A Fresno judge says the city has the right to inspect inside the Tower Theatre, a move the theater owners have long resisted.
In a tentative ruling issued on Tuesday afternoon, Judge D. Tyler Tharpe found that state law allows “a person authorized to acquire property by eminent domain, such as the City of Fresno “may enter upon property to make … appraisals or to engage in similar activities reasonably related to acquisition or use of the property for that use.”
In a court filing earlier this month, the city says it wants to inspect the theater to make sure historic preservation is being achieved.
“The City is assessing the need for and/or feasibility of further preservation and protection of Tower Theatre based on the property’s historic designation. This includes a potential acquisition of an interest in the property or enacting other regulations to further public purposes and use,” the city said.
The city says eminent domain — the government taking private property — is a possibility.
The judge says the city and the theater must agree to an inspection time within 30 days.
Second Request for Entry
A court had previously rejected the city’s request to inspect the Tower Theatre. The decision was made on technical grounds because the owners were not properly served legal paperwork.
The city renewed its request, which has now been granted.
The ruling is somewhat of a change to Tharpe’s ruling in July. Although he denied the inspection based on technical grounds, Tharpe cast doubt whether there was sufficient evidence to move forward with an inspection.
“The court finds the nature and purpose of the entry to be consistent with the statutory scheme and reasonably narrow in scope. Contrary to respondents’ arguments, to obtain entry the statutory scheme does not require the City to show that the historical landmark status of Tower Theater is threatened or in any danger,” Tharpe wrote on Tuesday.
Tharpe ruled that the city may send more than just a historic preservation appraiser to conduct the inspection. However, he will keep the compensation the city must pay to the theater owners at $140.
Councilmember Esmeralda Soria, who represents the block where the Tower Theatre is located, has pushed for the inspection. In prior statements, she said she wanted to make sure the historic theater is being preserved.
Pending Sale, Protests Continue
Laurence Abbate, whose family owns the 1930s-era theater, has attempted to sell the property to Adventure Church since last year. The sale would include the theater and other property on the block at Olive and Wishon avenues.
But, a tenant on the property, Sequoia Brewing Company, has fought the move in court. It argued that it had a first right of refusal to buy its property, a right not granted with the proposed sale.
Despite Fresno County Superior Court rulings against the brewery, an aspect of case is pending an appeal at the state appellate court. A case to hear damages the brewery is alleging is scheduled in 2023.
Since the news of the sale to the church broke in January, weekly Sunday protests have taken place. Groups are concerned a church owning the property would change the culture of the Tower District.
At times, counter protesters and third-party protesters — demonstrating against other issues — have led to tense situations.