A preliminary injunction request in relation to a lawsuit against the City of Burbank’s approval of a local restaurant construction project was rejected in court on Friday, Oct. 8.
The project site, which is located at 1750 W. Olive Ave., was a U.S. Bank for years before being made available for sale in 2019. Fast food restaurant chain Raising Cane’s purchased the property in September of 2019, which was followed by a request for a building permit in May of 2020. By December of 2020, the city granted the permit to allow for tenant improvements such as square footage reduction, an extension of the building’s drive-through queuing, and parking, and other landscape updates.
The Save Rancho Providencia Neighborhood association filed its lawsuit against the city on June 23, 2021. This came after the group attempted to halt the building permit, as they argue the project renovations go against the Burbank Municipal Code. The attorney representing the neighborhood association, Jamie Hall of Channel Law Group, says the predominant issue locals have with the construction is in regards to the drive-through restoration, as the amenity stood dormant for decades and is now being refurbished without a Conditional Use Permit. The preliminary injunction would have prevented the Raising Cane’s location from operating with an active drive-through in the absence of a CUP.
“Our client is not concerned about the conversion,” Hall said. “They fully understand that converting a bank into a restaurant, which is one commercial use to another commercial use, is something that…they have the right to do. But what they don’t have the right to do is restart an abandoned drive-thru without getting a CUP. And that’s what this case is all about.”
BMC Section 10-1-1811, also referred to as the “Nonconforming Use Ordinance,” was cited by the neighborhood association in the lawsuit. They argued that since the drive-though had not been used in nearly 30 years, it qualifies as “discontinued or abandoned.” Prior to taking legal action, the homeowners who live near the site went to the city to voice these grievances. The issue was then presented to the Burbank City Council by Community Development personnel through a staff report in March of this year. This report stated that the city had determined the Raising Cane’s construction adhered to the “Drive-Through Ordinance” of BMC Section 10-1-1609(D), which outlines “Modification of Businesses with Existing Drive-Through.”
Through this conclusion, city staff indicated that BMC Section 10-1-1609(D) trumps the guidelines of Section 10-1-1811, which the lawsuit alleges is “not supported by evidence.” The court ruling Friday determined that the filing party “has not demonstrated that the City’s interpretation is without foundation” that the Drive-Through Ordinance prevails over the Nonconforming Use Ordinance.
Hall stated that the city told the neighborhood association that their concerns should have been voiced within 90 days of the December date when the building permit was issued, although residents were not aware of the project until January of 2021. Furthermore, Hall’s clients have stated that the City of Burbank won’t allow them to independently contest the permit.
“[The city has] a building permit appeal process, but guess what? The city says that residents don’t have the right to file a building permit appeal. So we think that’s unconstitutional,” Hall said. “The city is resorting to…making a statute of limitations argument,…which seems really unfair.”
Although the preliminary injunction was denied on Friday, the Save Rancho Providencia Neighborhood group was satisfied with being granted an earlier trial commencement date, which will take place in March of 2022. Hall explained that not all of their arguments have been raised yet in court, as only allegations related to filing the preliminary injunction have been addressed.
Additional allegations being brought against the city in the lawsuit are that city staff failed to file an application for development review, issued the building permit without approval of a development review from the Director of Planning, and failed to comply with landscaping and sidewall requirements.
The court ruled against the city’s argument that a 90-day statute of limitations applies in this case, and Hall stated that presiding Judge Mitchell L. Beckloff “noted that we had a valid case.”
Moving forward, he feels confident that his client will have legitimate infractions to pursue against the city.
“The statute of limitations issue was really something the city thought was going to kill this case, and the judge did not rule in their favor on that issue, so that’s really important,” Hall said. “If they had won on that, this would not have been a successful case. So I’m very happy with that outcome. And I also feel like when the judge gave us his comments during the hearing on Friday… It was very clear that he thought that there was a legitimate dispute here…a preliminary injunction was not granted for the residents at this moment, but he did not say that this was a loser case by any means.”