The council will consider whether the 7-Eleven is a legal non-conforming use for the property like the old deli was or whether the land should be converted back to residential, as the property is technically zoned for.

Residents in the San Mateo Heights Neighborhood want the 7-Eleven gone and have hired a lawyer to battle 7-Eleven's deep pockets.

Both Portfolio Development Partners, the land owner, and lawyers for 7-Eleven contend they will lose up to $8 million if the council goes against the recommendations of city staff by determining that the convenience store is not a legal non-conforming use of the land. Lawsuits have been threatened if the city does not stick to previous city staff decisions.

The Planning Commission, comprised of appointed citizen volunteers, has already made the determination that city staff somehow bungled the process to let a 24-hour convenience store open up at the former deli.

Residents near the store have hinted that the process may have also been corrupted and used the power of subpoena to force city officials, including Councilman Jack Matthews, to testify before the Planning Commission last month on what exactly transpired and whether any conflicts of interest or undue influence existed in the process.

Mayor David Lim called for public hearings to consider initially whether the city should terminate the legal non-conforming use of the land which would have given 7-Eleven a minimum of two years to operate on the site.

The council now, however, is just considering whether the 7-Eleven is a similar use to the former deli or whether the use now is more intensified. If it is deemed to be more intense, the council can find that building permits issued by city staff were done so in error.

The Planning Commission is recommending to the City Council to determine that the 7-Eleven is "not” a legal non-conforming use of the property.

City code dictates that since the market use was discontinued for at least six months that the land must be returned back to residential.

But a competing legal opinion from within the City Attorney's Office, given in an email in March, was enough to abruptly end a public process as PDP sought a zoning code amendment to push the discontinued use part of the code past the six-month mark.

The opinion, given by interim City Attorney Cecilia Quick, determined that although the market use had been discontinued, the owners, Isaac Choy and Susan Lin, had no intent to abandon a market use for the property even though the Hillsborough doctors marketed it for a medical/dental office use.

Once Quick gave her controversial opinion on the matter, building permits were issued, the property was sold and 7-Eleven signed a lease with a 30-year term with PDP.

The store has been open a little more than two weeks and neighbors have demonstrated at least twice now in front of the store to protest its presence.

City planners had repeatedly told other interested parties in the matter, including Matthews and his architectural firm, that a market use was no longer possible on the site and that it must be reverted back to residential.

The San Mateo City Council meets 6 p.m., Monday, Jan. 14, City Hall, 330 W. 20th Ave., San Mateo.

Bill Silverfarb can be reached by email: silverfarb@smdailyjournal.com or by phone: (650) 344-5200 ext. 106.