GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY P...
GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY Part I
GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY Part I 06:27:2006
GILROY CITIZENS FOR RESPONSIBLE PLANNING v. CITY OF GILROY
Filed 6/22/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
GILROY CITIZENS FOR RESPONSIBLE PLANNING et al.,
Plaintiffs and Appellants,
v.
CITY OF GILROY,
Defendant and Respondent;
WAL-MART STORES, INC., et al.,
Real Parties in Interest and Respondents.
H028539
(Santa Clara County
Super. Ct. No. CV019110)
Plaintiffs Gilroy Citizens for Responsible Planning, Steve Jones, Carmen Soto, and Lenny Ortega (hereafter, collectively, Citizens),[1] opposed to the construction of a Wal-Mart Supercenter (Supercenter) in the Pacheco Pass Shopping Center in Gilroy, appeal the denial of their petition for a writ of mandate to set aside defendant City of Gilroy (City)'s certification of an Environmental Impact Report (EIR) and approval of the Supercenter. They assert that City violated the California Environmental Quality Act (CEQA)[2] by failing to comply with procedural requirements and by failing to include a study of certain adverse impacts and mitigation measures in the final EIR.
FACTS
In 2002, real party in interest Newman Development Group of Gilroy (Newman) proposed building a 219,622 square foot supercenter in the Gilroy Highway 152 Retail Center. The Retail Center would be a large-scale retail and business/industrial park located in the western portion of the Rincon Plaza Project. This planned high-intensity or regional-type shopping center was in the then-10-year-old 174-acre Rincon Plaza Annexation area east of Highway 101 and north of Highway 152 (Pacheco Pass Highway).[3] The Supercenter's 20-acre parcel was already zoned â€
Description
Citizens objecting to environmental impact report for proposed retail supercenter on ground that it failed to notify the public it tiered from EIR for earlier project for site on which the center would be located failed to exhaust administrative remedies where draft EIR identified the earlier EIR and several studies antecedent to it as connected to its preparation. Citizens did not object to the adequacy of disclosure during administrative proceedings when any notice error could easily have been corrected. Draft EIR is subject to 45-day notice requirement under CEQA rather than reasonable notice requirement applicable to final EIRs. Requirement of a 45-day comment period for draft EIRs is absolute. Finding that 45-day notice of availability of draft EIR was given by mail to persons entitled to such notice was supported by circumstantial evidence. Paticuarly pertaining to date of mailing, identities of recipients, absence of evidence to the contrary and presumption that official duty was regularly performed. City was entitled to conclude that urban decay impact of project had been adequately studied where record established that additional formal studies would not add information not already available to the city council when it voted to approve the project. Air quality impact did not preclude approval of project where EIR concluded that air pollution was a significant and unavoidable impact, but city approved the project on the basis of a statement of overriding considerations and all mitigation measures recommended in EIR were adopted.
