Case Law Updates on the Environment (CLUE)
Case Law Update Details
Bitters v. FHWA
U.S. District Court - California
Fulton Mall Reconstruction Project
The project would reintroduce vehicle traffic lanes to the Fulton Street Pedestrian Mall in downtown Fresno, California. At the time the city studied the project, the mall was more economically depressed than other areas of the city, with lower retail sales, higher vacancy rates, and higher crime rates. The goal of the project was to spur retail growth and economic revitalization in the area. In August 2013, the city was awarded a TIGER grant for the project.
The Fulton Street Pedestrian Mall includes several historic properties: the Fulton Mall Historic Landscape, the Fulton Street/Fulton Mall Historic District, and twelve historic buildings. The Fulton Mall Historic Landscape was found eligible for the NRHP based on its importance as an urban park and for its landscape architecture, with a period of significance of 1964. The Fulton Mall Historic District, a six-block corridor within the mall, was found eligible based on its association with commercial development in downtown Fresno from 1914 to 1970. The twelve historic buildings were listed or found eligible for the NRHP based on their architectural features, with varying periods of significance. The mall was not separately evaluated as a public park under Section 4(f), because the mall is not publicly owned and is not intended by the City to function as a park.
Caltrans prepared a Draft EA that screened ten build alternatives and a no-build alternative for practicality and feasibility, and selected two of the build alternatives and the no-build alternative for further evaluation. Caltrans published a Draft EA in January 2014 and issued a Final EA and FONSI in May 2014. The preferred alternative would add two lanes of traffic along the entire length of the mall, as well as on-street parking spaces and pedestrian walkways. The project would also retain or replace all of the sculptures and benches and most of the fountains and trees.
The Final EA included a Section 4(f) evaluation, which concluded that the preferred alternative would use the Fulton Mall Historic Landscape and Fulton Street/Fulton Mall Historic District. In the FONSI, Caltrans approved the use of these historic properties, finding that there was no feasible and prudent avoidance alternative and that the preferred alternative caused the “least overall harm.” One of the factors cited by Caltrans in rejecting avoidance alternatives was that the alternatives would not be eligible for TIGER grant funds or other currently available funding sources.
The plaintiffs filed this lawsuit in October 2014. (The plaintiffs also filed a lawsuit in state court alleging violations of the California Environmental Quality Act.) The plaintiffs alleged that the EA did not adequately evaluate environmental impacts and that the agencies should have prepared an EIS. They also claimed that the Section 4(f) analysis was inadequate. The court rejected all three of the plaintiffs’ claims.
Adequacy of EA/FONSI. The plaintiffs alleged that the agencies should have prepared an EIS because there were substantial questions regarding the significance of the project’s impacts on traffic, air quality, and public infrastructure. The plaintiffs also argued that the project study area was unreasonably small and that the EA did not adequately consider impacts on low-income, minority communities (in particular, day users of the mall).
Community Impacts. The court held that Caltrans was justified in defining the project study area as the three census blocks around the mall, and there was no evidence that it arbitrarily drew the study area boundaries. The court explained that “it is a matter of common sense that residents and businesses in the immediate project area would be most impacted by” the project’s environmental impacts. The court also concluded that Caltrans appropriately determined that the project would have minimal impacts on day users of the mall because it would retain many of its existing park-like features (including sculptures, benches, fountains, and trees). The court also noted that, while plaintiffs disagreed with Caltrans’ conclusions, “plaintiffs have not produced affidavits from experts identifying the EA’s inadequacies or evidence casting doubt on the reasonableness of Caltrans’ conclusion that the project would not significantly impact day users.”
Traffic. The court concluded that Caltrans provided a rational explanation, supported by various studies, for its conclusion that the project would not significantly increase traffic beyond the immediate project area. The court noted that the project did not involve new commercial or residential buildings that could generate traffic, that the new vehicular streets would primarily carry local traffic, and that transit would serve the mall to offset some traffic increases from the project.
Air Quality. The court upheld Caltrans’s finding that there would be no significant air quality impacts. The court noted that the project met regional conformity requirements and was not a Project of Air Quality Concern. The court also said that the plaintiffs had not provided any evidence to contradict Caltrans’s conclusion regarding air quality impacts.
Public Infrastructure. The court held that Caltrans’s finding of no significant impact on public infrastructure was justified because there were plans to replace storm drains, water lines, and sewer facilities. Moreover, the court said, the plaintiffs did not identify any evidence to cast doubt on Caltrans’s finding.
Applicability of Section 4(f). The plaintiffs contended that Caltrans violated Section 4(f) by failing to analyze the mall as a public park. Caltrans had cited two reasons for concluding that the mall was not a “park” for purposes of Section 4(f): it is not publicly owned, and its primary function is to serve as a commercial area, not as a park.
· Public Ownership. The mall area was privately owned, but the record indicated that the owners had granted the city an easement for public access through the mall. Citing FHWA’s Section 4(f) Policy paper, the court noted that “[a]n easement interest in privately-owned land may be adequate for Section 4(f) to apply, especially when the easement is a conservation or historic preservation easement.” However, the court also found that “the record does not contain a copy of the easement or any evidence showing the easement’s purpose was to allow use of the land as a park.” The court did not specifically decide the issue of whether, on this record, the mall could be considered “publicly owned” for purposes of Section 4(f).
· Primary Purpose. The court concluded that the plaintiffs did not establish that the primary purpose of the mall was a park. The court noted that the historical context of the mall suggested that its primary purpose was to serve as a pleasant retail environment, rather than as an urban park. Although the plaintiffs cited the National Register of Historic Places’ description of the mall as “an important urban park,” the court held that the Register was only legally relevant to the mall’s status as a historic resource. Thus, the court held that Caltrans did not have to perform a Section 4(f) analysis for the mall.
Avoidance Alternatives. The plaintiffs also argued that Caltrans unreasonably rejected two alternatives that would have avoided using Section 4(f) historic sites, that Caltrans defined the purpose and need too narrowly, and that Caltrans should have considered an additional alternative. The court concluded that there was ample support for Caltrans’s conclusion that those alternatives would not accomplish the purpose and need of the project, noting that the other alternatives would not be as effective in meeting the project’s goals of reversing urban decay and would also not be eligible for TIGER funding. The court also held that there was sufficient support for Caltrans’s identification of purpose and need and that Caltrans did not inappropriately use the TIGER grant to preordain its preferred alternative selection, because alternatives were not eliminated based solely on their ineligibility for TIGER grant funding:
Although one of the reasons provided was that Alternatives 3 and 4 [the rejected alternatives] would not be eligible for TIGER grant funding, the evaluation provided a number of additional reasons why these alternatives are imprudent. For example, because these alternatives would not reintroduce any vehicular traffic to the Mall, the evaluation found they would not increase the visibility of business storefronts to drivers, improve multi-modal access to businesses, or add any on-street parking. In addition, the evaluation found these options have the least potential for reversing urban decay.... There is ample support in the record for the conclusions that Alternatives 3 and 4 would not accomplish the stated purpose and need of the project, independent of the availability of TIGER funds, and plaintiffs have not provided evidence that this determination was arbitrary or capricious.
Finally, the court upheld the agency’s choice of alternatives, noting that they were developed based on public input. Furthermore, the plaintiffs did not demonstrate that their additional proposed alternative would be feasible or reasonable.
Least Harm Analysis. The plaintiffs alleged that other alternatives would cause the least overall harm to historic sites. The court upheld Caltrans’s least-harm analysis. The court concluded that there was sufficient support for Caltrans’s findings that the preferred alternative would cause the least overall harm.