Bitters v. Fed. Highway Admin.

• Decision Date: 12 January 2016
• Docket Number: No. 1:14-cv-01646-KJM-SMS,1:14-cv-01646-KJM-SMS
• Parties: STAN BITTERS, et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

STAN BITTERS, et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants.

No. 1:14-cv-01646-KJM-SMS¹

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 12, 2016

ORDER

In May 2014, defendant California Department of Transportation ("Caltrans"), acting on behalf of the Federal Highway Administration ("FHWA"), approved federal funds for a project to reintroduce vehicular traffic to the Fulton Mall in Fresno, California in order to revitalize economic activity in the downtown area. Plaintiffs filed this action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., alleging Caltrans violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by deciding to not prepare an environmental impact statement ("EIS"), violated NEPA by preparing a deficientenvironmental assessment ("EA"), and violated Section 4(f) of the Federal Transportation Act ("Section 4(f)"), 49 U.S.C. § 303(c), by preparing a deficient evaluation of the project's use of historic sites and public parks.²

This matter is before the court on the parties' cross-motions for summary judgment on the three APA claims, ECF Nos. 35, 40, 42, and plaintiffs' motion for a preliminary injunction pending the court's ruling on the summary judgment cross-motions. ECF No. 47. The court held a hearing on the summary judgment motions on October 30, 2015, at which Sarah Hedgpeth-Harris and Amy Minteer appeared for plaintiffs; Stephen Onstot appeared for defendant City of Fresno ("the City"); and Judith Carlson appeared for defendant Caltrans. The court submitted plaintiffs' later preliminary injunction motion as provided by Local Rule 230(g).

As explained below, after careful consideration of the record in light of applicable law, the court DENIES plaintiffs' motion for summary judgment and GRANTS defendants' motions for summary judgment. The court DENIES AS MOOT plaintiffs' motion for a preliminary injunction.

I. PROCEDURAL BACKGROUND

Plaintiff Downtown Fresno Coalition ("DFC") is an unincorporated organization dedicated to the revitalization and preservation of the Fulton Mall. AR 005341, 013230. Plaintiffs and DFC members Patty Bartucci, Herman Patton, and Ray Perez are low-income, disabled, minority residents of the City who live within a few blocks of the Fulton Mall. They enjoy the trees, artwork, and park-like atmosphere of the Fulton Mall on almost a daily basis. Bartucci Decl. ¶¶ 2, 5; Patton Decl. ¶ 2; Perez Decl. ¶¶ 3-5. Plaintiff and DFC member Stan Bitters³ contributed sculptures and fountains to the Fulton Mall when it was first converted into apedestrian mall in the early 1960s. Bitters Decl. ¶¶ 3, 5; AR 012053, 010027-29. Plaintiff and DFC member Joyce Aiken⁴ contributed mosaic benches to the Mall. Aiken Decl. ¶¶ 5, 7; AR 010029. The DFC participated in the formal consultation process with Caltrans under Section 106 of the National Historic Preservation Act, 36 C.F.R. §§ 800.1 et seq. AR 002871-79, 005341-44. Defendants have not challenged plaintiffs' standing, and the court's own review finds plaintiffs have established standing. Cf. Ecological Rights Found. v. Pac. Lumber, 230 F.3d 1141, 1147-53 (9th Cir. 2000).

Plaintiffs filed this action on October 20, 2014. ECF No. 1. On January 6, 2015, plaintiffs filed a First Amended Complaint. First. Am. Compl., ECF No. 7 ("FAC"). The First Amended Complaint asserts four causes of action: (i) violation of NEPA and APA for failure to prepare an EIS for the project; (ii) violation of NEPA and APA for failure to adequately evaluate impacts in the EA; (iii) inadequate Section 4(f) analysis; and (iv) violation of California Government Code section 11135. Id. The court has stayed litigation of the fourth cause of action pending resolution of the three APA claims. ECF No. 27, at 2-3. Caltrans and the City each filed an Answer. ECF Nos. 16, 17.

On August 31, 2015, plaintiffs filed a motion for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure. Pls.' Mot. Summ. J., ECF No. 35. The City and Caltrans filed cross-motions for summary judgment under Rule 56(f). City's Opp'n & Mot. Summ. J., ECF No. 40 ("City's Mot. Summ. J."); Caltrans' Am. Opp'n & Mot. Summ. J., ECF No. 42 ("Caltrans' Mot. Summ. J."). Plaintiffs filed a joint reply in support of their motion for summary judgment. Pls.' Reply, ECF No. 44. Because the alleged inadequacies with the EA alsoserve as the basis for plaintiffs' argument that Caltrans was required to prepare an EIS, the court addresses plaintiffs' two NEPA claims together for purposes of this order.⁵

II. FACTUAL BACKGROUND

A. History of the Fulton Mall

Through the end of World War II, Fulton Street was the heart of downtown Fresno and was considered the "Main Street" for commercial and business activity. AR 001840.⁶ During the late 1940s, Fresno's land use patterns began to alter as a result of the expansion of land uses and the movement of residents and businesses to the city's periphery. Id. As suburban shopping malls opened in the urban fringe, Fresno began to experience the commercial decline of Fulton Street. Id. In response to this decline, Fresno hired acclaimed shopping mall architects Victor Gruen Associates, Inc.⁷ in the late 1950s to develop a plan to rebuild the city's core. Id. Early planning documents stated that Fulton Street was to be "converted into a high-quality dense activity pedestrian mall." AR 005186. Modernist architect Garrett Eckbo,⁸ who Caltrans recognizes as a "master," see, e.g., AR 005296, implemented Gruen's vision and designed the Fulton Mall, which opened in 1964. See AR 001840. The Fulton Mall landscape included carefully designed planters and fountains, trees, and works of art commissioned by local artists.AR 005186. To comply with California's Pedestrian Mall Law of 1960, Cal. Sts. & High. Code §§ 11000 et seq., the City adopted an ordinance establishing Fulton Mall as Pedestrian Mall No. 1. AR 000344-47. The land that makes up the Mall is owned in fee simple by the owners of the buildings that are adjacent to the Mall,⁹ and the City holds a right-of-way easement for the Mall. AR 005185; see also AR 013960.

During the 1970s and 1980s, longtime local merchants and department store anchors steadily departed the Fulton Mall for new suburban locations. AR 005186. In the early to mid-1990s, property values of the major buildings in the Mall area declined significantly. Id. Today, the Fulton Mall tenant mix is composed of relatively small businesses, and downtown Fresno is more economically depressed than the city as a whole. Id. Measured against the surrounding downtown area, the Fulton Mall area is even more depressed, in some cases by a factor of three or more. Id.

The history of the Fulton Mall is not unique. Beginning in the late 1950s, an estimated 200 pedestrian malls were installed in cities across the United States. AR 001643, 001842. According to a study conducted in downtown Memphis, most of the original 200 malls suffered negative economic consequences from the original conversion and nearly 85% have since reopened to vehicular traffic.¹⁰ AR 001842.

B. Proposed Project

The Fulton Mall Reconstruction Project would convert Fulton Mall back to a street by reintroducing vehicle traffic lanes. AR 005185. The proposed project includes the pedestrian mall segments at the cross streets of Merced, Mariposa, and Kern. AR 005189. The length of theproposed project is 0.74 miles, while the width of the existing pedestrian mall is eighty feet. AR 005185. The project would introduce one eleven-foot-wide vehicle lane in each direction alongside bicycle and potentially other travel modes, additional parking spaces along the length of the Mall, and pedestrian-only space ranging from fourteen to forty-four feet wide on one or both sides of the street, depending on the specific proposal adopted. See AR 005198, 005203. The cost of the project is estimated to be twenty million dollars. AR 005185. The project is part of a larger planning effort by the City intended to revitalize the downtown area. AR 005197. Other planning efforts include the amended 2025 General Plan, Central Area Community Plan, Fulton Corridor Specific Plan, and Downtown Neighborhoods Community Plan. AR 005195-96, 005230-32.

The stated purpose of the proposed project is to increase mobility and access in the Fulton Mall study area by providing more convenient multi-modal access options on the Mall and its cross streets; to improve visibility of businesses and other amenities by improving traffic circulation, thereby encouraging additional economic development in the area; and to increase the Fulton Mall study area's consistency with the requirements and goals of proposed land use plans. AR 005189-90, 005360.

Caltrans identified several needs for the project. First, Caltrans found the lack of vehicular traffic and on-street, short-term parking currently limits access to businesses and residences in the study area. AR 005190. According to the Economic Impact Analysis prepared for the project, people tend to prefer to reach their shopping or business destinations quickly, especially if they have young children or are elderly or disabled. Id. About one-half of the Mall is not compliant with current Americans with Disabilities Act ("ADA") standards.¹¹ See AR 005387, 005625. Second, Caltrans found the pedestrian-only configuration limits the visibility of businesses from automobiles to what can be seen from a vehicle driving on one of the cross streets. AR 005190. As a result, existing businesses must rely on advertising or pedestrian traffic to attract commerce. AR 005192. Caltrans found this lack of access and visibilityhampers economic development in the Fulton Mall study area. AR 005194. The "Pedestrian & Transit Malls Study by Memphis Center City Commission" (2008) listed lack of access and visibility for retail as a factor in the decline of pedestrian malls across the country. AR 005194. The Fulton Mall...