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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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Whiskey Bent December 27, 2013 at 06:30 PM
Allevato loses again.
Donna Fleming December 27, 2013 at 08:25 PM
We need better leadership. How many lawsuits does it take to get our community to realize Sam Allevato not doing a good job for our city?
rachel o December 27, 2013 at 09:20 PM
Allevato continues to waste taxpayer money. He has never ever won an appeal. Disgusting.
Penny Arévalo (Editor) December 27, 2013 at 10:05 PM
The city did not appeal this. Dove and Mercardo filed the appeal.
Penny Arévalo (Editor) December 27, 2013 at 10:07 PM
Just to be super clear, though, the original lawsuit filed by Friess is against the city, Dove and Mercado El Rey.
rachel o December 27, 2013 at 11:16 PM
I am not an expert at this, but could the city not have settled this without going to court and spending more money on attorney fees? The three ding dongs on the city council who voted to continue litigation must go. How much more are we going to take of the continued horrible decisions made by these three ding dongs on the city council. Where is Mechelle Lawrence Adams now? Probably hiding from another horrible decision made by Allevato. Our city is going broke on these attorney fees. Thanks Sam Allevato. Not!
Donna Fleming December 27, 2013 at 11:28 PM
The city council approved the permit for Mercado Market in a strip mall with parking inadequate for the shoppers. It was poor judgement for the CC to allow a grocery store in that location in the first place. Again, poor judgement by Allevato.
Frieda Wales December 28, 2013 at 10:59 AM
Is this store on Camino Capistrano? Not knowing the backstory on this makes the article a little difficult for me to understand. Don't many of the customers walk to the store? I'm not sure what the problem is. If the store is already in place, why not provide a variance to the parking especially considering it is a very walkable area of San Juan Capistrano.
Penny Arévalo (Editor) December 28, 2013 at 11:12 AM
Yes, it's at 32252 Camino Capistrano, San Juan Capistrano, CA 92675. The city may decide to consider a variance. That will go through the normal public hearing process.
Donna Fleming December 28, 2013 at 11:55 AM
Frieda, It is walkable but most people buy more groceries than they could carry and walk. They have great guacamole made fresh in there daily. There is always a crowd of people there at the meat department. Parking is always a problem though.
Gus Gunderson December 28, 2013 at 02:46 PM
The common denominator in each and every lawsuit: Sam Allevato
Whiskey Bent December 28, 2013 at 03:59 PM
Penny who on the council originally voted for this? Was it unanimous 5-0?
Penny Arévalo (Editor) December 28, 2013 at 04:20 PM
This occurred just before I took over as editor. But I believe the reports were that the vote was 3-1, with Reeve against and Freese abstaining for a conflict.
Whiskey Bent December 28, 2013 at 06:16 PM
I don't know why I even asked. So Allevato, Kramer and Taylor were wrong AGAIN and Reeve was right AGAIN.
Donna Fleming December 28, 2013 at 07:24 PM
Yep. Always the same three voting the same way. Two yes men backing up Allevato who calls the shots. We need new leaders on the city council.
Donna Fleming December 28, 2013 at 08:13 PM
The little market does a great business. Lots of fresh produce. Lots of shoppers and I never see anyone walking away with several bags of groceries. Fresh salsa, fresh quacomole, a well run store, except for the parking.
Sunshine December 28, 2013 at 08:35 PM
Just another reason to RECALL MAYOR SAM ALLEVATO! www.RecallSam.com
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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