Justice Delayed is Property Deprived

This tale sounds familiar.

It’s about the Singhs, who operate a retail martket in south Stockton, California. The Singh’s “market has been selling alcohol for about 60 years as a legal nonconforming use. Located in a high crime area, its parking lot has been a center of criminal activity, from loitering, public drunkenness, gambling and narcotics activity to assaults, robberies and homicides. In an attempt to reduce crime, the Stockton Police Department requested that the City revoke the Singhs’ right, as a legal nonconforming use, to sell alcohol at the store. The Planning Commission voted unanimously to revoke that right and the City Council unanimously denied the Singhs’ appeal.”  

From there the Singhs got nowhere in the trial court.

Enter the Court of Appeal of California. It recognized the central, legal issue: whether the City followed the proper procedure in revoking the Singh’s nonconforming use status. The Singhs had argued that the City was “too hasty in seeking revocation without first attempting to impose conditions to reduce the problems.” They pointed out that the City’s laws required as much. They also pointed out that the City could revoke their legal nonconforming use status only if the City found a compelling public necessity, which required finding both a nuisance and that the operator refused to comply with reasonable conditions. The court of appeals agreed:

Over 100 years ago, the United States Supreme Court recognized the limitations on police power in abating nuisances. In Lawton v. Steele (1894) 152 U.S. 133, 137 [38 L.Ed.2d 385, 388-389], the court stated: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The [L]egislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations; in other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.

In my experience, larger — and sometimes, because of this fact, inefficient – cities are reactionary to petty code problems. Eventually a squeaky wheel [read "the most organized civic association"] gets some grease. But if the city allows a flame to breed into an inferno, the city cannot forget its laws when punishing the property owner who allowed the conditions for the spark. Here, the city poured gas on the Singhs.

The City’s failure to recognize that, where a vested fundamental interest is at stake, due process, as well as its own municipal code, requires that only the least onerous steps to abate a nuisance be taken is troubling. For two years, the City did not take any steps to abate the nuisance at the parking lot of the New Grand Save Mart until it had continued and increased to the point that revocation seemed appropriate. Faced with such inaction, the City placed the blame entirely on the Singhs and sought revocation without regard to what the law required. The City’s failure to proceed in the manner required by law was a prejudicial abuse of discretion.

Read the unpublished decision.

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