Agenda - Planning Commission - 06/01/2006

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Page4--MaylO, 2006 use, the park's long existence showed that the subdivision had acquiesced to such a use. Importantly, whether any other lots or lot owners in the subdivision had been harmed was irrelevant. Using Lot 52 as part of a municipal park violated the deed restriction irrespective of whether part of it was fenced off as a dog park. Further, the restrictions applied to the city as they would to any private property owner, irrespective of the city's status as a public authority. While Bloom.field could not challenge using Lot 52 as a park because of its long existence, it could challenge using it as a dog park, which would clearly be a mom serious violation of the deed restriction. see also: Mable Cleary Trust v. Edward-Marlah Mull Trust, 686 N. W. 2d 770 (2004). see also: Terrien v. Zwit, 648 N.W. 2d 602 (2002). Equal Protection -- Only department stores allowed to sell furniture in zone Smaller retailers banned Citation: Hernandez v. City of Hanford, Court of Appeal of California, 5th App. Dist., No. F047536 (2006) CALIFORNIA (03/28/06) -- Country Hutch Home Furnishings and Mattress Gallery was a small store that operated in a zone with restrictions that were designed to protect the downtown area and its smaller merchants. Although furniture sales were not allowed within the zone, Country Hutch wanted to add some furniture sales to its business. Importantly, under the zoning ordinance, a store with retail space of 50,000 square feet or more could have furniture sales within the zone. This distinction was designed to attract larger retailers such as Target, Wal-Mart, and Sears. Country Hutch sued, arguing that the ordinance denied it equal protection. The trial court ruled in favor of the city. Country Hutch appealed, arguing that the ordinance had no rational basis for its restriction based on size. ' DECISION: Reversed. The appeals court a~eed with Country Hutch's claim that the part'of the ordinance that based permission to sell furniture on a store having 50,000 or more square feet was unconstitutional as a denial of equal protection. Country Hutch sold mattresses and home furnishings, both permitted in the zone. Country Hutch also wanted to include a limited furniture department. The department stores were in the same position. They wanted to devote a portion of their floor space to furniture. Under these circumstances, the differ- ence in total floor space was largely irrelevant. Here, Country Hutch and the larger retailers posed the same potential threat, if any, to the downtown merchants. Thus, limiting the furniture sales exception © 2006 Quintan Publisining Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 76