A Stanislaus Superior Court judge heard arguments Friday in the matter of the challenge against the 2011 approval of the Walmart Supercenter project.
The 26-acre Mitchell Ranch Shopping Center - with its anchor tenant of the Walmart Supercenter - was approved by the Ceres City Council in 2011 but the building site at the northwest corner of Mitchell and Service roads remains vacant. "Citizens for Ceres" is suing Walmart and the city of Ceres on their assertion that the city did not adequately follow environmental review law before the council approved the shopping center. Group spokesman Sherri Jacobson claims that the project EIR - crafted over a two year period - is "legally defective" which "should not have been certified by the city of Ceres." Her group, however, fought the project from the moment Walmart was named as the anchor tenant and criticized the project on a full gamut of issues.
Brett Jolley, the attorney fighting the project, was in a Modesto courtroom as were representatives of the law firm of Meyers Nave which is defending the city in what has become one of the most protracted lawsuits against Walmart in California. Jolley argued in court that the shopping center would have negative adverse impacts on air quality and impact on the county landfill and asserts that urban decay and blight will likely occur at the existing Walmart store site when it closes for the Supercenter opening. City Manager Toby Wells was at the hearing and said he was surprised the group did not make an issue of traffic impacts. He said the claims that the county Fink Road landfill - which has enough capacity for the next 100 years - cannot handle the shopping center's waste is "grasping at straws."
Judge Roger Beauchesne heard both sides in court and has 90 days to render his decision, said City Attorney Mike Lyions. "The feeling is we don't think he will be taking that long to do it."
"The judge did not rule but he took the matter under submission so there will be a written decision at the superior court level regarding their challenge to the environmental documents," said Lyions.
City officials, said Lyions, "think we are 100 percent in the right."
Wells said the judge appeared to be "very versed in the case which is remarkable for as short as he's had the case." He said he was "very optimistic" about the "tone and tenor" of how the judge conducted himself.
"It's hard to get a read on the judge for sure but we're hopeful and positive," said Lyions.
It's been 33 months since the lawsuit was filed.
Lyions predicted that there will be an appeal to the 5th District Court of Appeals "regardless of how it goes." He explained that Citizens will undoubtedly file an appeal if they lose the case and that the city and Walmart would appeal should the judge rule against the city. It's not likely that the appellate court would hear the matter for at least another year.
Should the judge rule against the city, said Lyions, may "consider going back and curing anything that the judge said was done incorrectly." But, he added, "we think we did things correct."
The shopping center is proposed with a 185,668-square-foot Supercenter and 10 other retail shops totaling 114,162 square feet. Specifically, the project includes three other major tenants, four smaller shops, a stand-alone retail building and two to three new eating establishments. No tenants besides Walmart have been named but Applebee's has expressed interest.
Before the trial court could hear the matter, both sides had to sort out which documents should be included into the "administrative record," the set of documents on which a judge will decide if the city adequately addressed environmental concerns. The city and Walmart asserted that many emails should be left out as attorney-client or attorney work-product privilege but in 2013 the California Court of Appeal's Fifth Appellate District in Fresno determined that emails were not necessarily protected.
The draft Environmental Impact Report (EIR) issued for the Mitchell Ranch Shopping Center took 2 1/2 years to craft.