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7-Eleven legal battle still far from finished: Recent court ruling over legality of council’s decision just one step
January 27, 2014, 05:00 AM By Samantha Weigel Daily Journal

Kerry Chan/Daily Journal
The 7-Eleven at 501. N. San Mateo Drive has been the subject of much controversy since it opened in December 2012. The city of San Mateo is embroiled in a legal battle over its zoning and whether it is allowed in a residential area.

A recent court decision that the city of San Mateo acted appropriately when its council determined a recently established 7-Eleven was illegally occupying a building in a residential zone is but one of several other legal issues that must be untangled before the long battle over the store is over.

Now, the city must face a lawsuit that it violated the Brown Act, California’s open meeting law, and the property owner could appeal the recent ruling. In another twist, the city may also have to pursue eviction proceedings even if it is successful in fighting off the pending legal challenges.

Still, city officials agree with the judge’s decision and the store’s neighbors, who have inundated the city with complaints over the store’s presence, are encouraged but recognize this is a long process.

Jeff Gilbert, who lives several houses down from the store, expressed relief with what he called significant progress.

“When I got the phone call, it was first a feeling of relief that not only the judge sided with how we felt, but that we’d been listened to,” Gilbert said.

Last week, Superior Court Judge George Miram denied the first of 7-Eleven and Portfolio Development Partners’ allegations that the council had acted unlawfully when it determined the 24-hour market at 501. N. San Mateo Drive was issued permits in error and was thus operating illegally and needed to vacate. The site, on a busy street next to a residential area, was long home to Stangelini’s Market. When it shut down in 2011, neighbors assumed it might become a similar market with similar daytime hours. The area is zoned for residential, but the old use was grandfathered in and residents assumed it would revert back to residential zoning since it sat vacant for more than six months. However, city staff determined it could become a market, but the council overruled that determination after neighbors complained.

“We obviously agree that the court got it right and it’s clear in [Miram’s] lengthy opinion. The court took the issue seriously and it’s a thoughtful well-reasoned opinion and we believe the court understood the law and applied it correctly,” City Attorney Shawn Mason said.

It is unclear if PDP will appeal the decision or if it will continue with allegations that the City Council and the Planning Commission violated the Brown Act, California’s open meeting law, which will need to be heard at a later date, Mason said.

“They allege there was a violation during the handling of the issues administratively. They’re asking the court in light of an alleged Brown Act violation, the city obviously doesn’t agree, they’re asking the court to set aside the council’s decision,” Mason said.

PDP did not return requests for comment. Previously, attorneys for both 7-Eleven and PDP said they will lose a combined $8 million if the store is forced to close after buying the property for $1 million and upgrading it from an old deli into a modern market.

If the judge agrees there was a Brown Act violation, the city would be required to allow PDP and 7-Eleven to resubmit an application to the city. The judge confirmed the council’s actions, so even if the court rules in PDP’s favor over the Brown Act accusation, 7-Eleven reapplying would lead to the same outcome: the store in the residential neighborhood is illegal, Mason said.

“That’s a very legitimate question as to what’s the purpose of [the Brown Act] lawsuit in light of the fact that the court has determined the council’s decision was appropriate and the city can enforce that decision,” Mason said.

Depending on if or when 7-Eleven moves out, the city may need to continue with eviction proceedings, Mason said.

It’s unclear if the remaining motions will necessitate further review by the court, but if need be, the city will follow through with its original suit to evict 7-Eleven, Mason said.

The city doesn’t have anything against 7-Eleven but it was improperly located in a residential zone and Miram rightfully agreed with the council’s response, Councilman David Lim said.

“I’m very gratified by the court’s ruling. We worked very hard in the council to follow the law and make the right decision. We’re gratified the judge confirmed our actions,” Lim said.

Still, residents have some strong feelings about the store and its approach. Gilbert asserts that he’d been lied to from the onset. During a neighborhood meeting and study session with PDP, his fellow neighbors consistently voiced they were against a 7-Eleven moving in, Gilbert said.

“They actually, the two guys from PDP, looked at us and said ‘we’re not putting in a 7-Eleven.’ From that day forward they never stopped lying to us. That next day they applied [to build] a 7-Eleven. They knew it already, they lied to us and from the point I found that out, I’ve never believed a word that’s come out of their mouth. They don’t care, they say they care, but they don’t,” Gilbert said.

As relieved and justified as Gilbert felt by Miram’s ruling, the potential for an appeal and two additional suits is still troubling.

“I’m trying not to get too excited, because they can still have an appeal. It’s not over, the race isn’t over. … We’re happy, but we’re guarded,” Gilbert said.

This continued battle prompted a council requested audit of the Community Development Department, which oversees the Planning Division, that ultimately revealed the department needs more administrative support.

“The audit, in combination with the 7-Eleven decision, I think our whole objective now is looking out of the windshield and not the rearview mirror anymore,” Interim City Manager Larry Patterson said.

These cases have been a cloud hanging over the city and, hopefully, Miram’s ruling cleared things up, Patterson said.

“I’m sure 7-Eleven is looking into options and deciding how to proceed. So we’ll wait and see how that turns out,” Patterson said. “But we’re hopeful this will help wrap up the issue.”

(650) 344-5200 ext. 106



Tags: eleven, court, decision, mason, gilbert, residential,

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