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A controversial proposed permit for a Downtown Fullerton restaurant has been postponed, after city officials said the application was submitted on altered paperwork and questions were raised about whether the city attorney has a conflict of interest because he owns property nearby.
The permit seemed to be on track for approval Wednesday night, until residents – and later Voice of OC – questioned the paperwork and City Attorney Dick Jones’ potential conflict. The restaurant’s landlord opposes the permit approval.
Planning Commissioners at their Wednesday meeting took no vote on the request by Florentine’s Grill, owned by Joseph Florentine who’s a tenant of downtown property owner Mario Marovic.
Instead, the commissioners directed staff to go back and wait for a complete, unmodified application from Florentine’s.
“Let’s dismiss it and have it come back when it’s in its legal form,” said Planning Commissioner Doug Cox.
A majority of commissioners that night said the matter should be handled in court if Marovic continues to oppose Florentine’s request.
“I can see multiple perspectives, but this is not clearly in our wheelhouse,” said Planning Commissioner Elizabeth Hansburg.
Cox said if Florentine “has a problem with the owners and can’t get them to sign, that is a legal problem … not ours.”
Jones’ office supported Florentine’s ability to apply for the permit over their landlord’s objections, pointing to a 1983 court ruling in San Francisco cited by the restaurant. On Wednesday, after Voice of OC asked about the proposal, Jones said he was exploring whether to recuse himself because he owns a vacant lot near the restaurant.
Jones said he owns a vacant lot in the general area of the property, and a concern was raised that his office’s legal opinion “may be impacted by this fact.”
“As a result we are seeking an independent legal opinion and may recuse,” Jones said.
Florentine’s proposed permit was up for approval Wednesday night by the Fullerton Planning Commission, but Wednesday morning city officials said they would recommend the vote be postponed.
City officials now say the restaurant submitted an application that was modified to change the required signature area for the property owner, who opposes the project, to instead be for the restaurant. Florentine says the restaurant’s application was entirely truthful.
He maintained he did nothing wrong before planning commissioners at the meeting.
“I’m not a forger,” Florentine said from the public comment dais. “The truth and the facts have not all been talked about tonight … we were truthful and honest with the city when we submitted the application and we did so under the guidance of staff.”
Marovic criticized the city on Tuesday for processing the document, and for advising in favor of the restaurant in a city staff report despite his objections as the real property owner. He and the restaurant are currently in the middle of an eviction lawsuit regarding the restaurant’s lease.
Florentine in a Wednesday morning text message disputed any wrongdoing, saying the application was “truthful and accurate” and that the accusations are “untrue and frivolous.”
Fullerton’s community and economic development director, Matt Foulkes, confirmed Wednesday morning that city staff found modifications to the wording of the signature space on Florentine’s application, which seeks to bring the restaurant’s safety, alcohol and entertainment operations up to existing city code. The permit request also asks to bring three other restaurants that Florentine’s shares the block with under a single permit.
Following the questions about the permit, Fullerton city officials said they would delay action.
“We will be recommending a continuance on the item at the Planning Commission’s scheduled meeting today,” Foulkes told Voice of OC Wednesday morning.
When applying for permit changes like the one Florentine requested, businesses file an application with the city that includes obtaining a signature from the business’ designated property owner. But in Florentine’s case, Marovic is opposed to the permit and argues the application is in violation of the city’s municipal code.
A review of the restaurant’s application – which Voice of OC obtained from the city – showed the restaurant’s application was missing a signing space for the “Signature of Property Owner” that is found on the city’s blank form. Instead, Florentine’s application contains a section calling for the “Signature of Applicant/Use Owner” in its place – a section that’s not found on the publicly available application form on the city website.
Florentine’s application has a date stamp indicating it was an older version of the application form from 2016, but city officials said the legally binding sections of the form have not changed since 2016.
The restaurant’s owner insists he and his team were honest in their application to the city.
“Everything that we have submitted to the city is truthful and accurate. We will continue to aggressively defend ourselves against meritless, untrue and frivolous accusations, and look forward to the truth being revealed as we continue with this process,” Florentine said in a Wednesday text message.
He didn’t respond to multiple requests asking who changed the property owner’s signature section on the form and why.
Foulkes, the city executive, said that when he met with Florentine about the issue on Tuesday, Florentine “stated that he was unaware” that the form had been modified.
Fullerton city law says such permit applications need permission from the property owner. And in Florentine’s case, the property owner has opposed the permit.
“An application for a Conditional Use Permit shall be filed only by, or by written authorization from, the legal owner of real property(ies) of the parcel(s) subject to the Conditional Use Permit request,” the Fullerton Municipal Code states in Section 15.70.020.
Jones, the city attorney, said on Wednesday he’s “not directly involved in the situation” but that his understanding is the city “has asked for clarification or amendment of the application submittal.”
In their report on the proposed permit, city staff acknowledged the property owners objections, while advising in favor of approving the restaurant’s permit request. The staff report states the restaurant can legally apply for the conditional use permit change despite Marovic’s objections.
Florentine cited the Shell Oil v. City and County of San Francisco ruling from 1983, where a judge ruled Shell Oil could bypass any permission by the land owner to seek permits allowing it to “carry out the agreed purpose of the lease.” Jones agreed that the case applies to Florentine’s application.
Marovic says the circumstances of that legal battle were different. The property owner in the Shell Oil case had died and wasn’t in a position to authorize any permit applications, leading to special circumstances, Marovic said.
In a letter to the Planning Commission, another Downtown Fullerton property owner, Al Bushala, said approving Florentine’s application would set a “negative precedent by allowing tenants to dictate the long-term fiscal impacts in property that they do not own and are not responsible for.”
“The language in the code is clear and unambiguous,” Bushala’s letter reads, adding that any other interpretation of it “defies logic.”
Brandon Pho is a Voice of OC Reporting Fellow. Contact him at email@example.com or on Twitter @photherecord.