A lawsuit challenging a Wal-Mart store on the grounds that it would create downtown urban decay was rejected by the Third District Court of Appeal. The court did rule, however, that the Central Valley city of Anderson needed to require additional money to pay for the project’s fair-share for improvements to a freeway interchange.
The ruling stands in contrast to a recent decision by the Fifth District Court of Appeal over construction of two Wal-Mart supercenters in Bakersfield. In Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004), the court ruled that the city needed to address the potential for projects to cause urban decay, consider the combined impacts of two shopping centers, and correlate the projects’ air quality impacts to effects on human respiratory health (see CP&DR Legal Digest, January 2005).
In the City of Anderson in Shasta County, FHK Companies had proposed building a 184,000-square-foot Wal-Mart supercenter, which would operate 24 hours a day and combine a typical Wal-Mart store with a full supermarket. The development, located close to Interstate 5, was proposed to include several other buildings and a gas station. The developer eventually severed the gas station from the plans.
In contrast to Bakersfield Citizens, the Court of Appeal in the Anderson case determined that the city had studied potential urban decay. The city found that the supercenter would compete on a regional basis with stores in Red Bluff and Redding, and with outlying shopping centers in Anderson, rather than only with downtown’s businesses.
The city’s own study did find that two downtown pharmacies would be impacted by the Wal-Mart, but other downtown businesses “may actually benefit from increased local retail traffic,” Acting Presiding Justice Rod Davis wrote for the court. “As a small, growing town with a population of 9,500, city noted that its potential for urban decay is less than that of a typical declining ‘rust-belt’ city.”
In its ruling, the court noted that the city’s report on urban decay, “along with the studies from other communities and the public comment, present substantial evidence that the project could add to the blight in the city’s central business district. But a good argument can be made that city also presented substantial evidence that the project will not do so.”
Steven Herum, the attorney for Anderson First Coalition, the group that brought the suit, said, “I think the appellate court took too deferential of a method of reviewing the City Council’s actions.”
Art Friedman, an attorney for Wal-Mart, agreed that the case was about the court being deferential in such circumstances.
“Where the city considers and analyzes an indirect economic impact of a development project’s potential to cause urban blight, the courts are going to be deferential as long as the city’s conclusion is supported by substantial evidence,” Friedman said.
The unanimous three-judge panel did rule in favor of the Anderson First Coalition on a traffic matter involving improvements to an interchange at Deschutes Road on Interstate 5 near the project.
According to CEQA Guidelines 15130 subdivision (a)(3), a single project’s contribution to a cumulative impact is deemed less than significant if the project is required to implement or fund its “fair share” of a mitigation measure designed to alleviate the cumulative impact. To be sufficient under CEQA, the court said that the Wal-Mart development’s fair share mitigation fee must be $657,930, instead of the $611,214 fee specified in the mitigation measure.
“[W]e have had to consider the coalition’s claim that the I-5 interchange improvements and the project’s fair-share mitigation fee toward those improvements were too speculative to be considered adequate mitigation measures,” Justice Davis wrote
The court rejected several other claims by the Anderson First Coalition, which had argued that the EIR for the project had two significant defects, described in the ruling as “the elusive and inadequate descriptions regarding the project’s total size, and the inadequate traffic and air quality analyses for the entire project.”
But the court said the gas station portion had been dropped from the project and should it be proposed again, “[I]t will have to be environmentally reviewed as to its own impacts and together with the project as to its cumulative impacts.”
Anderson First Coalition v. City of Anderson, No. C047605, 05 C.D.O.S. 5899, 2005 DJDAR 8085. Filed June 30, 2005.
For Anderson First: Steven Herum, Herum, Crabtree and Brown, (209) 472-7700.
For the city: Michael C. Fitzpatrick, (530) 245-4391.
For Wal-Mart: Arthur Friedman, Steefel, Levitt & Weiss (415) 403-3205