‘Circus-style’ sham by Sacramento leaders blocked Safeway gas station, developer says

Developer Paul Petrovich waits to speak to the city council on Tuesday, Nov. 17, 2015, at City Hall in Sacramento, Calif.
Developer Paul Petrovich waits to speak to the city council on Tuesday, Nov. 17, 2015, at City Hall in Sacramento, Calif. aseng@sacbee.com

Sacramento developer Paul Petrovich says in a lawsuit that the City Council conducted a “sham” hearing two years ago when it denied him a permit to build a gas station at Crocker Village.

In court filings this week, Petrovich offered internal city emails that suggest Councilman Jay Schenirer, then-Mayor Kevin Johnson and others had discussed and decided beforehand how the November 2015 council vote should go, rather than keeping an open mind as legally required.

The documents, filed in Sacramento Superior Court, lay out the basics of the case that Petrovich and his attorneys plan to make against the city in a court hearing before a judge set for Oct. 13.

Petrovich hopes to include a Safeway supermarket and Safeway gas station in the 72-acre community he is building on a former railyard in Sacramento, tucked between the Curtis Park neighborhood to the east and Union Pacific rail lines to the west. Sacramento City College and a light rail station sit just west of the rail lines, connected to Crocker Village via a pedestrian bridge over the tracks.

Safeway officials have said they would locate a store there – if they can have a gas station with it.

The city Planning Commission voted to grant Petrovich a conditional use permit for the station. Members of the Sierra Curtis Neighborhood Association appealed that decision to the City Council, arguing that a gas station is unhealthy and incompatible with their neighborhood.

The council voted 7-2 to deny Petrovich the permit. Petrovich, in his lawsuit, is asking the judge to declare that vote invalid.

Petrovich argued that Schenirer, the councilman for Curtis Park and Crocker Village, should have recused himself from the council vote with a conflict of interest because he was a member of the neighborhood association that requested the permit denial. The developer points out that Schenirer met repeatedly with members of that group before the hearing, apparently sharing strategies.

Petrovich also provided the court with several internal city mails and memos that he says show Schenirer and the mayor “scripted” the council no vote in advance. Those include notes from an aide to Mayor Johnson, written before the council hearing, that say Schenirer is “confident that he has the votes ... to deny.”

That aide, Scott Whyte, indicated in a memo to himself before the council hearing that Schenirer “punches up to make motion,” and that Hansen would second it, and Johnson supports it. That sequence did in fact happen at the council meeting.

“Such secretive pre-hearing collusion was blatantly unlawful, and violated (Petrovich’s) due process and civil rights to a fair trial,” David Lanferman, an attorney for the developer, argued in his filing.

That collusion is illegal, Petrovich’s legal team argues, because the City Council was required under law to conduct an impartial “quasi-judicial” hearing that night, essentially acting as “neutral and unbiased” judges. Lanferman noted the city’s own rules require that council members be impartial. The lawsuit called the hearing a “sham” and a “circus-style spectacle.”

In this week’s filings, Petrovich also sought to refute one of the city’s key reasons for denial, that the gas station is not consistent with city general plan policies that discourage auto-oriented uses near transit stations. Petrovich contended that those reasons were concocted by the city after the vote to justify the denial.

Petrovich pointed out that the city already has OK’d more than 700 parking spaces in the shopping area of the project, essentially inviting auto use. The city also is requiring Petrovich to pay to expand a nearby freeway exit to make it easier for vehicles to access the area.

“The evidence here shows more than a mere probability of bias and prejudice, and by itself compels reversal of the council’s denial,” Petrovich argues.

Schenirer had no comment Thursday. Patrick Soluri, attorney for the Sierra Curtis Neighborhood Association, however, said community members had every right to meet and discuss the issue with their council representative. He called Petrovich’s arguments weak.

“The only thing unusual about this situation is that the neighborhood group was successful,” Soluri said. “The elected officials actually listened to the public and went against the wealthy well-connected developers.”

The city attorney’s office did not respond Thursday morning to a Bee email and phone call requesting comment. The city’s legal team is expected to file its formal response to Petrovich’s case with the court in coming weeks.

In a statement to The Bee in May, City Attorney James Sanchez wrote that the city believes “the record supports the ultimate council decision,” and “while an elected official has to remain unbiased to ensure a fair proceeding, they can fairly state concerns and see if the evidence presented in the quasi-judicial hearing record fully addresses their concerns.”

Tony Bizjak: 916-321-1059, @TonyBizjak