Smith v. City of South El Monte
Filed 7/20/06 Smith v. City of South El Monte CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR
| LEROY SMITH, et al., Plaintiffs and Appellants, v. CITY OF SOUTH EL MONTE, Defendant and Respondent. | B187277 (Los Angeles County Super. Ct. No. BS097344) |
APPEAL from a judgment of the Superior Court for Los Angeles County, Dzintra Janavs, Judge. Affirmed.
Roger Jon Diamond for Plaintiffs and Appellants.
Kutak & Rock, Paul F. Donsbach, Jennifer L. Andrews and Edwin J. Richards for Defendant and Respondent.
In this case involving the denial of a permit to operate an adult business in the City of South El Monte, appellants Leroy Smith, Akbar Baharian-Mehr, and Hossein Mozaffarian (Petitioners) appeal from a judgment denying their petition for writ of administrative mandamus. Petitioners contend the denial of the permit was improper because the City applied an ordinance that was enacted after Petitioners filed their original application for the permit. They contend the City would have been required to issue the permit had the ordinance in effect at the time of their application been applied, but instead the City enacted the new ordinance in order to defeat their application. The trial court found that the City enacted the new ordinance to correct a mistake in the old ordinance, which mistake the City discovered as a result of Petitioners' application. Because there is substantial evidence that the new ordinance was enacted to correct a mistake, we affirm the judgment.
BACKGROUND
On December 14, 2004, Petitioners submitted to the City an application for an adult business permit. In a letter to the City Manager accompanying the application, Petitioners' attorney stated his belief that the proposed project met all of the existing permit requirements. At that time, the City's Municipal Code[1] provided that an adult business could not be located within 500 feet of, among other things, any park or any property zoned for residential use. (§ 5.25.070, subd. (A)(2).) The Code at that time also specified that that distance was to be measured in a straight line from the primary entrance of the adult business to the property line of the sensitive use. (§ 5.25.070, subd. (B).) The attorney's letter noted that all measurements of the distances between the proposed use and the sensitive uses were taken in accordance with section 5.25.070, subdivision (B), which he set forth.
On January 25, 2005 -- before any action was taken on Petitioners' application -- the City Council passed two urgency ordinances, Ordinance Nos. 1065-U and 1066-U. Ordinance No. 1065-U amended Chapter 5.25 of the Municipal Code (which governs adult businesses) to, among other things, provide that the distances between the proposed adult business and sensitive uses were to be measured in a straight line from property line to property line.[2] Ordinance No. 1066-U was an interim ordinance that added Chapter 17.19 to the Municipal Code. That Chapter established an adult business overlay zone, and its purpose was to provide â€
