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Merced Alliance v. City of Merced, 2012 Cal.Unpub. LEXIS 8739

After years battling it out in public hearings and in court, the City of Merced claimed victory in its attempt to bring a 1 million square foot regional Wal-Mart distribution center to a 230-acre industrial site in the southeast section of the City. In an unpublished decision, the Fifth District Court of Appeal affirmed the lower court’s decision to deny the petition for writ of mandate filed by petitioners Merced Alliance for Responsible Growth. Petitioners had alleged numerous claims under CEQA, including that the EIR was inadequate for failure to consider a no-project alternative and failure to adequately assess the project’s impact on air quality, hydrology and water quality, traffic, urban decay, visual impacts and greenhouse gases and global climate change. In addition, Petitioners argued the EIR should have been recirculated because the City added significant new information to the final EIR and added new information to the administrative record after the release of the final EIR. The court rejected all claims.

Of note, the court found that the no-project alternative, which assumed a similar 1 million square foot development would be built if the Wal-Mart project did not proceed, was adequate because the EIR also included a discussion of the existing conditions, the general environmental setting, and the impacts of the project compared with the existing conditions. In addition, substantial evidence supported the determination that, if the Wal-Mart proposal did not go forward, the project site would likely be developed for another industrial or warehouse use. Thus, the court concluded that the EIR sufficiently discussed the impacts of the project compared with existing physical conditions as required by CEQA Guidelines 15126.6, subdivision (e2).

The court also upheld the city’s determination that the project would not create urban decay because it is not a retail facility; rather, it is a regional warehouse that would supply retail facilities within a large radius of the project site. According to the court, any discussion of urban decay effects that may be caused by future Wal-Mart stores that could be built and that would possibly foster urban decay would be too speculative and not reasonably foreseeable.

California Health Communities Network v. City of Antioch, 2012 Cal.App.Unpub. LEXIS 8571

The City of Antioch approved a proposed expansion of a Wal-Mart Store in the City’s Williamson Ranch shopping center without first requiring supplemental environmental review under CEQA. The City argued the expansion was consistent with a development plan that had already been reviewed under CEQA and thus only design review was required. The development plan for the Williamson Ranch shopping center was approved in 1998 and the environmental impacts were analyzed in a mitigated negative declaration. The plan established the allowable square footage for the shopping center and contemplated a grocery store as one of the permissible uses. The City determined that Wal-Mart’s proposed expansion, which fell within the allowable square footage and called for the addition of grocery sales, was consistent with the plan. Because the environmental impacts of the plan had been previously analyzed, the City found the only discretionary action required for the project was design review.

Petitioners filed a petition for writ of mandate alleging that CEQA review was required and the superior court granted the petition and issued the writ, holding the City’s municipal code granted the City the power to address environmental issues as part of its design review process. In an unpublished decision, the First District Court of Appeal reversed the lower court, allowing the expansion to proceed without additional CEQA review.

The question before the court was whether the City’s Design Review Board had the authority to address environmental concerns that might be raised in a supplemental EIR. If so, supplemental analysis was required as part of the design review process due to the changes in the area surrounding the project; if not, the City properly concluded no additional review was required. The court held that the City’s municipal code was not sufficiently precise to give the Design Review Board the power to broadly condition a design approval on off-site environmental issues such as traffic and urban decay. Thus, the City properly determined that design review was limited to design and aesthetic issues. No supplemental EIR was required.

Written By: Tina Thomas and Ashle Crocker
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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