Grand Ave.
Enterprises v. City of Los
Angeles

 

 

 

 

Filed 1/29/07  Grand
Ave. Enterprises v. City of Los Angeles CA2/3

 

 

 

 

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

California
Rules of Court, rule 977(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 977(b).  This opinion has not been certified for publication
or ordered published for purposes of rule 977.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE
DISTRICT

 

DIVISION THREE

 

 

GRAND AVENUE ENTERPRISES, INC., etc., et al.,               Plaintiffs and Appellants,               v.   CITY OF LOS ANGELES, etc., et al.,               Defendants and Respondents.

B183343         (Los Angeles County       Super. Ct. No. BS 085918)

 

 

            Appeal from a judgment
of the Superior Court of Los Angeles
County, David P. Yaffe and David L. Mining, Judges.  Reversed.

            Roger Jon Diamond for
Plaintiffs and Appellants

            Rockard J. Delgadillo, City
Attorney, Jeri L. Burge, Assistant
City Attorney, Michael L. Klekner and Steven N. Blau, Deputy City Attorneys for
Defendants and Respondents.

 

______________________________

 

INTRODUCTION

            Los Angeles Municipal
Code (LAMC) section 12.70 forbids the location of an adult entertainment
business within 500 feet of a school.  Grand Avenue Enterprises, Inc. (GAE)[1]
sought to open an adult
entertainment concern in central Los Angeles.  After issuing building
permits to GAE, the Los Angeles Department of Building and Safety learned that
the Los Angeles Unified School District had already obtained approval from the
Division of State Architect to construct a middle school 150 feet from GAE's
lap dancing cabaret.  The Department of Building and Safety revoked GAE's
permits prompting GAE to file a petition for writ of mandamus seeking to overturn the
Department's action.  The trial
court denied the writ petition and granted the motion for judgment on the
pleadings brought by defendant City of Los Angeles (the City) concerning GAE's
claim for damages.  GAE appeals.  We hold that the Department of Building and
Safety abused its discretion in relying on LAMC sections 12.70 B(11) and hence 12.70C
as the basis for revoking GAE's permits.  Accordingly, we reverse the judgment.

FACTUAL
AND PROCEDURAL BACKGROUND

            a.  The underlying
events.

            On January 17, 2001, the Los Angeles Unified School District (LAUSD) authorized a feasibility study for
a new middle school for 1,512 students, referred to as Central Los Angeles Area
New Middle School #4, to be located on Grand Avenue between 35th and 37th
Streets in downtown Los Angeles.  Beginning in February 2001, LAUSD held three
public meetings to discuss the new school, and notified property owners of its
decision to conduct a feasibility study of the school site and determine
whether the property should be taken by eminent domain.  Notice that the
environmental impact report for the project was available for public inspection
was published in three newspapers.  On December 13, 2001, LAUSD applied to the Division of the State Architect for approval to construct Central Los Angeles Area
New Middle School #4.  The State Architect gave its approval on June 13, 2002, for the construction of the foundation system, anchor the overhead
nonstructural elements, and conduct site work for the new school.  Soon
thereafter, in June 2002, LAUSD placed a six by ten foot sign on the property,
about two hundred feet from 3700 South Grand Avenue, announcing the planned
opening of the new middle school at the site in the fall of 2005.

            Meanwhile, around October 19, 2001, after LAUSD's public notices and meetings, GAE, a limited partnership, was
formed to open and operate an adult cabaret near downtown Los Angeles.  It closed
escrow on the property located at 3700 South Grand Avenue -- less than 150 feet
from the proposed school site -- and submitted to the City's Department of
Building and Safety its plans to alter the existing warehouse at that location
and to construct a lap dancing concern (an adult cabaret or a â€