by William W. Abbott and Janell M. Bogue

A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson (“City”) approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition (“Coalition”) to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project’s gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court’s decision to sever the gas station.

Urban Decay
The project opponents contended that the City did not adequately address the possible urban decay resulting from the project, especially the potential detrimental effects to smaller businesses in the downtown area. The court, though, held that the City did sufficiently evaluate the possibility of urban decay. It found that City’s determination that the impact would be less than significant was properly supported by evidence. First, the City relied upon an economic analysis that studied the project’s economic impact on the area. The study showed that the project was designed to compete not with small local retailers but with other large regional big-box stores. Second, the EIR pointed out that some of the increased property taxes would go toward business assistance programs which are utilized by retailers located downtown. Finally, the City reasoned that the viability of the downtown area would be most affected by factors such as planning efforts and marketing strategies, not just the existence of a Wal-Mart nearby.

Within the EIR, the City also addressed the studies submitted by opponents during the public comment period that suggested possible adverse effects to downtown businesses or urban decay in outlying “satellite” shopping areas. The City found that the project’s possible economic effects would not result in significant environmental effects for several reasons. First, the City said that there may be additional shoppers drawn by the Wal-Mart who would shop at downtown businesses. Second, the City also found that vacancies created by the project’s construction may be filled by other retailers not in competition with Wal-Mart. The court found that there was substantial evidence to support the City’s conclusion and it emphasized that those conclusions would be upheld if substantial evidence supported them, even if other contrary conclusions could be reached.

Severing a defective part of the project and allowing the balance to continue
At the trial court level, the proposed gas station was severed from the project because the station’s traffic and air quality components were deficient. On appeal, the Coalition contended that the severance violated CEQA by dividing a single project up into chunks. The appellate court held that there was no error because this kind of separation was allowed under Public Resources Code section 21168.9, which says that any order voiding a public agency’s decision because of CEQA violations “shall include only those mandates which are necessary to achieve compliance with CEQA and only those specific project activities in noncompliance with CEQA.” Though the Coalition argued that this severance granted the project a “free pass” from environmental review, the court said the remaining parts of the project fully complied with CEQA and if the gas station was ever proposed again, its effects on the environment would be assessed both on its own and cumulatively with the Project.

Fair Share Mitigation
The Coalition contended that the EIR did not address traffic mitigation measures because they were not definite or sufficient. The court found, though, that two of the mitigation measures; the extension and realignment of two roads, were a condition of the project continuing forward and were not speculative at all. Another mitigation measure, a planned I-5 interchange, was found to be needed as a cumulative result of several projects. The court said, “A single project’s contribution to a cumulative impact is deemed less than significant if the project is required to implement its ‘fair share’ of a mitigation measure designed to alleviate the cumulative impact.” Fee-based mitigation programs are adequate under CEQA, so long as they are part of a reasonable plan that the agency will actually implement. In this case, the city found that the Wal-Mart shopping center project should be responsible for 16.87 percent of the Phase I interchange costs.

The court did find that the project’s developers did not pay the fair share amount of the mitigation costs. The appellate court said, “To be sufficient under CEQA, the fair share mitigation measure must (1) specify an amount of $657,930 (16.87% of the total Phase I costs) and note that the amount is for Phase I only; (2) specify that the Project will also pay 16.87 percent of the remaining reasonable costs of the improvements; and (3) make these fees part of a reasonable, enforceable plan or program that is sufficiently tied to the actual mitigation of the traffic impacts at issue.” The City’s erred by imposing a mitigation fee of only $611,214 and by describing the mitigation measure too vaguely.

Consistency with General Plan and Zoning Code
Finally, the Coalition argued that the proposed Wal-Mart Supercenter project was not consistent with the City’s General Plan and Zoning Code. When reviewing these kinds of decisions, the appellate court gives deference to the City’s determination of its own rules. As long as the decision is not “arbitrary, capricious, unsupported, or procedurally unfair, it is upheld.” First, the Coalition said that the project was not consistent with the land use element of the general plan, but the court found that City adequately discussed the land use element within the EIR and found that the project did not violate the policy. Next, the Coalition argued that the City was allowing too much commercial property in violation of its land use policy. The court said, though, “City considered the applicable policy regarding the amount of commercial land and did so in a reasoned, supported way. That’s as far as we can take our inquiry.” Finally, the Coalition claimed that the City did not interpret its zoning code correctly, but again the court held that the City’s interpretation was not unsupported or in error.

William W. Abbott is a partner and Janell Bogue is a law clerk with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.