When a new shopping center at the edge of town might skim off customers from existing businesses, how far can a planning department go to protect against "urban decay"?

Quite some distance under current CEQA law, and a little farther in light of an April 1 partial publication order from California's Third District appellate court. The order gives the weight of precedent to the core of a February 28 decision in California Clean Energy Committee v. City of Woodland. The February ruling overturned an EIR for a new shopping center, saying it did not impose enough mitigations of the urban decay risks and did not fully justify its rejection of a mixed-use alternative.

The court got requests to publish the decision not only from the Davis-based California Clean Energy Committee (CCEC) as successful plaintiff, but also from the Center on Race, Poverty and the Environment; the Santa Cruz environmental law firm of Wittwer Parkin; and noted Los Angeles attorney Beverly Grossman Palmer of Strumwasser & Woocher LLP, representing the Santa Monica Coalition for a Livable City. (The Santa Monica group is in its own separate litigation against a large development project proposed for the Bergamot stop on the expanding LA County light-rail line, but that matter is not mentioned in Palmer's letter.) The city and developer opposed publication.

Amanda Berlin of the Remy Moose Manley firm, which represented the city of Woodland, wrote, "The decision focuses on the record for the Gateway II project, so if the decision remains published, it's not clear whether it will have significant implications for other cities."

But Ryan Moroney, an associate with Wittwer Parkin, said the opinion helpfully stated a need for "objective measurable criteria" in mitigation measures, whereas "We see a lot of EIRs that have this sort of wishy-washy mitigation measure that says, 'We're not sure what we're gonna do but when the time comes we're gonna do our best'." He said it re-enunciated CEQA's basic purpose: "The whole principle is you're supposed to mitigate to the extent feasible if you've identified impacts." And while some deferral of mitigation measures may be allowed, "you've got to really have a plan about what you're going to do."

At issue in Woodland was an edge-of-town shopping center known as Gateway II, proposed by Petrovich Development Company, LLC. Petrovich's Gateway I, an existing 49-acre residential and commercial development, was already completed and leasing when the company proposed Gateway II. The Woodland Daily Democrat reported the existing Gateway Center now contains a Costco, Target and Best Buy.

Woodland's City Council granted annexation and zoning approvals for the Gateway II project but reduced it from the proposed 234 acres to 61.3 acres, and imposed mitigation measures to reduce urban decay both downtown and at the existing County Fair Mall. The Council's approval resolution predicted the project "would result in physical deterioration and urban decay" of existing retail centers, especially if existing big box retailers moved to the new property -- though it said changes imposed on the project would "avoid or substantially lessen" such effects.

Plaintiff CCEC argued the mitigation measures weren't enough. The trial court mainly sided with the city but the Third District held the city should have done more under CEQA to protect its existing retail businesses.

The parts of the decision that were granted publication mainly considered whether the city imposed correct and sufficient requirements to mitigate "urban decay" effects. The city had required the developer to seek a master conditional use permit requiring uses that would not compete directly with existing downtown retail; to prepare its own market study; pay half the cost of two city planning studies; and work with the County Fair Mall on a strategic land use plan.

The court found the market study should not have been delegated to the developer to prepare and that it failed to require specific mitigations. It found the rest of the measures weren't improper, but lacked enough clear promises of action to protect existing retail elsewhere in town. The court was not reassured by the city's plan to conduct later more detailed reviews of individual construction plans that would be tiered on the initial larger-scale approvals.

Palmer's letter, provided by the Santa Monica group, emphasized aspects of the ruling that limited deferred mitigation and required enforceable criteria in promised mitigations: notably, "fair-share" payments for measures whose cost and methods are not yet spelled out, and abatement efforts "lacking any 'criteria for success'". She described one holding as "a logical extension" of Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, "which held that development of mitigation measures may not be delegated to unaccountable agency staff members." She wrote that the Woodland case went a step farther in the same area by refusing to delegate the task of developing mitigation measures to the project proponent.

Palmer's letter further noted findings that an issue was sufficiently preserved on appeal "so long as the 'specific objections' are raised by any member of the public".

In a less detailed section of the opinion that Palmer's letter likewise flagged as important, the court agreed with CCEC that the city gave inadequate reasons for turning down a mixed-use alternative that would have developed 93 acres of housing and commercial uses, including "a local-serving commercial town center" with housing above the shops, on a 154-acre annexation parcel. It said the draft EIR emphasized claims that mixed-use or reduced commercial use alternatives were economically infeasible, but the city's final decision claimed without real evidence that the mixed-use alternative would have worse environmental impacts than the proposed project.

Further, the court accepted CCEC's argument that the energy impacts, including transportation effects, were not properly analyzed. Palmer saw importance there in the court's finding that reference to state energy standards were not enough because they "do not address several impacts that are within the scope of CEQA, such as transportation impacts, and the question of whether a project should be built at all."

In sections of the decision that remain unpublished, the court rejected a CCEC objection based on alleged noncompliance with the city General Plan rather than CEQA, finding CCEC asserted it too late in the litigation. The court also refused to call the city the "prevailing party" in deciding who should pay for preparation of the record.

The CCEC organization has a modest public profile despite some environmental litigation and regulatory successes in recent years. Public records show CCEC shares an address with its lawyer, Eugene Wilson, in Davis. Reached for this article, Wilson declined to comment about the case or the organization.

Two members of the original three-judge panel, Justices Ronald Robie and Andrea Lynn Hoch, issued the publication order. The third member, Justice Elena Duarte, joined in the original decision but not in the publication order.

Links:

  • The case: http://www.courts.ca.gov/opinions/documents/C072033.PDF.
  • Online docket including notes on the publication requests: http://bit.ly/1qrIrFt.
  • Analysis on the Remy Moose Manley site: http://bit.ly/1eqAi2b.
  • Background from the Woodland Daily Democrat: http://bit.ly/1sKwbBK.
  • On Santa Monica's Bergamot Transit Village litigation: http://bit.ly/1sTQL2J