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2009-05-16
Yucca Valley, CA. Court Overturns Wal-Mart Approval On Environmental Grounds

This week brought a major legal setback to Wal-Mart's plans in the high desert of California, and raised serious environmental issues about its superstore projects. On May 14, 2008, Sprawl-Busters reported that despite the fact that Wal-Mart already had a discount store in Yucca Valley, at 29 Palms Highway, it wanted to build a new superstore. The "old" Wal-Mart has been there for roughly 15 years. There are two Wal-Mart supercenters within 25 miles of Yucca Valley in Palm Springs and Palm Desert. When the Wal-Mart arrived in 1993, it did a considerable amount of harm to the local retail economy in this town of roughly 20,400 people. Now Wal-Mart wants to build another store -- this time a 229,000 s.f. supercenter -- further down the road on Palms Highway, right next to a Home Depot project. The existing Wal-Mart would be closed down. Yucca Valley is a Southern California high desert community that lies between the San Bernardino Mountains and the Joshua Tree National Park. It's the hub of the Morongo Basin communities and a host of recreational opportunities and tourist attractions. Wal-Mart's plans met with strong opposition in Yucca Valley, but the retailer won the approval of the Town Council for its superstore. The project had been dragging through the review process for four years. In July, 2007, Wal-Mart published an Environmental Impact Report (EIR) on the project, and the town's planners concluded that "all potential impacts associated with the proposed project could be mitigated, with the exception of those impacts associated with air quality and noise." The town then focused on whether the "economic, legal, social, technological or other benefits outweigh the significant and unavoidable impacts associated with the project." During the public review process, the town received 31 letters from residents against the project. Wal-Mart responded to the opposition by putting out petitions in its existing store in favor of the supercenter, and getting shoppers to sign the petitions. The town's Planning Commission wrote a "Statement of Overriding Considerations" that recommended the project to the Town Council. Because of citizen complaints, Wal-Mart had to drop several aspects of the original superstore plan, including a gas station and a drive-through pharmacy. The company also had to find a buyer for their old store. Residents warned of the increased water use demands the store would create, the loss of Joshua trees from construction, the light pollution, increased traffic, and big box and fast food blight. One resident claimed that "85 small businesses closed when the first Wal-Mart opened." Wal-Mart sent in its public relations staff to try to assuage concerns over the impacts of their new supercenter. On August 5, 2008, Sprawl-Busters noted that a group called the Center for Biological Diversity, along with a consortium of groups in the Morongo Basin, each had filed a lawsuit against the Town of Yucca Valley, challenging the town's approval of the supercenter. The lawsuit asked the town to conduct a new environmental impact report. According to the CBD, the lawsuit sought to force Wal-Mart to reduce greenhouse gas emissions from new store construction as required by California law. Conservationists are challenging Wal-Mart's failure to implement measures to reduce the carbon footprint of its new supercenter. "Wal-Mart has stated for years that its goal is to be supplied by 100-percent renewable energy," said Jonathan Evans of the Center for Biological Diversity. "Yet even for stores proposed in the California desert, it refuses to incorporate cost-effective features like solar panels to reduce its carbon footprint." The group says that research shows that continued "business-as-usual" greenhouse gas emissions threaten up to 70% of plants and animals worldwide with extinction. A report released by the U.S. Environmental Protection Agency in July says that by mid-century, extreme heat waves from global warming in areas like Los Angeles and San Bernardino could cause two to three times as many heat-related deaths as occur today. The lawsuit was one of a series of court challenges brought by the Center to reduce greenhouse gases from new development through the California Environmental Quality Act. On September 17, 2008, Sprawl-Busters noted that a group called The Coalition for Environmental Integrity in Yucca Valley says it has gathered 1,296 signatures on petitions to force the Yucca Valley Town Council to repeal its approval of the Wal-Mart Supercenter or put the project on a ballot for Yucca Valley's voters. According to the Hi-Desert Star newspaper, the Coalition for Environmental Integrity organized 35 signature gathering sessions and spent over 100 hours in front of Yucca Valley grocery stores to force the Town of Yucca Valley to either repeal its approval of the Supercenter, put the project on hold for one year until the next general election, or put it before voters in a special election. The Coalition and the Center for Biological Diversity kept their legal appeals alive -- and this week, it paid off. According to Attorney John G. McClendon, of Leibold McClendon & Mann, based in Laguna Hills, California, who represented the opponent sof Wal-Mart, on May 15, 2009, San Bernardino County Superior Court Judge Barry Plotkin overturned the Town of Yucca Valley's approval of a the Wal-Mart supercenter. "After a lengthy hearing process spanning three weeks," McClendon wrote, "Judge Plotkin found the EIR's greenhouse gas analysis deficient and faulted the EIR for failing to discuss all feasible air quality mitigation measures. The judge also faulted the EIR for failing to include a discussion of a 'green' Wal-Mart supercenter alternative, and faulted the Town for failing to make the necessary findings to reject the EIR's environmentally superior alternative." According to McClendon, the judge found the EIR's "urban decay" analysis was flawed and was based on stale and incorrect data. "The EIR's 'urban decay' analysis had been prepared by a 'hired gun' consultant Wal-Mart has used in other cities," McClendon explained. "This consultant fudged the superstore's impact on retail vacancies, claiming they would be insignificant, and this conclusion was repeated in the EIR. However, Professor Philip G. King, Associate Professor and Chair of the Department of Economics, San Francisco State University, peer-reviewed the consultant's analysis, revealed its misrepresentations and flawed assumptions, and showed that -- even using the consultant's own numbers -- the new supercenter would have an utterly devastating impact on the Town's retail sector." The judge wrote: "The EIRs and accompanying reports clearly show that after the project is built there will be an excess of 450,000 s.f. of non-grocery retail, equal to over 60% of the total retail identified in the original (2006) EIR." This enormous surplus of vacant retail space would create a huge long-term problem for the Town, the court found. "Indeed, if one projects a 5% growth in demand for retail space... it will take until 2017 -- nine years from now -- for this excess supply of space to clear, assuming no new structures are built. Given these circumstances, it is clear that there is substantial potential for urban decay." Professor King provided real market data which indicated that the new Wal-Mart supercenter would almost certainly result in the closure of the Food4Less and probably one of the Town's two Stater Brothers, setting off a spiral of urban decay. Wal-Mart's consultant conceded that the superstore's impacts on retail vacancies would be 16 times greater than had been disclosed in the EIR. Judge Plotkin found this concession itself constituted "significant new information" that needed to be presented to the public in a recirculated EIR. The court ruling does not mean the Wal-Mart debate in Yucca Valley is over. As in Bakersfield, California, the giant retailer will now have to come back to the town with a new EIR. So the final battle may yet lie ahead -- but this setback could cost the company a year or longer in added delays.

What you can do: The Center for Biological Diversity issued a press release on May 15th which said Wal-Mart had violated California law by ignoring climate change. "The court agreed that Wal-Mart broke the law by refusing to even consider common-sense measures to reduce the greenhouse gas footprint of its latest big-box store," said Matt Vespa, senior attorney with the Center's Climate Law Institute. "California law requires consideration of greenhouse emissions and other environmental impacts from new development, and it is only fair that Wal-Mart comply with this important requirement." The California Environmental Quality Act mandates that where an environmental impact is determined to be significant, all feasible mitigation measures must be adopted to substantially lessen the impact. In its environmental review for the proposed project, which is located close to Joshua Tree National Park, habitat for the imperiled desert tortoise, Wal-Mart attempted to avoid adopting feasible measures to reduce the carbon footprint of its Supercenter by determining that the project's cumulative impact to global warming was less than significant. The court rejected Wal-Mart's finding that the project's impacts were not significant as unsupported and contrary to science. "Wal-Mart talks a lot about fighting global warming, but when it comes to actually taking action, it bent over backwards to avoid incorporating cost-effective features like solar panels to reduce its carbon footprint," Vespa added. "The enormous disconnect between Wal-Mart's stated environmental goals and its actions is classic greenwashing." The court also ruled that the environmental study illegal for several other reasons. It neglected measures to reduce ozone and dust pollution, and environmentally superior alternatives. "Business-as-usual big box sprawl is devastating to our environment and communities," said Vespa. "California law requires Wal-Mart to take stronger steps to live up to its promise to reduce significant environmental impacts like global warming." In 2007 California passed Senate Bill 97, which affirms the requirement to reduce greenhouse gas emissions from land-use decisions. In June 2008 California also provided technical guidance on how to properly calculate and reduce greenhouse gases. The California Environmental Quality Act requirements are in addition to the requirements of the California Global Warming Solutions Act and the Governor's June 2005 Executive Order, which sets a goal of reducing emissions 80% below 1990 levels by 2050. The Center for Biological Diversity is dedicated to ensuring that atmospheric carbon dioxide pollutant levels are reduced to below 350 parts per million, which leading climate scientists warn is necessary to prevent devastating climate change. Without strong action, the group says, the current atmospheric carbon dioxide level of 385 ppm will rise to approximately 500 ppm by mid-century, triggering mass wildlife extinctions, catastrophic global weather and ecosystem changes, and tragic human suffering. The Wal-Mart building alone would take up 22 acres of currently open space. The existing Wal-Mart in Yucca Valley is 115,000 s.f. -- large enough to be reconfigured as a supercenter. Readers are urged to email Yucca Valley Mayor Frank Luckino at townclerk@yucca-valley.org with the following message: "Dear Mayor Luckino, The recent court decision rejecting the Wal-Mart EIR gives the Town Council a major opportunity to ask the giant retailer to come up with a different plan altogether. Wal-Mart has been doing what they call 'in-box conversions' of their stores, where they convert a store from discount to supercenter -- without adding one square foot to the building. This could happen in Yucca Valley, making the proposed new site completely unnecessary. Rather than struggle to create another EIR, go back to the company and tell them you want an in-box conversion. They are doing this in places like Milwaukee with stores the size of the one on Palms Highway. Instead of making Yucca Valley fit Wal-Mart's plans, make Wal-Mart fit into your plans -- and avoid more legal controversies."










 
 
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