Daily Journal file photo The San Mateo City Council decided the newly opened 7-Eleven at 501 N. San Mateo Drive does not conform with city code and that the land will have to revert back to residential.

Since the market use at the old Stangelini's Italian Deli in a highly residential neighborhood in San Mateo was discontinued for more than six months, the City Council voted in unison last night that the newly opened 7-Eleven in the same space does not conform with city code and that the land will have to revert back to residential as it is technically zoned for.

The council dismissed a competing legal opinion that abruptly ended a public process last February and sided with the Planning Division's first interpretation of city code that determined the market use was lost.

"I support city staff's original opinion that the use was discontinued and I don't see anything that contradicts that,” Councilman Brandt Grotte said during the public hearing last night.

City staff had stuck by the issuance of building permits, however, and defended the 7-Eleven use at the site for the past several months, saying the property owners had constitutional rights.

The council also found that the former property owners, Isaac Choy and Susan Lin, willingly abandoned the market use at 501 N. San Mateo Drive as they marketed the space for a medical or dental office use.

The 7-Eleven was found to be an illegal extension and intensification of the prior use by the council which also found that unnecessary physical changes were made to the building to no longer make it a legal non-conforming use such as Stangelini's was.

The council heard from representatives from both the San Mateo Heights neighborhood and Portfolio Development Partners and 7-Eleven before casting its 4-0 vote.

Councilman Jack Matthews was recused from the meeting since his architectural firm was hired to do some work on the project.

Jeff Gilbert, who lives around the corner from the 7-Eleven, has spoken at several Planning Commission and City Council hearings on the subject leading up to last night.

"First we have to admit the mistakes, learn from them and fix them,” Gilbert said.

But not everyone spoke against 7-Eleven last night as Joe Galligan, former mayor in Burlingame, said the council's decision hinged on whether it supported its city staff.

"My name is Joe and I go to 7-Eleven,” Galligan said. "They actually have fresh sandwiches.”

Peter Breining spelled out the neighborhood's argument before the council made its decision. He said the use has been intensified since 7-Eleven has been operating 24 hours a day and has brought more noise, light and garbage to the area.

"Erroneously issued building permits do not confer legality,” Breining said.

Mayor David Lim called for public hearings on the matter after 7-Eleven announced it was coming to the neighborhood to the shock of its residents.

Lim said he relied on a plain reading of city code to help make his factual findings as did Councilwoman Maureen Freschet and Councilman Robert Ross.

"The law I see before us explicitly states if you discontinue use for six months then you lose the use,” Ross said.

Both PDP, the land owner and lawyers for 7-Eleven contend they will lose up to $8 million if the convenience store is forced to close.

Richard Givens, PDP's lawyer, would not tell the Daily Journal whether his clients would sue the city the last night.

Instead, he said: "It's not over.”

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