In a case involving the City of Stanton's "sensitive use ordinance," the Fourth District Court of Appeal has ruled that the city's handling of an application for an adult business was flawed. 

On December 1, 2008, Musa Madain submitted tenant improvement plans for a proposed adult cabaret on Katella Avenue. At the same time, he allegedly also attempted to submit the appropriate application and fee for an adult business. However, Madain claims he was told by city staff at the planning counter that the application and fee were not necessary. Two weeks later, Madain received a letter from the city manager stating his tenant improvements were rejected on the grounds his application was incomplete and that it was proposed within 300 feet of a "planned" church. 

Madain learned that, in those two intervening weeks, city staff had purportedly encouraged the church to file an application promptly so as to preempt Madain's application under the sensitive use ordinance. Madain appealed the city manager's decision to the City Council on the grounds that the city improperly applied the sensitive use ordinance and that he had been unjustifiably deterred from filing his application and deprived of an opportunity to establish priority over the church.

At the City Council hearing, the council took testimony from Madain and the city manager, but no other city staff members with direct knowledge regarding the submittal of the application officially appeared. The council closed the hearing and denied Madain's appeal. He filed a lawsuit in Orange County Superior Court, lost there, and filed his appeal with the Fourth District Court of Appeal.

The court considered whether the City Council proceeded without or in excess of its jurisdiction, whether there was a fair hearing, and whether the council abused its discretion. The court never answered the question as to whether the council erred in interpreting the city's sensitive use ordinance as providing protection to the church (or any other religious institution) from the moment it applies for a permit to operate in a particular location. Instead, the court focused on whether the council properly considered Madain's allegations that city staff members had manipulated the process to ensure the church's application was given priority over Mr. Madain's application. Pointing to Sierra Club v. City of Hayward, (1981) 28 Cal.3d 840, 859, the court held that the City Council should have considered Madain's assertions of wrong-doing and resolved the question of whether Madain had in fact attempted to file a complete application on December 2, 2008.

On these facts, and because the proposed activity enjoys First Amendment freedom of expression protection, the court held that the city abused its discretion by failing to make findings as to which application had priority. The court ordered the city to vacate its denial of Madain's application, and to reconsider his application and his contention that he was ready to file an adult business application on December 2, 2008.

Presiding Justice David Sills wrote an illuminating concurring opinion. Sills wrote that the court's endorsement of the rule that whichever land use proposal is first in the door should have priority, with a few minor conditions, was merely an observation – and not law. Sills also cautioned two things. First, he said, the majority opinion should not be read for the proposition that the application for a permit means that land use is now "planned." Such an interpretation would run contrary to well-established land use law, he wrote. Second, the case should be limited to its facts, Sills wrote. The record does not concern the city's general plan nor the extent to which the sensitive use ordinance could operate as a de facto amendment to the city's general plan, he noted.

The key point of this case is that applications for activities protected by the First Amendment are entitled to extraordinary protections. Specifically, when rejecting on a procedural basis an application for a protected activity, a city or county should make additional findings over and above those otherwise required in anticipation of judicial review. 

The Case:

Madain v. City of Stanton, No. G042218, 2010 DJDAR 9539. Filed June 23, 2010.

The Lawyers:

For Madain: Roger Jon Diamond, (310) 399-3259.

For the City: Ralph Hanson, Burke, Williams & Sorenson, (949) 863-3363