incidents in which the City counted between 29 and 39 trucks parked on the streets.
This evidence mirrors testimony received by the City Council at the revocation hearing from appellant’s district vice-president, Jeremy Frank, who acknowledged that “some of the previous people in the president position . . . did make promises to the City to . . . make changes, and then failed to communicate to the proper people . . . [who] could make those changes. . . . . And unfortunately, I can do nothing but apologize profusely and say that . . . this just completely . . . escaped my attention.” In addition, the City Council heard testimony from a City staff member who had in recent days observed eight of appellant’s trucks parked on adjacent streets.
The evidence set forth above, we conclude, is sufficient to support the trial court’s findings that appellant used public rights of way for staging, and thereby expanded its business operations beyond the property in a manner contrary to the terms and conditions of the use permit. The evidence is likewise sufficient to support the trial court’s findings that appellant’s neighbors, for several years, had persistently complained to the City regarding appellant’s public staging, and that appellant failed to respond meaningfully to the City’s “unequivocal notices” that the use permit did not permit such staging. Accordingly, we conclude, like the trial court, that the City was authorized under both California common law and BMC section 23B.60.020 to revoke appellant’s use permit. (Korean American, supra, 23 Cal.App.4th at pp. 391-392 fn. 5; Trans-Oceanic Oil, supra, 85 Cal.App.2d at p. 783.)
In reaching this conclusion, we acknowledge appellant’s additional argument that the trial court erred in finding that the use permit contained an enforceable term limiting appellant to 20 trucks on the property, and in finding that the City is not collaterally estopped by a hearing officer’s decision that any such term was too vague to be enforced. Regardless of whether appellant further violated the use permit by having more than 20 trucks on the property, for all the reasons stated above the City was authorized to revoke the use permit under the applicable law.
Appellant admits that its use permit application proposed to use the property for “[a]pproximately 20 Rental Trucks and 30 Rental Trailers,” and that the actual permit provided that “the plans submitted with the application shall be followed and that all of the assurances and commitments contained in the original application shall be met except as they may be modified by the special conditions listed below.” Appellant claims, however, the phrase “approximately 20 trucks and 30 trailers” is ambiguous and should thus be interpreted to allow use of the property for a total of approximately 50 vehicles, irrespective of whether the vehicles are trucks or trailers. A hearing officer agreed with appellant’s claim when deciding the validity of one particular citation issued against appellant in 2006. The trial court, however, rejected appellant’s subsequent claim that the hearing officer’s decision had a collateral estoppel effect in this litigation on the ground that the City lacked an adequate opportunity to litigate the issue. As explained above, we need not decide for purposes of this appeal whether the trial court’s decision in this regard was correct.
DISPOSITION
The judgment denying appellant’s petition for writ of mandate is affirmed.
We concur: McGuiness, P. J., Pollak, J.