A new twist has sprung to the legal debate over the city's 2011 approval of a Walmart Supercenter project which further delays a project already years in the planning. The matter may next be placed in the hands of the highest court in California.
A group named "Citizens for Ceres" is suing Walmart and the city of Ceres stating that the city did not completely follow environmental review law when the City Council approved the Mitchell Ranch Shopping Center and its anchor store of a Walmart Supercenter to be constructed at Service and Mitchell roads. In an October 2011 press release, group spokesman Sherri Jacobson said: "Citizens for Ceres has strong ethical and legal convictions that the deficiencies in the EIR are significant, and that the Environmental Impact Report for the Mitchell Ranch Center is legally defective and should not have been certified by the city of Ceres. Our only remedy is this litigation."
Specifically, the lawsuit faults the EIR for not adequately addressing any potential urban decay or blight resulting for the new center and abandonment of the existing store at Hatch and Mitchell roads. Proponents of the center have long argued that the EIR has addressed those concerns and noted that the term blight is different than one used in redevelopment agencies.
The group ultimately hopes to block construction of the 26-acre project at Ceres' Southern Gateway. The center is proposed as a 185,668-square-foot Supercenter with 10 other retail shops totaling 114,162 square feet. Specifically, three other major tenants and four smaller shops as well as a stand-alone retail building and two to three new restaurants were approved in 2011. No other tenants have been named but Applebee's has expressed interest in the center.
To determine if CEQA was followed, "Citizens" wants thousands of emails between Walmart attorneys, city staff and the city's legal firm of Meyers Nave turned over as part of the "administrative record." The city and Walmart feel that those emails are protected by attorney-client or attorney work-product privilege and they had not waived these privileges by sharing with each other because they had a common interest in preparing the EIR. The Third District Appellate Court agreed. However, on June 8 the California Court of Appeal, Fifth Appellate District in Fresno overturned that decision that determined the emails are not protected.
The court said that the city's obligation "not to commit to the project in advance, but instead to carry out an environmental review process and create environmental documents that reveal the project's impacts without fear or favor, and only then make up its mind about project approval, means the agency cannot have an interest, prior to project approval, in producing a legally defensible EIR or other environmental document that supports the applicant's proposal. At the same time, of course, the applicant's primary interest in the environmental review process is in having the agency produce a favorable EIR that will pass legal muster. These interests are fundamentally at odds."
The court also explained that attorney-client "does not include encouraging strategizing between a private applicant and a government agency to meet a future challenge by members of the public to a decision in favor of the applicant if, at the time of the strategizing, the agency has not, and legitimately could not, have yet made that decision."
City Attorney Michael Lyions said that since the two courts do not agree, the Ceres City Council may ask the California State Supreme Court to weigh in.
"The decision is inconsistent," said Lyions, who added "we don't know how we are going to respond."
Should the parties ask for the state court to take the case and the court take it, a new delay of months could occur.
"It could possibly take another nine months to a year before the State Supreme Court gets to it," said Lyions, who has long asserted that Citizens is only trying to delay the project as long as possible.
"It's a further delaying tactic of theirs -- that would be our perception."
Jacobson heralded the decision as a victory.
"The city and Walmart took it upon themselves to withhold from public disclosure hundreds of documents regarding their behind-the-scenes communications over this project," said Jacobson. "We look forward to reviewing these public documents as a result of this victory. This ruling is important for those who believe government should be open and transparent rather than a series of secretive, back-room dealings. The city and Walmart have been preventing any public access to the documents since December 2011."
Citizens' attorney Bret Jolley said "we couldn't have asked for a better result from the Appellate Court." He said the latest opinion is "well-reasoned and creates legal precedent to be followed in other cases addressing this issue. At the same time the Court was careful to not overreach in its opinion and has remanded some issues to the trial court for further review."