Sacramento City Council mistreated supermarket and gas station developer, court says

A state appeals court on Wednesday ruled that the Sacramento City Council denied developer Paul Petrovich a fair hearing five years ago when Petrovich asked permission to build a gas station next to a supermarket he was building in the new Crocker Village development.

California’s 3rd District Court of Appeal upheld a Sacramento Superior Court ruling that the council had acted in a biased manner in rejecting his request for a special permit for a 16-pump gas station next to the Safeway, which opened in March 2019.

Petrovich contended at the time that Safeway would decline to open a supermarket there unless it was allowed a gas station. Safeway later agreed to locate a store there without a gas station, although Petrovich retained an area on site where a station could be built at a future date.

Petrovich sued the city, winning a ruling in 2018. Sacramento Superior Court Judge Michael Kenny wrote at the time that Councilman Jay Schenirer, who represents Curtis Park, demonstrated “an unacceptable probability of actual bias” and failed to act in an open-minded manner when the issue came before the council in late 2015.

Kenny ordered the city to hold a new hearing on the matter, with Schenirer recused. Instead, the City Council voted to appeal the ruling.

In the appellate ruling issued Wednesday morning, the court said there was evidence that Schenirer was assembling votes against the gas station prior to the council’s public hearing on the matter. Under law, council members are required to maintain on open mind before their review of an appeal of the earlier planning commission approval of the gas station permit.

That particular type of hearing is referred to as quasi-judicial, meaning the council is acting in a role similar to that of a judge in court, reaching a conclusion after hearing evidence.

The appeals court wrote that Schenirer “took affirmative steps to assist opponents of the gas station conditional use permit and organized the opposition at the hearing. Councilmember Schenirer acted as advocate, not a neutral and impartial decision maker, and should have recused himself from voting on the appeal. Because he did not, Petrovich did not receive a fair hearing.”

The appellate court has instructed the city to follow Kenny’s ruling. City Attorney Susana Alcala Wood, however, said the city has not yet decided on its next steps.

“The City is disappointed in the decision of the Court of Appeal and continues to believe the actions of the Councilmember related to the gas station appeal complied with the law,” Wood said in an email. “The City is still in the process of evaluating the ruling and the appropriate next steps.”

The Safeway location at 3680 Crocker Drive is part of a commercial center in the Crocker Village mixed-use development, which is under construction just north of Sutterville Road and adjacent to the Curtis Park neighborhood. The property is linked to Sacramento City College and a light-rail station by a pedestrian bridge over the tracks.

The council concluded a gas station was incompatible with the light rail station and that a fuel center would be detrimental to the health, safety and welfare of Curtis Park residents.

Petrovich blasted the city’s decision to appeal in a statement, calling it a waste of taxpayer funds.

This story was originally published April 8, 2020 at 11:29 AM.