Court Reinstates Lawsuit Challenging Wal-Mart Store Proposed In Lodi

A state appellate court has reinstated a lawsuit over a proposed Wal-Mart supercenter in the City of Lodi.

A trial court judge had thrown out the suit because the group Citizens for Open Government did not appeal the Lodi Planning Commission’s project approval to the City Council. Instead, Citizens for Open Government participated in an appeal filed by a different group. The trial court ruled that Citizens had not exhausted its administrative remedies, a requirement for getting into court. But the Third District Court of Appeal said the Lodi City Council’s appeal hearing amounted to an independent consideration of the proposed development, so all Citizens had to do was participate in that process.

The group that filed the appeal, Lodi First, has already won a Superior Court ruling in a separate lawsuit over the city’s environmental impact report for the Wal-Mart project. The Third District’s decision means the Citizens lawsuit challenging different aspects of the EIR may go forward.

The proposal for a new Wal-Mart in Lodi has been controversial since 2002, when Browman Development Company filed an application for a 340,000-square-foot shopping center to be anchored by a 230,000-square-foot supercenter on 36 acres at Kettleman Lane and Lower Sacramento Road. Opponents qualified an initiative that would have banned stores larger than 125,000 square feet, but, with the Browman application pending, voters rejected the initiative in November 2004.

The following month, the Planning Commission certified an environmental impact report for the project and approved a use permit and tentative parcel map. Lodi First appealed to the City Council, which also approved the EIR, use permit and map. Lodi First and Citizens for Open Government then filed separate lawsuits.

San Joaquin County Superior Court Judge Elizabeth Humphreys dismissed the Citizens action, ruling that the group had failed to exhaust administrative remedies.

On appeal, the Third District first considered the city’s argument that the Superior Court ruling for Lodi First had made the Citizens lawsuit moot because the court had already set aside the project approvals. The Third District ruled that the lawsuits are different. The trial court in the Lodi First suit ruled that only the issues of potential urban decay and energy impacts needed further study. The Citizens lawsuit concerns mitigation for the loss of prime farmland, economic impacts and compliance with land use plans, the Third District noted.

The Third District then considered Humphrey’s ruling. The appellate panel said that under Public Resources Code § 21177 (a section of the California Environmental Quality Act), “issues raised before a court must first have been raised during the administrative process, although not necessarily by the person who subsequently seeks judicial review.”

The city argued that the group had to file its own appeal with the City Council under Municipal Code § 17.72.110. However, the court determined that the city ordinance “does not require an appeal to be filed by ‘each’ and ‘every’ person claiming to be directly and adversely affected in order for such person to appear before the City Council.”

In reality, an appeal under § 17.72.110 transfers the final decision-making authority from the Planning Commission to the City Council, the court held. And, indeed, the City Council did not merely affirm the Planning Commission’s decision. The council adopted its own resolutions to certify the EIR and to approve the permit and map, the court pointed out.

“City Code § 17.72.110, like the corresponding CEQA provisions, used the method of an ‘appeal’ to bring a use permit application from the Planning Commission to the City Council for its independent consideration as the final decision-maker,” Justice Tani Cantil-Sakauye wrote for the court. “At such a hearing, a person’s participation and objection regarding the city’s approval of a use permit satisfied the exhaustion of administrative remedies requirement, assuming the issues subsequently sought to be litigated were sufficiently raised before the City Council.”

There was no dispute that representatives of Citizens for Open Government objected to the environmental review at every public hearing.

The court distinguished its decision from that in Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4th 577. In that case, the court ruled that opponents of a proposed lodge had not exhausted administrative remedies because, although their lawsuit addressed environmental review, the appeal of the county Planning Commission decision to the Board of Supervisors concerned only parking requirements (see CP&DR Legal Digest, July 2000). In addition, the local ordinances are different.

The Case:
Citizens for Open Government v. City of Lodi, No. C051419, 06. C.D.O.S. 10420, 2006 DJDAR 14885. Filed October 11, 2006. Ordered published November 9, 2006.
The Lawyers;
For Citizens: Donald Mooney, (530) 758-2377.
For the city: Jonathan Hobbs, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500.
For Browman Development: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.