A court battle was avoided. An out-of-court settlement was reached in July in which the city agreed to "set aside" the site development permit and negative declaration (i.e., no significant impact) decisions they had made on the Wal-Mart development. This will force the developer and Wal-Mart to reapply for the use permit admendment to the General Plan which allowed for commercial use of the industrial park for a Wal-Mart.
Most important was the city's agreement to require an EIR (Environmental Impact Report) when the use permit admendment and site development permit are resubmitted to the Planning Commission. The EIR will address the social and economic impacts of a Wal-Mart store. In addition, the city will require the developer to "mitigate" the effects that any development will have on an endangered plant species, Baker's Meadowfoam, which was descovered by a citizen near a vernal pools area on the industrial park land.
This lawsuit marks the first time that the MEC has gotten involved in a city planning issue, but it was felt very strongly by the MEC board that the California Environmental Quality (CEQA) requirement of an adequate environmental assessment of the impacts that a store of Wal-Mart's size would have on our community had simply not been met when the city approved the Wal-Mart development.
The following is excerpted from the MEC's lawsuit. After reading this, you will understand why the MEC filed a lawsuit on this important issue.
In the early 1980's, the city approved a plan to develop a 155 acre Airport Industrial Park in the area bounded by Talmage Rd. on the north, Highway 101 on the east and the railroad tracks on the west. No Environmental Impact Report was done.
After being vacant for 6 years, the developer in 1986 got the upper 100 acres rezoned as the Redwood Business Park to allow commercial and office uses in addition to industry. Again, no EIR was done.
Three years later, the nationwide Wal-Mart department store expressed interest in building what would untimately be a 123, 792 sq. ft. department store on the uppper 14.8 acre parcel of the property, which would include 740 parking spaces. The store would employ 230 people, and become the largest private employee within the City of Ukiah, and the store would be twice the size of the largest existing store in the city.
There was a legal obstacle to the Wal-Mart development. The use permit for the Redwood Business Park didn't allow for this kind of commercial use.
On January 10, 1990, the developer came before the Planning Commission asking for a use permit for broader commercial use of Redwood Business Park. No mention was made of Wal-Mart's interest in the area. The Planning Commission on January 10, and the City Council on January 17, approved the broader development use permit.
One month later, the Wal-Mart project was brought before the Planning Commission. The PC asked if the city staff had known of the Wal-Mart application when it had asked for the use permit in January. Planning Director Mike Harris denied such knowledge, although documents show the City's fire, water, sewer, engineering, electric and planning departments had all met with Wal-Mart's representatives on January 9.
City staff proceeded to rush ahead with the approval of the Wal-Mart project. On January 24, Wal-Mart submitted an "Environmental Information Form" which purported to be an analysis of the potential significant impact of the Wal-Mart project. Planning Director Harris completed an "Environmental Checklist Form" which purported to be an analysis of the potential significant impacts of the Wal-Mart project. He checked "No" sixty times and "Yes" only three times, with one "Maybe," decided a Negative Declaration (meaning no significant impact) chould be prepared, and issued the Negative Declaration on January 25.
Public Notice was published on January 28, posted on the property on January 29, and mailed to nearby owners on January 31. This was the first notice the public received of the issuance of the Negative Declaration, or of the Wal-Mart project itself. The public had 17 days to review and comment on the Negative Declaration before the February 17 Planning Commission hearing on the matter.
The MEC sent a letter to the Planning Commission on February 12 discussing numerous significant environmental impacts of the project and requesting an Environmental Impact Report.
At the February 14 meeting, individual Commissioners expressed dismay at the Negative Declaration and requested a traffic study, a drainage plan, a landscaping plan, and an EIR. Nevertheless, a majority 4-3 approved the project and the Negative Declaration.
The MEC filed a letter of appeal, which was denied on February 27. A letter was sent to the MEC explaining the reasons for denial.
The MEC filed its lawsuit on March 19, 1990. The following challenges were made:
1. Inadequate public review period - CEQA law requires 21 days public review period, and there were only 17 days given with this project. The lawsuit maintained that "open discussion, full disclosures, and sensitivity to public concerns are the very essence of the CEQA process."
2. Inadequate consultation - The lawsuit argued that expert opinion was not included in the Negative Declaration decision. Part of an initial study required by CEQA is obtaining the opinions of all agencies responsible for resources affected by the project. This includes transportation planning agencies. Not only were no agencies consulted, but there was a period of one day between Wal-Mart's submission of environmental information and the Planning Director's issuance of the Negative Declaration.
3. Inadequate Initial Study - The Negative Declaration was prepared in violaton of the law. CEQA requires an Initial Study to determine if a more involved EIR should be required. An EIR is necessary if the project "may have a significant effect on the environment." The fact that the Planning Director consulted with none of the required agencies, and issued a Negative Declaration one day after Wal-Mart submitted its environmental information indicates a failure to conduct any meaningful Initial Study.
The City didn't review whether the project was consistent with the General Plan, nor provide any factual basis for the Negative Declaration finding. It did not inquire of Wal-Mart the expected location of the customer market base which would justify the construction of so large a store, or the source of the expected 230 employees. The MEC wondered how the City could determine the impacts on traffic, housing, and growth without such vital information.
4. Need for Environmental Impact Report
EIRs are required "whenever it can be fairly argued on the basis of substantial evidence, that a project may have a significant environmental impact." Substantial evidence of numerous impacts was presented to the Planning Commission comprising more than the necessary threshold "fair argument." These included inducement of population growth, future pressure to convert agricultural land to urban use, traffic impacts, flooding and drainage issues, aesthetic impact, air pollution, water availability, financial disruption of the community.
The lawsuit concludes with the comment that "the study and disclosure of environmental effects takes time, cost money and may reveal unwelcome truths. For these reasons, a lead agency [City of Ukiah] may sometimes have the temptation to dispense with rigorous environmental review. Since the public interest inevitably suffers when this is done, the legislature and the courts have established environmental procedures which must be scrupulously followed."
Because of the MEC's involvement in this important planning issue, our community will have another opportunity to analyze the impacts of the Wal-Mart development.
Copyright Mendocino Environmental Center 2004
Permission granted to excerpt or use this article if source is cited