By William W. Abbott
There is no middle of the road for Wal-Mart Stores. People are passionate on both sides, which includes the lawyers and consultants caught in the debate as it appears that Wal-Mart, as a single entity, generates more CEQA litigation than any other California applicant. Perhaps Wal-Mart will open up an EIR preparation service, sandwiched between the in-store optometrist and bank, as it continues its meteoric climb as the Nation’s number-one retailer.
Recent Wal-Mart litigation, Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, illustrates the importance of the small details in CEQA litigation. These issues are not unique to big box retail, and serve as a reminder to all lead agencies that matters such as tracking calendars and address labels may not be exciting, but may nevertheless prove to be critical in later legal challenges. The task for local planning staffs is how to ensure quality control on these seemingly less important, pure process aspects of CEQA compliance which are frequently delegated down the chain of command without the necessary training. Consider the following: public notice for 42 days of a 45 day review period denies the public of its review rights; keeping records of posting, records of mailing lists of surrounding property owners and occupants along with evidence of mailing; copies of webpage notices and newspaper articles; and lack of direct evidence of mailing to the commenting agencies. These are are all important elements of documenting compliance with required notice efforts. Local agencies would do well to prepare a written checklist for clerical staff to follow for both EIRs and ND’s along with “proof of” forms .
As with other Wal-Mart litigation, the project opponents questioned the sufficiency of the analysis of project impacts on the CBD. Once again, Wal-Mart came suitably attired for the party. The administrative record provided extensive information and analysis of impacts of retail trends. There was no question that there was ample evidence in the record supporting the City Council’s decisions regarding impacts to the CBD.
Finally, Gilroy Citizens illustrates an important consideration in tiering, and that is, in the words of the court, demonstrating “genealogy”. The particular EIR being litigated had been tiered from a General Plan EIR, an earlier project focused EIR, followed then by a negative declaration. The Wal-Mart EIR expressly referenced the prior CEQA documents, incorporated them by reference, and noted where and when the documents could be reviewed by the public. Tiering was a core strategy from the outset for successful CEQA compliance, not an afterthought. Job well done.
William W. Abbott is a partner with Abbott & 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.