Melom v. City of Madera, No. F055024 (Mar, 24, 2010) available at CourtWebsite
In a decision clarifying when urban decay analysis must be conducted for a development project, the Court of Appeal recently held that building a retail store called a “supercenter” does not automatically require the project’s environmental impact report (EIR) to include an examination of possible urban decay effects.
In Patricia Melom v. City of Madera, Case No. MCV037268 (Ct.App. March, 24, 2010), Melom contended that the City violated CEQA by approving a retail shopping center project without preparing a subsequent or supplemental EIR after the largest retail space on the site plan grew significantly in square footage. In November of 2006, the City had certified an EIR for a project described as a “proposed retail center” with “approximately 795,000 square feet of gross floor area.” A conceptual site plan in the EIR showed approximately 30 retail spaces, the largest of which was 125,000 square feet. In March 2007, the developer submitted a “refined” site plan with the largest retail space described as approximately 198,500 square feet. The refined site plan identified the tenant of the largest retail space as a Super Target store. In June 2007, the City prepared an addendum to the EIR that concluded that there were no substantial changes proposed in the project requiring major revisions of the previous EIR.
The trial court held that the City did not violate CEQA and Melom subsequently appealed. Melom claimed that, based on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield) and American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062 (American Canyon), whenever a governmental entity approves a project that includes a so-called “supercenter,” such an approval requires an EIR addressing “potential urban decay effects” that might result from the supercenter.
The Court of Appeal disagreed with Melom’s interpretation, stating that although the holdings in Bakersfield and American Canyon both repeatedly used the term “supercenter,” the term was not defined anywhere in those cases or in any statute or CEQA Guideline. The court went on to explain that for the purposes of CEQA, the important issue is whether an agency proposes or intends to carry out or approve a project that would have a significant effect on the environment. When there has been a subsequent change to such a project, the question then becomes whether those changes would require a major revision of a previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The court clarified that it is the project or the change in the project that is the focus of the inquiry; not whether the project or change in the project is of a certain type (such as a supercenter). The court expressly declined to interpret Bakersfield or American Canyon as holding that urban decay effects must necessarily be examined whenever a project includes something called a supercenter.
