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2011-04-19
Elk Grove, CA. Court Voids Wal-Mart Approval

In a major legal setback for Wal-Mart, a Superior Court judge in Sacramento County has overturned a decision by the city of Elk Grove, California to approve a Wal-Mart superstore, and forced the case back to square one.

In a 16 page decision issued on April 12th, Judge Lloyd Connelly issued a "writ of mandate,' requiring the city to set aside its approval of a Wal-Mart superstore, and ordered the retailer to submit a new or modified application for a conditional use permit to the city.

According to Attorney Brett Jolley, who handled the case on behalf of the Stockton, California-based lawfirm of Herum Crabtree, the ruling in Friends of Madeira v. City of Elk Grove was an appeal of an approval for a Wal-Mart that began in 2008 as a permit from the city approving a 148,000 sq. ft. Target store. The conditional use permit granted by the city said nothing about any grocery component in the Target.

One year later, in 2009, Wal-Mart bought the land, and submitted a request for a "substantial conformance" determination from the city for a 99,585 sq. ft. store with over 10% floor area dedicated to groceries. Wal-Mart kept the size of its store just below the 100,000 sq. ft. size in an attempt to circumvent the Elk Grove definition of a "big box" store, which requires additional approvals.

The city's planning director approved the switch from Target to Wal-Mart via a letter -- with no public notice or environmental review. A group called the Friends of Madeira only learned of the approval several months after the fact -- but still within the 6 month appeal window.

The Friends charged that the Wal-Mart required a new or modified conditional use permit, and said the planning director's decision in the Wal-Mart plan was discretionary and should have been subject to the California Environmental Quality Act

Wal-Mart tried legal maneuvers to get the case thrown out, and sought to discover confidential and constitutionally protected information regarding group membership, organization, and finances.

The Superior Court ruling concluded that the Wal-Mart proposal was materially different than the approved Target, and therefore required a new or amended conditional use permit from the City Council. One member of the Friends of Madeira noted, "It's very comforting to know we will have an opportunity to share our opinions and concerns [with the City Council] to help shape the future development of the subject parcel."

The planning director in Elk Grove admitted that he had determined that the Wal-Mart was permitted "as of right" based solely on the fact that the store's footprint fell below 100,000 sq. ft., and the city's role was thus 'ministerial' with no discretion allowed.

But the court noted that the Wal-Mart plan contained 24,178 sq. ft. of grocery and support space -- in excess of 10% of the store's total square footage. The plaintiffs said the store was therefore not a "general retail" land use, but a "retail discount store," which since 2007 in Elk Grove has required a condition use permit.

The city tried to argue that since the Wal-Mart was 415 sq. ft. smaller than a retail discount store, that it did not need the permit. The city also argued that they had granted Target a permit in 2008 for a retail discount store, and that the permit was transferable to Wal-Mart. But the court rejected both arguments, and remanded the entire case back to the city.

What you can do: Elk Grove adopted the 2007 'big box' ordinance to minimize the negative impacts of superstores on the vitality and economic viability of the city's commercial centers. The city determined that such superstores affect the viability of small-scale merchants, contribute to urban decay, and increase traffic volumes. The city stated that it had enough grocery stores to support the market for groceries in the city. The ordinance outright prohibits "large format discount superstores," which were defined as 150,000 sq. ft. stores with at least 10% of its sales floor devoted to grocery sales. The ordinance also restricts "discount superstores," which are 100,000 to 149,999 sq. ft. with 10% or more space for grocery sales. (Wal-Mart has tried to challenge such ordinances in court, but has lost each time.)

The Judge ruled that the Wal-Mart store "does not exactly match" the definition of a retail discount store or a retail discount superstore, but he said it could not be concluded that the Wal-Mart was just a general retail use -- because the definition of general retail store does not contain any mention of food or groceries. The "mere 415 sq. ft" difference in size was not enough to disguise that this store was a retail discount store that needed a conditional use permit, the court said.

The court also ruled that because the Target permit did not mention grocery sales at all, and in fact mentioned that a grocery store for the site was not feasible. The court ruled that there was a "substantial difference" between the Target and the Wal-Mart, and the large grocery component in the latter represented a "substantial modification" which prevented the city from simply transferring the Target permit to Wal-Mart.

Wal-Mart must now start from the beginning, and request a conditional use permit from the city as a retail discount superstore -- in a city that has already said it does not need more grocery stores. For more details on the Elk Grove legal victory, contact Attorney Brett Jolley at (209) 472-7700.










 
 
"Norman has become the guru of the anti-Wal-Mart movement" ~ 60 Minutes

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