Ceres, CA. Court Says Wal-Mart Can't Charge $49,000 For Public Documents
There's been a prolonged Paper War between Wal-Mart, and a citizens group in Ceres, California which has been pursuing the public record in a superstore case. Wal-Mart gave the residents in Ceres a bill for $49,000 work of copying fees---but a court has ruled recently that Wal-Mart's efforts to recoup its expenses "violates the spirit. if not the letter," of state law on public resources.
Sprawl-Busters first wrote about the group Citizens for Ceres back on November 28, 2007. The group has been doing battle with Wal-Mart for more than 7 years.
In late January, 2015, the media reported that Citizens for Ceres had filed an appeal against a Wal-Mart superstore approval by Ceres officials in Stanislaus Superior Court decision. The Wal-Mart project had been ok'd by the Ceres City Council back in 2011. Last fall, a Superior Court Judge ruled in favor of Wal-Mart against an appeal filed by Citizens for Ceres. The group is represented by Stockton, CA. attorney Brett Jolly. City officials said they were "disappointed" that citizens had filed an appeal, but added, "this is not unexpected."
Much of the battle thus far has centered on the Citizens request to have a full administrative record of the Wal-Mart proceedings. Wal-Mart and the City have resisted making documents available to the residents. Citizens for Ceres has also charged that the Wal-Mart environmental impact report failed to comply with the California Environmental Quality Act. Sherri Jacobson, a spokesperson for CFC, told the media that her group had "a laundry list of things" they would include in their appeal.
The proposed Mitchell Ranch Center is over 300,000 s.f. of retail stores, anchored by a 185,000 s.f. Wal-Mart superstore. There is already an existing Wal-Mart located a stone's throw away on Mitchell road.
This week, Citizens for Ceres sent out this update to its members:
On February 26, 2015, Citizens for Ceres received favorable news from the Stanislaus County Superior Court. We won another court victory related to the Administrative Record and the Wal-Mart Supercenter project. But this time, the win related to the costs of the Administrative Record. We owe Wal-Mart nothing for administrative record preparation costs.
Wal-Mart expected Citizens for Ceres to pay nearly $49,000 to reimburse them for the "preparation" of the Administrative Record. Wal-Mart claimed that it deserved to be reimbursed for costs paid to the City's attorney (or more specifically, a paralegal) for the time spent to prepare the Administrative Record because of a "reimbursement agreement" Wal-Mart had with the City.
Background regarding fight over the Cost of the Administrative Record:
In late 2011 and early 2012, Citizens for Ceres objected to the city of Ceres' claim that it cost the City nearly $35,000 to prepare the Administrative Record. In general, to prepare the Administrative Record, the City needed to assign someone to organize, photocopy, and print, any and all records already in the City's files related to the Supercenter project, and make them available to us, the public. (The record, at that point in 2012, did not include the thousands of public documents illegally withheld by the city of Ceres from the public.) The record contained nearly 15,000 pages, and we objected to the extraneous material the City added to "pad" the administrative record. We reserved our right to object to the extraneous material and reserved our right to object to the cost of the record, at a later date. We were prepared to pay for one-third, our share of the cost of the Administrative Record, at the resolution of the lawsuit.
Fast forward to 2015:
After the resolution of the lawsuit, the City did not seek to recover costs from Citizens for Ceres for our portion of the cost of the Administrative Record. Instead, Wal-Mart tried to seek reimbursement for the entire cost of the Administrative Record from Citizens for Ceres. In Wal-Mart's court brief, they outlined that it cost the City $34,981.84 to prepare the "Original Administrative Record", $12,258.87 to prepare the "Supplemental Administrative Record and 2nd Supplemental Administrative Record", and $1,649.00 to prepare the "Revised Privilege Log"!
What is disconcerting is the fact that the city of Ceres, paid $170 an hour for a paralegal to prepare the Administrative Record, and supplied no evidence why it cost the city of Ceres nearly $49,000 to make photocopies, nor was this issue discussed, publicly. Wal-Mart claimed that it was paying for the City's attorneys and would often pay the bill directly.
Citizens for Ceres objected to this claim for costs and on February 3, 2015, we received favorable news that the Stanislaus County Superior Court had issued a tentative ruling in our favor. The tentative ruling was posted online by the Court, and it stated:
CITIZENS FOR CERES VS. CITY OF CERES -- Plaintiff Citizens for Ceres' Motion to Strike and/or Tax Costs -- GRANTED in its entirety. The Court finds that the holding in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal. App. 4th 176 controls here. Although the City of Ceres itself "incurred" the cost of preparing the administrative record in this matter pursuant to Public Resources Code § 21167.6(b)(1), the City of Ceres did not seek reimbursement for those costs in a public forum, as appears to be required by City of Hayward. "The Court therefore concluded that in order to preserve the statutory scheme and purpose of Public Resources Code § 21167.6(b), a public agency had to itself incur and seek recovery of the costs of record preparation when the record was prepared under Public Resources Code §21167.6 (b)(1)." (Emphasis added.) The Court acknowledges the reimbursement agreement between City of Ceres and real party in interest Wal-Mart, but finds that Wal-Mart's attempt to recoup its costs here pursuant to that agreement violates the spirit, if not the letter, of Public Resources Code §21167.6(b)(1) as set forth in City of Hayward.
However, that wasn't the end of it. Wal-Mart elected to contest the tentative ruling, and our attorney, Brett Jolley, was in court on February 4, 2015 to argue why Wal-Mart's request is not allowed by statute and is not reasonable.
What you can do: Readers who want to support Citizens for Ceres in their legal battle with Wal-Mart over transparency, can contact the head of CFC, Sherri Jacobson at: