By William Abbott
Must a CEQA document for a supercenter always address urban decay? The answer is no according to the Fifth Appellate District, the same court which rendered the earlier ruling on a supercenter in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. The story begins in 2006 when the City of Madera certified an EIR for a retail center, consisting of 795,000 square feet of gross floor area. The conceptual site plan showed one anchor of 125,000 square feet. Following annexation approval in February, 2007 of the site to the City, the developer submitted to the City a refined site plan which now included an anchor tenant a “Super Target” of 194,484 square feet, excluding the garden outdoor sales area. The total square footage for the retail center remained unchanged. The City’s Community Development Department approved the refined site plan in May, and in June, the Planning Commission considered an addendum to the EIR, and recommended approval of a development agreement. In turn, the City Council considered the addendum and approved the development agreement in August. The staff report and addendum both concluded that there were no new impacts, different from those considered in the previously certified EIR. No one testified in opposition. However, a lawsuit challenging approval of the revised site plan was filed the same day as the council was considering the development agreement. The trial court denied the writ petition.
The opponent’s primary argument, based upon the decisions in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 and American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, was that CEQA documents for projects involving retail supercenters are required, as a matter of law, to address urban decay. The appellate court first acknowledged the more deferential form of review utilized once an EIR has already been certified for a project. (Pub. Resources Code § 21166.) The court observed that the appellant had not pointed to any evidence in the record which would trigger a subsequent or supplemental EIR, but rested its position on the argument that such analysis was mandated as a result of Bakersfield Citizens and American Canyon. The appellate court noted there was no mandated rule of the discussion for the potential of urban decay, but rather that the evidence in both Bakersfield Citizens and American Canyon cases warranted consideration of the issue. The appellate court then discussed at length its earlier decision in the Bakersfield Citizens case, softening somewhat its prior holding.
What then follows in the opinion is an interesting discussion of the timing of the addendum. The petitioners sued, challenging the approval of the site plan. The addendum was not prepared until after the modified site plan was approved, but before approval of the negative declaration. Thus, the opponents argued that the addendum could not operate as the required CEQA documentation for the revised site plan. The appellate court elected to treat the City Council approval of the development agreement as the operative project approval. As this action was preceded by the EIR addendum, the court was satisfied with the sequence of events. From the perspective of this author, assuming that approval of a modified site plan is discretionary (which it would be under most zoning codes), a lead agency would be better served to have sustainable CEQA documentation at each stage of discretionary action.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.