By Janell M. Bogue
A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply.
The suit involves the development of the 560 acre Park using a Master Environmental Impact Report (in this case, it was called the Master Development Plan or “MDP”), an alternative to a project or program EIR for projects carried out pursuant to a development agreement. (Pub. Resources Code, § 21157; CEQA Guidelines, § 15175.) Use of the MDP streamlines the development process because any subsequent projects developed pursuant to the development agreement and considered in the MDP are not subject to further environmental review. The site plan in the MDP listed the primary land uses for each parcel within the Park, and the parcels in question were listed as multi-family residential. However, the developer subsequently requested a change in land use and asked to build a Wal-Mart Superstore on those parcels.
In December 2003, the Director issued a letter entitled “Status Report” which stated that an initial staff review of the site plan, landscape plan, elevation, and design of the Wal-Mart store were “in substantial conformance with” the MDP. Although the letter was addressed to the developer and copied to the City, it was not posted or made public in any way. On February 5, 2004, the developer responded by letter and stated that it understood that the Director’s letter “constituted [his] approval of the Site Plan” and that the Director’s letter was a “decision” required by the MDP. Subsequently, the Director recorded a notice of determination (“NOD”) on February 17, 2004. The NOD stated that the Director determined that “the Site Plan…applicable to the Project conform[s] to the standards set forth in the [MDP], which determination is a ministerial action not subject to CEQA review under [§] 21080(b)(1) and CEQA Guidelines [§] 15369.” On July 22, 2004, a local group opposed to the Wal-Mart sued. Although the City and the developer claimed that the statute of limitations had run, the trial court found that the “change from residential to a Superstore retail unit is a major change in the Development Plan that requires a discretionary act that triggers CEQA review.” The developer appealed.
The appellate court first held that the Director’s letter was not an “approval” and thus there could be no valid NOE to start the short 35-day statute of limitations. (Pub. Resources Code, § 21167(d); CEQA Guidelines, § 15112.) The validity of an approval depends upon a public agency’s rules and regulations. Here, the MDP stated that any interested person affected by the Director’s decision has ten days to appeal to the planning commission. Since the MDP provided for public appeal, the Director’s letter could not have been an approval because it was not available to the public and because it was labeled as a “status report” which did not sufficiently inform the public that it was an approval. Further, the City did not disclose that the letter was made public in the administrative record. Since there was no valid approval, there was no valid notice of exemption and the 35-day statute of limitations did not begin to run. The appellate court held that the earliest possible date of the City’s decision to carry out the project was June 22, 2004, when the City granted a use permit to sell alcoholic beverages in the store. Since CEQA provides a 180-day statute of limitation when the local agency proceeds without CEQA compliance, the plaintiffs filed suit in a timely manner. (Pub. Resources Code, § 21167(d); CEQA Guidelines, § 15112.)
Second, the appellate court held that the Director’s letter was not an approval by a public agency pursuant to Public Resources Code section 21167(d) and CEQA Guidelines sections 15112(c)(2) and 15062(a). The court said that the determination of whether the City, as a public agency, approved the project turned on whether the Director was properly delegated the authority by the City to make the determination that the Wal-Mart project was exempt from CEQA review. If the Director was not properly delegated the authority to make that decision, then the “status letter” could not possibly be a decision by a public agency. The MDP articulates the procedures that must be followed when determining whether subsequent projects were considered in the master environmental review process. It states that the Director may approve projects that substantially conform to the MDP. However, the MDP also says that any changes, “such as a request for a project or use which is not consistent with and does not share the same or similar characteristics of an allowed use identified within the [MDP] may be approved, provided” that the Design Review Board and the Planning Commission approve the proposed project. Upon appeal, the City Council may condition the proposed project. Thus, the court held that the Director only had limited review authority delegated by the City. Since the Director did not have the authority to approve the project, there was no valid approval. Without an approval, there could be no valid notice of exemption and the short 35-day statute of limitations could not prevent the plaintiffs from filing suit.
CEQA provides abbreviated statutes of limitation, but they only apply when the correct procedures are followed. A project that does not comply with all CEQA procedures will be subject to a long 180-day appeal period, leaving the window open for challenges.
Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.