Judge dismisses restaurateur’s lawsuit alleging city of Fresno used a zoning delay to force his hand on a Covid lawsuit
A Fresno County judge dismissed a lawsuit from restaurateur David Fansler against the city of Fresno over what he claimed was an effort to force him to settle a separate 2020 lawsuit he filed over the city’s enforcement of COVID-19 restrictions on indoor dining.
Fansler alleged that the City Council and Councilmember Miguel Arias wrongly postponed a December 2022 hearing about a land-rezoning application for a vacant lot Fansler owns near his Pismo’s Coastal Grill. In the suit, he accused the city of removing the hearing from an agenda to exert leverage against his other complaint– a 2020 lawsuit that is still pending in Fresno County Superior Court.
His rezoning application was ultimately approved by the council the following month on a 5-2 vote, with Arias and Councilmember Nelson Esparza opposed.
Fansler owns Pismo’s in north Fresno’s Villagio shopping center and other local restaurants. His April suit sought to link the one-month delay of his rezoning application to his challenge of rules that prohibited indoor dining in restaurants during the peak of the COVID-19 pandemic. Fansler was vocal in his criticism of the city’s refusal to consider Pismo’s to be “outdoor dining” if all of its large roll-up windows on the north, east and south walls were fully opened.
The city responded by filing a motion in June asking the judge to dismiss the case. In a five-page order, Superior Court Judge Kristi Culver Kapetan ruled in the city’s favor and granted the motion.
The issue involves 1.7 acres of land that Fansler owns on Nees Avenue, a short distance west of Pismo’s existing location. The site was designated in the city’s general plan for high-density housing in 2014 and has been zoned for as many as 45 apartment since 2015. Fansler bought the site from the owners of the Villagio shopping center in 2015 for an estimated $1.25 million, according to a property records database.
In 2019, Fansler unveiled plans to relocate Pismo’s to the new location. At that time, Fansler acknowledged that the land would need to be rezoned in a process that would likely take a couple of years.
In his lawsuit, Fansler alleged that the removal by Arias of his development applications from consideration at a December city council meeting intentionally interfered with his business interests, inflicted emotional distress, violated his due process rights, and deprived him of the use of his property.
City Council minutes indicate that it was Councilmember Mike Karbassi - his northwest Fresno district includes Pismo’s and Fansler’s proposed development site - who made the motion to continue the hearing to January 2023. The city also argued that delaying the hearing by a month fell within its process of deliberating a review of the rezoning application.
In her ruling, the judge noted that Fansler and his lawyer, Fresno attorney Warren Paboojian, “provided no evidence in support of finding that (Fansler) was entitled to a decision on his application at the December 2022 City Council meeting.” She also found that Fansler failed to demonstrate evidence to support his claims of intentional or negligent interference with his business.
At the hearing, Fansler’s development representative Dirk Poeschel and city Planning Director Jennifer Clark said that the mixed-use zoning would keep in place a requirement for high-density zoning, but it would also allow other uses. Poeschel said that Fansler had not decided what he wanted to develop there, but said options could include a “boutique” hotel, offices or a potential commercial project – a range of uses that could still allow for relocation of his restaurant that’s been in its current location for about 13 years.
The next court hearing of Fansler’s original 2020 lawsuit over the COVID restrictions is set for Aug. 24 in Fresno County Superior Court.
This story was originally published July 24, 2023 at 7:37 PM.
