CA Appellate Court Unanimously Rules Sacramento City Council Violated Local Developer’s Constitutional Rights
Paul Petrovich will be back before the Sacramento City Council for a new hearing on Crocker Village Safeway gas station
By Katy Grimes, April 9, 2020 2:15 am
Three California courts and a unanimous appellate court have ruled that the Sacramento City Council violated the constitutional rights of Sacramento developer Paul Petrovich over his request for a special permit for a 16-pump gas station next to a new Safeway store, opened just last year in Sacramento’s Curtis Park neighborhood.
California Globe spoke once again with Petrovich who has worked since 2003 – more than 17 years – and invested more than $150 million in his Crocker Village development project, an infill development. The 72-acre infill project is located on the old unsightly abandoned Western Union Pacific rail yard located behind Sacramento City College, between the beautiful, old established neighborhoods of Land Park and Curtis Park. The property links to Sacramento City College and a light-rail station by a pedestrian bridge Petrovich built that arches over the train tracks. Petrovich invested $50 million in the clean up of the toxic defunct rail yard.
However, despite modifying plans, making concessions, and compromising with planners and local residents, Petrovich was met with vitriol, collusion and devious city shenanigans, along with an unsurprising case of NIMBYs – “not in my backyard” – people who reliably object to any change in the neighborhoods where they live. But the vociferous Curtis Park antagonists claimed their opposition to Petrovich’s plan was because it would harm the environment and compromise their historic neighborhood.
Five years ago Sacramento City Council denied Petrovich a fair hearing when he applied to build a gas station next to a the Safeway store in his Crocker Village development. Petrovich proved at the time that his deal with Safeway would fizzle unless it the gas station was allowed.
Despite that the Sacramento City Planning Commission had already granted Petrovich a conditional use permit for the gas station, the Sierra Curtis Neighborhood Association, which opposed the gas station, appealed to the City Council.The NIMBYs in Curtis Park claimed the grocery store and gas station presents cancer risks.
After the City Council overturned the Sacramento Planning Commission conditional approval of the Safeway gas station, Petrovich sued. And he won. A Superior Court Judge found that Sacramento City Councilman Jay Schenirer illegally fixed the outcome of the council’s vote on the building permit request for the fueling station. The Judge ruled that the Sacramento City Council’s vote denying construction of the gas station was unlawful and that Councilman Jay Schenirer was illegally “coaching” opponents of the gas station through the political process. The Judge found Schenirer specifically coached the president of the contentious Sierra Curtis Park Neighborhood Association on how and what to say in its opposition to Petrovich’s development.
Schenirer was ordered to recuse and disqualify himself from any future proceedings on the Safeway gas station project. However, rather than adhere to the judge’s ruling, the City Council voted to appeal the decision, threatening to drag the case out, rather than conducting another hearing on the gas station permit as the judge ordered.
Wednesday, California’s 3rd District Court of Appeal upheld the Sacramento Superior Court ruling that the council had acted in a biased manner in rejecting Petrovich’s request for a special permit for the 16-pump gas station the Sacramento Bee reported.
As Petrovich has repeatedly pointed out, Councilman Schenirer’s backroom political deal with the Sacramento City Council to reverse the Planning Commission’s approval and stop the fuel station was not only illegal, but it cost the city nearly $40 million in lost tax revenues by preventing completion of the City’s second largest infill project, and in doing so, denied nearby Oak Park residents the 200 full-time union jobs with Safeway, for the sole benefit of a few affluent Curtis Park residents.
The layered violations in this case run deeply. SACOG, the Sacramento Area Council of Governments, also had a big hand in stopping the gas station permit. Mike McKeever, the former Chief Executive of SACOG, insisted to the Sacramento City Council that allowing the Safeway gas station would jeopardize future Federal Transportation Enhancement funds to the region, largely because having a gas station supports automobile drivers, and is seen as unsupportive of the nearby light rail station and pedestrian bridge. McKeever represented to the federal government that Crocker Village was going to be a green transportation plan, and a gas station would have conflicted with that plan.
Additionally, former SACOG chief Mike McKeever and his wife Nancy McKeever reside in the Curtis Park neighborhood and are close friends with Councilman Schenirer. During the discovery phase of Petrovich’s lawsuit against the city, emails and text messages were revealed between many of the Curtis Park activists, SACOG’s McKeever and his wife Nancy, Councilman Jay Schenirer, and city council staff, providing and coordinating strategy, exact opposition language and talking points, as well as discussing meetings in their private homes to coordinate.
One example was an email from Nancy McKeever saying, “Our goal on Wed night is to show the Councilman that the neighborhood does not want a gas station so that he will work to get the Council to vote no should it come to that.” (emphasis original.)
Ahead of the City Council meeting where Petrovich’s request for the gas station permit was shot down, city staff had recommended approval:
“Staff recommends the Planning and Design Commission approve the requested entitlements with the findings of fact and conditions of approval provided in Attachment 1. The Commission has final approval and authority over items A through D above. The Commission’s decision can be appealed to the City Council. This item is considered to be controversial. Staff has received comments on this project related to traffic, health related impacts, consistency with the General Plan and the Curtis Park Village PUD, and aesthetics.” (AR 4603)(emphasis in original.)
City staff found Petrovich’s gas station plan presented no public nuisance, and no public health risks. Specifically, ahead of the hearing, Petrovich was required to pay $30,000 for an air quality assessment of the proposed gas station which found no fumes/odor threatening homes 700 feet away. The only minimal exposure to fumes near the Crocker Village homes would be when a driver takes off with the gas nozzle still in the tank, the report found. Since then, Petrovich moved the location of the gas station to the rear of the development, nowhere near homes, making this a moot point.
Petrovich said in the interim, Safeway agreed to locate a store there without a gas station, but he retained property in the rear of the development for the gas station, pending legal outcomes.
At this point, Petrovich has really only won the right to go back before the Sacramento City Council for another hearing on the proposed gas station, and still faces 6 of the 7 previous “no” votes.
Petrovich, who said he twice tried to settle with the city council but they wouldn’t consider his offers, said he’s skeptical he will get a fair hearing. Following their denial and while the appeal was pending, Sacramento’s city council unanimously passed a new ordinance prohibiting gas/fuel stations within a quarter-mile from light rail stations. The only way Petrovich will get a fair hearing is if the council only considers the same information and circumstances that was before them in 2015.
Katy Grimes has reported on Paul Petrovich’s Crocker Village development since 2010.
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