In one of its rare published opinions, the Fifth District Court of Appeal rebuked the City of Fresno and a developer for violating the California Environmental Quality Act. Specifically, the unanimous three-judge appellate panel rejected the argument that the court cannot require an environmental impact report because the disputed project was built during litigation. "The corporation apparently made a calculated business decision to go forward with the project in spite of protests by residential neighbors, and pending litigation," Justice Rebecca Wiseman wrote. "Now the corporation must live with the consequences of its financial choice. We affirm the trial court's decision ordering an EIR be prepared. To the City of Fresno and the corporation we say: It is never too late." At issue is a car wash in a strip commercial center at North Cedar and East Nees avenues. The Fresno City Council approved the commercial development � with the exception of a proposed service station, mini-mart and automatic car wash � in August 1996. The developer sued over the exceptions, and some homeowners sued over project approval. Both of those suits were settled, with the developer winning approval of everything besides the car wash, and neighbors winning some mitigations. In August of 1997, Garreks, Inc., applied for a conditional use permit for an automatic car wash on a 0.9-acre parcel in the commercial center. After several public hearings, extensive public protest and completion of a noise study by a Garreks consultant, the Planning Commission approved the conditional use permit on January 7, 1998. The City Council declined to review the decision. The Woodward Park Homeowners Association (WPHA) filed a lawsuit challenging the city's approval of the project and asking the court to order an EIR. On July 30, 1998, Fresno County Superior Court Judge Lawrence O'Neill ruled for the homeowners. He ordered the city to complete an EIR focused on architectural and aesthetic impacts, void adoption of the negative declaration, and rescind project approval. Before O'Neill ruled, however, Garreks went ahead and constructed the car wash, with the city's consent. On appeal, Garreks and the city argued that the case was moot because the car wash was built and operating before O'Neill's ruling. They said an EIR would serve no purpose. The court strongly disagreed. "The City's argument is not only against public policy, it is absurd," Justice Wiseman wrote. In fact, she continued, the court can still provide homeowners with relief. "As recognized by WPHA, a decision upholding the court's order directing the preparation of an EIR could result in modification of the project to mitigate adverse impacts or even removal of the project altogether," she wrote. "It would hardly be sound public policy to allow a party to avoid CEQA by continuing with construction of a project in the face of litigation, delaying preparation of a court-ordered EIR pending appeal, and then arguing the case is moot because the project has been completed," Wiseman wrote. The justice continued, "Apparently the City and Garreks buy into the philosophy of the mythical captain of the Starship Enterprise, James T. Kirk, who said: �May fortune favor the foolish.' We do not. Garreks' decision to complete and operate the project, despite the pending litigation, in no way provides for an exemption to CEQA." The court also rejected the city's argument that because it had amended the municipal code regarding car washes since the trial court ruling, homeowners could no longer make a fair argument that the project may cause a significant effect on the environment. The court said allowing the city to change its code after the fact "would be laying a foundation for great abuse." Robert Rosati, the WPHA lawyer and a member of the group, explained that although noise was a major concern, the trial court decided the case on a narrower technical issue involving the Fresno Municipal Code in place at the time of project approval. In the unpublished portion of its opinion, the Fifth District upheld the trial court decision. The municipal code required car washes to be part of a unified shopping center of at least five acres. But this 9.42-acre shopping center had been chopped into numerous smaller parcels, including a 0.9-acre lot for the car wash. The municipal code required such projects be at least 300 feet from residential districts. But the trial court ruled the city violated the municipal code by measuring from a residential property line rather than the center of the street, which was only 247 feet from the project. The municipal code also required the car wash be of uniform design with the rest of the shopping center. But the city had no provision for ensuring such architectural integration, and that alone was basis enough to argue that the project may have a significant effect on the environment, the appellate court said in the unpublished part of the opinion. Rosati said the association will insist on a shuttering of the car wash while the EIR is being prepared. The Case: Woodward Park Homeowners Association v. Garreks, Inc., No. F0322200, 00 C.D.O.S. 614, 2000 Daily Journal D.A.R. 981, filed January 20, 2000. The Lawyers: For WPHA: Robert Rosati, (559) 256-9800. For Garreks: Walter Whelan, (559) 437-1079. For City of Fresno: Robert Gabriele, assistant city attorney, (559) 498-4774.
