Metropolitan News-Enterprise

Thursday, April 6, 2006


Page 1


Court of Appeal Upholds City’s Restrictions on ‘Big Box’ Stores

Justices Reject Wal-Mart Challenge, Say City May Use Police Power to Disperse Commerce


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Fifth District Court of Appeal yesterday affirmed a local zoning ordinance that bars the development of “big box” retail stores with full service grocery departments.

The court affirmed a ruling by a Stanislaus Superior Court judge in favor of the City of Turlock. In doing so, it rejected Wal-Mart Stores, Inc.’s contention that the city exceeded its constitutional authority by limiting the size of retail stores that devote more than five percent of their sales floor area to groceries and other nontaxable items to 100,000 square feet.

The court also concluded that the city was not required to adopt an environmental impact report before passing the ordinance.

Turlock is one of a number of communities eyed by Wal-Mart in recent years as possible locations for “supercenters,” which have often proved controversial in California as well as elsewhere. The Turlock center would have included 220,000 square feet of space, about a quarter of it devoted to grocery operations.

Wal-Mart argued that development of the center, which would be located near State Road 99, would be environmentally sound because it would generate fewer vehicle trips than such alternatives as a standard shopping center, a large discount club, or a large discount store with a grocery store nearby.

Dispersal of Commerce

In adopting the ordinance, however, the council concluded that superstores are inconsistent with the city’s desire to distribute commerce throughout the city by encouraging development of neighborhood shopping centers and with the city’s general plan, and that dispersing retail operations throughout the community encourages customers to walk or bicycle to the stores rather than using their cars.

In concluded that an EIR was not required, Court of Appeal Justice Betty Dawson said there would be no changes in the physical condition of the city, so the amendment did not relate to a “project” within the meaning of the California Environmental Quality Act.

The justice rejected Wal-Mart’s argument that the inevitable result of the restrictions was that a multi-tenant shopping center would be built on the site, and that the environmental impacts of such a center had to be weighed under CEQA. Dawson said the evidence in the administrative record did not establish any such inevitability.

The opinion of a real estate broker and developer supporting Wal-Mart’s contention, Dawson wrote, was “is not substantiated by any reference to any market study or expression of interest by any supermarket developer.”

Police Power

The justice went on to say that the city acted within its police power in adopting the ordinance, rejecting Wal-Mart’s contention that it was specifically targeted by the measure and that its purpose was to suppress competition.

The city, the justice said, was making a legitimate choice as to how land should be best developed.

She wrote:

“[T]he simple fact that Wal-Mart was the first company to feel the effect of the Ordinance is not sufficient to establish that Wal-Mart was targeted in any unconstitutional manner.If that fact were enough to require a finding that a local governmental entity had exceeded its police power, then local government could never react to new situations brought to its attention by a specific proposal without having that reaction invalidated under the claim that it ‘targeted’ the specific proposal.In short, local governments need the flexibility to react to specific proposals for a new kind of development not previously contemplated where such a development will or may have harmful consequences to the locality’s legitimate planning objectives.”

The justice went on to say:

“In summary, the police power empowers cities to control and organize development within their boundaries as a means of serving the general welfare.[Turlock] legitimately chose to organize the development within its boundaries using neighborhood shopping centers dispersed throughout the city.The Ordinance is reasonably related to protecting that development choice.”

The case is Wal-Mart Stores, Inc. v. City of Turlock, 06 S.O.S. 1715.


Copyright 2006, Metropolitan News Company