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Supercenter lawsuit decision expected soon
Court of Appeals has two months to decide in long awaited Supercenter legal dispute
The Fifth District Court of Appeals in Fresno heard the case last week which will determine if the Mitchell Ranch Shopping Center with its Walmart Supercenter anchor tenant can proceed to construction. - photo by Contributed to the Courier

The fate of the Mitchell Ranch Shopping Center now rests in the hands of three justices who presided over Wednesday's hearing in the Fifth District Court of Appeals in Fresno.

City officials feel confident that the court will deny a legal challenge to the project, which was approved in September 2011 to be constructed at the northwest corner of Service and Mitchell roads.

"They have up to 60 days to make their decision," said city of Ceres Community Development Director Tom Westbrook. "I'm hoping that it's a lot sooner than that."

Attorneys representing the city and Walmart argued their briefings in the lawsuit launched against the project from a group calling themselves "Citizens for Ceres" and their attorney Brett Jolley. The group has asserted that the City Council had no legal basis to approve the 26-acre shopping center project because of what they call inadequacies in the required environmental review. City officials have maintained that two-and-a-half years of extensive studies on the impacts on roads, traffic, noise, light and to the economic community more than satisfied the law.

Only Jolley and Sherri Jacobson, the leader of "Citizens," were the only project foes represented in the Fresno courtroom. Representing the city were Westbrook, Ceres City Manager Toby Wells and the respective attorneys.

Walmart's legal team also appealed the Superior Court's February 2015 order which rejected Walmart's attempt to recover almost $48,000 from "Citizens" for costs incurred as part of their lawsuit. The costs, which "Citizens" disputes, included attorney charges of $34,981 to prepare the Original Administrative Record, $12,259 to prepare the Supplemental Administrative Record and 2nd Supplemental Administrative Record, and $1,649 to prepare a Revised Privilege Log.

"The only questions the justices asked was really related to air quality impact," noted Westbrook.

Jolley asserts that blight and urban decay were not adequately addressed, that impacts to landfill capacity were not answered and that there is no mitigation for reduced air quality for added trips created by the center.

Wells 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 was "grasping at straws."

Because the EIR must limit its scope to conditions during the project's filing of the Notice of Preparation, which was back in September 2007, Westbrook said the fact that the county later took steps to expand landfill capacity can't be considered in court.

"In the urban decay analysis they're saying that stores may be closing," said Westbrook. "Richland Market did close its doors but it has been re-tenanted but that's not something that matters in the eyes of the court."

City Attorney Tom Hallinan said if the appellate court rules with the city, "Citizens" will be left with a unlikely legal option: The California State Supreme Court. Most legal experts say since the state's highest court takes very few cases, "Citizens" will be forced to abandon its fight.

Westbrook remains optimistic that the court will rule with the city just as Stanislaus County Superior Court Judge Roger Beauchesne did in 2014 and "this thing can get moving." Beauchesne found that there is "substantial evidence" that the city and Walmart followed CEQA law. In May 2011, attorney Elizabeth Anderson of Sheppard Mullin, a firm hired by Walmart, said CEQA does not require perfection, stating "it does not require all experts to agree - if it did you would never be able to certify an EIR." "Citizens" appealed Beauchesne's ruling, delaying the project for another two years.

Because the legal challenge has been ongoing for years, Westbrook said he doubts if Walmart has had the project designed by an architect. If that's the case it could take a month or two meaning permits could be issued within six months from today. Construction would take nine to 12 months.

"You could be into the early part of 2018 before the store is ready to open. The big thing for us is just to get that decision."

First proposed in 2007 by a different group, the shopping center would consist 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.

Wells said Jolley appears to be only interested in delaying Walmart projects throughout California with no hope of halting construction. An internet search shows that Jolley and the law firm of Herum Crabtree & Brown have crafted boilerplate groups such as the Crescent Heritage Coalition, Lodi First, the Friends of Madeira, American Canyon Community United for Responsible Growth, Citizens Against Poor Planning, in addition to the Citizens for Ceres for the purpose of fighting Walmart expansions in communities that include Sonora, Clovis, Milpitas, Chico, American Canyon, Lodi, Selma, Anderson, Apple Valley, Menifee, Antioch, and Citrus Heights.

"Their delaying of this has singlehandedly hurt the city more ways than they probably even know," said Mayor Chris Vierra.