Metropolitan News-Enterprise


Monday, November 13, 2006


Page 4


Court Revives Suit Challenging Proposed Lodi Wal-Mart Supercenter


By a MetNews Staff Writer


A challenger to a city councilís approval of an environmental impact report exhausted its administrative remedies where it attended and objected to the EIR at each planning commission and city council meeting, even though it was not the party that appealed the planning commissionís approval of the EIR to the council, the Third District Court of Appeal has ruled.

The court last week reversed San Joaquin Superior Court Judge Elizabeth Humphreys, who had dismissed the non-profit group Citizens for Open Governmentís suit challenging the City of Lodiís approval of plans for a Wal-Mart-anchored shopping center, ruling that the mere fact that other parties appealed the Planning Commissionís decision to the City Council did not exhaust the Citizens for Open Governmentís administrative remedies.

In 2002, Browman Development Company filed an application with the city for a use permit to develop the center. The Planning Commission approved an EIR for the project after holding a public hearing, which representatives of Citizens for Open Government attended.

Another citizens group, Lodi First, appealed the Planning Commissionís decision to the Lodi City Council. Wal-Mart also appealed, challenging two of the conditions on the project adopted by the Planning Commission.

Citizens for Open Government did not appeal.

After conducting public hearings, at which Citizens for Open Government appeared and objected to the EIR, the city council approved the report and issuance of a use permit for the center. Citizens for Open Government then filed a petition for writ of mandate against the city and City Council, challenging the certification of the EIR and approval of the use permit.

The petition raised issues regarding the EIRís project description, inclusion of legally adequate alternatives, failure to adopt reasonable mitigation measures for loss of prime farmland, sufficiency of the evidence to support claimed economic benefits and beneficial infrastructure improvement, and the cityís alleged use of compliance with land use plans to offset environmental harms.

The defendants moved to dismiss, arguing that Citizens for Open Government was required to file its own appeal of the Planning Commission decision to the City Council pursuant to City Code Sec. 17.72.110.

After Humphreys granted the motion, Citizens for Open Government appealed, claiming that because its representatives appeared and objected to the cityís proposed actions at each of the hearings before the Planning Commission and City Council, it exhausted its available administrative remedies, even though it did not itself appeal the Planning Commissionís decision to the City Council.

Justice Tani G. Cantil-Sakauye, writing for the Court of Appeal, agreed, saying:

†ďCity Code section 17.72.110 did not require each and every person adversely affected by a decision of the Planning Commission on an application for a use permit to file an appeal to preserve their right to participate and object before the City Council and ultimately pursue a remedy in the courts.Ē

The justice explained:

ďInstead, City Code section 17.72.110, like the corresponding CEQA provisions, used the method of an Ďappealí to bring a use permit application from the Planning Commission to the City Council for its independent consideration as the final decisionmaker. At such hearing, a personís participation and objection regarding the Cityís approval of a use permit satisfied the exhaustion of administrative remedies requirement, assuming the issues subsequently sought to be litigated were sufficiently raised before the City Council.Ē

Justices Harry Hull and Ronald B. Robie concurred in the opinion.

The case is Citizens for Open Government v. City of Lodi (Browman Development Co.) 06 S.O.S. 5466.


Copyright 2006, Metropolitan News Company