Business Expands onto Public Sidewalk: History and Update

Restoration of the public sidewalk on East Commonwealth Avenue at Harbor Blvd. might be decided in court. Acting Director of Community and Economic Development Greg Pfost, responding to a question from The Observer, said “The City Attorney’s office and staff will be meeting with Mr. Marovic [the property owner] to discuss his issues.”

The Marovic family purchased the property and businesses at the Commonwealth-Harbor location from the Florentines about four years ago. Mario Marovic is installing two new restaurant-bars to replace the Florentine enterprises. The issue is whether the addition which was built in 2003 on 384 square feet of public sidewalk, attached to the Florentine restaurant known as the Tuscany Club, should be removed and the public right of way restored. This question was on the City Council agenda April 5 but was withdrawn without a continuance date being set. The encroachment is colloquially termed “the bump.”

The encroachment shows recent construction. Photos by Damion Lloyd.

Marovic had withdrawn his application for a new conditional use permit (CUP) which had been approved by the city planning commission during a public hearing February 16. In a telephone interview, he said he wanted time to work out items, that consulting with the City, they would “work out in good faith… everything properly vetted…,” a solution that would be “mutually beneficial.” He indicated that the City was meeting with his “government relations people.”

During the hearing on Marovic’s CUP, the planning commissioners discussed and agreed that the encroachment onto the public sidewalk ought to be removed. They agreed unanimously to “direct Staff to take the issue of the encroachment on Commonwealth Avenue to City Council conveying the Planning Commission’s concerns and the option to possibly have it returned to the City.” They also approved Marovic’s requested CUP which included two outdoor dining patios on the property located at 100-104 North Harbor Boulevard.

A group of citizens led by Ken Bane filed an appeal of the commission’s CUP approval. A hearing was set for April 19. When Marovic withdrew his application for the new CUP the appeal became moot, and the appellants have no plans to take further action regarding the Marovic properties and businesses.

Construction of an “Enclosed addition to building” was done on a six foot width, 55 foot length, of public sidewalk by Tony Florentine in 2003. The work was authorized by then-Acting Director of Redevelopment and Economic Development F. Paul Dudley on June 3 of that year. The authorization was written on a Downtown Fullerton Outdoor Dining Encroachment Agreement. The terms of that agreement stated that “The terms of this Encroachment Agreement for outdoor dining are not transferable.”

On February 3, 2004, Dudley as Director of Development Services presented to the city manager and city council his 27 page review of “the history of the remodel of the property located at 100 N. Harbor Blvd….” Dudley was then also Acting Director of Economic and Redevelopment Services through which applications for outdoor dining encroachments were processed.

A subsequent lease agreement was signed in November 2004 between the city and the Tuscany Club at 100 North Harbor Blvd. The lease had been discussed publicly in February that year, according to a staff report November 16. The new lease acknowledged that “During June 2003 the design of the proposed outdoor patio was changed to its current atrium design…” It refers to the premises as “enclosed atrium patio bar.” A 2017 amendment redefines the rent and extends the lease to May 2023. It states that all other terms of the 2004 Agreement remain in effect.

3 replies »

  1. By its terms, the 2004 Agreement for the encroachment is transferable to a successor.

    • A successor to what? Building ownership? Business successor? Either way the City would have to approve the assignment which it has shown no evidence of having done. And Florentine didn’t sell his business to anybody, looks like he just pulled out. And that leaves Mario with no obligation and maybe a big hole in his building’s wall. Unless there is a top-secret new lease.

  2. Good summation of the history, with one omission. At the PC meeting the City Attorney and planning staff deliberaltey led the Commission to believe that Marovic has a lease from 2017. That was untrue.

    The truth of the matter is that either Florentine’s corporation owns the encroachment, or the City has acquired it by default. Marovic wants it, sure, but he’s under zero obligation to remove the structure or to replace the sidewalk. I would imagine Fullerton would have to pay Marovic to rebuild the storefront at the actual property line.

    Since Paul Dudley is the proud architect of this disaster – along with Bankhead, Jones, Wilson, Clesceri, and Shawn Nelson, I suggest HE pay to to do the fix.