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Developer calls gas station vote tainted. City says vote was fair and he lost

When developer Paul Petrovich asked for city approval two years ago to build a controversial gas station near Curtis Park, did City Councilman Jay Schenirer act as an open-minded broker, or did he work illegally behind the scenes to torpedo the project?

That was the focus of debate in Sacramento Superior Court Friday during what likely will be the final hearing in a lawsuit by Petrovich against the city of Sacramento. The judge in the case is expected to issue a ruling in the coming weeks.

The lawsuit stems from the council’s 2015 denial of a permit for a 16-pump station at Petrovich’s Crocker Village development project, a 72-acre community he is building on a former railyard between Curtis Park and the Union Pacific rail lines. The property is linked to Sacramento City College and a light-rail station by a pedestrian bridge that soars over the tracks.

The Sacramento City Planning Commission granted Petrovich a conditional use permit for the gas station, to go along with a Safeway supermarket the developer hoped to land. The Sierra Curtis Neighborhood Association, which opposed the gas station, appealed to the City Council.

Led by Schenirer, the council voted 7-2 to deny the permit. Petrovich sued, contending that Schenirer, as a member of the neighborhood association, was biased against him and had colluded with other council members to illegally deny him a fair hearing.

“Schenirer so significantly tainted the rest of the council in this case ... that there would be no fair hearing,” said Jason Smith, one of Petrovich’s attorneys. “The council collectively made up their minds well before the hearing.”

The Petrovich team displayed a series of emails and texts that they say, put together, show Schenirer worked with the SCNA to prepare a case against the gas station, and that Schenirer helped SCNA members lobby other council members to their side.

Schenirer’s membership in the SCNA is enough, in itself, to disqualify him from the debate and vote over the station, they argued.

Petrovich’s attorneys also cited an internal email from a member of then-Mayor Kevin Johnson’s staff saying Schenirer was confident he had council votes to deny the permit. The staffer, Scott Whyte, also wrote that Schenirer would make a motion to deny, Steve Hansen would second, and the mayor would support Schenirer.

“Somehow, like Nostradamus ... this is exactly what happened at the hearing,” Smith said.

Shaye Dively, the city’s attorney, and Patrick Soluri, attorney for the SCNA, countered that in order to show bias on Schenirer’s part, the Petrovich team must legally prove not that he had opinions, or that he talked frequently with constituents, but that his opinions or any animosity toward Petrovich made him and the council incapable of judging the gas station permit request on its merits.

Dively said the city followed an extensive public process, held a “robust” hearing the night of the vote, and that the city offered legitimate reasons to deny the gas station, notably that it was incompatible next to a transit stop and that it would be detrimental to the health, safety and welfare of nearby Curtis Park residents.

Shively dismissed the Whyte memos as “third party hearsay,” saying those are Whyte’s words, not Schenirer’s, and that court cases have ruled that staffers can work out their thoughts on paper and do prep work for their bosses.

Judge Michael Kenny offered few clues to his thinking during the hearing. At one point, he pointed out that “political representatives do come up through the community because they do in fact represent interests of community groups and associations.” The question, he suggested, is how far can a representative go before stepping over the line from being judge to advocate.

During the hearing, Petrovich sat behind his trio of attorneys, occasionally leaning in to scribble notes to them. Schenirer also attended the hearing, sitting in the back row of the courtroom with interim City Attorney Matt Ruyak.

The two men were once on friendlier terms. Schenirer worked with Petrovich to shepherd his development project – then called Curtis Park Village – but the pair had a falling-out during the debate over the gas station. At one point, Petrovich sent emails accusing Schenirer of trying to start a race war and describing the councilman as a mere “speed bump.” Schenirer in turn refused to meet with Petrovich in the week leading up to the gas station vote.

Tony Bizjak: 916-321-1059, @TonyBizjak

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