HomeMy WebLinkAbout02-27-2014 Council Agenda Item 5:00 PM Supplement r
RECEIVED
Agenda Item: 5:00 P.M.
c s Date: 2/27/14
CI T Y CLE-RiK, FRfRESNO CITY COUNCIL
City of
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Ir■ I=_1C i 04 gwr
Supplemental Information Packet
Agenda Related Items— 5:00 P.M.
Supplemental Packet Date: February 27, 2014
Item(s)
HEARING to consider approvals related to the Proposed Fulton Mall Reconstruction Project
Property located in District 3)— City Manager's Office, Public Works Department and
Development and Resource Management Department
Supplemental Information:
Any agenda related public documents received and distributed to a majority of the City Council after the
Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as
needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600
Fresno Street, during normal business hours(main location pursuant to the Brown Act, G.C. 54957.5(2).
In addition, Supplemental Packets are available for public review at the City Council meeting in the City
Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City
Clerk's website.
Americans with Disabilities Act (ADA):
The meeting room is accessible to the physically disabled, and the services of a translator can be
made available. Requests for additional accommodations for the disabled, sign language interpreters,
assistive listening devices, or translators should be made one week prior to the meeting. Please call
City Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas open
and accessible. If you need assistance with seating because of a disability, please see Security.
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Law Office of
Sara fel t ��rJ15
RECEIVED
A Professional Law Corporation
°# ,=?14 FEB 20 Pn 1 12
January 13,2014
Via.Eleeo-o nicMail and U.S. Mail CITY CLERK, FRESNO CA
'Mr. Elliott Balch
Downtown Revitalization Manager
City of Fresno
City Manager's Office
2600 Fresno Street
Fresno, CA 93721
Email: Elliott.Balch@fresno.gov
Dear Mr.Balch,
I have been retained by the FresnoDowntown Coalition to provide you with my opinion
regarding whether the Draft Environmental Impact Report("DEIR")for the Fulton Mall
Reconstruction Project("Project")was prepared in compliance with the California
Environmental Quality Act("CEQA")and whether it is consistent with the 2025 General Plan.
In.addition to the DEIR and'its appendices,before reaching any opinion I considered information
contained in the following do.cuments:1
• 2013 TIGER Grant Application and supporting documents as they appear on the City of
Fresno's website(www.fresno.gov/NR-/.../TIGERnarrative inediumcompression.pdf;
ivww.fresno.gov/NR/rdonlyres/4DD73165.../al ITIGER1etters.pdf;
www.fresno.gov/NR/.../Fresno_Fulton Ma ll_TIGER_letters.pdf);
• 2012 Notice of Preparation of the EIR for Downtown Neighborhoods Community Plan
("DNCP"),Fulton Corridor Specific Plan("FCSP"),and Downtown Development Code
(http://Eesnodowntownplans.com/medialfiles/Fresno_NOP_Signed.pdt);
• 2012 Draft DNCP and Draft FCSP(www.fresnodowntowplans.com);
• 2013 Fulton Mali Reconstruction Project, Finding of Adverse Effect,prepared by
Caltrans, dated December 2013
(http://www.dot.ca.gov/dist6/media/lipsr_fUlton._mall/docs/fulton mall_foe_I.pdf);
DOCLInte.nts containin-information that is not included in the DEIR and appendices are referenced by the document
URL. T request that all referenced documents be included in the administrative record. (Pub.Resources Code,
21167.6.)
2125 1£em street,Suite 301 #Fresno CA 93721 + (559)233.0907
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+ November 2013 Fulton Mall Reconstruction,Alternatives Analysis Report
(http://www.fresno_goN,/NR/rdonlyres/E74E6B8 8-33E5-4191.-A4CA-
44E6F57D6C79/0/AA Report Final—sm.pdf);
+ 2013 Historic Property Survey Report for the Fulton Mall Reconstnretion Project
(http://www.dot.ca.gov/dist6/media,`hpsr fulton mail/does/hpsr—ftiltoni mall fina109201
3.pdf); — — —
OPEN SPACE/RECREATION ELEMENT of the 2025 General Plan
(http://www.fresn.gov/NR/rdonlvrQs/C9764782-0OC3-464D-SFO8-
527AEB 17DCAE/0/2025 GPChapter4SectionFOpenSpace.pd f);
PUBLIC FACILITIES ELEMENT of the 2025 General Plan
(http://w\.vw.fresno.gov/NR/rdonlyres/AFCF0095-472D-4F 10-B96C-
138ESOA8D5.1D/0/2025GFChapter4SectionEPublieFacilities.pdf); and
Public Utilities and:Services Element of the Draft 2035 General Plan Update
(http://w,,N-Ar.fresno.gov/NR,'rdonlyres/B69EA B 6.6-4'6EF-490A-A096-
FE40248F643A/O/GPUCh6PublieUtilitiesApi`il292013.pdf).
Based upon my review, as explained below.it is my opinion that the DEIR is legally deficient in
numerous respects and that the Project does not:square with policies, goals and objectives in the
2025 Fresno General Plan.'
Guiding Legal Principles Regarding CEQA
The purpose of an EIR is to act as an"environmental alarm bell"and to demonstrate to the
public that the environmental.implications of governmental actions have, in fact, been analyzed
and considered? CEQA defines the "environment'as"the physical conditions.which exist
within the area which will be affected by a proposed project."`t An EIR must contain detailed
inforinati°on about the effect which a proposed project is likely to have on the environment, to:list
ways in which the significant effects the project tnight�be.minimized; and to compare reasonable
alternatives to the project. (Pub. Resources Code, §21061:.) The discussion must inchtde
enough detail' to enable those who did not participate in its preparation to understand and to
consider meaningfully the issues raised by the proposed:projeet.6 It must present information in
such a manner that the foreseeable impacts of pursuing the project can actually'be understood
'My opinion is limited to the 2025 General Plan because the Draft 2035 General Plan has not yet been,approved.
3 Laurel lleighrs Improvement Assn. v.Regents of 021r-er it-of California(1988)47 Ca1:3d 376,392.
4 Pub.Resources Code,§21083.3.
4 For example.the absence of detailed snaps andlor diagrams that identify the location.of key elements of existing
infrastructure makes it difficult to understand the impacts:that physical changes caused by the Project will have on
existing conditions in the area.
6 Associaton-Of Irritcaed Residents V. Counn,gfAfddera(2003) 107 Cal.AppAth 1383,1390-91.
2125 Kern Street,Suite 301 4 Fresno CA 93721 4 (559) 233-0907
sara.hedgpethhart is@shh-law;coni
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and weighed before the decision to go forward is made. This DEIR fails as an informational
document.
CEQA defines "project"to mean"the whole of an action"that may result in either a direct or
reasonably foreseeable.indirect physical change in the environment: (CEQA Guidelines, §
15378, subd. (a).) `In evaluating the significance of the environmental effect of a project,the
lead agency shall consider direct physical changes in the environment which may be caused by
the project and reasonably_foreseeable indirect pl�ysical chatages in the environment which ina),
be caused ky the project." (CEQA Guidelines, §15064,subd. (d) [emphasis provided].) In
describing what is required in an EIR. CEQA Guidelines section 15126.2, subdivision (a),
provides:
"Direct and indirect significant effects of the project on the environment shall be
clearly identified and.described,,giving,dire consideration to both the short-term
and long-term effects. The discussion should include relevant specifics of the
area, the.resources involved, physical changes, alterations to ecological systems,
and changes induced in population distribution, population concentration,the
human use of the land(including commercial and residential development), health
and safety problems caused by the physical changes,and other aspects of the
resource base such as water,historical resources, scenic quality, and public
services. The EZR shall also analyze anv significant environmental effects the
project might cause by bringing development,acid people into the area.affected"
CEQA defines "direct effects"as "primary effects which are caused by the project and occur at
the same time and place." (CEQA Guidelines,.§ 15358,:subd. (a)(1).) "Indirect effects"are
"secondary effects which are caused by-the project and are later in time or farther reinoved in
distance,but are still reasonably foreseeable. Indirect or secondary effects may include growth-
inducing effects and other effects related to induced changes.in the pattern of land use,
population density, or grow-th rate, and related effects on air and water and other natural systems,
including ecosystems." (CEQA Guidelines, §15358, subd. (a)(2).)
While understanding the potential economic effects of revitalizing the l"ulton.Mall is critical to
the determination of whether to approve.the Project,the.purpose of an EIR is to focus on the
environmental effects of the Project. CEQA defines"environment"as`'the.,physical conditions
which exist within the area which will be affected by a proposed project." (Pub. Resources
Code, § 21083.3.) As pointed out in the Guidelines, "[I]ncreases in the population may tax
existing community service facilities,requiring construction of new facilities that could cause
significant environmental effects." (CEQA Guidelines, §.15126.2, subd. (d).) One cannot ignore
the economic costs of failing to realistically consider the chain of cause and potential effect to
aging and inadequate public infrastructure. Perhaps the Fulton Mall might not have deteriorated
had the true impacts of suburban sprawl been recognized and mitigated. The point is that the
City Council and the public cannot engage in an informed cost/benefit analysis without a much
clearer understanding of the environmental issues discussed below.
Sanri.ago Count:HlwerDist. v. Countr of Orange(1981) 118 Cal.App.3d 818, 829.
212E Kern Street, Suite.301 f Fresno CA 93721 4 (559) 2 3-1I9t 7
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Environmental issues
The discussion of Population Growth fails to address the increase in population that will occur if
this Project is successful in inducing more people to work, shop, conduct business,i4sit and live
in.the Fulton Corridor and Downtown Fresno. (CEQA Guidelines,.Appendix XIII(a).) Without
a good faith estimate of how many more people will be drawn to the area as a reasonably
foreseeable consequence ofthe Project, it is:no:t possible to understand the Project's potential
impacts on traffic conditions, air quality,sewer and water infrastructure, and public services
(such as police and fire)in the Fulton.Corridor and Downtown area.
The discussion of Traffic Conditions fails to take into account the foreseeable effects of
increased traffic volume in the Fulton Corridor area if the underlying goals of'the Project are
achieved. The DEIR's conclusion that the Project will not attract additional vehicle traffic is
inconsistent with projections in the TIGER grant narrative that the Project is expected to increase
parking revenue in the area by 482%. (TIGER Narrative, p. 6.) It.is unreasonable to assume that
parking revenues will increase by such a phenomenal amount without an associated increase in
vehicle traffic. The.DEIR should provide a good faith estimate of how many more vehicles will
be drawn to the area as a.reasonably foreseeable consequence of the Project and address the
potential for increased congestion.
As a consequence of the faulty assumption that the Project will not cause increased vehicle
traffic in the area,the DEIR significantly underestimates air quality impacts and greenhouse gas
emissions.
The DEIR acknowledges that carbon monoxide "hot spots' are created by"traffic congestion
and idling or slow moving vehicles." (DEIR,p. 5-34) The DEIR does not address the potential
for Fulton Street to become a CO hotspot as a consequence of traffic congestion on a street
designed to create slow moving traffic:Nor does it address whether it is possible to avoid or
mitigate this impact. (Pub.Resources Code, 5 21061; CEQA Guidelines, § .15370.)
The.DEIR does not.address.the potential for higher levels of emissions from traffic congestion
and slow moving traffic to impact sensitive receptors such as children, elderly and disabled
pedestrians along the shared public space. (Guidelines Appendix G, III (d).) Nor does it
address whether it is possible to avoid or mitigate this impact. (Pub.Resources Code, § 21061;
CEQA Guidelines, § 153-70.)
The DEIR acknowledges that water and sewer facilities in the area are inadequate to serve
increased use. Yet the DEIR fails to address the reasonably foreseeable effects of increased use
of these facilities if the Project induces more people to work, shop, conduct business,visit and
live in the Fulton Corridor and Downtown Fresno. Nor:does the DEIR discuss mitigation
measures that should be imposed and enforced in order to avoid oveiwhelming these critical
public facilities. (Pub. Resources Code, § 21061; CEQA Guidelines, § 15370.)
It is widely acknowledged that the downtown area has a severe shortage of park space. The
City's website identifies the Fulton Mall as a park. According to the Caltran's 2013 Findings of
2125 Kern Street,Suite 301 4 Fresno CA 93721 b (5 9) 2:33-0907
sara.hedgpethharris@shh-law.com
Page 5of7
Adverse Effect the Fulton Mall is an urban park. (See p.11.) The hundreds of elderly, disabled
and low-income families who visit the Fulton Mall every day consider it a park. The DEIR does
not address the loss of park space and does not discuss how this loss can be avoided or mitigated.
(Pub.Resources Code, § 21061;Guidelines Appendix G,.XIV; CEQA Guidelines, § 15370.)
The discussion of impacts to landfills fails to provide a good faith estimate of current capacity in
existing landfill facilities or the amount of debris that demolition and reconstruction will
generate. Without this information it is not possible to understand the basis for the D-EIR's
conclusion that the debris generated is not expected to exceed landfill capacity at.the intended
facility.
In April 2012 the City issued,a notice that it was preparing an EIR for the"Downtown Plans."
One of the plans,the Fulton Corridor Specific Plan (".FCSP"),encompasses the Fulton Mall. In
fact, the FCSP's list of projects identifies the revitalization of the Fulton Mall as the number one
project. An entire chapter of the FCSP is devoted to the Fulton Mall project. The introduction to
the discussion in the FCSP declares:
"Revitalizing the Fulton Mall is key to revitalizing Downtown Fresno. 'If no
provisions of this Specific Plan were implemented other than improving the
function of the Fulton Mail, it would mark a huge step forward for the future of
the Downtown economy." (FCSP,p.4:1.)
According to the TIGER grant narrative, the environmental impacts of Project on the Fulton
Corridor area would be reviewed in the EIR for the FCSP. (TIGER Narrative, p. 16.) however,
in October 2013 the City gave notice that it was preparing a separate EIR for the Fulton Mall
Reconstruction Project.
Despite its acknowledged central role in changing the Fulton Corridor and Downtown area, the
DEIR for the Project fails.to consider the reasonably foreseeable physical changes or the impacts
on the area. CEQA prohibits piecemeal or segmented environmental review. The requirements
of CEQA cannot be avoided by carving the Fulton Mali:Reconstruction Project out of the Fulton
Corridor Specific Plan E.IR and then failing to consider the reasonably foreseeable effects of the
Project on the area.
Eliminating this Project from environmental review in the EIR for the FCSP also reflects a pre-
approval commitment to the Project that CEQA forbids. (CEQA Guidelines, § 15004, subd.
(b)(2)(B)•)
Eliminating renovation and rehabilitation frorn the scope of environmental review and
comparison is.improper because (1)it is identified in the FCSP as a feasible alternative for
revitalizing the Fulton Mall, and(2)renovation arid.rehabilitation is the current plan for the area
according to the Central Area Community Plan. (CEQA Guidelines, S 15126.6.)
Since the current plan for the Fulton Mall is renovation and rehabilitation, the current plan is the
"no-build"alternative. (CEQA Guidelines, § 15126.6, subd. (e).) The DEIR irnproperly uses
current baseline conditions as the"no-build."alternative.
2125 Kern Street, Suite 301 + Fresno CA 93721 f (553)233-0907
sa s-a a hedgpethharrls@shh-law.co,m
Page 6 of 7
General Plan.Inconsistencies
California law forbids the approval of.a project that will frustrate a general plan's goals and
policies unless the project includes definite and affirmative commitments to mitigate the
inconsistency. (Napa Citizens.forHonest Government v. Napa CountlV Bd. of Supervisors(2001)
91 Cal.App.4th a42,379.)
The demolition of the Fulton Mall is inconsistent with the 2025 General Ples comYnitment to
"[s]afeguard Fresno`s heritage by preserving resources which reflect important cultural, social,
economic,and architectural features so that community residents will have a foundation upon
which to measure and direct physical change." (Policy Objective G-11.) Nor is eliminating the
Fulton Mall compatible with the General Plan's strategy to "[p]erpetuate, protect,enhance, and
revitalize historic resources."(Policy G-11-c.) This incompatibility cannot be mitigated.
The Project.is inconsistent with,:the policy against auto-oriented development. (Policy Objective
l -9.) There is no:discussion ofmiti.gation.
The Project is inconsistent with the policy against:approving a project without determining
whether.it will exceed the capacity of existing water and sewer facilities. (Policy Objectives E-
18,E-20,Policy E-22-d.) There is no discussion of mitigation.
The Project is not compatible with the General Plan goal of equitably distributing park space to
meet the needs of primarily minority inner city neighborhoods. It eliminates park space that
accommodates the specialized needs of a predominantly and senior citizen neighborhood without
any discussion of mitigation.
Conclusion
The Fresno Downtown Coalition believes there is nothing of cultural or historical significance in
the San Joaquin Valley.that approaches the stature of Garrett Eckbo`s Fulton Mall masterpiece
and the incredible artwork that is integrated into his design. Caltran's 20,13 Finding of Adverse
Effect confirms their belief. The DEIR acknowledges the significance of losing this cultural and
historical resource. However,my clients believe that the loss is greatly underestimated.
Furthennore, as discussed above, it is unreasonable to believe that the demolition of the Fulton
Mall and the reconstruction of Fulton Street to increase the number of people to live,work, do
business, shop and visit the area will not have a significant impact beyond the loss of the Fulton
Mall.
Igor would it be acceptable for the City Council to approve the Project without a binding
commitment to cure or mitigate the Project's inconsistencies with the 2025 General Plan's goals
and policies.
2125 Kern Street, Suite 301.# Fresno CA 93721 + (559) 233-09 7
sara.hedgpethharrjs@shh-law.com
Page 7 of 7
1 appreciate the opportunity to submit this comment letter on behalf of the Fresno Downtown
Coalition,
Sincet•ely,
Sara Hedgpeth-Harris
cc: Fresno.Downtown Coalition
2125 Kern Street, Suite 3014 Fresno CA 93721 6(559) 233-0907
sat-a-hedgpethharris@shh-law.com
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Law Office of RECEIVE❑
Sara HedgpethHarr. f E9 2 o PM 1 1.2
A Professional Law Corporation '
CITY CLERK,FRESNO CA
February 4,2014
By Electronic Mail and U.S.Mail
Mr. Steve Brandau, Council President
Honorable Members of the Fresno City Council
2600 Fresno Street,Room 2097
Fresno, CA 93721
Email: Districtl@frresno.gov,District2@fresno.gov, District3@fresno.gov,
District4 a fresno.gov, District5@fresno.gov,District6@fresno.gov,
District7@fresno.gov.
Re: Resolution authorizing the submission of applications for grant funding for
the proposed Fulton Mall Reconstruction Project from the Fresno County
Measure"C"Transit Oriented Development(TOD)Program and
authorizing the execution of application-related documents by the City
Manager or designee.
Honorable Council President Brandau and Honorable Members of the City Council:
I have been retained by the Downtown Fresno Coalition to submit this letter expressing
their opposition to the proposed resolution authorizing the submission of applications for
grant funding for the proposed Fulton Mail Reconstruction Project.
Background
The Downtown Fresno Coalition was formed to promote responsible revitalization of
downtown Fresno.' It's primary focus is the restoration and preservation of the Fulton
Mall as the masterpiece of modern urban park landscape and sculptural design that
earned it a listing in the California Register of Historical Resources. Although fonnally
deemed eligible for listing on the National Register of Historic Places by the Keeper of
the National Register,the Mall was not formally listed because a majority of the
adjoining landowners claimed ownership of the Mall and objected to its listing.z
' See the following websites for more information about DFC:
https://www.facebook.com/DowntownFresnoCoalition,and
http://www.I000friendsoffresno.org/downtownfresnocoalition.html
z This information is contained in the December 2013 Report entitled"Finding of Adverse Effect"("FAE")
that was prepared by Caltrans for the Fulton Mall Reconstruction Project.
http://dot.ca.gov/dist6/media/hpsr_fulton_mall/docs/fulton_mall_foe 2v2.pdf
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 + (559) 233-0907
sara.hedgpethharris@shh-law.com
Resolution Authorizing Application for Measure C TOD Funds for Fulton Mall
Reconstruction Project
February 4, 2014
Page 2
The determination of eligibility was based upon the Keeper's finding that the Fulton Mall
was of significant importance as an urban park and that the Mall was "exceptionally
significant at the national level of significance...for its landscape architecture, as the
finest example of post WWII era federal urban renewal pedestrian mall design, as the
work of a master, Garrett Eckbo, and as an excellent example of Modernist design ideas'
influence on landscape architecture." (See Caltrans'FAE, p. 11.)
The adopted plan for the Fulton Mall, as set forth in the Central Area Community Plan
("CACP"), is to "[i]mprove and maintain the Fulton Mall as an exciting, physically and
visually superior pedestrian environment for the people of Fresno,the San Joaquin Valley
and the world." (CACP, p. 84.) The goal of retaining the Fulton Mall as a "pedestrian-
only environment" is identified by the CACP as "fundamental"to the adopted plan.
(CACP,p. 84.)
Since September 14, 2010, my clients have participated in the planning process for
Fulton Corridor Specific Plan ("FCSP"). The CACP policies regarding the Fulton Mall
were being reviewed in this context. Three options for the Mall were identified for
further study and environmental review in the October 2011 Draft FCSP: eliminating the
Mall and replacing it with a traditional collector street; eliminating the Mall and replacing
it with a curving street with "vignettes"to showcase "selected original features in their
original Mall context"; and, preserving the Mall as pedestrian-only and renovating,
repairing and restoring the mall and its artwork.'According to the Draft FCSP,the
decision regarding the final plan for the Fulton Mall would be made, as it should be, by
the City Council after environmental review of all three options under CEQA.4
In May 2013 the City applied for and received a Measure C TOD grant of$474,810 to
prepare the preliminary plans and environmental analysis of all three options identified in
the Draft FCSP. (See Exhibit Al —Project Scope, attached hereto as Attachment A.)
Note that the project at that time was entitled, "Fulton Mall Redevelopment"project.
However, notwithstanding the terms of the City's agreement with the Fresno County
Transportation Authority (FCTA),the funds were not spent to consider all three
alternative plans for redevelopment of the Fulton Mall as detailed in the Project Scope.
The City changed course in September 2013 when the U.S Department of Transportation
announced that the City had qualified for a TIGER Grant of$15.9 million to eliminate
the Mall and replace it with a collector street. At that point, the City abandoned the EIR
for the FCSP. Instead, in October 2013 the City gave notice that it was preparing a
separate EIR for the Fulton Mall Reconstruction Project. Given that the option of
3 See FCSP p.4-7 at
<http://webapp.fresno.gov/FresnoPlans/FultonCorridor/FCSP Ch 04 Fulton Mal l_0.pdfl
4 See FCSP p.4-16 at
<http://webapp.fresno.gov/FresnoPlans/FultonCorridor/FCSP_Ch 04_Fulton Mall 0.pdf>
2125 Kern Street, Suite 301♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Resolution Authorizing Application for Measure C TOD Funds for Fulton Mall
Reconstruction Project
February 4, 2014
Page 3
preserving the Mall was eliminated from consideration and analysis, "reconstruction" is a
serious misnomer. This is a demolition project--not a reconstruction project.
Furthermore,the City has eliminated the option of replacing the Mall with a curving
street with vignettes. According to the proposed application for Measure C TOD
matching construction funding,the funds that the City received in late 2013 for pre-
construction engineering have already been used to develop the plans for demolishing the
Mall and replacing it with a traditional collector street. See Capital Improvement Project
Application, p. 5. In short, the City has committed to the demolition of the Fulton Mall
and limited the Council's options to demolition or leaving the Mall in its current blighted
condition.
As reflected in my comment letter to the DEIR for the Fulton Mall Reconstruction
Project, the process and the EIR fail to comply with CEQA and the Project is inconsistent
with the 2025 General Plan. (Attached hereto as Attachment B.) Furthermore, as
reflected in the discussion below, in my opinion this Council cannot certify in good faith
that eliminating the Mall and replacing it with collector street is an eligible project for
.Measure C TOD funding.
1. The City Council cannot certify that the Fulton Mall Reconstruction Project
is a ublic transit-oriented infrastructure ipro'ect that will reduce iprivate
vehicle dependence as required by Measure C.
On November 11, 2006,the citizens of Fresno County voted to extend the Measure C
half-cent sales tax for 20 years pursuant to an adopted Expenditure Plan. The specific
text of the ballot measure asks: "shall Fresno County Transportation Authority continue,
but not increase, existing half-cent sales tax for 20 years,per locally adopted Expenditure
Plan.i5 The Expenditure Plan provides for a very small portion(just over 1%) of Measure
C funds to be dedicated to Transit Oriented Infrastructure Development(TOD).6
According the program description in the Expenditure Plan, this type of infrastructure
development "refers to transportation facilities in new or revitalized developments
that support increased demand for transit with higher density and mixed land use.
This type of development reduces our dependence on the automobile by providing
funding incentives for more public or altennative transportation."
The Fulton Mall Reconstruction Project as currently proposed is not transit-oriented. The
Project very clearly is an auto-oriented transportation facility. A search of the EIR finds
no mention of the Project as being transit-oriented; the same is true for the January 2014
Environmental Assessment and Section 4(f)Evaluation of the Project. The project
objectives, as described in both documents, do not include increasing the demand for
5 See http://www.sos.ca.gov/elections/county-city-school-district-election-results/county_report_2006.pdf.
6The Expenditure Plan can be viewed at http://www.measurec.com/wp-
content/uploads/2013/04/2006MeasureCExpenditurePlan.pdf.
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Resolution Authorizing Application for Measure C TOD Funds for Fulton Mall
Reconstruction Project
February 4, 2014
Page 4
public transit. Furthermore, neither document explains how the re-introduction of vehicle
traffic to Fulton Street will increase the demand for public transit or reduce our
dependence on the automobile.
By design,the Project encourages our dependence on automobiles. The objective is to
incentivize more individual vehicle trips to the Fulton Corridor area. Eliminating the
Fulton Mall and replacing it with a street so that people can see the buildings from their
cars does not incentivize more public transportation or alternatives to individual vehicle
transportation.
2. The City Council cannot certify that the Fulton Mall Reconstruction Project
is consistent with adopted plans.
According to Measure C TOD Program Policies and Guidelines ("Guidelines")the
application for TOD funds must demonstrate that the project"conforms to all applicable
adopted plans." (Project Evaluation No. 2.) Contrary to representations in the proposed
application,the Project as currently proposed does not conform to all currently adopted
plans.
Demolition of the Fulton Mall does not conform to the 2025 General Plan's commitment
to "[s]afeguard Fresno's heritage by preserving resources which reflect important cultural,
social, economic, and architectural features so that community residents will have a
foundation upon which to measure and direct physical change."(Policy Objective G-11.)
Nor is eliminating the Fulton Mall compatible with the General Plan's strategy to
"[p]erpetuate, protect, enhance, and revitalize historic resources." (Policy G-11-c.)
The proposed reconstruction of Fulton Mall is also inconsistent with General Plan
policies against auto-oriented development. (Policy Objective E-9.)Approval of the
Project without first determining that existing water and sewer facilities are sufficient to
handle the growth that the Project is projected to facilitate is also inconsistent with
General Plan policies. (Policy Objectives E-18,E-20, Policy E-22-d).
Additionally, elimination of the Fulton Mall does not conform to the General Plan goal of
equitably distributing parks to meet the needs of primarily minority inner city
neighborhoods. The Project destroys a wonderful urban park that accommodates the
needs of a predominantly minority and senior citizen neighborhood.
3. The Council cannot certify compliance with CEOA
A detailed discussion of the defects in the CEQA process and the EIR for the Fulton Mall
Reconstruction Project are provided in my attached comment letter.
In conclusion, the Downtown Fresno Coalition maintains there is nothing of cultural or
historical significance in the San Joaquin Valley that approaches the stature of the Fulton
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Resolution Authorizing Application for.Measure C TOD Funds for Fulton Mall
Reconstruction Project
February 4,2014
Page 5
Mall. As a result of the City's poor stewardship,this nationally recognized treasure has
been allowed to become significantly blighted: Now,the City is sacrificing the Mall on a
ganrbl.e that the revitalization of downtown Fresno depends upon whether people can see
the buildings and storefronts along Fulton Street as they drive by in their cars. My clients
believe the City is overestimating the value of a:street and significantly underestimating
the significance of losing the.F.ulton Mall.
In conclusion, it is the position of the Downtown Fresno Coalition that the City Council
cannot in good faith adopt the proposed resolution.
FHe
ely,
dgepeth-H
cc: Downtown Fresno Coalition
2125 Kern Street,, Suite 3.01 Fresno CA 93721 + (559) 233-[907
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ATTACHMENT A
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Measure°C"Transit Oriented Development I Project Scope—Fulton Mall Exhibit A '
j EXHIBIT" Al - PROJECT SCOPE
Project- Fulton Mall Redevelopment
Responsible Agency
City of Fresno
Project Limits
The Fulton Mall consists of six blocks bounded by Van Ness Avenue to the east,Inyo Street to the south,Broadway Street to the west,and ,
Tuolumne Street to the north.Fullon Slreel,Merced Street, Mariposa Street,and Kern Street are curreritly pedestrian-only,.while Fresno
Street and Tulare Street conllnue to include traffic.
Project Phase
® Phase i-Pref nary Engineering Uncludes Prelir»lnary Design1Engfneedng(PS&E)and Environmental)
❑ Phase 2-Right-of-Way Acquisition
* Phase 3-Construction(includes Project Constrvctlon&Constmation Management)
Project Phase(g)Scope '
�..
Phase 1:ncludes completing preliminary plans arttl the erivlranme.. -arlaly [net dirlg l*QA 8r 4 documsnla Gh The actual
construction of the project will be done under one construction contract.
Gpmplefe project Scope
Upon complatton of Phase 1,one of the following three glWnalives will be:se.lecled:
• Reconnect the Grid on Tradiilonat Streets'and relocate.the art lea Was,
Reconnect the Grid wit}]Vignettes and relocate the ail features utilizing the vi�il8ttes.
Restoration and Completion of the mall with!!4 the present con%urallar,of lti streets:
Project Purpose
The revitalization of Downtown Fresno is one of:the most important.factors In the long-term success of the rest of the City.
Revitarrzation of the.thousands of acres that surround the Downtown depends entirely on the successful turnaround of Downtown's
central business district.
Transportation Benefit
The Fulton Mall is the City's most likely target for multMmodal Trans[( Oriented Development. It is one-block from the current
Downtown transit tray, one-block from the future Downtown BRT station,and two-blocks from a potential High Speed Rail station.
Already several high-density, high-quality housing developments have been proposed along Fulton Mall, with more expected as
essential Infrastructure investments occur on:and around the Mall,and the revitalization of the area becomes visible. Over Itme,due to
its denss:bullding stock and location,the Fulton Mall area has the unique potential to become a very intense mixed-use'COD center,
lmplications of Not Doing the Project '
Without the project the downtown would not enjoy the Increased developmentand transit activity that the project envisions.
Community Engagement
The project limits are within a.commercial area, Businesses will be kept informed of the Project's status and schedule through Project
newsletters and the Project Website.FCTA will.be added as:an informed partyto thoseiists.
Construction Staging
Construction phasing will be implemented to reduce or eliminate potentialimpacts on nearby residences and businesses.
Detours
Detours during construction ofihis Project are not anticipated.
Current Status
Phase i will be initiated with the execution of this agreement•
Contact
For inquiries,you may contact Scott Mozier,P.E.,with the City:of Fresno Public Works Dept,at(659)621-8650.
i
Rev I V01/2013
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ATTACHMENT B
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Law Office of
A Professiona, Law Corporation
#440
January 13,2014
Via Electronic 111fai:l and U.S. Mail
Mr.Elliott Balch
Downtown Revitalization,Manager
City of Fresno
City Manager's Office
2600 Fresno Street
Fresno, CA 93721
Email: E.l.tiott.Balch@,fresno.gov
Dear Mr.Balch.
I have been retained by the Fresno Downtown Coalition to provide you with my opinion
regarding whether the Draft Environmental Impact Report("DEIR.") for the Fulton Mat]
Reconstruction Project("Project")was prepared in compliance with the California
Environmental Quality Act("CEQ.A"") and whether it is consistent with.the 2025 General Plan.
In.addition to the DEIR and its appendices,before reaching my opinion I considered information
contained in the follovwing documents:I
* 2013 TIGER Grant Application and supporting documents as they appear on the City of
Fresno's website (iNww.fresno.gov/NR/.../TIGERnarrative_mediuincornpression.pdf;
www.fresno.gov/NR/rdonlyres/4`DD 73165...%a11TIGERIetters.pdf,
www.fresno.gov/NR/.../Fresno FultonMall'TIGER letters.pdf);
• 2012 Notice of Preparation of the EIR for Downtown Neighborhoods Community Plan
("DNCP"), Fulton Corridor Specific Plan("FCSP"), and Downtown Development Code
(http://fiesnodowntownplans.com/media/files/Fresno NOP_Signed.pol);
2012 Draft DNCP and Draft FCSP (www.fresnodowntowplans.com);
• 20:13 Fulton Mall Reconstruction Project, Finding of Adverse Effect,prepared by
Caltrans, dated December 2013
(http://w�,vw.dot.ca.gov/dist6/media/lipsr_iuiton. inatl/docs/fulton mall_foe_I.pdf);
Documents containing information flint is not included in the DEIR and appendices amreferenced by the document
URL. 1 request that all referenced documentsbe included in the administrative record. (Pub.Resources Code,§
2.125 Kern Street, Suite 301 +Fresno CA: 93721 + (559)233-0907
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• November 2013 Fulton Malk Reconstruction,Alternatives Analysis Report
(http://WNA,-Af.fresno.gov/NR/rdonlyres/E74E6B88-33E5-419 I.-A4 CA-
44E6F57D6C79/0/AA Report_Final_sm.pdf);
0 2013 Historic Property Survey Report for the Fulton Mall Reconstruction Project
(http:/Ywww•.dot.ca,gov/dist6/media/hpsr—Fulton mall/does/bpsr_fulton mall finalO9201
3.pdf); — — —
• OPEN SPACE/RECREATION ELEMENT of the 2025 General Plan
(http://www.fresno.gov/NR/rdonlyi-es/C-9764.782-00.C3-464D-8F08-
527AEB 17:DCAE/0/2025 GPChapter4SectionFOpenSpace.p.df);
PUBLIC FACILITIES ELEMENT of the 2'025 General Plan
(http://wtvw:fresiio.gov/NR/rdonlyres/AFCF0.095-472D-4F 10-B96C-
138E8.0A8D5lD/0/202'SGPChapter4SectionEPublieFacilities.pdf); and
• Public Utilities and Services Element of the Draft 203:5 General Plan Update
(http://wur�v.fresno.gov/NRjrdonlyres!B 69,EA B 66-46EF-49OA-AO96-
FE40248F643A/0/GPUCh6PublicUti:litiesApril292013.pdf).
Based upon my review, as explained:below,it is my opinion that the D.EIR is legally deficient in
numerous respects and that the Project does not square with.policies, goals and objectives in the
2025 Fresno General Plan.'
Guiding Legal Principles Regarding CEQA
The purpose of an EIR is to act as an"enviroarriental alarm bell" and to demonstrate to the
public that.the environinental implications of governmental actions have, in fact, been analyzed
and considered.3 CEQA defines the"environment"as"the physical conditions which exist
within the area Nvhich will be.affected by a proposed project:"`i An EIR must contain detailed
infonna.tion about the effect which a proposedpraject is likely to have on,the environment:to list
ways in which the significant effects the project niight be minimized; and to compare reasonable
alternatives to the project. (Pub.Resources Code; $21061.) The discussion must include
enough detail'to enable those who did not participate in its preparation to understand and to
consider meaningfully the issues raised by the proposed project.6 It must present information in
such a tuanner that the foreseeable impacts of pursuing the project can actually be understood
'My opinion is limitedto the 2025 General Plan because the Draft 2035.General Plan has not yet been approved.
3 Laurel Heights Lrnip)'overnentAssn. v.Regents of Cfnivengty of.Californ&r(1988)47 Ca1.3d 376,392.
4 Pub.-Resources Code, 21083.3..
`For example.the absence of detailed maps andlor diagrams that.identify the location of key elements of existing
infrastructure makes it difficult to understand the impacts that physical changes caused by the Project will have on
existing conditions in the area.
e Association of Irritated Residents v. County of'11'adera(2003:) 107 Cal.AppAth 1383,1390-91.
2125 Kern Street;, wife 301 0 Fresno CA 93721 ♦ (559):233-0907
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Page 3 of 7
and weighed before the decision to go fonvard is made.7 This DEIR fails as an informational
document.
CEQA defines "project"to mean"the whole ofan action"that may result in either a direct or
reasonably foreseeable indirect physical change in the environment. (C.EQA Guidelines, §
15378, subd. (a).) "In evaluating the significance of the environmental effect of a project,the
lead agency shall consider direct physical changes in the environment which may be caused by
the project and reasonably foreseeable indirect ph.ysical changes in the environment which inay
be caused ky the project." (CEQA Guidelines, §15064,subd, (d) [emphasis provided].) In
describing what is required in an EIR, CEQA Guidelines section 15126.2. subdivision (a),
provides:
"Direct and 'indirect significant effects of the project on the environment shall be
clearly identified and described,giving dice consideration to both the short-term
and long-term effects. The discussion should iaaclude relevant specifics of the
area,the resources involved,physical changes, alterations to ecological systems,
and changes induced in population distribution,population concentration, the
human use of the land(including commercial and.residential development), health
and safety problems caused by the physical changes, and other aspects of the
resource base such as water,historical resources, scenic quality, and public
services. The EIR shrill also analyze aity significant environmental effeets the
project in°ight cause 4y5 bringing development and people into the area affected."
CEQA defines "direct effects" as "primary effects which are caused by the project and occur at
the same time and place." (CEQA Guidelines, § 15358, subd. (a)(1).) "Indirect effects" are
"secondary effects which are caused by the project and are later in time or farther removed in
distance,but are still reasonably foreseeable. Indirect or secondary effects may include growth-
inducing effects and other effects.related to induced changes in the pattern of land use,
population density,or growth rate, and related effects on air and water and other natural systems,
including ecosystems." (CEQA Guidelines, §15358, subd. (a)(2).)
While understanding the potential econon is effects of revitalizing the Fulton Mall is critical to
the determination of whether to approve the Project,the purpose of an EIR is to focus on the
environmental effects of the Project. CEQA defines"environment"as"the physical conditions
which exist within the area which will be affected by a proposed project." (Pub. Resources
Code, § 2.1083.3.) As,pointed out in the Guidelines;"[I]ncreases in the population may tax
existing community service facilities,requiring construction of new facilities that could cause
significant environmental effects." (CEQA Guidelines, §15126.2, subd. (d).) One cannot ignore
the economic costs of failing to realistically consider the chain of cause and:potential effect to
aging and inadequate public infrastructure. Perhaps-the Fulton Mall might not have deteriorated
had the true impacts of suburban sprawl been:recognized and mitigated. The point is that the
City Council and the public cannot engage in an informed cost/benefit analysis without a much
clearer understanding of the environmental issues discussed below.
Santiago Counry-TVater Dist. v. Counti-of Orange(19M) 118 Ca1.App.3d 818;829.
22125 Kern Street, Smite 303 # Fresno CA 93721 # (559) 233-0907
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Page 4 of 7
Environmental Issues
The discussion of Population Growth fails to address the increase iti population that will occur if
this Project is successful in inducing more people to work, shop, conduct business,visit and live
in the Fulton Corridor and Downtown Fresno. (CEQA Guidelines,Appendix XIII(a).) Without
a good faith estimate of how many more people will be drawn to the area as a reasonably
foreseeable consequence of the Project, it is.not possible to understand the Project's potential
impacts on traffic conditions, air quality,server and.water infrastructure, and:public services
(such as police and fire) in the Fulton Corridor and Downtown area.
The discussion of Traffic Conditions fails to take.into account the foreseeable effects of
increased traffic volume in the Fulton Corridor area if the underlying goals of the Project are
achieved. The DEIR's conclusion that the:Project will not attract additional vehicle traffic is
inconsistent with projections in the TIGER grant narrative that the Project is expected to increase
parking revenue in the area by 482%. (TIGER Narrative,p. 6.) It is unreasonable to assume that
parking revenues will increase by such a phenomenal amount without an associated increase in
vehicle traffic. The DEIR should provide a good faith estimate of how many more vehicles will
be drawn to the area as a reasonably.foreseeable consequence of the Project and address the
potential for increased congestion.
As a consequence of the faulty assumption that the:Project will not cause increased vehicle
traffic in the area,the DEIR significantly underestimates air quality impacts and greenhouse gas
emissions.
The DEIR acknowledges that carbon monoxide"hot spots" are created by"traffic congestion
and idling or slow moving vehicles," (DEIR,p. 5-34.) The DEIR does-trot address the potential
for Fulton Street to become a CO hotspot as a consequence of traffic congestion on a street
designed to create slow moving traffic.Nor does it address whether it is possible to avoid or
mitigate this impact. (Pub.Resources Code, § 21061; CEQA Guidelines, § 1.5370.)
The DEIR does not address the potential for higher levels of emissions from traffic congestion
and slow moving traffic to impact sensitive receptors:such as children, elderly and disabled
pedestrians along the shared public space. (Guidelines Appendix G, III (d).) Nor does it
address whether it is possible to avoid or mitigate this impact. (Pub.Resources Code, § 21061;
CEQA Guidelines, § 15370.)
The DEIR acknowledges that water and sewer facilities in the area are inadequate to serve
increased use. Yet the DEIR fails to address the reasonably foreseeable effects of increased use
of these facilities if the Project induces more people to work, shop, conduct business',visit and
live in the Fulton Corridor and Downtown Fresno. Nor does the DEIR discuss initigation
measures that should be imposed and enforced in order to avoid overwhelming these.critical
public facilities. (Pub. Resources Code, § 2 W61;CEQA Guidelines, § 15370.)
It is widely acknowledged that the downtown area has a severe shortage of park space. The
City's website identifies the Fulton Mall as a park. According to the Caltran's 2013 Findings of
2125 Kern Street,Suite 301 4 Fresno CA 9 721 a (559) 233-0907
sara.hf--dgpethharris@shh-law.com
Page 5of7
Adverse Effect the Fulton Mall is an urban.park. (See p.11.) Thee hundreds of elderly, disabled
and low-income families who visit the Fulton Mali every day consider it a park. The DEIR does
not address the loss of park space and does not discuss how this.loss can be avoided or mitigated.
(Pub.Resources Code, § 21061; Guidelines Appendix G,XIV; CEQA Guidelines, § 15370:)
The discussion of impacts to landfills fails to provide a:good faith estimate of current capacity in
existing landfill facilities or the amount of debris that demolition and reconstruction will
generate.. Without this information if is not possible to understand the basis for the DEI.R's
conclusion that the debris generated is not expected to exceed landfill capacity at the intended
facility.
In April 2012 the City issued a notice that it was preparing an EIR for the"Downtown Plans."
One of:the plans,the Fulton Corridor Specific Plain ("FCSP"), encompasses the Fulton Mall.. In
fact,the FCSP's list of projects identifies the revitalization of the Fulton Mall as the number one
project. An entire chapter of the FCSP is devoted to the Fulton Mall project. The introduction to
the discussion in the FCSP declares_
"Revitalizing the Fulton Ma*ll is key to revitalizing Downtown Fresno. If no
provisions of this Specific Plan were implemented other than iinpro.ving the
function of the Fulton Mall,it would mark a huge step forward for the future of
the Downtown economy." (FCSP,p.4:1.)
According to the TIGER grant narrative,the environmental impacts of Project on the.Fulton
Corridor area would be reviewed in the EIR for the FCSP. (TIGER Narrative,p. 16.) However,
in October 2013 the City gave notice that it was preparing a separate EIR for the Fulton Mal
Reconstruction Project.
Despite its acknowledged central role.in changing the Fulton Corridor and Dovmtown area.,the
DEIR for the Project-fails to consider the reasonably foreseeable physical changes or the impacts
on the area. CEQA prohibits piecemeal or segmented environmental review. The requirements
of CEQA cannot be avoided by carving the Fulton Mall Reconstruction Project out of the Fulton
Corridor Specific Plan EIR and then failing to consider the reasonably foreseeable effects of the
Project on the area.
Eliminating this Project from environmental review in the EIR for the FCSP also reflects a pre-
approval commitment to the Project that CEQA forbids. (CEQA Guidelines, § 15004, subd.
(b)(2)(B).)
Eliminating renovation and rehabilitation from the scope of environmental review and
comparison is improper because (1)it is identified in the FCSP as a feasible alternative for
revitalizing the Fulton Mall,and(2).renovation and rehabilitation is the current plan for the area
according to the Central Area Community Plan. (CEQA Guidelines, § :15126.6.)
Since the current plan for the Fulton Mall is renovation and rehabilitation, the current plan is the
"no-build"alternative. (CEQA Guidelines,.§ 15126.6, subd. .(e.).) The DEIR improperly uses
current baseline conditions as the"no-build''alternative.
2125 Kern Street, Suite 301:+ Fresno CA 93721 # (559) Z 3-L 907
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Page 6 of 7
General Plan Ineonsistencies
California law forbids the approval of a project that will frustrate a general plan's goals and
policies unless the project includes definite and affirmative commitments to mitigate the
inconsistency. (Napa Citizens for•Honest Government v. Xapa County Bd. offSupervisors (2001)
91 Cal.App.4th 342, 379)
The demolition of the Fulton Mall is inconsistent with the 2025 General Plan's commitment to
"[slafeguard Fresno's heritage by preserving resources which reflect important cultural, social,
economic, and architectural features so that community residents will have a foundation upon
which to measure and direct physical change."(Policy Objective G-11.) Nor is eliminating the
Fulton Mall compatible with the General Plan's strategy.to:"[p]erpetuate,protect, enhance, and
revitalize historic resources."(Policy G`-I 1-c ) This incoinpatiliility cannot be mitigated.
The Project is inconsistent with the policy against auto-oriented development. (Policy Objective
E-9.) There is no discussion of mitigation.
The Project is inconsistent with the policy against approving a project without determining
whether.it will exceed the capacity of existing water and sewer facilities. (Policy Objectives E-
18. E-20,Policy E-22-d.) There is no discussion of mitigation.
The Project is not compatible with the General Plan goal of equitably distributing park space to
meet the needs of primarily minority inner city neighborhoods. It eliminates park space that
accommodates the specialized needs of a predominantly and senior citizen neighborhood without
any discussion of mitigation.
Conclusion
The Fresno Downtown Coalition believes there is nothing of cultural or historical significance in
the San Joaquin Valley that approaches the stature of Garrett Eckbo's Fulton Mall masterpiece
and:the incredible artwork that is integrated into his design, Caltratfs 2013 Finding of Adverse
Effect confirms their belief. The DEIR acknowledges the significance of losing this cultural and
historical resource. However,my clients believe that the loss is greatly underestimated.
Furthennore, as discussed above,it is unreasonable to believe that the demolition of the Fulton
Mall and the reconstruction of Fulton Street to:increase the number of people to live,work, do
business, shop and visit the area will not have a significant impact beyond the loss of the Fulton
Mall.
Igor would it be acceptable for the City Council to approve the Project without a binding
commitment to cure or mitigate the Projects inconsistencies-with the 2025 General Plan's goals
and policies.
2125 Kern Street, Suite 3010 Fresno CA 93721 0 (559) 233.0907
Sara.hedgpethharris@shh-law.com
Page 7 of 7
I appreciate the opportunity to submit this oorument letter on behalf of the Fresno Downtown
Coalition.
Sincerely.
Sara Hedgpeth-Harris
cc: Fresno Downtown Coalition
2125 Kern Street,Suite 301 a Fresno CA 93721 t(559)233-0907
sara.hedgpethharris@shh-law.com
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. Law office of _ REGEPV-ED
A Professional Law Corporation c-'4 FLO [0 1' 1 12
seas
February 24,2014
CITY CLERK,FRESNO CA
By Email
Kirsten Helton, Senior Environmental Planner
California Department of Transportation
855 M Street, suite.200
Fresno,CA 93721
Kirsten.Helton@dot.ca.gov
Re: Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project(EA 06-OR200).
Dear Ms.Helton:
I have been retained by the Downtown Fresno Coalition("DFC")to submit these
comments to the Environmental Assessment("EA")and Section 4(f)Evaluation for the
Fulton Mall Reconstruction Project. DFC is a§106 consulting party for the Project.
I. An EIS Must Be Prepared.
First of all,the description of this project as a"reconstruction project" is inaccurate and
extremely disingenuous:since it is undisputed that the TIGER grant funds will be used to
demolish the Fulton Mall and no funds will be used to reconstruct the Mall. An EA is
appropriate when the significance of an environmental impact is unclear. 23 C.F.R.
§771.115(c). It has been patently clear from the outset that this projects impacts will be
significant. No reasonable person could seriously question whether the use of federal
funds to demolish the Fulton Mall will have a significant impact on the quality of the
human environment. An Environmental Impact Statement("EIS")is therefore required
by federal law. 42 U.S.C. §4332(2)(C). The purpose of this letter is to identify some of
the most potentially significant impacts.the project will have on the quality of the
environment.
A. The Project Will Demolish A Nationally Recognized Historical Resource.
As acknowledged in Caltrans'December 2013 Findings of Adverse Effect("FAE")for
the project,the Keeper of the National Register of Historic Places has determined that the
Fulton Mall is of significant importance as an urban park and that the Mall is
"exceptionally sign fcant at the national level Qf signiflcance...for its landscape
architecture,as the finest example of post WWII era federal urban renewal pedestrian
2125 Kern Street,Suite 301 a Fresno CA 93721 # (SSg) 233-0907
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Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 2
mall design,as the work of a.master,Garrett Eckbo,and as an excellent example of
Modernist design ideas'influence on landscape architecture." (FAE,p. 11.)
B. The Project Will Demolish An Urban Park That Serves A Disadvanta ed
Community.
For purposes of NEPA and Section 4(f),Caltrans must assume the project will demolish
an historical urban park. The City's claim that the Fulton Mall is not an urban park
resource ignores reality. Not only is it inconsistent with findings of the Keeper of the
National Register of Historic Places,it is inconsistent with the findings and conclusions
of the August 2013 Historical Property Survey Report. It also contradicts the-City's
descriptions ofthe Fulton Mall in its grant application for state and federal grant funds' to
improve the Mall.As reflected in the attached grant application for the Fulton Mall
Children's Play Equipment Replacement Project,the City claims that the Fulton Mall:is
"a 7.3 acre linear urban park located in the heart ofDowntown Fresno."(Exhibit A,p. 1.)
C. The Project Will Have An Adverse Im act On Communi Character And
Cohesion.
The City's application for park fund grants-also paints a more accurate and complete
picture of the community that is impacted by the demolition of this urban park. For
example, it accurately explains that the Fulton Mall.provides "a very high percent of the
under-served and economically disadvantaged population in the Fresno Metropolitan
area"with "access to a public park and recreation resources." (Exhibit A,p.2.)In
describing the need for park funds,the grant application accurately reflects that the tot
lots are in front of buildings that house the offices ofthe U.S. Customs and Immigration
Services and Fresno County Juvenile Dependency Court which hears primarily child
welfare cases. Exhibit A,p. 3. This demonstrates that the funds were needed to improve
the park so that children have access to a safe and convenient place to play while their
families access the services they need.
The Community Impact Analysis("CIA")that was prepared by the City lists the
numerous federal,state and county offices that are housed on Fulton Mall including:U.S.
Army Recruiting, U.S. Social Security Administration,Internal Revenue Service,Fresno
Housing Authority,Fresno County Department of Public Health and Court Appointed
Special Advocates ("CASA"). On a daily basis,these agencies serve the needs of a
regional, county and local population of elderly, disabled and low-income families who
visit the Fulton Mall and who utilize it as a park. Yet the City's CIA fails to consider
how replacing this urban park with a street will impact the community that currently
benefits from its existence. For example,.it fails to address the potential traffic
congestion that will occur when the thousands of people who currently access these
As reflected in the EA,State Proposition 40 and Federal Land and Water Conservation Funds were used
to improve the tot lots.
2125 Fern Street,Suite 301 ♦ Fresno CA 93721 ♦(559) 233-0907
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Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 3
offices by walking on the Mall attempt to access them by driving their cars. It also fails to
address the safety implications if children must cross the congested street to play on the
tot lot equipment.
While the City may be able to change its policies with respect to the Fulton Mall, it
cannot change the communitythat is currently served--and that will continue to be
served--by the Mall. Furthermore,the City cannot avoid assessing the impact that the
demolition of this urban park will have on the impacted community by limiting the study
area population to those who live within the narrow geographical confines of a single
census tract.
Without an accurate description ofthe setting and context,the EIS for this project cannot
provide an accurate assessment of the project's impacts on the human environment.DFC
is informed and believes that the City has possession of studies and reports that contain
the information needed to accurately describe the community that the Fulton Mall
currently serves on a daily basis.2 Caltrans must insist that the City provide this
information so that the EIS can provide an honest and accurate assessment of how the
demolition of this urban park will impact the area's minority and low income community.
D. The Project Will Have Growth Inducing.Impacts.
According to the CIA, "growth is anticipated to occur through the reoccupation of the
ground floors of existing vacant buildings as vehicle access and parking become
available."p. 37. The City projects a significant increase in the development of
residential units in the area as a result of the project,yet the City fails to provide any
estimates regarding the anticipated population increase. Again,the City cannot ignore
the direct and indirect impacts on the environment by restricting its assessment of growth
impacts to the confines of the Mall area. Without a good faith estimate of how many
more people will be drawn to the area as a reasonably foreseeable consequence of the
Project's success,it is not possible to understand the Project's potential impacts on traffic
conditions,air quality, sewer and water infrastructure, and public services(such as police
and fire)in the Fulton Corridor and Downtown area.
E. The Project Will Impact Existing Minod1y Businesses.
The CIA's analysis of the impact to businesses on:the Mall is limited to the following
comment: "Based on the types of businesses currently located on the Fulton Mall,many
2 DFC also objects to the use of inadequate and incomplete dataregardingthe incidences of crime in the
area as compared with other areas in Fresno. According to the Department of Justice Uniform Crime
Reporting Statistics,there were 25,737 incidences of property crime and 2,748 violent crimes reported in
the City of Fresno. Without any meaningful analysis or comparison:of the Fulton Mall area with other
areas of the City,the EA attempts to give the.impress.ion that the Fulton Mall is a high crime area. If crime
is to be used as a factor in the decision.regarding whether to approvethis project,DFC insists that the EIS
include accurate and data and that itprovides a good faith assessment of crime in the area.
2125 Kern Street,Smite 30:1 ®Fresno CA 93721 0(559) 233-0907
sa ra.hedg pethharri soshh-law.corn
Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 4
may be minority owned. Several retail businesses appear to serve the Hispanic
community. Restaurants are mainly Hispanic or other ethnic foods." CIA,p. 67. The EA
limits its consideration to the five mobile cart vendors that operate within the,area,and
claims they will not be impacted because they will be allowed to move.to other locations
within the.general vicinity. EA,p.33.Neither the EA nor the CIA provides the
information necessary to assess the impacts to:numerous:existing minority owned
businesses that are housed within the Buildings that line the Mall as a consequence the
demolition project.
F. The Project Will;Impact ExistiU Utilities.
The City acknowledges in the EIR,prepared for the Project that water and sewer facilities
in the area are inadequate to serve increased use. Yet the EA fails to address the
reasonably foreseeable effects of increased use of these facilities if the Project:induces
more people to work, shop, conduct business,visit and live in.the Fulton Corridor and
Downtown Fresno. Nor does the EA discuss mitigation measures that should beimposed
and enforced in order to avoid overwhelming these critical public facilities.
G. The Traffic impacts Are Potentially Significant.
The City's traffic analysis fails to take into account the foreseeable effects of increased
traffic volume in the Fulton Corridor area if the underlying goals of the Project are
achieved. The City's conclusion that the Project will not attract additional vehicle traffic
is inconsistent with projections in the TIGER grant narrative that the Project is expected
to increase parking revenue in the area by 482%o. (TIGER Narrative,p. 6.) It is
unreasonable to assume that parking revenues will increase by such a phenomenal
amount without an associated increase in vehicle.traffic. The City's claim that the project
will merely shift existing traffic patterns is inconsistent with the City's goal of increasing
the number of people who visit the area in their cars.The EIS should provide a good faith
estimate of how many more vehicles will be drawn to the area as a reasonably
foreseeable consequence of the Project and address the potential for increased congestion.
H. Air Quality Impacts are Potentially Significant.
Without accurate data regarding the projected increase in vehicle traffic in the downtown
area, it is impossible to accurately assess vehicle emissions.
I. The Project Is Not Consistent Witli The Adopted Communi1y Plans.
The adopted plan for the Fulton Mall,as set forth in the Central Area Community Plan
("CACP"),is to "[i]mprove and maintain:the Fulton Mali as an exciting,physically and
visually superior pedestrian environment for the people of Fresno,the San Joaquin Valley
and the world." (CACP,p. 84.)The goal of retaining the Fulton Mall as a "pedestrian-
only environment" is identified by the CACP as "fundamental" to the adopted plan.
2125 Kern Street,Suite 301 0 Fresno CA 93721 ♦ (559)233-0907
Sara.hedgpethharris@shh-iaw.com
Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 5
(CACP,p. 84.) The proposed amendments that would allow for the demolition.have not
been approved by the Fresno City Council.. Even assuming those amendment are
approved,the project remains inconsistent with the 2025 General Plan's commitment to
"[s]afeguard Fresno's heritage by preserving resources which reflect important cultural;
social,economic,and architectural features so that community residents will have a
foundation upon which to measure and direct physical change."(Policy Objective G-11.)
Nor is eliminating the Fulton Mall compatible with the General Plan's strategy to
"[p]erpetuate,protect, enhance,and revitalize historic resources."(Policy G-I I-c) The
proposed reconstruction of Fulton Mall is also inconsistent with General Plan.policies
against auto-oriented development. (Policy E4)Approval of the Project without first
determining that existing water and sewer facilities are:sufficient to handle the growth
that the Project is projected to facilitate is also inconsistent with General Plan;policies.
(Policy Objectives E-18,E-20,Policy E-22-d). Additionally,elimination,of the Fulton
Mall does not conform to the General Plan goal of equitably distributing parks.(Policy F-
1-d.)
II. The §4(f)Analysis Is.Inadequate.
Federal funds cannot be used for the destruction of historical resources or urban parks
except in extraordinary circumstances where "there is no feasible and prudent alternative
to the use of such land." 49 U.S.C. § 303(a); 23 U:S.C.A. § 138. There must be "truly
unusual factors present in a particular case or the cost or community disruption resulting
from alternative routes"must"reach[]:extraordinary magnitudes." Citizens to Preserve
Overton Park, Inc. v. Volpe (1971)401 U.S. 402,413, abrogated on other grounds by
Califano v. Sanders(1977)430 U.S. 99. The§4(f)analysis in this case does not identify
what"truly unusual factors" exist in this case.
According to the City,the Fulton Mall must be demolished because economic
development will not occur unless traffic can circulate through the area and park adjacent
to the businesses that line the Mall. The City relies upon evidence that economic
development occurred in other cities when their pedestrian malls were replaced with
collector streets. However,there is no evidence'that any of these pedestrian malls were
historical resources of the magnitude of the Fulton Mall or that.they were urban parks
that served the needs of a very high percent of the under-served and economically
disadvantaged population.
In essence the City has determined that the need for easier access to the businesses that
line the Fulton Mall trumps the need'to protect a historical resource and an urban park.
However,under the mandate of federal law the protection of these resources is paramount
and federal funds can only be used to destroy the Mall if. (1)alternative access routes are
unavailable; or(2)alternative access routes present"uniquely difficult problems";or(3)
"the cost or community disruption resulting from alternative routes [reach]'extraordinary
magnitudes."Stop 1I-3 Assn v. Dole(9b Cir. 1984) 74.0 F.2d 1442, 1449,.quoting
Overton Park, supra, 4401 U.S.at 413,416. The mandate to protect the Fulton Mali
2125 Kern Street, Suite 301 0 Fresno CA 93721 e (559)23 3-€E907
sa ra.hedgpethhari°ls0shh-law.com
Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 6
imposes a very stringent requirement of proof that its continued existence so disrupts the
community that it poses a problem of extraordinary magnitude. Stop H-3 Assn v. Dole,
supra, 740 Y2d at 1:452.. The mere fact that it would be easier to access and park in front
of businesses if the Mall did not exist does not rise to the level of extraordinary
magnitude that would justify its destruction. Nor is there is anything unique or
extraordinary about the need to increase economic development in the area.The need for
downtown economic revitalization is not a unique problem. On the other hand,it is
unique that a downtown has a historic resource and urban park of the stature,of the Fulton
Mall.
Furthermore, even assuming for the sake argument that the need for easier vehicle access
presents sufficiently unusual and extraordinary circumstances to justify the destruction of
a historical resource and urban park;the§4(f)analysis provides no proof that"the
program or project includes all possible planning to minimize harm to these resources."
49 U.S.C.A. § 303;23 U.S.C.A. § 138. To the contrary,the analysis reflects that
planning to minimize harm is conceptual and incomplete and there is no plan for
mitigating for the loss of urban park space.EA,pp. 50-54.
III. The Title VI Analysis is Inadequate.
"No person in the United States shall,on the ground of race, color, or national origin,be
excluded from participation in,be denied the benefits of,or be subjected to
discrimination under any program or activity receiving Federal financial assistance."
42 U.S.C.A. § 2000d. As discussed above,the demolition of the Fulton Mall will have a
disproportionately adverse impact on the minority community in the Fresno area. The
data necessary to analyze the extent to which members of minority groups will benefit or
disproportionately suffer from the demolition of the Fulton Mall must be disclosed and
analyzed. The EA's conclusion that the-demolition of the will not adversely impact the
minority community uses an unreasonably narrow study area and fails to accurately
identify the community that the Mall currently serves;those who will undeniably be
impacted by its loss.For the same reason the EA's analysis of environmental justice is
inadequate.
1V._ The.Use of Federal Funds for This Project is Inconsistent with DOT's Strategic Plan.
The DOT's Strategic Plan is a"transformational shift" away from funding new auto-
oriented transportation projects to funding projects that support transit-oriented
development.3 With regard to the livable communities strategic goal,the Strategic Plan
identifies the need to move away from the historical pattern of transportation spending
that resulted in auto-dependent communities. This project demolishes pedestrian and
transit-oriented infrastructure and replaces it with an auto-oriented street.
s http://www;dot.gov/sites/dot.dev/files/flocs/990 355 DOT 5trategicPlan_508lowres.pdf
2125 Kern Street,Suite 301 + Fresno£A 93721 + (559) 233-0907
sara.hedgpethharris@shh-law,com
Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24,2014
Page 7
Although the EA claims replacing the Mall with a street will snake it:easier tolaccess a
future High Speed Rail Station and a future BRT station,it fails to explain how the
existence of the Mall makes it difficult to:access these stations. The.BRT station will be
located where the main station for FAX'buses currently is located which is one block east
of the Fulton Mall on Van Ness. It is currently accessible by car and is within easy
walking distance from the from the Mall. The HSR station will be located one block west
of the Fulton Mail on H Street. It will be accessible by car from H Street and is within
easy walking distance from the:Mall. The EA fails to explain how the demolition of the
Mall is necessary to provide access to public transit.
The Fulton Mall Reconstruction Project is clearly auto-oriented--not transit-oriented. It is
planned for in the 2014 RTP as a"streets and roads capacity increasing project."By
design,the Project encourages our dependence on automobiles. The objective;is to
incentivize more individual vehicle trips to the Fulton Corridor area. Eliminating the
Fulton Mall and replacing it with a street so that people can see the buildings from their
cars does not incentivize more public transportation or alternatives to individual vehicle
transportation.
One of DOT's goals is to augment Federal funds spent for walking and bicycling
facilities to"increase safe, convenient,and attractive facilities for non-motorists." (DOT
Strategic Plan,p.49.) As it currently exists,the Mall provides a safe, convenient facility
for non-motorists. It would be attractive if the City would make an effort to obtain DOT
funding to make it more attractive.
Another DOT goal is to"transform the way transportation serves the American people by
encouraging transportation that is less carbon-intensive... and active transportation that
produces zero emissions like biking and walking." (DOT Strategic Plan,p. 56) The
DOT plans to meet the challenge by promoting"the use of bike/pedestrian modalities for
daily activities through investment in on-and off-street bike/pedestrian infrastructure."
(DOT Strategic Plan,p. 59.)
In short,the demolition of a pedestrian mall/urban park that is worthy of listing in the
National Register of Historic Resources to snake way for a traditional collector street with
parallel parking is not consistent with DOT's transformational policy shift.
V. Conclusion
It is apparent from the content of this EA,the contract between Caltrans and the City, and
the TIGER Grant Agreement that the EA was.prepared to support a Finding of No
Significant Impact. That cannot happen. An EIS must be prepared because there is
substantial reason to believe that the demolition of the Fulton Mall to make way for a
traditional collector street will have:a significant impact on the human environment. The
EIS must include a good faith:analysis of the impacts discussed in this letter based upon
reliable:data that is readily available to the City of Fresno. The§4(f) analysis:must
2125 Kern Street,Suite 301+ Fresno CA 93721 ♦ (559) 233-0967
ra.hedgpethharris@shh-law.com
Environmental Assessment and Section 4(f)Evaluation for the Fulton Mall
Reconstruction Project Comment Letter
February 24, 2014
Page 8
provide an objective assessment of the justification for destroying the Fulton Mall that
meets the stringent:standards of federal law as explained in Preserve Overton Parr Inc.,
supra, 401 U.S. 402,413. The Title VI analysis must assess,based:upon reliable
information,how the minority community that currently utilizes the Maly wily be
impacted by its demolition and,how the impact will be mitigated.
Finally,the Downtown Fresno Coalition believes there is nothing of cultural or historical
significance in the San Joaquin Valley that approaches the stature of Garrett Eckbo's
Fulton Mall masterpiece and the incredible artwork that is integrated into his design.
Caltran's 2013 Finding:of Adverse Effect confirms their belief. Although the City of
Fresno acknowledges that the loss is significant,it has decided to sacrifice the Mall on a
gamble that the revitalization of downtown Fresno depends upon whether people can see
the'buildings and storefronts along Fulton Street as they drive by in their cars:; My clients
believe the City is overestimating the value of a street and significantly underestimating
the significance of losing the Fulton Mall.
Sincerely,
r,
r �
Yara�Hledgvppeth-1 ris
cc: Downtown Fresno Coalition
2125 Kern Street,Suite 301 4, Fresno CA 93721 + (559) 233-0907
saga.hedgpethharris@shh-law.com
EXHIBIT A
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FULTON MALL CIRLDREN'S PLXY EQU-IPMEN'T
REPLACENIENT PROJECT
Project Summary.
The City of Fresno Parks, Recreation and Community Services Department proposes to
expand recreational opportunities at the Fulton Mall by replacing. twa childreres play structures
located on either end of the one-half mile_long mall_ The new play equipment will meet local and
State health and safety standards and Federal Americans With Disabilities Act (ADA) access
requirements for the physically challenged. The Department owns and operates the Fulton 1Vlaii,
which is a 7-3-acre linear urban park located in the heart of Downtown Fresno. The estimated total
cost of the proposed scope of work is$100;000.
Compliance with 2002 CnI ornen Ontdoor Recreation Plan.
1. Priority Statewide Outdoor Recreation Needs
The proposed replacement of children's play, equipment on the Fulton Mall supports the
Priority Recreation Venue 6. The play equipment is more than 40 years old and is unsafe and fails to
meet Federal ADA standards for providing access for thephysically challenged.
2. Identification of CORP Priority Tssces
Issue I: The status.of parks and recreation
This project will promote the economic, social, and cultural benefits to the community and
involves a high degree of community support. The Fulton Mall is located in Downtown Fresno
and serves a diverse social, ethnic/racial and economic make-up of people comprising the
Fresno Metropolitan Areas population. The Downtown Association and the Downtown Fresno
Coalition support this project as a means to furtber revitalize-Downtown Fresno_ Replacing the
1.
play equipment will attract children and possibly visit adjacent merchants providing a wide
range of food and retail products. Use of the play equipment will be available year-round at no
cost to the public.
Issue M: Access to.public parks and recreation resources
• The Downtown Fulton Mail, with its many retail and food stores, serves a Very high percent of
the under-served and economically disadvantaged population in the Fresno Metropolitan Area.
The Fulton Mall is located in and surrounded by neighborhoods eligible for Community
Development Block Grant Program funding, Redevelopment Agency funding:and within the
Cities Enterprise Zone District. All of the elementary schools within a mile radius of the Fulton
Mall are eligible for reduced lunch subsidies:
• This project will replace 40-year-old outdated, overused and worn out children's play equipment
at two tot lots on either end of the one-half mile Fulton Mall. The play area and the equipment
will be fully accessible for the physically challenged.
Issue IV: Protecting and managi natural resources.
The Fulton Mall is one of the largest remaining pedestrian mails in the United States. Several
major special events,take place annually.on the.Mall or at the:contiguous Grizzly Baseball Stadium
or connecting Eaton Plaza attracting thousands of visitors annually. These include the ArVViine
Celebration, Cinea do.Mayo Celebration, Classic:Car Show, Sudz in the City, Taco Festival,and the
Mexican Independence Celebration_ Surrounding the Mall is Armenia Town,' Chinatown, Uptown
Art District, African America Museum of History, Mexican American Art Museum, Fresno
Metropolitan Art, Science and Nat4j-al Ifistory Museum apd a urge nuTnber of art studios and art
galleries. Many of these events, facilities and organizations:are recent.additions to:the Downtown
Fresno landscape. Their decision to remain or relocate to Downtown Fresnoi is based somewhat on
2
policies, goals and plans developed and approved by the Fresno City Council to;aggressively pursue
revitalization of the downtown area. Although dwarfed by the recent surge in downtown
construction activity, the decision to submit for LWCF Program funding to replace the play
equipment on the Fulton Mall is another positive effort, directed towards meeting the overall
commitment. This is one 'of many projects that will help to celebrate and strengthen the ciW s
diverse ethnic makeupp and cultural history.
Need for the Prnie�t
3. Outdoor Recreation Opportunities-
Ea March of 1964, the .City of Fresno broke ground for the Fulton Mall. The architect of
record, Gruen; Eckbo,,Dean and Williams,,envisioned a.park-like atmosphere with_living,trees,shrub
beds, flower planters, lawn sections, water pools, fountains and a flow of pedestrian traffic that
meandered through a central retail business area. Cheated to..attract people and based on advanced
City planning concepts, the Mall represents more than restoring life to what had been a decaying
business street. The best of the:old huild"ings were kept as.a.foundation for the plan. The Fulton
Mali was the result of many years of public:and private sectors working together to revitalize a
downtown area. The City of Fresno: has received recognition from the American Institute of
Architects (ALA-) for the Fulton Mall by receiving the AIA National Citation for Excellence in
Community Architecture Award.
Today, through concerted revitalization efforts, the Fulton Mall remains a center focus and
gathering place for the community. The Mall has two existing children's play structures.located at
either end of its one-half mile axis. One play structure is located in. front of the Fresno County
Juvenile Dependency Court, which hears primarfly child:welfare cases. The other play structure is
located directly in front of the Federal Immigration and Naturalization Service. It is not uncommon
3
to see children playing on this equipment during all times of the day. These pieces of apparatus are
over 40 years. old and pose a, safety hazard for young children- Additionally, these piece-, of
equipment have limiting access by virtue of inaccessibility to the developmentally challenged
population in our:community(Americans with Disabilities-Act standards).
This proposal will improve and provide new recreational opportunit,ies: for children and
families,from all walks of life,. Our community has.becomeL a powerful kaleidoscope;of cultural and
linguistic of diversity. The current population of Fresno is 427,652 (Census 2000 Supplementary
Survey Profile, Fresno City, Table 1. Profile of General Demographic Characteristics). The
population ethnicity of the City-reflects a culturally rich environment[IIiSpaniG(43%),Black(12%,),
White(3 6/o), and Asian (9%)1. Within the.five-nffle.service area, 3 7.64% of the population have a
median income less than$24,9 99 (U.S. Census Bureau, Census 2000, Median M Income), which is
well below the median income for the City of Fresno ($28,336),and thee.State of California(S41,M
(California Department of Finance,Demographic Unit,Median Household Income California,2001).
The following demographics.are a snapshot of the,current conditions within the City of Fresno in the
year 2003.
El Average Family Size: 3.76
0 3 8% of the population is under the age of 18
D Percent below poverty.level,
Total,population 130.8%
Related children under 1:8 years 44.69/o
Under five years (44.70/*)
Five to 17 years (47.1%)
18 years and over (26.1%)
4
❑ 219 births per 1,000 are women 15- 19 years of age
❑. 3 6%,of the population over the age of 25 years hasJ attained•less than,a high school
equivalency
❑ Local median household income is$32,4112,as compared to and the State of California
($41,779)
❑ Seasonal unemployment ranges from 9.4%.to,192/16;
Sources: Census 2000 Supplementary Survey Profile, Fresno City, Table 1. Profile of
General Demographic Characteristics
California Department of Finance, Demographic Unit,Median Household
Income California,,2004
U.S. Census Bureau, Census,2000 Redistricting
Additionally, the.Fulton Mall and surrounding area has:received Federal Empowerment Zone.
designation. The Central San Joaquin Valley Empowerment Zone is -an interagency: task force
directed to focus on the economic development of the Central San Joaquin Valley,as designated.by
Executive Order 13173. This Order was created to-increase Federal assistance to an area defined as
an economically distressed region. The benefit of this.designation is directed toward encouraging
business development by offering the private sector a number of incentives (e.g, tax savings by
locating and/or expanding operations, wage credits.. Section 179, deductions,. commercial
revitalization deduction, and environmental clean up cost deduction).
The City. of Fresno-has also received Enterprise.Zone designation- Similar to Empowerment
Initiative, the purpose of this Zone is to promote economic development. The Zones provide IRS
tax credit eligibility to businesses based on locating within the.zone(s.). This translates into available
funds going back into expanding a business and ultimately creating more jobs.. Businesses can also
7
receive additional credits by hiring employees who live in the zone(s).
4: Public Invnlven:ent
In addition to public comments received by the Parks,Recreation and.Community Services
Department with regard to-the need to replace and provide-ADA access:to.the two chddren's play
areas located on the Fulton Mail;both the Downtown Association(DTA) and the Downtown Fresno
Coalition(DFC)have indicated their support to provide the needed improvements_ The;DTA
represent over 180 merchants and.:businesses located along the Mali while:the DFC is comprised of
civic-minded volunteers who.support preservation and revitalization of downtown,Fresno.
S. Population and Population Density
The Fulton Mall is located in the Downtown:Central Business District (CBD)and on a daily
basis serves as the work place, shopping and/or business destination for thousands of people. On the
weekends,the Fulton Mall is a major shopping destination for outlying rural areas.providing a broad
range of retail and commercial services. The City of Fresno is 110 square miles in size and has a
population of appro mately 427,652 people equaling a density greater than 1;O0 people per square
mile. This is amplified in theCBD due its role as a regional service provider.
Project- nerifrr.f.ritPria
6. Cast Use-Benefit
The two existing children's play areas on the Fulton Mall are over 40 years old and do not
meet current Local, State and Federal(ADA) standards. Over the years several;of the play
apparatuses have become worn to the point that they had to be removed for safety reasons,.leaving.a
noticeable void in the play area (See attached pictures). Although the remaimffig play equipment is
heavily used,,the removed equipment lessens the opportunity for more children to expedience the joy
of play at the same time. Conversely,this:situation creates a potential hazard by having too many
6
children playing on less equipment at the same time. By removing the old equipment(if possible,we
may restore a few pieces of the existing;equipment)and installing new}.attractive and
physically/creatively challenging equipment;use of the two play areas will increase noticeably_ Also,
by installing soft-fall surface material,the play areas will be fully accessible,by the physically
challenged. This will:offer new opportunitimto this under-served population-.
Assuming the new equipment will endure heavy use for a minimum of 25;yearn;,the annual
cost to the Land.,and Water Conservation Fund of$2,00:0 is well worth the investment. The local
match requirement of S5.0,000.will be provided by State.P op IZ Per Capita Park Bond Act Funds.
7. Accessibility
The existing two children's play areas on the Fulton Mall are open daily throughout the year
at no cost to the public_ Even under their present condition,the equipment in these areas:receives
heavy use. Parents will sit on adjacent benches, shaded by mature trees, and enjoy conversation or
food purchased at nearby outdoor vendors or restaurants. Often an adult or older sibling will watch
the children while other family membee s shop at the many adjacent retail stores:along the Mall.
8. Priority Acquisitions (Acquisition Projects only)
Not applicable since this.`is a Development project.
9. Suitability (:Development Projects only)
This project entaiIs the replacement of old,worn and ADA non-compliant children's play
equipment at two existing tot lots located on the Fulton Mall in Downtown Fresno. The new
equipment will meet all:Local, State and Federal health and safety standards and provide full
accessibility to tha-physically challenged.
The.initial California Environmental Quality Act(CEQA) study has:been completed; The
mitigated negative declaration concludes that an Environmental Impact Report(EIR)need,not be
prepared for the project and that all requirements of CEQA and the Fresno EnvirionmentalQuality
Ordinance have been met. The proposed project has also,received clearance Pram the State
Clearinghouse-All required National Environmental Quality Act(NEPA)requirements will also be
met.
ApIllicant_-Sperffic ritArla
10. Readiness
Project implementation and completion [project consultant selection (60 days)-
project
design, construction drawings, bid documents (90 days); advertising (45 days);.
award and notice to
proceed. (3 0 days),. construction and, acceptance by:City (00: days)J,will occur within one year after
grant award and execution of a contract with the State Pairks and Recreation Department. Funding
from the Prop 12 Per Capita State,Park Bond Act will provide the required IMCS Program local
match. These funds are currently available in the Department FY 04 capital budget and will be
carried-over into FY 05-
11. Performance
As indicated, the: project will begin immediately after execution of
an agreement with the
State Department of Parks and Recreation. The Department has selected and assign6d key personnel
based upon expertise and experience with projects similar in scope,(LeRoy AUavicb, Department
Management Analyst; Michael McHatten, Parks Division Manager, Monte Clugston, Parks
Supervisor I responsible for the Fulton Mall;,Ken Tigson,Project Manager fr6m the,Public Works
Department. They will be responsible for implementing all aspects of the project.
1.2. Operation and Maintenance
Upon completion of the project, the Parks Division will maintain the.improvements. Th '
e
Parks Division currently maintains the Fulton Mall on a daily basis, along :with 1,2315, acres of
additional park open space located at 66 other sites.
A Parks S'upervisar I is assigned full time to.Fulton Mall to provide supervision for all work
and activities taking place on the Mall. A daily maintenance schedule is followed to ensure proper
attention is given to, all Mall improvements.- The fiscal ;year 2004 Parks: Division budget for the
operating and maintenance of the Fulton Mall is $412,100
13.Additional Program Requirements
a) Toxins
No toxins:have been identified in the Fulton Mall` of adjacent properties.that would adversely
I
impact the proposed project.
b) Relocation.of Persons and Businesses
The proposed project will not displace persons or businesses. If awarded, Federal monies will
be directly injected into the local economy. This project will promote local businesses.and enhance,
the.local economy_
e) Overfread Utilify Lines
There are no overhead lines around the existing Fulton. Mall and adjoining privately owned
property.
a) Flood Hazard Area.
The Fulton Mall is not in a Flood Hazard.Area-
9
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Law Office of RFrFIVFn
Sara Hedgpeth-Harris
A Professional Law Corporation c1119 FEB 26 PM 1 12
CITY CLERK, FRESNO CA
February 4, 2014
By Electronic Mail and By Hand Delivery to Planning Commission hearing on
February 5,2014
Ms. Jaime Holt, Chair
City of Fresno Planning Commission Members
City Council Chambers
2600 Fresno Street,2"a Floor
Fresno, CA 93721
Email:
Re: Item No.VIII.A: Consideration of Plan Amendment A-13-008 and related
Environmental Impact Report No. Sch 2013101046 for the proposed Fulton
Mall Reconstruction Project.
Honorable Chair Holt and Honorable Members of the City Planning Commission:
I have been retained by the Downtown Fresno Coalition to submit this letter expressing
their opposition to the certification of the EIR and the proposed amendment of the
General Plan and Central Area Community Plan to allow the demolition of the Fulton
Mall.
Backeround
The Downtown Fresno Coalition was formed to promote responsible revitalization of
downtown Fresno.' It's primary focus is the restoration and preservation of the Fulton
Mall as the masterpiece of modern urban park landscape and sculptural design that
earned it a Iisting in the California Register of Historical Resources. Although formally
deemed eligible for listing on the National Register of Historic Places by the Keeper of
the National Register,the Mall was not formally listed because a majority of the
adjoining landowners claimed ownership of the Mall and objected to its listing.2
See the following websites for more information about DFC:
https://www.facebook.com/DowntownFresnoCoalition,and
http://www.l000friendsoffresno.org/downtownfresnocoalition.html
z This information is contained in the December 2013 Report entitled"Finding of Adverse Effect"("FAE")
that was prepared by Caltrans for the Fulton Mall Reconstruction Project.
http://dot.ca.gov/dist6/media/hpsr fulton mall/docs/fulton mall_foe_2v2.pdf
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Comment to Agenda Item No. VIII. A
February 4, 2014
Page 2
The determination of cligibility was based upon the Keeper's finding that the Fulton Mall
was of significant importance as an urban park and that the Mall was "exceptionally
significant at the national level of significance...for its landscape architecture, as the
finest example of post WWII era federal urban renewal pedestrian mall design, as the
work of a master, Garrett Eckbo, and as an excellent example of Modernist design ideas'
influence on landscape architecture." (See Caltrans'FAE,P. 11.)
The adopted plan for the Fulton Mall, as set forth in the Central Area Community Plan
("CACP"), is to "[i]mprove and maintain the Fulton Mall as an exciting,physically and
visually superior pedestrian environment for the people of Fresno,the San Joaquin Valley
and the world." (CACP, p. 84.) The goal of retaining the Fulton Mall as a "pedestrian-
only environment" is identified by the CACP as "fundamental"to the adopted plan.
(CACP, p. 84.)
Since September 14, 2010, my clients have participated in the planning process for
Fulton Corridor Specific Plan("FCSP"). The CACP policies regarding the Fulton Mall
were being reviewed in this context. Three options for the Mall were identified for
further study and environmental review in the October 2011 Draft FCSP: eliminating the
Mall and replacing it with a traditional collector street; eliminating the Mall and replacing
it with a curving street with "vignettes" to showcase "selected original features in their
original Mall context"; and, preserving the Mall as pedestrian-only and renovating,
repairing and restoring the mall and its artwork.3 According to the Draft FCSP,the
decision regarding the final plan for the Fulton Mall would be made, as it should be, by
the City Council after environmental review of all three options pursuant to CEQA.4
In May 2013 the City applied for and received a Measure C TOD grant of$474,810 to
prepare the preliminary plans and environmental analysis of all three options identified in
the Draft FCSP. (See Exhibit Al —Project Scope, attached hereto as Attachment A.)
Note that the project at that time was entitled, "Fulton Mall Redevelopment"project.
However, notwithstanding the terms of the City's agreement with the Fresno County
Transportation Authority (FCTA), the funds were not spent to consider all three options
as detailed in the Project Scope.
On or before June 3, 2013,which was deadline for grant applications,the City submitted
an application to the U.S Department of Transportation("DOT") for TIGER Grant
funding. As discussed below, although the City could have submitted an application for
funding to preserve, restore and renovate the Mall as a pedestrian-oriented transportation
infrastructure project, the application sought funding to demolish the Mall and replace it
with a collector street. Consequently, if the funding application was approved,
preservation, restoration and renovation would not be an option.
3 See FCSP p.4-7 at
<http://webapp.fresno.gov/FresnoPlans/FultonCorridor/FCSP_Ch 04`Fu1ton Ma11_0.pdf>
°See FCSP p.4-16 at
<http://webapp.fresno.gov/FresnoPlans/FultonCorridor/FCSP_Ch 04 Fulton Mall_0.pdfl
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Comment to Agenda Item No. VIII. A
February 4, 2014
Page 3
In September 2013,when the DOT announced that the City had qualified for a TIGER
Grant of$15.9 million to demolish the Mall and construct a street,the City abandoned
the EIR for the FCSP. Instead, in October 2013 the City gave notice that it was preparing
a separate EIR for the Fulton Mall Reconstruction Project. Given that the option of
preserving the Mall was eliminated from consideration and analysis, "reconstruction" is a
serious misnomer. This is a demolition project--not a reconstruction project.
In December 2013,the City applied for and received Measure C TOD funding to prepare
pre-construction engineering plans for demolition and construction. On January 30, 2014,
without first obtaining City Council authorization,the COG Policy Board approved the
City's application for matching construction funds. According to the City's application,
engineering plans for demolition and construction have already been prepared. See
Capital Improvement Project Application,p. 5. In short, the City has committed to the
demolition of the Fulton Mall and denied the Planning Commission and the City Council
the opportunity to consider the environmental impacts associated with the three options
for revitalizing the Mall or to decide which option best meets the needs of the effected
community. Instead,you are being presented with the decision to approve demolition or
to leave the Mall in its current blighted condition.
As reflected in my comment letter to the DEIR for the Fulton Mall Reconstruction
Project,the process and the EIR fail to comply with CEQA and the Project is inconsistent
with the 2025 General Plan. The purpose of this letter is to request that you: (1) deny the
City's request that you recommend certification of the EIR as accurate and complete; and
(2)that you deny the City's request that you recommend approval of the project as
proposed.
The City has not Provided au with the information you need to make an informed
decision.
No matter how hard the City tries to finesse the facts,there will be no Fulton Mall if this
project is completed as proposed. Has the City provided you with the information you
need to make a fully informed decision about whether the Fulton Mall should be
demolished to make way for vehicle traffic? You should not recommend certification of
the EIR as accurate and complete if you believe important information is missing.
Where is the comparative analysis of the benefits of the adopted Central Area
Community Plan to preserve, restore and renovate the Mall and the proposed plan to
demolish the Mall and replace it with a street? You have no comparative analysis
because the City contracted away its ability to consider any alternative to demolition
when it committed to the terms of TIGER Grant.
Consider carefully the City's claim that TIGER grant funding is not available to restore
the Fulton Mall. According to the TIGER Grant Notice of Funding Availability, eligible
projects "include, but are not limited to: (1)Highway or bridge projects eligible under
title 23,United States Code; (2)public transportation projects eligible under chapter 53 of
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Comment to Agenda Item No. VIII. A
February 4, 2014
Page 4
title 49, United States Code; (3)passenger and freight rail transportation projects; and (4)
marine port infrastructure investments."s In order to award the TIGER Grant for the
Fulton Mall Reconstruction Project the Department of Transportation(DOT)must have
found the project was eligible in the category of"not limited to" since the Project clearly
does not qualify as any of the listed eligible projects. Why wouldn't restoration of the
Fulton Mall be eligible for selection in this same category?
The five primary selection criteria are based on the priorities included in DOT's Strategic
Plan for FY 2012-2016. The DOT's Strategic Plan identifies five long-term priorities: (1)
maintaining transportation infrastructure in a state of good repair; (2)the project's
contribution to economic competitiveness; (3)whether the project furthers DOT's
livability principles; (4)whether the project will improve energy efficiency, reduce
dependence on oil,reduce greenhouse gas emissions, and benefit the environment; and,
(5)whether the project will improve transportation safety.
The DOT's Strategic Plan describes the goals and policies the DOT intends to promote
when determining transportation investments. (DOT Strategic Plan, p. 6.)6 With regard
to the livable communities strategic goal,the Strategic Plan identifies the need to move
away from the historical pattern of transportation spending that resulted in auto-
dependent communities. (DOT Strategic Plan, p. 7.) Transportation Secretary Ray
LaHood describes livability as"being able to take your kids to school, go to work, see a
doctor, drop by the grocery or post office, go out to dinner and a movie, and play with
your kids in a park, all without having to get in your car." (DOT Strategic Plan, p. 45.)
One of DOT's goals is to augment Federal funds spent for walking and bicycling
facilities to "increase safe, convenient, and attractive facilities for non-motorists." (DOT
Strategic Plan,p. 49.)
The strategic goal for environmental sustainability emphasizes DOT's efforts to reduce
transportation-related air pollution. The Strategic Plan notes that the President has
challenged DOT to "transform the way transportation serves the American people by
encouraging transportation that is less carbon-intensive... and active transportation that
produces zero emissions like biking and walking." (DOT Strategic Plan,p. 56.) The
DOT plans to meet the challenge by promoting"the use of bike/pedestrian modalities for
daily activities through investment in on- and off-street bike/pedestrian infrastructure."
(DOT Strategic Plan,p. 59.)
Which is more compatible with the goals and policies of DOT's Strategic Plan and
TIGER Grant criteria: The demolition of pedestrian infrastructure to make way for a
traditional collector street with parallel parking?or,preserving, restoring and renovating
a pedestrian mall/urban park that is worthy of listing in the National Register of Historic
Resources?
5 https://www.federalregister.gov/articles/2013/04/26/2013-09889/notice-of-funding-availability-for-the-
department-of-transportations-national-infrastructure#h-13
6 http://www.dot.gov/sites/dot.dev/files/does/990_355_DOT_StrategicPlan_508lowres.pdf
2125 Kern Street,Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Comment to Agenda Item No. VIII. A
February 4, 2014
Page 5
The TIGER grant was awarded to the City to demolish the Fulton Mall and replace it
with a traditional street because the City applied for funds for that purpose. It clearly
could have applied for funds to restore the Mall, but it chose not to do so. The City has
not provided you with the information you need to identify the environmental pros and
cons of demolition versus restoration because the City's application for a TIGER Grant
defined the project so that pedestrian-oriented transportation infrastructure is not an
option.
Look carefully at the information the City has provided to convince you that demolition
of the Mall to make way for a street will increase the City's economic competitiveness.
Has the City demonstrated that the demolition of the Mall to make way for vehicle traffic
will accomplish the economic revitalization of the Fulton Mall area? What is the source
of the data used to project such a significant decrease in building vacancy rates?Are you
confident the projections are not pure speculation? Likewise with respect to increased
retail sales projections. Are the projections reliable?
Assuming the projections are reliable,the decrease in vacancy rates and increase in retail
sales necessarily assume a significant increase in the number of people who drive their
cars to work and shop in buildings along Fulton Street. How does this square with the
EIR's assertion that opening the mall to traffic won't increase traffic in the area? How
does the EIR's claim that opening the mall to traffic won't increase area traffic square
with the City's claim in the narrative for the TIGER grant application that the project will
increase parking fees by parking revenue in the area by 482%. (TIGER Narrative, p. 6.)
Is it reasonable to believe that such a significant decrease in vacancy rates and increase in
retail sales and parking revenues will occur without an associated increase in vehicle
traffic?
Does it make sense that the already stressed-to-capacity water and sewer infrastructure in
the area will not be impacted by increased use associated with the EIR's projections of
growth that will occur because the Fulton Mall is open to traffic?Assuming demolition of
the Fulton Mall and construction of a collector street will be paid for with TIGER grant
funds and Measure C TOD funds, how will the City pay for increasing the capacity of the
existing infrastructure to accommodate more people? What are the City's plans for
ensuring this infrastructure is adequate to support more people?
Look closely at the EIR's data regarding crime in the Fulton Mall area. What can you
conclude based solely on the comparison of graffiti and vandalism rates for a 6-month
period of time? Certainly the City has had the time to gather data from the police
department that would allow for a more meaningful understanding of how crime in the
area compares with crime in other areas of the community. Has the City provided
enough information for you to decide that crime, including graffiti and vandalism,will
decrease if the Mall is demolished and cars are returned to Fulton Street?
2125 Kern Street, Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com
Comment to Agenda Item No. VIII. A
February 4, 2014
Page 6
It is widely acknowledged that downtown Fresno has a severe shortage of park space.
How credible is the City's assertion that the Fulton Mall is not an urban park? How does
this square with the determination of the Keeper of the National Register of Historic
Resources that the Fulton Mall is of significant historical importance as an urban park?
What about Caltran's Finding of Adverse Effect that identifies the Mall as an urban park?
More importantly, consider how the surrounding community uses the Mall. Do you feel
confident in concluding that predominantly low income minority families, seniors and
disabled members of the community who use the Fulton Mall on a daily basis do not
consider it to be an urban park?Do you have enough information regarding the
community's use of the Mall to conclude this community will not be impacted by the
loss?
In conclusion,the City cannot guarantee that the owners of property lining Fulton Street
will restore and renovate their long-neglected buildings if the Mall is demolished to make
way for a street. Nor can the City guarantee that more people will drive to the area to
work, shop, do business or live. One thing is certain: If the Fulton Mall is demolished,
downtown Fresno will have lost an urban park and perhaps the most significant cultural
and historical resource in the City, if not the region.
As a result of the City's poor stewardship,this nationally recognized treasure has been
allowed to become significantly blighted. Now,the City is sacrificing the Mall on a
gamble that the revitalization of downtown Fresno depends upon whether people can see
the buildings and storefronts along Fulton Street as they drive by in their cars. My clients
believe the City is overestimating the value of a street and significantly underestimating
the significance of losing the Fulton Mall.
The Downtown Fresno Coalition respectfully requests that you cast your vote to preserve
the Fulton Mall.
Sincerely,
Sara Hedgpeth-Harris
Cc: Downtown Fresno Coalition
2125 Kern Street,Suite 301 ♦ Fresno CA 93721 ♦ (559) 233-0907
sara.hedgpethharris@shh-law.com