Connect with CP&DR

facebook twitter

Follow us on Facebook and Twitter

Subscribe to our Free Weekly Enewsletter

Environmental Study Needed During Design Review, Court Rules

The California Environmental Quality Act does not apply to a city's design review process, the Third District Court of Appeal has held. In a case involving a Border's bookstore in the City of Davis, the court also ruled that the identity of a particular tenant in a retail project that has already undergone CEQA review does not compel further study. And the court held that the city's design review process does not extend to approval of particular tenants. The partially published appellate court opinion is the latest in a string of losses for opponents of the Border's bookstore, which opened last year. Opponents contend that the national chain will crush independent booksellers, of which Davis has many. In 1995, the University of California applied to the city for prezoning of Aggie Village, 10 acres of UC-owned land situated next to downtown but outside the city limits. Following hearings, the city zoned the site for residential and retail development. The city annexed the property in early 1996, relying on UC's environmental impact report for a 1994 long-range development plan that included Aggie Village, and on a negative declaration for Aggie Village in particular. Developer Fulcrum Davis then acquired an option on the property and submitted a design review application for a retail development of about 45,000 square feet in 1997. At this point, Border's had become known as a likely tenant, but city planners said they could not differentiate between one retailer and another. Planners approved the design review application, a decision upheld on appeal by both the Planning Commission and City Council. A group called Friends of Davis then filed a lawsuit seeking a writ of mandate, but Yolo County Superior Court Judge W. Arvid Johnson ruled for the city. On appeal, Friends argued that the city improperly construed its design review ordinance by not extending it to tenant approval. Friends argued that cities have the power to make and enforce local laws not in conflict with general laws, and that CEQA (a general law) mandates the fullest possible protection of the environment. But the unanimous three-judge appellate panel disagreed. "While a city has broad authority over the regulation of land use within its territory, that authority is not unlimited. Where certain uses are permitted, a city cannot arbitrarily exclude others who would employ a similar use," Presiding Justice Arthur Scotland wrote. "While valid zoning regulations may affect competition and have other economic effects, a city does not have carte blanche to exclude a retail merchant that it, or some of its residents, do not like." And, the court held, CEQA cannot be used to force a review of specific tenants. "[T]he Guidelines recognize that CEQA does not enlarge an agency's authority beyond the scope of a particular ordinance, and further recognize the fundamental rule that interpretation of the meaning and scope of a local ordinance is, in the first instance, committed to the local agency," Scotland wrote. Friends argued that the identify of Border's as a tenant did not become known until after the CEQA documents were prepared. The group contended that Border's would force independent bookstores out of business, leading to a general deterioration of downtown, a potential impact that necessitated further environmental review. Again, this argument got nowhere with the appellate panel. The court noted that UC had completed a CEQA review of the project, so the only question was whether additional review was warranted. The court said the only "change" was the identify of Border's as a tenant, and that was not enough to require additional review. Moreover, the court held, Border's impact would be an economic and social one. "CEQA and its implementing guidelines make it clear that social and environmental effects are not to be considered a significant environmental effect and need be considered only to the extent they are relevant to an anticipated physical change in the environment, or on the basis of substantial evidence, are reasonably likely to result in physical change to the environment," Scotland wrote. But Friend's provided no substantial evidence, only "speculative and conjectural" arguments, the court held. The Case: Friends of Davis v. City of Davis, No. C029236, 00 C.D.O.S. 7926, filed August 25, 2000, ordered published September 25, 2000. The Lawyers: For Friends: John Gabrielli, (530) 753-0869. For the city: Harriet Steiner, McDonough, Holland & Allen, (916) 444-3900. For Fulcrum Davis: Whitman Manley, Remy, Thomas & Moose, (916) 443-2745.
Search this site
From our Authors: