by Judith Kaluzny / photos by Jane Rands
Neither approving nor denying, the Fullerton Planning Commission dismissed Joseph Florentine’s application for a conditional use permit (CUP) for his four establishments at the corner of Harbor Boulevard and Commonwealth Avenue after a hearing January 8. City planning staff had recommended approval. The establishments are, Florentine’s, Palapa Grill, 100 North Kitchen and Tribune Lounge, the last two being on the former public pedestrian right-of-way on Commonwealth Avenue.
Deficiencies in the application and staff report were uncovered by the property’s owner, Mario Marovic, the day before the hearing, so Community & Economic Development Director Matt Foulkes asked that the matter be continued. City Attorney Richard Adams stated that the basis of the request was that “a number of items had arisen in the past 24 to 48 hours…”–issues about the application, and an allegation of bias in his firm–so time to find independent counsel was needed.
Florentine had altered the CUP application form to eliminate the need for the property owner’s signature. He had changed item 2 of the Master Application Form from “Submitted by: Property owner” to “Submitted by: Use Owner.”
Florentine also asked for a continuance. “So why have a discussion if staff wants a continuance?” He said he had been told there would be a continuance so all his supporters and his lawyer had not stayed for a hearing.
Chair Gaarder said the hearing would go forward, over the objection of Commissioner Elizabeth Hansburg. He later asked, “Mr. Florentine, based on the letter from your attorney, it seems you acknowledge that you altered the city form … you did submit it.” Florentine said, “Of course I did, but with an explanation, and with guidance from staff…what would have been fraud is if I hadn’t made a modification and signed it as the business owner, as the property owner .”
Commissioner Douglas Cox asked Florentine why he didn’t just get the owner to sign. Florentine said he had asked several times and the answer was always no. He said he changed the CUP after research turned up a court case in which the owner did not sign a CUP application.
Cox said, “So you are saying that case law allows you to adulterate a municipal document, a legal form ….” “Did you hear me say that?” Florentine answered. After further words between the two, Commissioner Kathleen Shanfield said she was not comfortable with what she was hearing, and Commissioner Elizabeth Hansburg agreed.
With 10 minutes of further discussion, the commissioners agreed to dismiss Florentine’s application for the CUP. A video of the full hearing, Item 7 on the January 8 planning commission calendar, may be accessed at https://fullerton.legistar.com/Calendar.aspx.
The 1983 San Francisco case cited by Florentine, and by the city attorney in the staff report, was the basis for a claim that the term “legal owner” was ambiguous. City Attorney Richard Jones had recused himself after it was noticed that he owned property within 200 yards of the Florentine premises. His office was therefore unable to counsel the planning commissioners at Tuesday’s hearing. Chair Christopher Gaarder asked the staff to bring the commission a code amendment to define “this term, legal owner” so that there would be no further such questions. He also questioned how the city attorney’s office would not be aware of its conflict of interest well before a public hearing was scheduled.
The staff report for this hearing, which lists Mario Marovic as Property Owner, states that notification was made to “150 property owners and site addresses within a 300-foot radius of the project site, and posted two Public Hearing Notices on the property on December 26, 2019” .
However, property owner Marovic told the commissioners he had received no notice of the CUP application and hearing, that he learned of it only by seeing a posting on a window of the building. He contacted the associate planner in charge of the project, Christine Hernandez, who responded by email that she had not noticed the alteration of the CUP application form. He asked that the commission dismiss the application.
Marovic said “I had to find out about this hearing at the last minute, during the holiday season, by a posting on the window. Nobody ever contacted me. I couldn’t help but think, ‘Who signed the landlord consent form? How could they have processed this given the fact that we’ve has so much written communication with the city on this specific topic?’ We inquired of the staff multiple times and we were never told this application was processed.”
Michael Torres, lawyer for Marovic, said his client had not been notified of the application and hearing, that the application submitted by Florentine was forged and violates city codes, that the staff had been misled and had received bad legal counsel. He said Florentine argued that because he is using the property, he is the owner. Torres noted that the staff report for this hearing lists Mario Marovic as the property owner. Torres also said that because the city attorney owns property in the area, the attorney has a conflict and that calls into question all the advice staff had received.
Torres asked that Florentine’s application be removed from the agenda. “Do the right thing, uphold the law, protect property values and withdraw this application, it’s half-baked, it’s made in error, it’s made on a forged document; take no further action on it, and direct staff not to bring it back until the application is on an official form with the consent of the property owner.”
Eight businessmen, including a former planning commissioner, spoke in support of Marovic’s request to dismiss, not continue, the CUP application with a variety of comments such as “…shocked and appalled…not a bias, it is a conflict of interest…laughable to claim that ‘legal owner is vague…very clear who is ..follow your own rules….Overreaching from city attorney…obvious special treatment…crazy hairbrained thing.” Developer and property owner Tony Bushala said alteration of a government document is a crime and that Florentine committed fraud. “I intend to follow up with this. I’m not going to let this go like this. Mr. Florentine committed a crime.”
After testimony from tenant Florentine, property owner Marovic and his lawyer, and nine citizens, Florentine rebutted by saying, “We spent weeks trying to find a precedent, weeks trying to find prior case study, weeks doing research, collaboration, discussion, more research, weeks over weeks over weeks–not just the city attorney’s office but other attorneys, other people with legal minds… .
“I have a lease agreement, a contract, to use this property the way I’ve been using it for almost 30 years… The lease contract allows me to run a restaurant and a bar…Mario bought the contract, didn’t he, he bought the building with a long-term tenant who has another 22 years from today, operating and using that space for doing today what I did 25 years ago. … I have the right to use the property the way I’ve been using it for 25 years, the way it’s intended to be used in the contract for the next 22 years…He bought the lease, he bought the contract.”
In his initial comments in support of his application, Florentine said he had been in Fullerton “three decades at this location…,” that they were a solid member of the community, employed many, that he had had the same landlord until two years ago when Marovic and family purchased the property. At the same time, he had received an offer to buy his business and turned it down. Then, he said, complaints were raised about unenforceable CUP’s, that his landlord was obstructing his efforts to comply, and was a competitor across the street with ulterior motives, and a”predator landlord.”
“I feel we have a good solid foundation to more forward without the signature of this particular landlord, that there is some case law that supports our position, that gives us an inalienable right because we have been there so long…we’ve been there almost 30 years and I have another 22 years left on my lease. The Marovics bought the building with that lease in place.” He asked that the hearing be continued for more study.
An unlawful detainer action between Florentine and Marovic has been pending in the Orange County Superior Court.
Mario Marovic said his father, now 83 years old, had escaped Communist Yugoslavia , worked hard, bought a small property in Fullerton in the 80’s, and they now own several properties in Fullerton.
He said November 18, 2018, in a staff discussion during the planning commission meeting it was made clear that the property owner’s notarized signature would be required for a CUP, that it was made clear, with no misunderstanding, that the discussion referred to Florentine’s. He noted that in May 2018 he had been told by the development director that “the authorization of the property owner will be required in order to process an amendment to the CUP,” also referencing Florentine’s.
Displaying on the overhead projector the Florentine application and highlighting the alterations, Marovic said, “The city staff that we talked to denies that they knew this document was modified when they processed it.” He displayed Fullerton Municipal Code Section 15.70.020(A): “An application for a CUP shall be filed only by, or written authorization from, the legal owner of the property,” and the same requirement on the first page of instructions for a CUP application.
He also displayed the deed showing his ownership. “My signature is on the bottom right…I pay property taxes on it, I pay insurance on it, I’ve got messages on my answering machine in evening hours from Joe Florentine asking me to fix the leaky roof…,I’m the person who maintains the property, I’m the person who took all the risk to buying the property, I’m the person who saved money for years and years and years of working to own this property. Nobody can take my property rights away from me. It’s illegal.”
“I am not saying that I will never consent to a CUP amendment for the applicant…I am asking you to dismiss and not continue this item…a valid application has not been received and processed by the city… Please take this off the calendar and not bring this back until a new application has been submitted with property owner’s written consent on a valid form. That’s all I ask; do what we’ve done for every single applicant since the beginning of time in this city.”
The hearing commenced at 10:30 p. m. and concluded at 11:40 p. m. just as Florentine’s lawyer appeared. The chair ruled that he had no standing to speak.
With 10 minutes of further discussion, the commissioners agreed to dismiss Florentine’s application for the CUP. A video of the full hearing can be found by clicking on Item 7 on the January 8 planning commission meeting on the city’s web site: www.cityoffullerton.com.
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