By C. Jayden Smith
As the latest stage of a yearslong battle against a blighted and abandoned gas station near the downtown corridor, the City of San Clemente has filed a lawsuit to end, what it alleges is, a prolonged public nuisance.
The lawsuit filed on May 27 is against the Urban Development Corporation and its CEO Jack Burk as the owners of the property at 422 N. Avenida De La Estrella, where the unused gas station has sat since March 2013.
In its complaint, the city claims that UDC’s property is a public nuisance and a nuisance per se, while accusing the company of engaging in unlawful business practices. The city is seeking injunctions, or judicial orders, to bring the property in compliance with the Municipal Code, and abatement, or reduction, of the alleged nuisances.
As of this posting, Burk and attorneys representing UDC could not be reached for comment.
UDC has not filed an official response to the lawsuit with the court.
According to the lawsuit, the parcel that sits just off the 5 Freeway, at the Avenida Palizada exit, has become an “eyesore” to the public at large. The city also alleges that UDC failed to restore or demolish the property, despite receiving years’ worth of time and opportunities to do so.
“The City has attempted to gain Defendants’ voluntary compliance and rehabilitation of the Subject Property since at least March of 2013 to no avail,” the lawsuit stated. “The City has received complaints about the Subject Property from the public and neighbors and, despite several notices and other contacts, Defendants have made little effort to rehabilitate or remediate the Subject Property.”
After the city confirmed in 2013 that the gas station on the lot had closed, UDC was required to remove all underground tanks, all fuel pumps, pump islands, and free-standing canopies following 180 days of closure, according to San Clemente Municipal Code 17.28.290.
The complaint claimed that the islands and canopies remain standing, as well as the kiosk structure and other objects, in addition to the presence of trash.
The complaint also detailed the city’s numerous attempts to correct noncompliance at the site, dating back to Oct. 19, 2006, when it first sent a letter asking for UDC to remove a non-conforming pole sign.
From November 2019 to June 2021, the city issued six administrative citations totaling $5,700 for the continued existence of the canopies, “unsightly” property maintenance, rust stains because of weathered coating and deteriorated paint, temporary fencing, and broken security lighting.
Given the remaining violations on the property, the city sent a cease-and-desist notice in August 2021 with a compliance date of Sep. 14, 2021.
UDC’s attorney and the company requested extensions to push the official deadline to February 2022, but they had not submitted any redevelopment plans and were thus issued a Final Notice to Comply later in the month, according to the court filing.
Set for April 18, the notice required UDC to clear away all remaining structures, but the corporation did not correct any violations or apply for any permits, the city’s complaint further stated.
The city said it has used public resources over the course of years to obtain compliance through multiple methods, without success.
“Without the imposition of injunctive relief by this Court, Defendants will continue the unlawful maintenance of the Subject Property, and the Subject Property will continue to remain abandoned and sit in its dilapidated, potentially dangerous, and blighted condition,” the complaint stated.
It further noted that the city is entitled to recover expenses such as litigation, staff, and abatement costs that it was forced to spend because of UDC’s alleged noncompliance.
Citing California’s Civil Code sections 3479 and 3480, the city argued that the property violations constitute a public nuisance as they are “injurious to public health, offensive to the senses,” and affect the community at large.
The city, in the lawsuit, said it has no alternative for a solution besides injunctive relief as authorized under the state’s Code of Civil Procedure sections 526, 527, and 731.
The complaint went on to state that the property also violates conditions outlined in the city’s own municipal code, creating a nuisance per se.
“Defendants’ maintenance of the Subject Property in its unsightly and out of harmony or conformity with the maintenance standards of adjacent properties is a nuisance per se under” a section of the San Clemente Municipal Code.
California’s Business and Professions Code section 17203, or the Unfair Competition Law, includes unlawful business activity under the umbrella of unfair competition. It also defines unlawful business activity as anything that can be properly called a business practice and is simultaneously forbidden by law, such as failure to comply with local codes.
“B&P section 17203 provides that ‘any person who engages, has engaged, or proposed to engage in unfair competition may be enjoined,’ and that the court may make any order necessary to prevent unfair competition,” the complaint stated.
Officially, the city is seeking for the Superior Court of Orange County to issue a temporary restraining order and preliminary and permanent injunctions that prohibit UDC and Burk, as well as subsequent owners of the property from allowing public nuisances and unlawful business practices.
C. Jayden Smith
C. Jayden Smith graduated from Dana Hills High in 2018 before pursuing a Bachelor’s degree in digital and broadcast journalism from the University of North Texas. After graduating in December 2020, he reported for the Salina Journal in Salina, Kansas. Jayden loves college football and bothering his black lab named Shadow.
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