Big-Box Store, Road Realignment Constitute 1 Project, Court Rules

 

Development of a home improvement store and realignment of an adjacent road in Sonora constituted one project, and the combined activities should have been subject to a single environmental analysis, the Fifth District Court of Appeal has ruled.

The fact that the road realignment appeared in the Sonora general plan 20 years before the Lowe’s Home Improvement Warehouse was proposed and had been included in a local traffic impact fee program did not matter, the court determined. Instead, the court cited the close relationship between the proposed Lowe’s and the road project, which was a condition of approval for Lowe’s.

“Lowe’s objective is to open and operate a home improvement center in Sonora. The commencement of business operations at the site is conditioned upon the completion of the realignment of Old Wards Ferry Road. As a result, the road realignment is a step that Lowe’s must take to achieve its objective. In this regard, we note that Lowe’s has cited no case or other authority for the proposition that a condition or mitigation measure is not part of the project to which it is attached,” Justice Betty Dawson wrote for the unanimous three-judge panel.

In June 2005, the Sonora Planning Commission approved an 111,000-square-foot Lowe’s building and 28,000-square-foot garden center, as well as a mitigated negative declaration for the development. One of the mitigation measures called for realignment and signalization of the intersection of Old Wards Ferry, Sanguinetti and Greenley roads, and relocation of the Sierra Railroad crossing of Old Wards Ferry. A group called Tuolumne Citizens for Responsible Development appealed to the City Council, which denied the appeal the following month.

The citizens group then sued, alleging the city violated the California Environmental Quality Act (CEQA) in numerous ways. Tuolumne County Superior Court Judge James Boscoe ruled for the city and Lowe’s. On appeal, the Fifth District overturned the lower court.

Much of the Fifth District decision was not published, so it cannot be cited as legal precedent. The published portion, though, addressed the issue of whether the Lowe’s store and the road realignment were the same project for CEQA purposes.

The citizens group emphasized CEQA Guidelines § 15378, which speaks to the “whole of an action.” On the other side, Lowe’s argued the store and road work were not the same project because Lowe’s did not seek approval for a road project, the road realignment was not necessitated by the home improvement store, and the store and road project were not “integral” because they could be implemented independently.

Siding with the citizens group, the court pointed to Plan for Arcadia, Inc. v. City Council of Arcadia, (1974) 42 Cal.App.3d 712. In that case, the court ruled that development of a shopping center along with street work on Baldwin Avenue to the south were one project under CEQA because the road widening was a condition of approval and the developer would pay for it. But the Plan for Arcadia court ruled that Baldwin Avenue road widening to the north was not part of the project because it was a long-planned municipal capital improvement.

“The realignment of Old Wards Ferry Road is similar to the widening of the southern portion of Baldwin Avenue in two important ways,” Justice Dawson wrote. “First, the approval of the home improvement center project is conditioned upon completion of the road realignment. Second, Lowe’s has committed to funding and completing the road realignment. These two similarities are more significant than the similarity between the realignment of Old Wards Ferry Road and the widening of the northern portion of Baldwin Avenue — the long-existing plan for the work.”

The court determined it was inconsequential that Lowe’s did not apply for approval of the road realignment. The court also found the fact that the road project had been in local plans due to cumulative growth impacts did not supersede the fact that the road work and Lowe’s store are directly connected. “We reject the position that a CEQA project excludes an activity that actually will be undertaken if the need for that activity was not fully attributable to the project as originally proposed,” Dawson wrote.

Finally, the court found that Lowe’s defined the term “integral” too narrowly. “Theoretical independence is not a good reason for segmenting the environmental analysis of the two matters,” the court ruled. “[I]f the two matters are analyzed in sequence (which was the situation here) and the combined or interactive environmental effects are not fully recognized until the review of the second matter, the opportunity to implement effective mitigation measures as part of the first matter may be lost.”

Besides, Dawson wrote, any theoretical independence ended when the road realignment was made a condition of approval.

In the unpublished portion of the decision, the Fifth District ruled that the city should have submitted the proposed mitigated negative declaration to the State Clearinghouse, notified the Public Utilities Commission and Department of Fish and Game, and provided for a 30-day public review period. The court rejected the citizen group’s arguments about urban decay, traffic, erosion and other potential impacts.

The court ordered the city to set aside approval of the Lowe’s store and to “complete an environmental evaluation of the entire CEQA project.”

The Case:
Tuolumne Citizens for Responsible Growth, Inc. v. City of Sonora, No. F051508, 07 C.D.O.S. 11881, 2007 DJDAR 15335. Filed October 2, 2007. Modified October 31, 2007, at 2007 DJDAR 16439.
The Lawyers:
For Tuolumne Citizens: William Yeates, Kenyon Yeates, (916) 609-5000.
For California Gold Development Corporation: Philip Atkins-Pattenson, Sheppard, Mullin, Richter & Hampton, (415) 434-9100.