California court voids approvals for two big-box projects

In a ruling that could have broad implications, a California appeals court this week nullified zoning approvals given to two big-box shopping centers by the city of Bakersfield. The court held that the environmental impact reports (EIRs) prepared for the projects were insufficient and did not adequately address the potential for urban decay and associated ecological effects that could be caused by extensive new retail development.

The ruling orders the city to complete new impact studies and public hearings, and reconsider the projects.

In the interim, a lower court is to determine whether both shopping centers---which include two partially constructed Wal-Mart supercenters, as well as a Lowe's, a Kohl's, and several smaller stores that are already open---should halt further construction, cease store operations, or be torn down completely. Conducting EIRs and hearings is expected to take up to one year.

The lawsuit against the city and the developers was filed in March 2003 by a local citizens group, the Bakersfield Citizens for Local Control (BCLC). They won a partial victory from a lower court in February. The appeals court awarded them legal fees and court costs.

The court determined that the EIRs certified as complete by the city failed to consider the projects' "potential to indirectly cause urban/suburban decay by precipitating a downward spiral of store closures and long-term vacancies in existing shopping centers."

The developers asserted that economic and social impacts are outside of the scope of an environmental review as mandated by California state law.

But ample case law by state courts has concluded that the potential for a project to cause deterioration of a community's downtown or other existing shopping districts is an indirect environmental impact that must be analyzed.

In its effort to block the two projects, BCLC commissioned an analysis by San Francisco State University economist C. Daniel Vencill. He found that four existing shopping centers and malls would be adversely impacted by the new big-box developments. This could lead to store closures, persistent vacancies, and blight.

The appeals court further ruled that the reviews had not weighed the cumulative impacts of both projects. Each project was analyzed in isolation without reference to the other. The EIRs, the court wrote, "are defective because they did not treat the other shopping center as a relevant project or consider the combined environmental impacts of the two shopping centers."

The court concluded that the inadequacy of the EIRs "cannot be dismissed as harmless or insignificant defects. As a result of these omissions, meaningful assessment of the true scope of numerous potentially serious adverse environmental effects was thwarted. . . These deficiencies precluded informed public participation and decision making."

Once new EIRs have been completed, the city may choose not to re-approve the projects, in which case they will be torn down. It may also opt to impose mitigation measures, including requirements that some completed portions of the projects be altered or removed.

The ruling will likely affect a similar case involving a Wal-Mart supercenter in the town of Lodi. The citizens group there, Lodi First, contends the city also accepted an incomplete EIR. They are represented by the same firm, Herum Crabtree Brown, that argued the Bakersfield case.

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