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Appeals Court: City Abused its Discretion in Approving Mercado

The store has too much space for not enough parking, three justices rule.

Mercado El Rey in San Juan Capistrano. Patch photo credit: Penny Arévalo
Mercado El Rey in San Juan Capistrano. Patch photo credit: Penny Arévalo

The city of San Juan Capistrano must revoke its approval for a popular mercado, a state appellate court decided this week, upholding a lower court decision from earlier this year.

“The trial court concluded the city abused its discretion by issuing the permit because the available parking on the site did not meet the minimum required by the city's zoning ordinance,” Presiding Justice Kathleen O’Leary panel wrote on behalf of a three-member panel. “We conclude the trial court was correct.”

Back in September 2011 and despite many objections, the San Juan Capistrano City Council green-lighted the permit for Mercado El Rey in the spot of the former Vincent de Paul Society thrift store.

Dan Friess, whose Friess Property Investment is the landlord for some 20 tenants in four nearby buildings, sued to get the council’s decision overturned. He prevailed in January.

His suit focused on the lack of sufficient parking created when the landlord took the square footage created with two thrift-store additions in the back of the building and added it to the leasable area for the mercado.

Those additions – used by the thrift store as an intake area for donations and storage – eventually expanded the retail space by 1,500 square feet, according to the appellate court. But that space was not meant to increase retail space, and if it did, a corresponding number of parking spaces should have been provided, O’Leary said in the 28-page decision.

The appellate court said Judge Larry Brown got it right when he said the thrift store add-ons “had nothing to do with expanding the building's size,” the court said.

“We are just happy that the court was able to clearly see the reality of this case,” Friess told Patch. This is a lose-lose situation for us and has cost us greatly. We hope that this verdict puts an end to this two-year struggle.”

Patch is attempting to get comment from representatives of both the market and the landlord and will update the story accordingly.

The justices said the city has several choices. It can require El Mercado El Rey to stop using the thrift store additions as retail space or it can grant it a variance, or exception, for the insufficient parking.

While the matter was on appeal, the city did not have to revoke the mercado’s permit. With the decision this week, that “stay” is lifted, the decision says.

The city sat out the appeals portion of the litigation, preferring to let Friess and representatives from the mercado and landlord make their case.


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Gus Gunderson December 28, 2013 at 09:30 PM
So, Reeve the attorney voted against this. He apParently has a little bit more knowledge than those three as someone else called them earlier, ding dongs. These thre have cost our city millions
Donna Fleming December 28, 2013 at 09:50 PM
It seems that Reeve is usually on the side of reason. He votes for the community. Not, with a interest in real estate investors in other cities. Allevato has cost us millions in law suits, land deals, ground water bonds never purchased, poor management of our city. Recall Allevato.
Mark Speros December 28, 2013 at 11:43 PM
Gee, there seems to be a trend. If it's clearly illegal (removing newspaper racks, foisting illegal water rates on citizens, or ignoring their own governing documents and granting permits or buying land outside city limits while baring its use by citizens) this "majority of three" can't say YES fast enough! Damn the lawsuits and financial consequences. And when Mayor Allevato gloats about "standing behind every vote he cast", I can't help but question exactly WHO he is voting for. Our city will be in bad fiscal shape, if not totally bankrupt, by his consistently unsound decisions.
rachel o December 29, 2013 at 07:35 PM
Another vote Sam Allevato says he is "proud of". Is he proud of the millions and millions of dollars he has cost the taxpayers too?
Smokey Bear January 28, 2014 at 03:13 AM
Donna, aren't you scared to say all that stuff using your real name? I am glad I'm a bear, but I'm still scared of our city council these days. Remember meet the mayor day? they don't do that anymore, I wonder why?

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