Should a city have to compensate businesses if its freeway building cuts off an important access point to them?
That's the crux of a legal fight brewing between the city of Bakersfield and the landlords for Moo Creamery and Paragon Salon Spa off Truxtun Avenue, in the shadow of the Truxtun tie-in project.
That's the big loop that will connect Truxtun Avenue to the about-to-open Westside Parkway.
Last Friday, the city tore up an access road that patrons of the restaurant and spa used to exit those businesses and drive back onto Truxtun Avenue, just east of Mohawk Street, or make a right turn into their parking lot from Truxtun.
That triggered the owners of those buildings, Truxtun Court Partners and Ching and Shu Young, to sue the city in Kern County Superior Court this week. But city staff have pointed out that the road in question is not the only way to get to and out of those businesses.
Up until a week ago, the road was paved. Now it's a dirt field with a "road closed" sign where the pavement ends. Nearby is where the city will build one of two ramps linking the new Westside Parkway to Truxtun Avenue.
The ramp on the south side of Truxtun wouldn't have crossed the access road leading out of Moo Creamery's parking lot, but having both the ramp and the access road essentially side-by-side would have created a dangerous situation, said Bakersfield Public Works Director Raul Rojas.
"It would be an unsafe situation to have people coming off the freeway off- and on-ramps," Rojas said. "(You're) looking over your left shoulder to try and merge onto Truxtun Avenue, and someone's trying to get into the driveway ... It's a very unsafe problem and would cause a lot of accidents."
But closing the access road will hurt the values of the properties and the visibility of the tenants in those buildings, according to the lawsuit.
Gregory Bynum is the head of Gregory D. Bynum and Associates, the general partner of Truxtun Court Partners, an investment group that owns the property where Moo Creamery and several other businesses operate. Truxtun Court Partners is the main entity behind the lawsuit, but it was joined by Ching Young and Shu Young, who own the neighboring domed building where Paragon Salon is located.
Attorney David Bynum, Gregory's son, said the road closure violates the property owners' right to have access to the businesses and damages their property values.
"This is going to hurt our tenants pretty severely," he said. "At the restaurant, if someone can't access you quickly and easily, you're going to lose business."
Charles Schwab already moved out of one of the buildings several months ago because of access issues and had to be replaced by a lower-rent tenant -- a staffing agency that didn't need as high of visibility, he said.
"Ultimately, what's happened to our property is we've taken it from a retail use to now who's going to rent our building from us?" Bynum said.
"We're definitely not seeking access again. That's an impossibility," Bynum said about the purpose of the lawsuit. Instead, the property owners are seeking damages based on how their property values have been affected. They've hired an appraiser to make that assessment, he said.
What the property owners and tenants knew about the freeway project and when they knew it is unclear.
The city awarded the contract for Phase 4 of the Westside Parkway, which includes the linkages to Truxtun Avenue, in late 2010, said Ted Wright of the Thomas Roads Improvement Program office.
"Those plans included this closure" of the access road, he said. Wright said the city did talk with the property owner but couldn't say offhand when that happened.
But the lawsuit claims the property owners weren't told about the access road closure until October 2011.
Bakersfield City Attorney Virginia Gennaro also said the city had reached out to the property owners.
"I know that the city conducted some outreach to those property owners quite some time ago," she said.
"I find it very hard to believe that the plaintiffs were unaware, either from the city or from their own due diligence that they didn't know what was happening," Gennaro said.
She said the lawsuit is not unexpected and that the city has been working with outside counsel, Clifford and Brown, to represent the city on it.
Gennaro points out there still is a road in and out of Moo Creamery and Paragon -- Commerce Drive, which drivers on Truxtun can access through Commercial Way.
"To the best of my knowledge, everyone is still going to have access to their property."
Access will be different "but nevertheless, they're still going to have access to their property."
But the plaintiffs in the lawsuit aren't happy with that solution. It means an extra mile of driving to get to the businesses, according to the lawsuit. And that, added to waiting times at the intersection of Truxtun and Commercial Way if it's busy, could be enough to deter visitors to the businesses, Bynum said.
The city didn't have much choice about where to build the linkages between Truxtun Avenue and the new Westside Parkway, Rojas said.
The dirt embankments for the two ramps are already built, though not paved, Rojas said. The city is aiming to finish this section of the Westside Parkway by July 31, he said.
"The tie-in (linking Truxtun Avenue and the Westside Parkway) was always going to be part of the Westside Parkway," Rojas said.
Richard Yoshimura, who owns Moo Creamery along with his wife, Jessica Pounds, said he's frustrated with the closure of the access road.
"Had I known this was going to happen (to his access), I would not have opened up a restaurant," said Yoshimura, who came to Bakersfield from Los Angeles and opened Moo Creamery in 2008.
Sometime around April 2012, according to the lawsuit, the city closed off the option for westbound drivers to turn left off Truxtun Avenue and onto the access road. Yoshimura said his business dropped 20 percent when that happened, but luckily his catering business picked up at around the same time.
"But with this closure, I don't know," Yoshimura said Wednesday as he stood near the end of the pavement where the access road had been a week earlier.
St. Patrick's Day came just a couple days after the road was torn up, and that might have accounted for the busy weekend the restaurant had just experienced, he said.
"It's too soon to tell" what the effect on business will be of the access road closure, he said. Like Bynum, Yoshimura predicted that Commercial Way, which will be the new access point, will become "logjammed."
Yoshimura met with city staff Thursday morning to talk about the permanent signs the city will install on Truxtun Avenue, Commercial Way and Commerce Drive directing people to the plaza where Moo Creamery and the other businesses sit.
"Our clients are very upset," said Carol Wood, who owns Paragon Salon with her husband, Jim Wood. "They're used to being able to come and go by that access road, and now they have to go out the back way. And trying to get new clients ... it makes that difficult, too."
The Woods have been in the domed building at the end of Commerce Way for 10 years, Carol said. Retail sales in the salon, one measure of how the business is doing, have dropped off about 40 percent since around the time the city closed the left-turn option off of Truxtun Avenue and onto the access road, she said.
Not only is there less visibility for the salon along Truxtun Avenue, she said, but visitors get to the end of Commerce Drive, don't see Paragon Salon, give up and turn around, she said.
"If you don't know where to go, you don't know how to get back there," she said.