Neighborhood Association Joins Legal Battle Over Zoning of Therapist’s Office

717-Seventh St

Local attorney Michael Harrington has filed a lawsuit disputing whether the city had appropriately ruled on a Conditional Use Permit over a 1200 square foot therapist’s office located at 717 Seventh St. Mr. Harrington filed the lawsuit last year.

Mr. Harrington maintains that the intended use “under the Conditional Use Permit (‘CUP’) is for a three-person psychotherapy office handling up to 35 or more individuals a day in an otherwise residential neighborhood and operating up to 11 hours a day.”

Mr. Harrington further “challenges the City’s approval of the CUP on the grounds that the Project fails to meet the off-street parking requirements as all of the required off street parking will not be within the front setback line. Petitioner also challenges the City’s determination to exempt Ms. LeBlanc from the requirement to provide accessible parking.”

However, in January, the city council voted 5-0 to uphold the Planning Commission’s decision.

They found that “staff did not make an error in determining that the on-site parking requirements for the conditionally permitted professional office use at 717 7th Street have been met in that: a) an accessible parking space is not required; and b) the number and location of required parking spaces are in conformance with the zoning.”

While Mr. Harrington had been fighting this alone for some time, a significant development is that the Old North Davis Neighborhood Association (ONDNA) has joined the fight by filing an application for leave to file an amicus brief, out of concern for the city’s application of zoning ordinances and the need for the preservation of the historic neighborhoods and residential bungalows in general. The court has to approve the petition, and the amicus brief is a document filed by a person or group that is not a party to a lawsuit but has a strong interest in it.

Represented by Jonathan Morse, who had previously been co-counsel in the YRAPUS (Yolo Ratepayers Association for Affordable Public Utilities) water lawsuit, the group in their petition notes, “Representatives of ONDNA attended many of the public hearings in this matter, reviewed the public documents, and reviewed the briefs by the parties. ONDNA files this application to ensure that this Honorable Court understands that there are significant issues involved in this case that concern the preservation of the historic residential district areas of the downtown and surrounding neighborhoods.”

They note that this dispute is only a few yards north of the 7th Street boundary of Old North Davis and “is of great concern lest it be used as a precedent to improperly use the more informal and easier Conditional Use Permit process to effectively rezone old bungalows to commercial uses without following long-established legal and political procedures such as rezoning or variances to achieve the conversion to commercial.”

They add, “Making matters worse, the City effectively gutted the accessible parking spot requirement by attempting to boot strap in an old, expired CUP and its own improper lack of an accessible spot. As many historic areas have small lots and bungalows, the removal of the requirement for handicapped parking puts many other older homes in the historic districts at risk of being converted by a simple wave of the City’s CUP wand without appropriate due process of law under the rezoning process.”

Mr. Harrington, represented by attorney Don Mooney, has filed the suit alleging that “as currently configured, an accessible parking space would encroach into the 20-foot setback,” therefore violating the city’s zoning.

Mr. Mooney writes, “A review of the record clearly indicates that both Ms. LeBlanc and the City knew from the very beginning of the process that her proposed use did not meet the City’s parking requirements as set forth in Davis Municipal Code sections 40.30.030 and 40.25.80. Despite this knowledge, the City, at Ms. LeBlanc’s urging ‘to push back on this requirement,’ approved the project over Mr. Harrington’s objections, the nearest resident and the person most directly impacted by the City’s decision to violate the Zoning Ordinance.”

He continues, “The City provides no legal basis for approving the CUP. Moreover, the City did not even require that the applicant submit an application for a variance as provided in Government Code section 65906 and Davis Municipal Code section 40.33.010. Instead, the City Council simply ignored its obligations under the Zoning Ordinance and approved the Project without the required off-street parking that does not encroach upon the setbacks.”

In 2003, the house was converted from a private residence to a business that provided acupuncture and massage therapy. The permit expired three months after it closed in 2011.

A new permit was applied for two years later in October 2013. In January 2014, the Planning Commission approved the permit on a 5-1 vote. At this point Mr. Harrington appealed the action, but the council voted to uphold the commission’s decision.

The city, represented by Harriet Steiner and her law firm, Best Best & Krieger, and Catherine LeBlanc and David Sanborn, represented by William Abbott of Abbott & Kindermann, have filed a joint opposition to Mr. Harrington’s actions.

In response, they argue that the “Conditional Use Permit does not violate the City Parking Requirements.” They note that, while the city code specifies that required parking must be located behind the front setback line, the city code doesn’t prohibit all parking within the front setback.

“The code establishes minimum parking standards; it does not establish a maximum parking requirement. In other words, the City Code specifies that required parking (three off-street parking spaces) must be provided behind the front setback for Conditional Use Permit #12-13; it does not prohibit parking in a non-required space within the front setback,” Ms. Steiner et al counter.

They continue that “the city determined that three parking spaces were required to be located behind the front setback line. The applicant complied. The conditions of approval specify three required spaces must be located behind the front setback.”

Moreover, no conditions of approval require that any parking be located in the front setback area.

The opposition further maintains, “Petitioner describes the administrative proceeding as an action of the City to exempt Ms. LeBlanc from an obligation to provide accessible parking.”

However, in order for that to be the case, Mr. Harrington “must first establish that the project was subject to the requirement to provide accessible parking. As the administrative record reflects, there was no obligation by code, or otherwise, to provide accessible parking and, accordingly, there was no regulation for the City to exempt Ms. LeBlanc from as Petitioner argues.”

Moreover, the opposition argues that the city is entitled to “great deference as long as it is based on some evidentiary support.” They argue, “An agency’s determination is presumed correct unless a challenger can show that the agency has acted arbitrarily, capriciously, or without any evidentiary basis.”

They finally argue that the council’s findings are unchallenged.

  1. a) An accessible parking space is not required for the following reasons.
  • The occupancy of the subject property under the California Building Code was legally converted in 2003 from R3 (residential) to B (commercial).
  • There have been no new building permits issued under the CUP that changed the occupancy of the property or triggered new or additional accessibility requirements.
  • The CUP approved in 2013 for office use did not change the occupancy of the property.
  • The project remains in compliance with 2001 California Building Code §1134B Accessibility for Existing Buildings and with §1134B.2.1 accessibility upgrade obligations.
  1. b) The required number of parking spaces for the project has been met. The parking spaces are provided in a conforming configuration located behind the front yard setback, consistent with the requirements of zoning code Section 40.25.080(a).

However, Mr. Mooney responds that, in making this determination, “[t]he City ignores that the change of use and change of occupancy mandate under Section 3411.4.2 of the California Building Code that states: ‘Where an entire building undergoes a change of occupancy, it shall comply with Section 3411.4.1 and shall have all of the following accessible features…’” including “accessible parking, where parking is being provided…”

They continue, “Obviously there has been a change in occupancy of the entire building as Ms. LeBlanc purchased the property and intends to use it for professional offices providing mental health counseling. Moreover, there has also been a significant change of use for the building, as the sole permitted use was single-family residential (AR 193, 198,204) and is now to be used as professional offices with no residential use.”

The city argues this change occurred in 2003, but Mr. Mooney notes that there “has been a clear change in occupancy of the entire building. There is no dispute that Ms. LeBlanc is the current occupant and that the previous occupant no longer occupies the building or works at the building.” Moreover, “the previous CUP expired six months after the business ceased in 201 1 and that the only permitted use at the time Ms. LeBlanc purchased the property was single-family residential.”

All of this is over a single parking space on Seventh Street that has brought multiple attorneys and now an entire neighborhood association into the dispute.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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20 Comments

  1. hpierce

    Read the article a couple of times… what “harm” if any, does Mr Harrington alledge that is caused to him or his propety by the City approval?  Can’t seem to find it.

    1. Davis Progressive

      this is a critical question because if it’s really over one parking space – this is a non-issue and mr. harrington looks a little more like captain ahab than robin hood.

  2. Frankly

    This is just one of many recent examples for why those politically-active folks living in the core area and blocking peripheral business development should be marginalized and ignored on the topic.  It has always been clear to me that theirs is an elite “got mine, now stay away” attitude and demand.  They fight commercial development in the core area, and they fight commercial development on the periphery.  I wish I could see some common ground to hold healthy and productive discussions and debate, but alas there is none.  They are stuck in stasis mode and prickly at the thought of any change to their perceived paradise.

    So, on with the change while wearing ear plugs!

    1. Jim Frame

      This is just one of many recent examples for why those politically-active folks living in the core area … They fight commercial development in the core area

      Better find another target for that accusation.  Mike Harrington built and owns the commercial project just down the street from your office.

      1. Frankly

        Mike opposed the development of this office saying it would clash with the bungalows.  Then he organized the neighbors to force endless design changes to make the building smaller and look like a house.  Then after this he built his much larger and much more commercial-looking building.

        I don’t have a big problem with neighbors involved because it helps keep the new buildings nice-looking.   But I am seeing a trend of a cadre of political-active core area residents that seem bent on blocking any significant change development that is not their own.  And this is a problem because there is a camp of people demanding that we do not need peripheral development… that we can density the downtown instead.  And some of the people blocking peripheral development are also blocking the downtown projects.

  3. ryankelly

    I hope they lose.

    Mike Harrington has allowed cars to park on the lawn area of his residential property  next to his commercial building for years.  He rented this home to businesses for years, but did not add handicap parking.  He has now put down gravel to make it seem like it is a parking place, but it is off the driveway and cars continue to park there.

    I travel by Harrington’s house several times a week when I go to the Co-op, and I see very little parking in front or along the side of his house.  I see not a lot of parking in general along that street and it looks no different than the streets around the area.  There is no physical impact on Mike Harrington.  He wanted a neighbor, which has prompted all of this.  He wanted a friend living next door.   Instead, he got a friendly therapist, who moved into a house that had already been renovated for commercial use (ramps for ADA access, firewalls along the West side, etc.).  He has forced the therapist to install screens and fences that block Harrington’s view of the house, which I think impacts the openness of the street and isolates Harrington’s house further from the neighborhood.  Harrington is not a good neighbor.  Harrington is a bully.

    My respect for the Old North Davis Homeowners Association has gone down a few notches for their support for this bully.

    1. Davis Progressive

      “There is no physical impact on Mike Harrington.”

      there are two issues – one is whether there is a physical impact and the other is whether the city is selectively changing their zoning when it sees fit.

      1. ryankelly

        Per staff, they followed the rules.  Mike Harrington opposed the conditional use permit and then sued on this one issue in an effort to force out the owner.  Mike seems to have no problem allowing his commercial tenants parking on the lawn in front of his property.   He also opposed the STEAC food closet’s efforts to install a better building next door to his property on City property on the corner of 5th & D, which also had the ONDHA involved.  Why is his fence wars with his neighbors always spreading to the whole neighborhood and even the City?  He bought these places knowing that there were existing and historic uses on the properties around him.  Neighborhood kids should door bell ditch him on a weekly basis.

         

        1. Alan Miller

          Neighborhood kids should door bell ditch him on a weekly basis.

          Neighborhood adults should stick with something a bit classier and more frequent, such as the always popular daily burning paper sack of wet dog feces.

    2. hpierce

      And, Mr Harrington owns a property on D Street, the northerly fence of which encroaches onto the City lot.  Perhaps he should rectify that as to have clean hands.  The encroachment was found by a local surveyor doing a topo when STEAC was seeking to expand its food/clothes closet on the City site, which he and the ‘Association’ fought tooth and nail.

  4. Gunrocik

    Totally agree with Ryan.  This vexatious litigant wants another payoff from the City, just like the $200K he received to back off on our perfectly legal water rates.

    Even though I don’t always need to take 7th Street to go the Coop, I always make sure I drive by his house so that my traffic impacts are maximized on him and not the adjacent neighborhood.

  5. Michael Harrington

    The fight is over preservation of historic areas of the city and the little bungalows that are so sweet in the downtown area.  I saved the three bungalows at 430–34 D St complex, and the 1911 and 1921 historic homes at 215 and 217 Second Street (known as the Turtle House).  I bought 721 7th Street in 2011 and spent most of a year fixing it up and saving it.  It’s the Chiles Family Farm House dating from 1913, when it was a gift to a Chiles Family Member on his/her wedding day.  Five children came from that marriage, and generations of Chiles family members have lived there since.  I was pleased and honored when Dan Dowling sold it to me, and it is my home.  We get to see trains across the street, lots of nice neighbors walking and biking past when we are on the front porch, and we walk over to the Coop Food Store across the street.

    I’m sorry that a few of the above posters have so much anger inside … they are welcome to contact me at any time if they wish to discuss these or any other issues.  Nothing about my legal case is personal;  it’s about overall planning and procedural issues governing our historic downtown areas.

    Saving historic bungalows is a personal and investment theme, and I’ve been consistent since I first bought one in 1997.

    1. Frankly

      Mike – while I appreciate the sentiment, I think this is at odds with mixed use commercial / residential development.   Are these bungalows protected by any historic society or designation?   And I don’t understand how opposing adjacent development is helping to preserve the bungalows.

      Lastly, are you in support of peripheral commercial development?

      1. Gunrocik

        Agreed, I don’t see any real bungalows either — and I don’t find the two apartment buildings very historic or bungalow-like either.

        I would also guess that the homeowners who have to endure the rowdy tenants at the Turtle House would be more than happy to swap out frat boys for a therapist’s office.

        And remember, whenever someone protests that isn’t about the money…

         

    2. ryankelly

      (Gagging sounds)

      It looks to me like Mike’s neighbor on 7th Street has a cute little house, so I’m wondering why Mike thinks suing the owner and the City is doing us a favor.  If he’s concerned about handicap parking, then at least he could start with his own property.  He could also stop encroaching on property that is not his.

      And that’s just a start.

      1. Biddlin

        gad·fly

        ˈɡadˌflī/

        noun
        noun: gadfly; plural noun: gadflies

        a fly that bites livestock, especially a horsefly, warble fly, or botfly.

        an annoying person, especially one who provokes others into action by criticism.

        ;>)/

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