Publication Date: Friday, January 30, 2004
PALO ALTO
City considers changing code to duck Safeway lawsuit
City considers changing code to duck Safeway lawsuit
(January 30, 2004) Act in response to resident's ongoing battle with grocery store
by Bill D'Agostino
Despite 30 hours of videotaped evidence, the city has never believed Mark Cairns' claims that Safeway is a bad neighbor and he wants his day in court.
But the City Council could make a slight adjustment to the city's code on Monday night that will essentially take away Cairns' -- and all future residents' -- ability to sue the city to enforce its own laws.
Cairns, and sympathetic neighborhood activists, are crying foul, saying the city is taking away an important legal recourse for frustrated residents. But the city's attorneys argue that the change is merely a clarification of already existing policy.
For more than three years, Cairns, a Midtown resident who lives on San Carlos Court, has complained that Safeway employees have terrorized him and his wife -- urinating on their property, making lots of noise, and parking on their private street.
The city of Palo Alto has never thought those alleged actions rose to the level of a code enforcement violation, and refused -- despite Cairns' many pleas -- to take legal action.
"The city has just abandoned us," he said.
At the center of Cairns' lawsuit against the city is a legal dispute about whether the city has the choice -- or the requirement -- to prosecute suspected violators of the city's own laws regulating loud, smelly, or otherwise disruptive businesses.
Much to the chagrin of the city's attorneys, the wording in the city's current code is ambiguous on the point, saying the attorney's office "shall" enforce the laws.
The attorneys want to change that "shall" to an "is authorized to," allowing the city an easy way out of the costly lawsuit. On Monday night, the City Council will vote on that change.
The city's attorneys believe they need to be the ones to choose which suspected violations to prosecute, and, absent political corruption or other outright illegal influences, a judge should not be in a position to tell them otherwise.
"Filing a lawsuit is not always the most appropriate method of dealing with a code enforcement violation," said Bill Mayfield, senior assistant city attorney.
Residents can always appeal attorneys' inactivity to the City Council, which can require its legal team to go after suspected violators, Mayfield noted.
Other city attorneys in the area agree that prosecution of code enforcement is -- and needs to be -- discretionary. If cities had to prosecute every case, "we'd be buried alive" with work "and so would the courts," said Mountain View City Attorney Michael Martello.
Cairns' case against the city is scheduled to come to trial March 1.
This lawsuit is believed to be the first time any resident has sued Palo Alto to get it to enforce its laws. Cairns said he and his wife have already paid more than $270,000 in legal fees fighting the city and the grocery store.
Opponents of the proposed change -- including a number of neighborhood activists -- are concerned that the city would be essentially granting itself a free pass to not enforce its own laws, leading to less oversight of businesses that disrupt citizens.
"It's telling people, 'We don't want to enforce things if it's inconvenient,'" Bob Moss, of Barron Park, said of the change.
Last spring, Moss complained to the planning department about the Midtown Safeway, noting that it had put up an illegal "No Right Turn" sign. That sign told drivers to enter the neighborhood, rather than taking a more direct route through the commercial district, Moss said.
The city intervened, and Safeway immediately took down the sign, Moss said. According to the city, Safeway has made numerous changes in recent years based upon complaints and city input, including instructing their employees to take breaks on the side of the building away from the Cairns' home.
When the issue of changing the code from "shall" to "is authorized to" came before the Planning and Transportation Commission earlier this month, the change was recommended by a 6-1 vote.
Commissioner Karen Holman was the lone holdout, concerned that the change, while legal, would lead to more distrust in the local government. If the city wants to make the alteration, she argued, it should wait until Cairns' lawsuit is resolved.
"I feel like it is a disservice to the community to change the law when something is already in play," Holman said.
Cairns and his wife also tried suing Safeway for creating a "private nuisance," but even before that portion of the lawsuit went to trial, the judge dismissed the claim, saying there was no proof the grocery store was not acting neighborly.
Spinning a Kafkaesque tale of malfeasance, Cairns said the city, like the judge who threw out the Safeway portion of the lawsuit, has refused to consider all the evidence in the case -- including his 30-plus hours of videotapes.
"The noise, the nuisance, the odors, the trespassing -- I can document and prove," he said.
After playing a clip of the videotapes in court, the judge reportedly stated his belief that Cairns was the nuisance by irritating employees with constant surveillance.
"It starts to become questionable who's harassing who," Mayfield said.
Cairns argued that the judge only showed a brief clip, and that if he had seen the whole tape the true story would have been revealed. "You want to throw your hands up in the air and scream," he said.
On Thursday, Cairns gave City Council members similar videotapes, hoping to finally get his day in court.
The whole saga has forced Cairns, an Oxford-native, to reconsider his desire for American citizenship.
"This would never happen in England," he said.
E-mail Bill D'Agostino at bdagostino@paweekly.com
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