Recycling in Fresno parking lots will continue — despite an attempt to regulate the centers out of existence.
A Fresno County Superior Court judge has invalidated a city ordinance that would limit, if not outright close, numerous recyclers operating in the city.
Last year, the Fresno City Council voted 7-0 to enact regulations on recyclers out of a belief that the centers were a nuisance and attracted crime. The ordinance restricted recyclers to operating inside grocery stores.
Councilmen Paul Caprioglio and Oliver Baines carried the motion to their colleagues. Caprioglio argued at the time that crime gravitated toward recycling centers. The ordinance had the support of Mayor Lee Brand and Police Chief Jerry Dyer.
Recycling companies worried the ordinance could close 16 of the 22 operations within Fresno. The California Grocers Association balked at the idea of bringing the recycling operations indoors. Many of the city’s recyclers operate behind stores or somewhere in the parking lot.
State law mandates that stores take back the bottles and cans it sells. If not, they face a $100 per day fine, or $36,500 a year. During the council debate, some major stores like Save Mart said they would take the fine rather than allow recycling inside its stores. Others like Grocery Outlet said both options (fine or in-store recycling) would ruin them.
If enacted, recyclers would also be required to obtain Conditional Use Permits and have to operate in a permanent structure (thus the required move inside).
The judge’s ruling eliminates the ordinance’s May 18 start date. Recyclers can continue operating as normal.
Ruling on CEQA Grounds
Fresno County Superior Court Judge Jane Cardoza
The CGA filed suit in November shortly after Brand signed the ordinance. On April 30, Judge Jane Cardoza issued her 25-page ruling, which was mainly based on grounds that the city did not follow proper environmental review.
CGA attorneys argued that closing down recycling centers would have an environmental impact. They also said such closures violate the state’s recycling law, which requires recycling centers near grocery stores.
The city argued that the CGA was using the environmental law, CEQA, for their own personal benefit. The city additionally argued that curbside recycling is an option, and the state recycling act allowed it to regulate recycling in the city.
Cardoza sided with the grocers (read ruling here).
“Because there was no substantial evidence in the record to support the City’s finding that the amended ordinance would not have any significant effect on the environment, the City abused its discretion in determining that the common sense exemption applied to the ordinance.
“As result, the court hereby grants the petition for writ of mandate and orders the City to rescind its amended ordinance and conduct further proceedings in compliance with CEQA,” Cardoza wrote.
Grocers Happy
“We are pleased with the court’s ruling to rescind the ordinance that would have led to the closure of Fresno’s parking lot recyclers,” said Aaron Moreno, the CGA’s Senior Director of Government Relations. “It will save grocers and other retailers from having to choose between paying $36,500 per year or taking garbage back in the store as a result of there being no recycling center available.
“CGA welcomes the opportunity to work with councilmembers on an ordinance that is consistent with the state’s Beverage Container Recycling Act.”
The city, through spokesman Jaime Sandoval, said it doesn’t comment on pending litigation.
The council will discuss the litigation in closed session at its Thursday (May 10) meeting.
The Decision Summary
On April 30 superior court judge Jane Cardoza rendered a decision against the city of Fresno and in favor of CGA
On August 2, 2017, the Fresno Planning Commission consider the proposed zoning amendment brought forth by the city. The Commission voted unanimously to reject the city’s proposed amendment.
On September 21, 2017, the Fresno City Council voted on zoning amendments, but with major revisions. Instead of all recyclers being forced out of the city, 16 supermarket type recyclers would be forced to close. This was confirmed by Councilman Paul Caprioglio, an attorney in private practice. Council passed the ordinance unanimously. They did this in violation of city law. Once the proposed ordinance was rewritten, it was required to repeat the planning process.
On October 4, 2017, the city issued a notice of exemption under CEQA Guidelines claiming exemption to the law.
On October 12 the ordinance passed its second vote unanimously and the mayor signed it into law on October 18. This reckless and illegal behavior prompted to lawsuits.
On November 7 the CA Grocers Association filed suit to block the implementation of the ordinance. This was followed by a second lawsuit filed by the affected recyclers.
In the Judge’s discussion of the issues, she found the City conducted no environmental review before approving the amended ordinance and thus judicially abused its discretion. The City bears the burden of producing substantial evidence to support their conclusion. Just claiming that they were exempt is not enough.
The City arrogantly professed that the Grocers were using CEQA for their own personal financial benefit and that they were acting to protect the health, safety and welfare of the public. The City ignored community input to enact their own agenda. Close as many recyclers as possible, force grocers to do something that they didn’t want to do and that would be costly. Mr. Caprioglio offered his unsupported opinion that taking recyclables inside the stores was not likely to be a problem for the stores. I also believe that they had a hidden agenda. The tremendous volume of containers that would be forced to go to the few remaining recycling centers and into grocery stores would be so burdensome that they hoped the public would simply give up their rights as well as the need for the money and donate to the curbside program. Council testimony bears this out.
The standards of review required the court to determine whether there was a prejudicial abuse of discretion, whether they had not acted in a manner required by law and whether or not their actions were supported by substantial evidence. At issue was the use of improper procedure and a dispute over the facts. The city professed that it was exempt from CEQA which requires their decisions to be made with environmental considerations.
The judge cited “An agency abuses its discretion if there is no basis in the record for its determination that the project was exempt from CEQA.”
“The agency must itself provide the support for its decision before the burden shifts to the challenger.” The opponents of the project raised arguments regarding possible significant environmental impacts.
“The city has failed to show that the common sense exemption applied to the amended ordinance.” In fact, the City cited the reason for finding that the common sense exemption applies relies on speculation, conclusions, and generalities rather than any substantial evidence or analysis. Councilman Caprioglio admitted to a significant number of closures.
The judge deduced that the inability of residents to recycle might otherwise result in containers being landfilled or becoming letter or residents being forced to recycle outside the city resulting in the possibility of significant environmental impact.
The Judge recognized that in-store redemption would be refused because of health and safety issues as well as imposing a time-consuming burden and inconvenience of accepting containers would cause. Not to mention that the state refuses to reimburse the stores for this mandated effort increasing its cost to them. Smaller stores could be devastated and forced out of business as a result. The judge believed that this could result in urban decay and urban blight.
According to the judge, “the city appears to be merely speculating that the use of the blue bins would make up for the loss of the CRV recycling centers.”
The Decision
The City abused its discretion in determining that the common sense exemption applied to the ordinance. As a result, the court hereby grants the petition and orders the City to rescind its amended ordinance and conduct further proceedings in compliance with CEQA.
Conclusion. If the City received this information in comments, then why did it proceed in violation of the law? Why did it violate its own procedures to bring this to a vote in Council? And why did it choose to waste the public’s money to defend the decision? This does not represent good stewardship of public funds and violates the public’s trust.
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