Appeals Court: City Abused its Discretion in Approving Mercado

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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