Fresno's planning fails three court tests

City wins just one in 10 challenges; settles 6 others.

Published online on Sunday, Sep. 28, 2008

Interest groups and government agencies are successfully suing the city of Fresno, winning cases that raise questions about how the city protects the public from the effects of development.

The lawsuits, filed under the California Environmental Quality Act, have accused the city of failing to fully consider air pollution, traffic, historic buildings and other factors when approving development.

Since the start of 2005, 10 CEQA actions against Fresno have been decided, and the city won just once. Fresno settled six cases and lost three -- the losses coming in appellate court decisions made during a 14-month period ending in May.

The string of higher-court rulings, including a decision on the Fresno 40 project in northeast Fresno, suggests the city isn't always following the law, experts said. Some critics of the city have made that complaint for years.

"If I was the planning director, one appellate ruling would have me scratching my head," said Mike McCoy, co-director of the Information Center for the Environment, at the University of California at Davis. "Three would have me in the city manager's office defending my job."

But Nick Yovino, who recently retired as Fresno's planning director, said the court decisions aren't the result of problems in the Planning and Development Department. The department handles most of the city's environmental reviews.

"Everything we do is in compliance with CEQA," Yovino said, even though two of the appellate rulings involved his department. The third case was handled by the city's Redevelopment Agency.

City Council Member Jerry Duncan said the court rulings didn't convince him of the need to change the city's review process.

"We could probably make sure we never have a CEQA challenge, but it would probably add a year to each project," he said. "I don't want us to shut down our economy."

City Attorney Jim Sanchez, however, said the city has refined its development reviews as a result of CEQA decisions. The city pays greater attention to historic properties, and what development means for air quality and traffic, among other things, he said.

The city has spent about $100,000 on legal fees for lawsuits filed over the relocation of historic homes for a redevelopment project downtown, Sanchez said. But typically the city spends less than $10,000 on legal fees for CEQA cases.

Former City Council Member Tom Boyajian said the city doesn't worry much about the cost of CEQA challenges. An attorney who served eight years on the council before leaving in 2006, Boyajian often voted against development proposals, saying the city hadn't met CEQA requirements.

"It was like a badge of honor at the city not to follow CEQA," he said. "The city is like a prostitute who knows she's going to get caught a few times and considers it the cost of doing business."

Fewer reviews in Fresno

Government agencies must review all development proposals to see whether CEQA applies. If it does, the agency decides whether the project will likely have significant environmental effects.

A finding of significance leads to a more detailed study, which can upset developers. The study can take nine months to a year to complete and cost the developer up to $20,000, city officials said.

Fresno finds that projects are likely to produce significant effects far less often than other similar-sized cities in California, The Fresno Bee found in an analysis of CEQA records sent to the state.

In a 10-year period ending in July, Fresno required a full environmental review for nine out of 73 projects, or 12% of the time, according to the CEQA database.