A federal judge on Wednesday threw out a lawsuit challenging how federal funds were awarded in Fresno Mayor Ashley Swearengin’s plan to reopen the Fulton Mall to traffic, clearing one of the few remaining hurdles for the controversial downtown project.
In a 39-page decision, U.S. District Court Judge Kimberly J. Mueller in Sacramento denied a motion for summary judgment in a case brought by the Downtown Fresno Coalition and other plaintiffs, and granted a similar motion by the city. The decision essentially ends the federal lawsuit, though the plaintiffs stiff have the option of appealing to the Ninth U.S. Circuit Court of Appeals.
“A major hurdle to this project has been cleared,” Swearengin said in a statement, “and now we can begin making the changes that we know will result in an exciting new chapter for the heart of our downtown.”
In May 2014, the California Department of Transportation – acting on behalf of the Federal Highway Administration – approved nearly $16 million in federal funds for the Fulton Mall project.
The Downtown Fresno Coalition and others sued in federal court, saying Caltrans violated the National Environmental Policy Act by not doing an environmental impact statement and doing a poor environmental assessment on the proposal. The lawsuit also said the city violated the Federal Transportation Act by doing a bad evaluation of the project’s use of historic sites and public parks.
A major hurdle to this project has been cleared, and now we can begin making the changes that we know will result in an exciting new chapter for the heart of our downtown.
Fresno Mayor Ashley Swearengin
Fresno attorney Sara Hedgpeth-Harris, who represents the plaintiffs, said she was disappointed by the ruling.
She said, for instance, that Mueller’s ruling made no mention that the mall was eligible for recognition as an urban park, and the city itself even promoted it as such, serving a predominantly low income and minority community.
Mueller’s ruling also denied a motion by the coalition for a preliminary injunction to stop any construction work.
Harris said no decision has been made on an appeal to the Ninth Circuit.
Another legal action by the Downtown Fresno Coalition awaits in the 5th District Court of Appeal in Fresno.
Debate over whether to reopen Fulton Mall to vehicles has raged for years and has sparked sharp disagreement. On one side has been Swearengin and supporters who think a key to revitalizing downtown is reopening Fulton Street fully by tearing out the mall and letting traffic flow by the shops. Opposing that idea have been the coalition and others who see the mall’s historic significance. Fulton Mall was one of the first closed-to-traffic walking malls in the nation when it opened in the mid-1960s.
The Downtown Fresno Coalition wants to preserve the mall as it now – a pedestrian walkway dotted with art and water features.
Last month the City Council awarded a construction contract. It was another political victory for Swearengin. She marked the occasion – as she often does on such momentous times – by taking a picture of the voting board above the council dais.
The contract awarded to American Paving Co. – the lowest of three bidders for the project – was for $22.4 million. But the city only has $20 million for the project. Swearengin said staffers were to trim $2.4 million from the project so the cost lines up with the available cash – none of which will come from the city's general fund.
Swearengin expects groundbreaking as early as February.