William D.

Ross Law Office of Palo Alto Office:

Kypros G. Hostetter
Karin A. Briggs William D. Ross 400 Lambert Street
Isabel Birrueta 520 South Grand Avenue, Suite 300 Palo Alto, California 94306
Matthew S. Schuman Telephone: (650) 843-8080
Los Angeles, CA 90071-2610 Facsimile: (650) 843-8093
Telephone: (213) 892-1592
Facsimile: (213) 892-1519

File No: 473/3

July 26, 2010

VIA ELECTRONIC MAIL

The Honorable Mayor Guy S. Bjerke

And Councilmembers of the
City of Concord
1950 Parkside Drive
Concord, CA 94519

Re: Request for Reconsideration; Appeal of Approval for Pop’s Bingo World
to Establish Bingo Parlor Use 1505; Willow Pass Road; APN 126-300-
036; City Council Meeting, July 13, 2010; Agenda Item No. 4.a.;
Resolution No. 10-71; City Council Meeting, July 27, 2010, Agenda Item
No. 3.i. Proposed Resolution No. 10-71

Dear Mayor Bjerke and Councilmembers:

I. INTRODUCTION

This office represents Enea Court Properties and prospective lessee Pop’s Bingo
World (collectively, the “Applicant”), the Applicant for an Administrative Application (Case
No. AA 10-010) (the, “AA” or “Application”), which was the subject of an appeal to your
Council from a June 2, 2010 Planning Commission (the “Commission”) decision, after a
hearing (“June 2 Hearing”) which had approved the AA after an initial AA approval by the
Planning Department on April 16, 2010. At your July 13, 2010 Council meeting (“July 13
Hearing”) your Council granted the Appeal of BD Performing Arts (the, “Blue Devils”), a
competing bingo business, denying the AA as previously approved by both the Planning
Director and the Commission.

This communication constitutes a request for reconsideration based on the inherent

power of the Council to reconsider any action it has taken as well as your City Council
Meeting Procedures Section 4.241. The July 27, 2010 Agenda Item 3.i, agendized under the

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And Councilmembers of the
City of Concord
July 26, 2010
Page 2

City Council Consent Calendar, presents a resolution which purports to confirm your July 13,
2010 decision.

The basis for reconsideration, detailed in this communication, is that your Council’s
action was inconsistent with applicable law in that there is no requirement for conditional use
permit (“CUP”) for a bingo parlor use in existing facilities within the City, as that use, as
correctly and consistently advised by City Staff, is governed by the provisions of Chapter 6
of the City Municipal Code (“Municipal Code”) through administrative application. Further,
the AA procedure was only implemented after extensive discussion with City Staff upon
recommendation of a City Councilmember and is consistent with the plain meaning of the
Municipal Code and the City Staff interpretations. Likewise, to the extent that it is claimed
that there is a need to analyze the Application further under the California Environmental
Quality Act (Pub. Res. Code § 21000 et seq., “CEQA”), this likewise is inconsistent with
applicable law and prior Staff determinations. Finally, cumulative procedural violations
resulted in a denial of a fair hearing to the Applicant.

Reconsideration, accordingly is appropriate, and should be authorized by the Council,

setting the matter for a reconsideration hearing at your next Regular or Special Meeting.

II. FACTUAL BACKGROUND

On March 3, 2010, Enea Court Properties (“ECP”) submitted an Administrative

Application, Case No. AA 10-010, with required plans for the Pop’s Bingo World use on
their property located at 1505 Williow Pass Road (the “Property”). The Application was
preceded by meeting with City Staff which occurred as a result of the direction of a City
Councilmember 1 as to the precise procedure in which the proposed use would be processed
by the City.

The Application was approved by City Staff, consistent with the AA procedure with
conditions as set forth in the communication of April 16, 2010 from a City Senior Planner.
See, July 13 Hearing Staff Report, pp. 12-14, attached to this communication. This approval
was appealed to the Commission on April 26, 2010 by the Law Firm of Andersen, Bonnifield
& Roscha on behalf of the Blue Devils, the operators of a competing bingo parlor and charity
in the City.
1
The involved City Councilmember, after indicating to the Applicant that the Administration Application method
was the procedure to authorize the Pop’s Bingo World Use, inconsistently voted to grant the Appeal at your July 13
Hearing..

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And Councilmembers of the
City of Concord
July 26, 2010
Page 3

The Commission considered this appeal on June 2, 2010, and after recessing to review
communications advanced by the referenced law firm, unanimously denied the Blue Devils
appeal and upheld Staff’s approval of the use. The Commission decision was subsequently
appealed on June 11, 2010 by the Blue Devils legal counsel to the City Council (the
“Appeal”). An extensive Staff Report was prepared to the City Council, comprehensively
addressing each of the seven claims purportedly serving as a basis for the Appeal. Among
the conclusions set forth in the Staff Report was the following:

As Staff reported to the Planning Commission, and as the

Commission unanimously agreed, the approval of this use at this
location poses none of the legal concerns posited by Appellants.
Rather, the proposed business model complies with state
constitutional and statutory provisions, as well as the Concord
Municipal Code. Furthermore, it is consistent with the Concord
General Plan designation, as well as similar to other commercial
recreation uses that have occupied the site, and will have no
significant environmental effects. For all of these reasons, in
addition to those discussed herein, staff recommends that the
City Council deny this appeal.

July 13 Hearing Staff Report, p. 1. At the July 13 Hearing, the City Attorney reminded
the City Council that its decision must be based on substantial evidence and land use
regulations alone—and not based on economic competition or favoring one charity over
another. Video, Part 1, 25:36,- 26:53, 27:20-27:55. 2

Despite the Staff’s thorough analysis and recommendation, supported by substantial

evidence in the record, the Council approved the Appeal, overturning the Planning
Department AA approval as upheld by the Commission, and agendized the proposed
Resolution 10-71 (the “Resolution”), which purports to contain findings confirming and
sustaining the Appeal. As the Resolution is substantively flawed, and was the product of a
denial of a fair hearing to the Applicant, the Applicant submits this reconsideration request to
rectify those errors.

2
In addition to the City Staff Report referenced, we have reviewed the taped video proceedings of the extensive
July 13 Hearing. References to the online taped proceedings are necessarily approximate, and will be referenced as
Video, Part __, 00:00/

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And Councilmembers of the
City of Concord
July 26, 2010
Page 4

III. AUTHORITY FOR RECONSIDERATION

The Applicant respectfully requests reconsideration of the July 13, 2010 Council
decision under the common law doctrine which provides that "[a]ny deliberative body --
administrative, judicial, or legislative -- has the inherent power to reconsider an action
taken by it unless the action is such that it may not be set aside or unless reconsideration
is precluded by law. [Citations.]" In re Fain (1983), 139 Cal. App. 3d 295, 298; see also
Environmental Protection Information Center v. California Department of Forestry and
Fire Protection et al. (2005) 134 Cal. App. 4th 1093, 1125-26; United States v. State
Water Resources Control Board, (1986) 182 Cal.App.3d 82, 149; In Re Bray, (1979) 97
Cal.App.3d 506, 511; McConoughey v. Jackson (1894), 101 Cal. 265, 269 [[t]he right of
reconsidering a last measure at the same meeting, or pursuant to its rules at a subsequent
one, is a right inherent in all legislative assemblies].

Reconsideration is also sought consistent with Section 4.241 of the City Council
Meeting Procedures 3 such that reconsideration may be addressed at a subsequent Council
meeting.

IV. LEGAL STANDARDS APPLICABLE TO THE APPEAL HEARING AND

THE RESOLUTION

A. Standard of Review for Quasi-Adjudicatory Hearing

The AA Appeal is a quasi-adjudicatory hearing as it involves the actual application

of rules (here the Municipal Code) to a specific set of existing facts. Strumsky v. San
Diego County Employees Ret. Ass'n, (1974) 11 Cal.3d 28, 35. Because the determination
of the Appeal is quasi-adjudicatory, judicial review of the Council decision is governed
by the Code of Civil Procedure (“CCP”) section 1094.5, which provides in relevant part:

The inquiry in such a case [as the Appeal] shall extend to the
3
City Council Meeting Procedures Section 4.241 sets forth in relevant part:

A motion to reconsider may be made at any time during the meeting at which the
action was taken, or any adjournment or continuance of that meeting. . . . provided
however that in response to a request for reconsideration made by a member of the
public during the public comment period, a majority of the City Council may direct
that the topic of reconsideration shall be placed on the agenda of the next City
Council meeting.

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And Councilmembers of the
City of Concord
July 26, 2010
Page 5

questions whether the respondent has proceeded without, or in

excess of jurisdiction; whether there was a fair trial; and whether
there was any prejudicial abuse of discretion. Abuse of
discretion is established if the respondent has not proceeded in
the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by
the evidence.

CCP § 1094.5(b) (brackets added); Gong v. Fremont (1967) 250 Cal.App.2d 568, 572.

B. Municipal Code Standards Applicable to Appeal

1. Standard for Approving the AA

Under the City Municipal Code, determinations relating to development on

Planned Development (“PD”) designated land, “minor, noncontroversial matters” are
considered administratively. Municipal Code § 122-683.

2. Standard for Requiring a CUP

Correspondingly, the City Zoning Code section 122-71 provides when a CUP is
required:

Use permits, revocable, conditional, or valid for a term period,

may be issued for any of the uses or purposes for which such
permits are required or permitted by the terms of this chapter.

3. City Planning Staff Interpretation Of The City Zoning Code

The City’s interpretation of its own ordinance is a "contemporaneous

administrative construction of a statute by an administrative agency, entitled to great
weight unless clearly erroneous or unauthorized.” Flavell v. City of Albany (1993) 19
Cal.App.4th 1846, 1851. Also, interpretations of zoning ordinances by planning officials
charged with their enforcement are persuasive as to the meaning of the ordinances and are
entitled to substantial deference. See Hewlett v. Squaw Valley Ski Corp. (1997) 54

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And Councilmembers of the
City of Concord
July 26, 2010
Page 6

Cal.App.4th 499, 526. 4

C. The City Land Use Powers Are Not Unlimited

California Courts have made clear that a City may not arbitrarily apply land use
standards:

While a city has broad authority over the regulation of land use
within its territory, that authority is not unlimited. Where certain
uses are permitted, a city cannot arbitrarily exclude others who
would employ a similar use. (citation.) Zoning and building
laws "cannot be used unqualifiedly to restrict competition"
(citation), or simply to shield existing businesses from
competition (citations). While valid zoning regulations may
affect competition and have other economic effects, a city does
not have carte blanche to exclude a retail merchant that it, or
some of its residents, do not like. (citation.)

Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1013 (“Friends of Davis”).

V. COUNCIL SHOULD RECONSIDER THE RESOLUTION

A. The Council Has Proceeded in Excess of Its Jurisdiction by Approving

the Resolution, As A CUP Is Not Required For A Bingo Parlor

A City’s land use powers are not un-restricted; a City must follow the rules set
forth in its Municipal Code:

. . . a [City] is a creature of limited powers, having only those

powers which are delegated to it by the Constitution or the
Legislature. And when a [City] acts as it does here under
authority derived from a statute, it must strictly follow the
4
See also Elysian Heights Residents Ass'n, Inc. v. City of Los Angeles (1986) 182 Cal.App.3d
21, 32 (“Elysian Heights”); Browning Ferris Industries v. City Council (1986) 181 Cal.App.3d
852, 866 (“BFI”); and Rasmussen v. City Council (1983) 140 Cal.App.3d 842, 851.
(“Rasmussen”)

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And Councilmembers of the
City of Concord
July 26, 2010
Page 7

statutory provisions; the mode of the power is also the measure

of the power. [Citations.] (Alterations added)

City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 567; see also, Wildlife
Alive v. Chickering (1976) 18 Cal.3d 190, 196; Irwin v. City of Manhattan Beach (1966)
65 Cal.2d 13, 20-21.

Thus when the Municipal Code provides a standard, the City must apply it.
BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1221 & fn. 10;
Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 1225-1227.

The City Municipal Code sets forth the requirements for when a CUP is required.
As noted, supra, a CUP may be required where it is required by the Zoning Ordinance.
Municipal Code, § 122-71. Additionally, certain enumerated Municipal Code sections
expressly specify a CUP requirement. See, e.g., Municipal Code Section 6-234
(Mechanical & Electronic Games); Section 58-60 (Interim use of vacated area of
mobilehome park); Section: 82-113 (Recycling Facilities); Section 94-392 (Condominium
Conversion Applications); Section 122-187 (use of abandoned drive-in facility); Section
122-906 (Adult Businesses).

But nowhere in the Zoning Ordinance is there a requirement that a bingo parlor use
requires a CUP. However, the Municipal Code does set forth standards for the regulation
of bingo parlors, Chapter 6, sections 6-61 -- 6-64, and does not require a CUP. Thus, it is
clear the Municipal Code does not require a CUP for bingo parlors as the enumeration of
acts or things as coming within the operation of a statute precludes the inclusion of
implication of other acts or things not listed. 5 Elysian Height, supra, 182 Cal.App.3d at
29. Stated differently, because the Municipal Code sets forth specifically where a CUP is
required, those provisions are the exclusive authority for requiring a CUP in the City.
Despite Councilmembers’ concern expressed at the end of the July 13 hearing that it
somehow does not feel right not to require a CUP for a bingo parlor [See, e.g., Video, Part
7, 19:49], the requirements of the Municipal Code must be followed. Accordingly, the
Municipal Code does not provide the authority to require a CUP for a bingo parlor.
Because the City Council must apply the Municipal Code standards, it proceeded in
excess of its jurisdiction when in Resolution section 3 it proposes to require the Applicant

5
Standard rules of statutory construction are applicable to interpretation of municipal ordinances. C.Y.
Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 929.

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And Councilmembers of the
City of Concord
July 26, 2010
Page 8

to file a CUP application for its bingo parlor which is not allowed by the Municipal
Code, 6 but instead is subject to the AA procedure.

If the City wishes to require a CUP for Bingo Parlors in the City it should amend
its Municipal Code, consistent with the City General Plan, to so require-but it would still
be inapplicable to this Application, as the Municipal Code may not be applied
retrospectively. See, California Country Club Homes Assn. v. City of Los Angeles (1993)
18 Cal.App.4th 1425, 1433.

B. The Resolution Approval Constitutes A Prejudicial Abuse Of

Discretion As It Lacks Legally Sufficient Findings Supported by
Substantial Evidence

1. Legally Insufficient Findings

The proposed Resolution sets forth the following as findings, which are
legally insufficient and unsupported by substantial evidence:

***
b. The 1978 Use Permit approved for the change in use from a
theatre to a health club facility does not authorize the applicant's
proposed use of the subject property for charitable bingo games.
c. Additional analysis is needed to evaluate whether or not the
proposed bingo hall use would create any adverse environmental
or community impacts.
d. The City Council is unable to find that the proposed
development constitutes a minor, noncontroversial change from
the existing use of the subject property; and therefore it cannot
be approved administratively. 7

6
At the hearing, the project opponents stated that their bingo Parlor required a CUP at the time of its approval. This
is irrelevant as the City must apply the law in effect at the time of the discretionary approval is sought. Additionally,
at the July 13 Hearing, City Staff clarified that the Blue Devils CUP was required because the particular PD zoning
where that bingo parlor use was sought, expressly required a CUP for all used not enumerated, unlike the PD
zoning where the Property is located.
7
Applicant does not challenge the Finding set forth in Section 1(a) as Applicant agrees that the 1979 Preliminary
Development Plan is inapplicable to the subject property.

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And Councilmembers of the
City of Concord
July 26, 2010
Page 9

See, Resolution, Section 1.

It is well established that a quasi-adjudicatory decision, such as the AA, must be

supported by legally adequate findings which in turn must be supported by substantial
evidence in the record. Topanga Ass’n for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 511, 512 (“Topanga”). The Resolution findings do not meet the
Topanga Standard, as the City “must set forth findings to bridge the analytic gap between
the raw evidence and ultimate decision or order.” Id. at 515. “Substantial evidence” is
“relevant evidence that a reasonable mind might accept as adequate to support a
conclusion or evidence of ponderable legal significance reasonable in nature, credible,
and or solid value.” Auburn Woods I Homeowners Assoc. v. Fair Employment and
Housing Commission (2004) 121 Cal.App.4th 1578, 1583.

Here, the Resolution “findings” do not bridge the analytical gap between the
decision of granting the Appeal as they do not “trace and examine” the path from
evidence to decision. Topanga, supra, 11 Cal.3d at 516. They do not reflect the repeated
City Planning Staff findings, which interpret, consistent with the plain meaning of the
Municipal Code that proposals for a bingo parlor use are to be handled administratively,
does not require a CUP for a bingo parlor and that the change to a bingo parlor use is
exempt under CEQA.

The detailed findings deficiencies follow:

2. The Commission Approval Of The Application Was Not

“Authorized” By The 1978 CUP.

Resolution finding Section 1.b. conclusionarily sets forth that the 1978 Use Permit
approval for the change in use from a theatre to a health club facility does not authorize
the Applicant's proposed use of the Property for charitable bingo games. But the
Commission approval of the Application did not rely upon, as the Resolution implies, the
1978 CUP, instead it found it consistent with that CUP. The July 13, 2010 Staff Report
sets forth that the Bingo Parlor is consistent with the 1978 CUP; it does not claim to be
approved under that CUP:

In evaluating the application, staff considered whether the

proposed use was consistent with the General Plan Downtown
Mixed Use designation and with the uses that have previously

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And Councilmembers of the
City of Concord
July 26, 2010
Page 10

occupied the site. Prior uses included a health club and spa
facility approved by Use Permit in 1978 (UP 65-78), and most
recently, Velocity Sports which was approved administratively.
Indeed, use of the bingo hall satisfies these concerns.

July 13 Staff Report, p. 4. Additionally the Staff proposed Resolution denying the
Appeal did not find that it relied upon the 1978 CUP. See, July 13 Staff Report,
Attachment 1. The July 13 Staff Presentation too does not assert reliance upon that CUP,
merely that the use is consistent with it. Video, Part 1, 21:30-23:16. The June 2 Staff
Report describes the 1978 CUP as part of the Project background, noting that uses since
then have been consistent with that CUP. Nowhere does the June 2 Staff Report assert
that the approval of the bingo parlor use relies upon the 1978 CUP still being valid. Thus
there is no substantial evidence in the Record to support the finding that implies that the
change to bingo parlor use was “authorized” (i.e., relied upon) by the 1978 CUP.
Accordingly Resolution finding Section 1.b is legally insufficient and lacks substantial
evidence as it fails to bridge the analytic gap between the record evidence (here,
consistency with the 1978 CUP) in this case and the conclusion that implies that the
Commission approval of the bingo parlor use was authorized by it. Topanga, supra, 11
Cal.3d at 511, 512, 515.

a) An AA Is Appropriate

Pursuant to Municipal Code section 122-683(b), “at the discretion of the Planning
Manager, “minor, noncontroversial matters may be considered administratively.” Stated
differently, subsequent uses/developments on land zoned PD maybe reviewed
administratively if the Staff, pursuant to the power granted to it under section 122-683,
believes that the project is minor and noncontroversial in nature. The Municipal Code
confers upon the Planning Manager, the power to make such determinations. “The
construction and interpretation of a statute by officials charged with its administration
must be given great weight.” City of Walnut Creek v. County of Contra Costa County, et
al. (1980) 101 Cal.App.3d 1012, 1021; Sanchez v. Unemployment Ins. Appeals Bd. (1977)
20 Cal.3d 55, 67.

Here, Planning Staff determined the project to be minor and noncontroversial

initially, at the administrative level, then at the Planning Commission level and finally
upon appeal to City Council. Specifically, the Planning Staff determined the proposed
commercial recreation use is consistent with the intent and purpose of the PD zoning

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City of Concord
July 26, 2010
Page 11

despite not being covered under the 1979 PDP approval; the project is similar to prior
Commercial Recreation uses that have been administratively approved for the Property;
the proposed use is consistent with the General Plan Downtown Mixed Use designation
and with the uses that have previously occupied the site, and will have no significant
environmental effects (June 2 Staff Report, page 4; July 13 Staff Report, page 3-7;
Proposed Resolution No. 10-10 PC denying the Appeal). These determinations were
founded upon substantial Record evidence provided at both the June 2, 2010 Planning
Commission hearing as well as the July 13, 2010 City Council hearing. Planning Staff
persuasively concluded:

The stated purpose of PD zoning is to permit development which

generally enhances standards and is consistent with the General
Plan. This project does not involve any new development and
merely proposes to re-tenant a building that has been occupied
by similar commercial recreation uses over the years. More
importantly, the project is consistent with the General Plan's
Downtown Mixed Use designation and with policies promoting
Central Concord as the social center of Concord by encouraging,
among other things, entertainment uses mixed with office,
commercial and residential uses.

As previously indicated, the interpretations of zoning ordinances by planning

officials charged with their enforcement are persuasive as to the meaning of the
ordinances and are entitled to substantial deference. Hewlitt, supra, 54 Cal.App.4th 499,
526. Thus, the Planning Staff (as upheld by the Commission) were justified in using the
AA process for the Application.

b) The Proposed Bingo Parlor Use Is “Minor, and

Uncontroversial"

The City Council, in the proposed Resolution declares that it is “unable to find that
the proposed finding that the project cannot be approved administratively.” This finding
is both factually and legally inappropriate as it is unsupported by any evidence tending to
show that the project results in a significant or controversial change from the existing use
of the subject property. Stated differently, again it fails the Topanga standard for legally
adequate findings. It is a well established rule that that a party must present “all legitimate

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And Councilmembers of the
City of Concord
July 26, 2010
Page 12

issues before the administrative tribunal in order to preserve the integrity of the
proceedings before that body and to endow them with a dignity beyond that of a mere
shadow-play.” City of Walnut Creek v. County of Contra Costa et al., (1980) 101
Cal.App.3d, 1012, 1020-1021. Here, in effect, it appears that the City’s decision favors
the Blue Devils over the Applicant solely on the basis of economic competition or
suspicion of the motives or “organizational structure” of the proposed Property lessee.
Video, Part 6, 35:40. 8

First, the Record is replete with substantial factual evidence upon which the
Planning Staff has based its determination that the use change is minor with respect to its
consistency with the General Plan and other commercial recreation uses that have
occupied the site as well as with respect to environmental impacts. Second, it can hardly
be said that the project is controversial when Staff notified over 70 tenants and property
owners of the Planning Commission appeal hearing and the only public testimony
provided at the hearing in opposition to the project was by the Blue Devils. July 13 Staff
Report, p. 7. As set forth in this communication, nowhere in the Record is there any
substantial evidence to support any contention that the Application would has any kind of
negative effect resulting from the proposed land use—other than economic competitive
harm to the Blue Devils. As proposed Resolution finding 1.d. is legally insufficient,
without any offer of substantial evidence as to why the proposed use change is not minor
or non-controversial, one can only hypothecate that the sole basis of opposition is
economic competition and the respected position in the City society of the Blue Devils.
And indeed, the opposition presented by the Blue Devils is founded upon their own
economic and competitive interests rather than on any factually substantial or
demonstrable environmental concerns, as demonstrated in the Loewke Report, which is
legally and factually unsupportable.

Nowhere is there authority to base a land use decision on economic competition. 9

…even when the regulation of economic competition reasonably

8 During the July 13 Hearing, Councilmembers pressed questions regarding whether the “organization structure” of
Pops Bingo World has been adequately scrutinized. The City Attorney and the Deputy City Attorney stressed that
they lacked the authority to do so.
9
The only land use decisions associated with economic factors are those dealing with economic blight. Health and
Safety Code §§ 33030 et seq. Surely, the Blue Devils’ attorney’s oblique reference that somehow the Application
approval will lead to blight without substantial evidence in support, may be dismissed as self-serving and at best, the
opinion of counsel, which does not constitute substantial evidence. See, Kransco v. American Empire Surplus Lines
Ins. Co., (2000)23 Cal. 4th 390, 409.

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City of Concord
July 26, 2010
Page 13

can be viewed as a direct and intended effect of a zoning

ordinance or action, so long as the primary purpose of the
ordinance or action—that is, its principal and ultimate
objective—is not the impermissible private anticompetitive goal
of protecting or disadvantaging a particular favored or
disfavored business or individual, but instead is the
advancement of a legitimate public purpose…

Hernandez v. City of Hanford (2007) 41 Cal. 4th 279, 296-297.

There is absolutely no Record evidence advancing any legitimate public purpose

relating to a genuine environmental concern. The City appears to be basing its decision
on Blue Devil’s opposition which is founded solely upon economic competition. This is
not a factor that is appropriate for consideration in the context of CEQA

CEQA is not a fair competition statutory scheme. Numerous

findings and declarations were made by the Legislature with
respect to CEQA. [Citation.] None of them suggest a purpose of
fostering, protecting, or otherwise affecting economic
competition among commercial enterprises.

Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal. App. 4th
825, 829-830

Specifically, it should be the use that is at controversy not the mere fact that the
Applicant competes with another bingo parlor which is already in existence. Based on
the Record and the lack of substantial evidence proving otherwise, it appears that the only
plausible interpretation of the City’s actions in denying the AA is to further Blue Devils
purpose which is to stifle the competition posed by Pop’s Bingo World. Accordingly,
there is no substantial evidence to support proposed Resolution finding 1.d, and as such it
is a legally insufficient finding.

3. The Staff Environmental Analysis That The AA Was Exempt

From CEQA Is Presumed Legally Sufficient

Resolution finding Section 1.c. conclusionerily finds that “additional analysis is

needed to evaluate whether or not the proposed bingo hall use would great any adverse

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July 26, 2010
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environmental . . . impacts.” Initially, this finding is legally insufficient as it fails to

bridge the gap to any substantial evidence that call into question the City Staff’s
conclusions that the AA is exempt from CEQA.

First, it must be noted that CEQA has a well-defined purpose – to require public
decision-makers to consider the environmental implications of their actions and include
the public in that process. Pub. Res. Code §§ 21000, 21001. CEQA has an
environmental information function, not an economic one. See e.g. County of Orange v.
Superior Court (2003) 113 Cal.App.4th 1, 6, 12-13. Stated differently, CEQA does not
concern itself with the financial competitive effects of “projects” – rather the
environmental effects.

The Resolution finding 1.c, thus, fails to acknowledge that City Planning Staff
conducted extensive hours of study of the Application, drafted two comprehensive Staff
Reports in favor of the AA approval, and found the Application exempt from CEQA
under two separate exemptions:

That is because as a general rule, CEQA only applies to projects

which have the potential for causing a significant effect on the
environment. The implementing regulations provide that CEQA
does not apply "where it can be seen with certainty that there is
no possibility that the activity in question may have a significant
effect on the environment." (14 Cal. Code Regs. § 15061) A
proposed project is nonetheless exempt from CEQA when "[t]he
activity is covered by the general rule that CEQA applies only to
projects which have the potential for causing a significant effect
on the environment. Where it can be seen with certainty that
there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject
to CEQA." (14 Cal. Code Regs. § 15060(c)(2)). 10

July 13 Staff Report, p. 3. Staff supported these determinations by explaining that it met
with the Applicant and Staff from Planning, Economic Development, Building, and

10
CEQA is augmented by the CEQA Guidelines, codified at title 14 of the California Code of Regulations section
15000 et seq (“CEQA Guidelines”). When no party has challenged the legality of any of the applicable CEQA
Guidelines and none of them appear to be " 'clearly unauthorized or erroneous under CEQA.' " [citations omitted], a
Court will afford them " 'great weight.' " Ibid.

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Police at a meeting where the project was explained and potential issues discussed. 11 July
13 Staff Report, p. 3. Further, Staff explained the variables it took into account in
determining the Application was CEQA exempt included:

 consultation with the Transportation Division regarding

parking and traffic circulation;
 consultation with Engineering Services regarding
engineering-related permits;
 working with the Police Department regarding a Crime
Prevention Through Environmental Design (CPTED)
analysis for the project, which considered such elements as
landscaping requirements, outdoor lighting, site
maintenance, and access control;
 consideration of qualitative factors such as hours of
operation, absence of impacts from construction and
outdoor activities, etc.; and
 consideration of quantitative factors such as lighting levels
and compliance with parking ratios in evaluating the project
impacts

July 13 Staff Report, p. 3. Staff further explained that it found the Project CEQA exempt
under the exemption for existing facilities, which categorically exempts projects that
involve “negligible or no expansion of an existing use.” CEQA Guidelines. § 15301. July
13 Staff Report, p. 4. Staff explained that it supported this finding by learning the
building is "nearly turn-key" with regard to its amenability for use as a bingo hall. July
13 Staff Report, p. 4. Thus, Staff found the bingo parlor use to be consistent with the
former use at the location as a Commercial Recreation Use, as:

Staff has considered uses that provide participant or spectator

recreation or entertainment as commercial recreation uses. Uses
that have been approved under this working definition include
fitness clubs, video arcades, indoor miniature golf, and indoor
party/play rooms for children.

July 13 Staff Report, p. 4. Additionally, Planning Staff found that the bingo parlor use

11
This meeting is authorized by CEQA Guidelines § 15060.5.

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was consistent with the City General Plan Downtown Mixed Use designation and with
the uses that have previously occupied the site. July 13 Staff Report, p. 4.

Application opponents presented an argument that disputes Planning Staff’s

determination of consistency with former uses on the property. This argument was
presented by a consultant, in a communication to the City (the “Loewke Report”) and a
oral presentation at the July 13 Hearing. The Loewke Report asserted that "bingo parlor"
uses are classified and distinguished from "health clubs", but cited to the NAICS – North
American Industry Classification System, which assigns different codes to those uses.
Loewke Report, p. 4. This national authority, however, does not overrule the
determinations of Planning Staff as the interpretations of the Zoning Ordinance use
classifications by City Planning Officials are entitled to substantial deference. See
Hewett, supra, 54 Cal.App.4th at, 526; Elysian Heights, supra, 182 Cal.App.3d at 32;
BFI, supra, 181 Cal. App. 3d at, 865; Rasmussen, supra, 140 Cal. App. 3d at 851. In fact,
rather than relying on a non-specific national classification system, City Staff supported
its use consistency determination with citations to similar classifications in neighboring
cities (Walnut Creek, San Ramon and Pleasant Hill). July 13 Staff Report, pp. 4-5.
Additionally, the Planning Staff analyzed consistency with the City General Plan, and its
General Plan’s Downtown Mixed Use designation, and the purpose of the PD zoning.
July 13 Staff Report, p. 5. Accordingly, Planning Staff presented the sort of evidence
meeting the definition of “substantial evidence”, i.e., “relevant evidence that a reasonable
mind might accept as adequate to support a conclusion or evidence of ponderable legal
significance reasonable in nature, credible, and or solid value.” Auburn Woods I
Homeowners Assoc., supra, 121 Cal.App.4th at1583.

As Staff noted (July 13 Staff Report, p. 3), the determination of whether a project
is CEQA exempt is accomplished by a preliminary review. CEQA Guidelines §§ 15060,
15061. Planning Staff supported these determinations with substantial evidence in the
Record. See, July 13 Staff Report. These determinations by Planning Staff and the
Commission are presumed correct as it is presumed that official duty has been regularly
performed [Ev. Code § 664], a presumption which applies to acts required of a City
Planning Commission. Bickel v. City of Piedmont (1995) 45 Cal.App.4th 313, 331; Miller
v. Planning Commission (1956) 138 Cal.App.2d 598, 602.

This insufficient finding leaves the Applicant to surmise that the City relies on the
arguments set forth in the Loewke Report, and the Appeal Letter, which criticizes the
Staff finding of CEQA exemptions for the Application, in which it was alleged that the

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Application requested an entirely new use that requires analyzing potential environmental
impacts, including impacts on traffic and circulation, noise, lighting, parking, and
crime/police services. July 13 Staff Report, pp. 56-57. Contrary to these arguments, the
Planning Staff, however, had properly analyzed those concerns as part of the preliminary
review [Staff Report, p.3], and that analysis is entitled to substantial deference.

With respect to the Loewke Report contentions that the CEQA exemptions cited
are inapplicable, those conclusions are unsupported by substantial evidence and thus may
be dismissed. First, the Loewke Report asserts that the City relied on a determination that
the Application was not a “project” as defined by CEQA:

It is therefore clear that both the original Use Permit action to

authorize the Health Club and the proposed determination on the
Bingo Parlor are "Discretionary Actions" which are subject to
CEQA.

Loewke Report, p. 12. This conclusion is simply a red herring: Planning Staff did not
assert that the Application is not a project under CEQA, but instead, after substantial
preliminary analysis:

Staff concluded this review by determining that the use does not
have the potential to cause a significant effect on the
environment and therefore falls under CEQA's general rule.

Staff Report, p. 3 (See, CEQA Guidelines §§ 15060(c)(2) 15061(b)(3)) . The Loewke

Report also misrepresents the evidence in concluding the Application is not subject to the
CEQA “existing facilities” exemption of CEQA Guidelines section 15301, as the bingo
parlor use change is not a “negligible or no expansion of an existing use.” Loewke
Report, p. 13. To the contrary, as Planning Staff clearly set forth, the existing facilities to
be used is nearly turn-key and will require almost no improvements to use as a bingo
parlor. Staff Report, p. 4. As noted, the Loewke Report relies on the general NAICS
classifications for the conclusion, without applying the facts of the Application, that the
bingo parlor is substantially different than the health club formerly operated. But,
Planning Staff was entitled to determine that the use was consistent with local standards
for use classifications, and that determination is entitled to substantial deference. 12

12
The Loewke Report conclusion that as the health club was not operated since 2008, the change in use is actually

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Finally the Loewke Report conclusion that the Planning Staff CEQA exemptions
are inapplicable because of alleged evidence of parking, traffic, and public safety impacts
(p. 14) may not be used by the Council to require further environmental analysis. As
noted, the Planning Staff specifically considered such impacts in their preliminary review.
More importantly, however, the Resolution finding Section 1.c does not assert which of
the Planning Staff’s environmental analyses were insufficient. The Applicant is left to
guess, was it the parking? But evidence was presented that sufficient parking exists.
Video, Part 1, 08:04, 12:20-13:44, 24:30. Was it the traffic? But evidence was presented
that the Bingo Parlor will be operated after peak traffic, in order to avoid any traffic
difficulties. Video, Part 1, 14:30-14:48. Was it safety? But the record shows safety
issues were addressed in the extensive Crime Prevention Through Environmental Design
Report Prepared by Concord Police [Staff Report, Attachment 5] and the conditions
imposed on the AA approval to mitigate any potential issues, consistent with Police
standards. Staff Report, pp. 12-14. Accordingly, it is unclear how, if at all, the Loewke
Report supports the Resolution finding.

In summary, the Loewke Report CEQA conclusions lack substantial evidence or

are inapplicable to the local standards or the facts of this matter and thus lack credibility.
Because expert opinions that lack credibility should be ignored [See, Bowman v. City of
Berkeley (2004) 122 Cal.App.4th 572, 583 ] it does not provide any evidence to support
Resolution finding Section 1.c. As the finding does not bridge the gap between any
record evidence and its conclusion, it is legally inadequate. Approving a legally
unsupported finding requiring additional environmental analysis is an abuse of discretion,
as it can only lead to the conclusion that the AA is voided not for legitimate
environmental concerns, but because of the identity of the Applicant, something which is
strictly prohibited under CEQA. Friends of Davis, supra, 83 Cal.App.4th at 1018-1019.

4. A CUP Is Not Required

As set forth, supra, under the Municipal Code, City may not require a CUP for the

from an empty building to a bingo parlor is incorrect and misleading. Loewke Report, p. 13. Although the
Municipal Code may have an expiration date for an unused CUP for purposes of zoning, Planning Staff analyzed the
use the existing facilities was set up for on the Property-which remains a health club even though not currently used.
For purposes of CEQA, the analysis remains sound, and thus this Loewke Report conclusion is unfounded. Yet
another red herring is the Loewke Report refutation (Loewke Report, p. 13) of the use of the “small structures”
conversion CEQA exemption [CEQA Guidelines § 15303] as the Planning Staff did not cite or rely upon this
exemption.

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bingo parlor use. Thus, there is no evidence to support the Resolution section 3 finding
requiring the Applicant to apply for a CUP to obtain the bingo parlor use. Finally, this
finding is legally inadequate, because without any substantial evidence, it cannot bridge
the analytic gap between requiring a CUP and non-existent evidence.

C. The Applicant Was Denied A Fair Hearing And Thus Denied Due
Process

In addition to the City substantive violations in approving the Resolution, the City
departed from its own provisions for evaluating a minor land use application and in so
doing, denied Applicant a fair hearing.

1. A Land Use Applicant Must Be Given Due Process

That the Applicant should have been granted a fair hearing is undisputed as “a fair
trial in a fair tribunal is a basic requirement of due process…” Cohan v. City of Thousand
Oaks (1994) 30 Cal.App.4th 547, 559 (“Cohan”).

2. The Applicant Was Mislead By Councilmember

As noted, supra, the Applicant’s good-faith submission of the AA, was made upon
the recommendation of a City Councilmember as the appropriate manner by which to
seek the proposed use. Yet at the July 13 Hearing, the same City Councilmember voted
against upholding the use of the AA process, subjecting the Applicant to the much more
onerous CUP requirements, which as demonstrated, supra, the Municipal Code does not
authorize.

3. The Applicant Is Unaware Of The Extent of Ex Parte

Communications With City Councilmembers

In another procedural violation, a City Councilmember had ex parte

communications with the Applicant. This leaves the Applicant to speculate as to other
unauthorized ex parte communications with Project opponents, which would constitute
another procedural violation.

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4. The City May Not Now Deny Applicant The Use of the AA
Process Where the Applicant Relied on City Councilmember and
City Staff Assurances That The Process Was Correct

As noted, the Applicant submitted its requested use by the AA process, after
meetings with City Staff and the referenced City Councilmember, and after the
Commission upheld the form as well as the substance of the Application. The involved
conduct of the City in recommending and upholding the use of the AA process, is the
type of conduct upon which the Applicant is entitled to justifiably rely on [See, City of
Long Beach v. Mansell (1970) 3 Cal.3d 462, 497-498] which would now preclude
contrary City action such as reversing its position and declaring the AA the wrong
process to use.

5. To The Extent That The City Considered Public Policy, It Would

Be Bad Public Policy To Grant The Appeal Based On A
Competing Bingo Operator’s Opposition

Although the extent of the City Council’s reliance on the public policy of
protecting the Blue Devils, as a well-known charitable operation in the City, from
competition is unknown, the City Staff considered this issue as well and rejected it as bad
policy:

staff believes Pop's will have a beneficial impact on charitable

organizations operating within the City by providing such
organizations an additional fundraising tool. According to Pop's,
local organizations such as East Bay Community Services and
Concord Youth Center (the Hoffman Foundation) have already
expressed interest in conducting bingo games. The only
charitable organization that could be impacted in an adverse way
is the Blue Devils, who operate a competing bingo hall. While
the City wants all Concord businesses and charitable
organizations to succeed, it would be bad policy to make land
use decisions that interfere with open competition by effectively
granting one organization the exclusive right to operate a bingo
hall within the City of Concord.

Additionally, representatives for the charities that would benefit from the AA approval

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testified at the July 13 hearing as well of the importance of using the Property for charity.
Video, Part 3, 30:25-40:10. Thus, since economic competition may not be used to make
zoning decisions, it would be bad policy -- indeed prejudicial policy to enforce a
monopoly on charitable bingo parlors in the City.

6. Any Procedural Violations Were Cured By The De Novo July 13

Hearing.

Finally it should be noted that Councilmembers expressed outrage and concern

with the alleged due process violations at the June 2 Commission Hearing. Accurate or
not, as City Attorney clarified, the July 13 Hearing was a de novo hearing, which cured
any perceived violations at the June 2 Hearing. Video, Part 1, 29:21. Thus any reliance
for the proposed Resolution based on June 2 Process violations lack legal authority.

7. Cumulative Procedural Errors Constitute a Violation of Due

Process and a Denial of Fair Trial

The sum total of City actions which as set forth, supra, includes selective review
of the record and a complete disregard to the substantial deference owed to the
determinations of Planning Staff and the Commission, and the sudden about face
regarding the correct application process after assurances to the Applicant, indicate,
consistent with the holding of former case Lacy Street Hospitality Service, Inc. v. City of
Los Angeles (2004) 125 Cal.App.4th 526 13 that the Applicant did not receive a fair
hearing because the City Council abused its discretion to purportedly show
noncompliance with the City Municipal Code, City regulations, and CEQA, therefore
precluding procedural due process. Id., at 530. The inattention of the Council to the
advice of the City Attorney to strictly apply land use law deprived the Applicant of the
analysis necessary for resolution and a fair hearing before the Council. Additionally,
throughout the July 13 Hearing described and the administrative process, the City acted in
flagrant violation of due process law, by overturning without substantial evidence the AA,
and requiring a CUP without legal authority, confounding public trust in the planning
process, in gross violation of law and fairness. This conduct evidences a denial of due
process in the Application proceedings and a basis for reconsideration of the Resolution.
Cohan, supra, 30 Cal.App.4th at 555.

13
Although the Lacy Street Hospitality Service Opinion was withdrawn as an Appellant Court Opinion, it is
indicative of the kind of unacceptable due process violations that the law prohibits.

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VI. CONCLUSION

The Resolution approval constitutes a prejudicial abuse of discretion and is

unsupported by substantial evidence. Additionally the process used to overturn the AA
constituted procedural due process violations and a denial of a fair hearing prohibited by
law. No other conclusion exists than that the City has illegally granted the Appeal to
thwart a business that may be unpopular, or to regulate economical competition. The
Applicant acknowledges that the opponents to the Application argued that allowing the
AA to stand would result in economic competition to the Blue Devils, a well known City
organization. But it bears repeating, that as the Friends of Davis Court pointed out, this is
an abuse of the City’s land use powers as while a city has broad authority over the
regulation of land use within its territory, that authority is not unlimited. Where certain
uses are permitted, a city cannot arbitrarily exclude others who would employ a similar
use. Zoning and building laws cannot be used unqualifiedly to restrict competition or
simply to shield existing businesses from competition. While valid zoning regulations
may affect competition and have other economic effects, a city does not have carte
blanche to exclude a particular business that it, or some of its residents, do not like. 14
Friends of Davis, supra, 83 Cal.App.4th at 1014.

Due to the fatally flawed Resolution findings and the referenced violations of land
use law and CEQA, the Applicant respectfully requests the Council to set the matter for a
reconsideration hearing at your next Regular or Special Meeting. Although the Applicant
believes that the only legal course is to uphold the granted AA, at a minimum, the specific
analysis of the City Attorney should be accomplished by the Council Staff so that a court,
a member of public, or the Applicant can “trace and examine” the Council pathway to
decision based upon record evidence.

14 This is true, even where Councilmembers have been assured they have “political cover” to make the decision that
residents want them to, despite the applicable law. Video, Part 7, 04:06,

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And Councilmembers of the
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If you have any questions, please contact this office.

Very truly yours,

William D. Ross

WDR:sf

cc: Mr. Paul Lopez

plopezloneoak@comcast.net
Craig Labadie, City Attorney
Craig.Labadie@ci.concord.ca.us
Kathy Wisinski, Deputy City Attorney
Katherine.Wisinski@ci.concord.ca.us

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