Appellate Court Hands Another Defeat to Harrington

Michael Harrington speaking at council in 2015

It all started over Catherine LeBlanc’s efforts to operate a psychotherapy office on 7th Street in Davis.  Former Davis City Councilmember and attorney Michael Harrington has been battling the city and his neighbor, challenging the city’s approval of a Conditional Use Permit, for several years – the superior court went against him and now the appellate court has dealt him a stinging blow.

The California Court of Appeal for the Third Appellate District recently ruled in favor of the city of Davis and Catherine LeBlanc on all counts in a land use lawsuit brought by Michael Harrington against the city and Catherine LeBlanc, a local business owner, the city announced on Tuesday.

“This decision upholds the previous trial court decision, which also ruled in the City’s favor,” the city reported.

The court issued its decision, which allows Ms. LeBlanc’s business to continue operating in its current location, under the conditional use permit (CUP) issued by the city.

Ms. LeBlanc is a marriage and family therapist and owns a property on 7th Street, in an area where zoning allows for uses such as nursery schools, medical clinics and professional offices, if the owner receives a conditional use permit.

Via a valid public process, Ms. LeBlanc received a CUP from the city to use the property as therapists’ offices for up to three therapists. The property had previously been used as a massage and acupuncture clinic, the city said.

This ruling upholds the city’s decision and surrounding process regarding the CUP, and the city’s findings related to required parking for the site. The project was vetted in several public settings, first at the Planning Commission, which approved the project 5-1, and then later on appeal by Harrington to City Council, which voted unanimously in favor of the project.

Mr. Harrington had challenged “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.”

The city believes that “the on-site parking requirements for the conditionally permitted professional office use at 717 7th Street have been met because the City did not require an accessible parking space.

“The property meets with all state and local building codes and provides the correct number of on-site parking spaces, as required by local rules and regulations,” the city wrote.

The city did not believe parking would be a nuisance to the neighboring areas and included “a condition that should parking become a problem for the residents of 7th Street located between F and G Streets, parking would be reviewed by the Planning Commission and additional conditions could be imposed to address the parking issues.”

Mr. Harrington responded that he “was concerned that street parking, though plentiful now, might become scarce in the future. Harrington was also concerned that the project would be incompatible with the residential character of the R-3-M zoning district.”

Mr. Harrington contended that the city abused its discretion in approving the conditional use permit, which he believed required Ms. LeBlanc to provide an accessible parking space.

The court writes, “Contrary to Harrington’s suggestion, the conditional use permit does not require LeBlanc to provide an accessible parking space in the front yard setback or anywhere else.”  And they add, “To the contrary, the staff was clear that the purported accessible parking space ‘would not count as a required space.’”

The court noted, “Harrington contends the City Council’s consistency findings are not supported by substantial evidence. Under our substantial evidence review, the City Council’s consistency findings are presumed to be supported by the administrative record, and Harrington has the burden to show there is no substantial evidence whatsoever to support them.”

The court concludes: “On this record, we have little difficulty concluding that the City Council’s consistency findings are supported by substantial evidence. We reject Harrington’s argument to the contrary.”

In so doing, the court concluded: “(1) the conditional use permit does not require parking in the front yard setback, (2) the City’s reasonable construction of the Building Code is entitled to deference, and its determination that the issuance of the conditional use permit did not result in a change in occupancy is supported by substantial evidence, (3) Harrington has forfeited the argument that the conditional use permit contemplates alterations within the meaning of the Building Code, (4) technical infeasibility findings were not necessary, as the City Council did not rely on that theory, and (5) the City Council’s consistency findings were legally sufficient and supported by substantial evidence.”

“The appellate court’s strong ruling in favor of the city and Ms. LeBlanc shows that the city acted appropriately, according to our community’s established rules, and with respect to the proper public process,” said Mayor Robb Davis. “I am pleased that both the Trial Court and the Appellate Court realized there was no merit to the plaintiff’s allegations. Now the city can focus on providing services to the community rather than spending time, energy and money to defend ourselves in unnecessary lawsuits.”

The appellate court has also determined that this decision will be published in the appellate law reports, which means that the decision will be citable in other cases with similar situations.

—David M. Greenwald reporting

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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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  1. Howard P

    As I understand it, ‘publishing’ an opinion/judgement, means its pretty “rock solid”…

    Would be interesting to know the total City costs in preparing for, and defending, both @ trial court and at the appellate level.

    1. Eric Gelber

      “Rock solid” is not the standard used to certify an appellate decision for certification. Published appellate decisions are often overturned and different appellate courts often disagree on application of the law. The criteria are listed in Rule 8.1105 of the California Rules of Court:

      (c) Standards for certification
      An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
      (1)Establishes a new rule of law;
      (2)Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
      (3)Modifies, explains, or criticizes with reasons given, an existing rule of law;
      (4)Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
      (5)Addresses or creates an apparent conflict in the law;
      (6)Involves a legal issue of continuing public interest;
      (7)Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
      (8)Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
      (9)Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

      1. Howard P

        Thank you Eric for the clarification… that is good to know… believe it or not, will make a copy of that for future reference by myself or others.

        Who makes those determinations?

        1. Eric Gelber

          The appellate court determines if its opinion meets the requirements for publication. But the Supreme Court, on its own motion or upon a petition for review, can review an appellate court decision to publish or not publish an opinion. The Supreme Court can then order publication or depublication in whole or in part.

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