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IN UNPUBLISHED OPINION, COURT OF APPEAL UPHOLDS CEQA REVIEW FOR FRESNO’S FULTON MALL PROJECT


The City of Fresno’s Fulton Street lies in the heart of its downtown and was once a bustling commerce center lined with numerous retailers. Suburbanization drew those retailers to the periphery of town in the 1950s. In the early 1960s, in an attempt to revive its urban core, the City turned Fulton Street into Fulton Mall, a 6-block pedestrian mall. Fulton Mall featured planting beds with shade trees, shrubs, and flowers; water fountains, pools, and streams; shade pavilions, siting areas, and playgrounds; and sculptures and mosaic artwork. Unfortunately, interest in Fulton Mall declined by the 1970s and it soon became plagued by high crime rates, deteriorating physical conditions, and low lease rates.

In 2011, the City of Fresno released a draft Fulton Corridor Specific Plan that identified three ways of improving Fulton Mall: (1) reintroduce two-way car traffic throughout the Mall; (2) reintroduce two-way car traffic but keep selected original features of the Mall; or (3) keep the Mall as pedestrian only and invest funding in restoring and repairing the original features. Option 2 was established as the City’s preference. Thereafter, the City began applying for (and receiving) various state and federal funds to put toward the Fulton Mall project (Project). In 2013, the City began preparing the environmental impact report (EIR) for the Project in compliance with CEQA. An initial study released with the Notice of Preparation determined that the Project may have significant impacts on aesthetics and historical resources, but would not significantly impact air quality, greenhouse gas emissions, parks, traffic, and utilities.

The City certified the final EIR in early 2014 and selected Option 1 as the preferred alternative due to its “straight street” design and the increased number of on-street parking spaces. The Downtown Fresno Coalition (Coalition) filed a petition for writ of mandate, alleging that the City pre-committed to Option 1 through its federal funding agreements and that the EIR inadequately analyzed certain impacts.  In Downtown Fresno Coalition v. City of Fresno, 2106 Cal. App. Unpub. LEXIS 5212, the Fifth District Court of Appeal rejected these claims and found that the City had complied with CEQA.

The Court first held that the Coalition was not collaterally estopped from bringing the CEQA suit even though it had previously brought a suit under the National Environmental Policy Act (NEPA) in federal court against the City, the Federal Highway Administration, Caltrans, and the federal Department of Transportation regarding federal funding that was given to the project without a NEPA review. The Court found the issues in the two cases to be distinct, despite the City’s arguments about the similarities between CEQA and NEPA.

Next, the Court addressed the Coalition’s argument that the federal funding had effectively precluded consideration of an alternative that featured full or partial restoration of the Mall. The Court noted that the grant funding was conditional on full compliance with CEQA and found that the City had fully complied by with the Supreme Court’s requirements in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 by not precluding consideration of any project alternative or mitigation.

Finally, the Court considered the Coalition’s claim that the EIR did not present a legally adequate analysis of the Project’s effects on certain resources. The City had narrowed the scope of the EIR to focus on the Project’s potentially significant effects on short-term visual character and historical resources. The Court found the analysis sufficient because impacts to air quality, greenhouse gas emissions, parks, traffic and utilities were determined to be less than significant; moreover, the initial study had presented extensive rational for that determination.  The Court concluded that the City had no legal obligation to analyze less than significant impacts in the EIR in the manner urged by Coalition.



dateAugust 15th, 2016byby


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