A Sacramento judge has ruled that the city of Sacramento acted improperly two years ago when council members voted to deny developer Paul Petrovich’s application to build a gas station in his Crocker Village development near the Curtis Park neighborhood.
In his ruling, issued Wednesday morning, Superior Court Judge Michael Kenny wrote that Councilman Jay Schenirer, who represents the project area, demonstrated “an unacceptable probability of actual bias,” and failed to act in an open-minded manner when the issue came before the council for a hearing and vote in late 2015.
“The Court cannot ignore evidence that, in the days preceding the hearing, Councilmember Schenirer was no longer a neutral, unbiased decisionmaker,” the judge wrote. “Accordingly, Councilmember Schenirer should have recused himself from the vote on the project’s (permit), and his failure to do so was a failure to proceed in the manner required by law.”
The judge, in his ruling, ordered the city to “rescind” its permit denial and to hold a new hearing on the matter. The judge, in his ruling, said he is directing Schenirer “to recuse himself from participating in the new hearing.” He gave the city 60 days to inform him about “what has been done to comply” with his order.
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Petrovich sued the city of Sacramento in early 2016, a few months after the City Council voted 7-2 denying him the permit.
The developer had asked for city approval to build a 16-pump station at the 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.
At build-out, the Crocker Village site is expected to have more than 330 homes and a shopping area at its south end adjacent to Sutterville Road. A senior apartment complex and 45 brownstone-style row houses have been constructed.
The developer had hoped to build a Safeway store there, but the City Council rejected the proposed gas station that would have gone with the supermarket. The gas station had previously won city Planning Commission approval.
In making his argument for the gas station, Petrovich pointed out that Safeway officials were willing to locate a supermarket at the site, but only if they were allowed to operate a fuel center on-site as well.
The Sacramento City Planning Commission initially granted Petrovich a conditional use permit for the gas station. The Sierra Curtis Neighborhood Association, which opposed the gas station, appealed to the City Council.
In his lawsuit, Petrovich contended that Schenirer and city officials were biased against him and had colluded to illegally deny him a fair hearing. The Petrovich team displayed a series of emails and texts that they said, 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.
City attorneys had argued that 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.
The judge did not address the question of whether the city had solid legal reasons to deny the gas station permit.
Instead, he focused on what he called the council’s “crucial” legal obligation to act as an unbiased panel going into what is called a quasi-judicial or quasi-adjudicatory hearing, which was the type of appeals hearing that was held for the gas station matter.
In quasi-judicial hearings, council members are supposed to act like judges who are hearing an appeal. They cannot advocate beforehand for one side or the other, as they are allowed to do in most council hearings that are not based on an appeal.
Schenirer initially worked with Petrovich to push the Crocker Village project forward. But Petrovich’s later request to include a gas station prompted an outpouring of opposition from nearby residents, and ultimately a falling out with Schenirer in the weeks before the council hearing – in large part because of emails Petrovich sent to city officials attacking Schenirer’s character.
The judge concluded that texts and emails from Schenirer suggest that the councilman “began coaching (gas station opponent) Eric Johnson” on how to push for project denial. Johnson was an executive with the the Sierra Curtis Neighborhood Association, the group that brought the appeal to the council.
The judge wrote that he did not see clear bias by other council members that would indicate a second council hearing and vote on the matter “would result in an unfair and biased hearing.”
Acting City Attorney Matt Ruyak said the city would go over the fine points of the judge’s ruling and then consider the city’s options. Those options could include asking the judge to reconsider his opinion, or appealing the ruling to a higher court, or following the judge’s instructions to set up a new hearing.