What's at stake:
The city council is on the verge of waiving $40 million in developer fees for Costco.
When the Fresno City Council takes up the long-delayed new north Fresno Costco on Thursday morning, a community coalition wants one councilmember on the sideline — and the rest of the dais to confront what its attorney calls “an unacceptable probability of bias” baked into the proceeding.
The Herndon-Riverside Coalition for Responsible Planning and Development has formally asked Councilmember Mike Karbassi to recuse himself from the vote. The request points to statements Karbassi made in a GVWire interview last summer and at a council budget meeting just last week.
In the GVWire piece, published after a Fresno County judge tossed the city’s earlier Costco approvals, Karbassi described the project’s opponents as “professional environmental agitators that just want to use the legal system to do everything they can to prevent any growth and development in this city.”
At a May 14 budget hearing, Karbassi returned to the theme, complaining about “haters” and about the city “getting sued left and right by certain groups with their own agenda.”
“It is a problem when statements and conduct clearly cross the line into demonstrating an unacceptable probability of bias, if not actual bias,” said Daniel Brannick, the local attorney and Coalition spokesperson who sued the city over the original approvals — and won.
Karbassi could not be reached for comment.
The recusal demand lands in a season where Fresno council votes have repeatedly turned on the question of impartiality. Sacramento attorneys for industrial landowners earlier this spring asked Councilmember Miguel Arias to recuse himself from the Elm Avenue rezone vote, citing a 2020 appellate case rooted in quasi-judicial proceedings. Thursday’s Costco hearing, Brannick argues, sits on different legal terrain.
California courts treat two kinds of council votes differently.
When the council rewrites zoning rules – rezoning what a piece of land is allowed to become – courts call that vote a legislative vote, akin to passing a law. On those types of votes, councilmembers can shout from the rooftops whatever they want.
But when the council votes to apply existing rules to a specific project – granting a permit, deciding whether a particular use fits within the city zoning code – state appellate courts have ruled that councilmembers must be impartial. Those decisions are quaisi-judicial. Bias, or even the appearance of it, can be a due process violation.
This is where Brannick says Karbassi has run afoul. The city council, Brannick says, must take a judicial stance — and Karbassi has fouled out of the game.
He points to the mini-warehouse the new Costco will have, known as an MDO. The council will decide whether the mini-warehouse fits into the existing zoning code (Brannick beat the city in court last year on this matter). Because this is not a vote to write a new law and is clearly judicial, Brannick argued, Karbassi needs to recuse himself due to his “haters” comments.
Karbassi “has shown this categorical, generalized prejudicial bias against environmentalists opposing anything,” he said.
“He’s just not taking the arguments seriously, which is a violation of due process.”
City Attorney Andrew Janz did not immediately respond for comment.
The new Costco proposal, at the northeast corner of Herndon and Riverside, would relocate Costco from its 1985-era Shaw Avenue store to a new 280,000-square-foot complex on the city’s northern edge.
The development is on track to be exempted from roughly $40 million in fees under the City of Fresno’s new vehicle-miles-traveled mitigation program — the same program the council adopted last year to make the costs of sprawl visible to developers.
The $40 million amounts to more than two years of Measure C funding that flows to the City of Fresno annually for public transit, according to figures from the Fresno County Transportation Authority, the measure’s distributor. The city’s allocation was $14.94 million in FY24/25 and is estimated at $15.19 million in FY25/26.
Costco is on the hook for one other fee — a separate, much smaller regional developer fee program called the Regional Transportation Mitigation Fee (RTMF), which helps to pay for some of the county’s highway expansion projects. At $1.85 per square foot, the RTMF program would charge only about $518,000.
The city’s developer fee, by comparison, would have been roughly 77 times greater.
The city’s exemption rests on a grandfather clause: Costco’s attorneys argue the project was already in the permits pipeline before the city’s VMT mitigation fee took effect late last year.
Brannick rejects that reading. In a May 19 comment letter, he wrote that even if the fee ordinance doesn’t automatically apply, CEQA independently requires the city to consider feasible mitigation for the project’s significant environmental impacts — and the VMT mitigation program is exactly that.
Brannick, fresh off his previous victory against the city, believes that whatever way the council decides on whether to impose the VMT on Costco, the city will lose in court on this issue — again.
Councilmember Miguel Arias said the council didn’t get any analysis of the $40 million exemption before Thursday’s hearing.
“We didn’t know,” he said. “How much money are we leaving on the table?”
Jennifer Clark, the city’s planning director, could not be reached for comment on why the council was not aware of the extent of lost revenues from exempting the Costco project from the VMT program.
The council takes up the project Thursday morning, 9:20 a.m., at City Hall.
